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HAN D-BOOK
INTERNATIONAL LAW
BY CAPTAIN EDWIN PI IQLENN
Acting Judge Advocate United States Army

ST. PAUL, MINN.
WEST PUBLISHING CO.
1895
COPYRIGHT, 1895,
BY
WEST PUBLISHING COMPANY.
G)
§€gw,t,$;ﬂ¢éii,“ Q‘@""I'$¢“JIM.1L1
TO
MAJOR GENERAL WESLEY MERRITT,
UNITED STATES ARMY,
In recognition of his high qualities as a man and soldier,
THIS BOOK IS RESPECTFULLY INSCRIBED.
(iii)*
PREFACE.
In the preparation of this work the controlling purpose has been
to so place the leading principles of Public International Law before
the student’s mind that they can be readily grasped. The book is in-
tended primarily for the use of students in their law school work, and
such others as may wish to ﬁnd the principles governing international
relations stated in a brief and concise manner. It is not intended
to follow and discuss these principles in their many ramiﬁcations
of actual practice, but their application has been illustrated with
Well-considered cases stated in as brief a manner as possible. It is
believed that, having the principles clearly stated and well ﬁxed in
the mind, the student will be all the better prepared to follow the
reasoning of the eminent jurists, statesmen, and writers in their
practical application of them. No attempt has been made to pre-
pare a substitute for the many excellent text-books which treat this
subject in an exhaustive manner, but rather to prepare the student‘s
mind for the more ready and complete comprehension of them.
With this object in view, reference has been made in the notes to
most, if not to all, of the leading authorities. These references have
been prepared with great care for the purpose of enabling those who
are called upon to instruct, as well as those who may desire to
further pursue the subjects treated, to ascertain the exact place of
treatment in the works referred to. In the citation of cases every
eﬁort has been made to select such as will illustrate in the clearest
and most concise manner the principle enunciated. The deﬁnitions
selected and placed in the body of the work are such as appeared to
be the most accurate, but these, certainly the more important, will
be found supplemented with others which-have been collected and
placed in the notes.
There has been no attempt to treat this subject chronologically,
so that for a history of international relations, which is most in-
INTERNAT.LAW (v)
293161
vi ‘ PREFACE.
teresting and important to the international lawyer, reference
will have to be made to the excellent works of such authors
as Messrs. Y'Vheaton, Ward, Hosack, and others. No attempt has
been made to be original in statements of the principles of the law,
but these have been freely copied from authorities of recognized
standing. In fact, it is believed that nothing should more promptly
cause the condemnation of a book upon any branch of the law than the
fact that it attempts the statement of ﬁxed rules of law in an original
manner, merely for the purpose of originality. rl‘his is particularly
true of international law, so much of which is formulated custom,
requiring sanction and judicial determinations for such an extended
period before being accepted into this body of rules. In this body
of law neither new rules, nor modiﬁcations of existing rules, should
be stated except with the greatest care, since their adoption by the
states forming the international community must be well established
in order to warrant such a course. It will be observed that the
practice of the United States and England—especially that of the
former—has been given most prominence, in some instances, even
where the practice of the majority of the states does not accord
with it.
Advantage has been taken of the opportunity presented to draw
information and material from the labors of others. Among the list
of authorities cited herein, while all have been freely consulted and
used, special mention is due to Messrs. Woolsey, Halleck, Davis,
Wheaton, and Snow of this country, to Messrs. Bluntschli and Calvo
of the continental writers, and to Messrs. Pitt Cobbett, Lawrence,
and Hall of England. The treatise on this subject by the last-
named gentleman is considered so excellent, both as to statement
and arrangement of material, that great beneﬁt has been derived from
it. The analysis of this subject and selection of cases by Mr. Snow,
both of which are excellent, have been freely used. With the
exception of the two authors named, full credit has been given them
for quotations from their works.
EDWIN F. GLENN.
St. Paul, Minnesota, July 11, 1895.
Section
.‘JQ’SJ‘PWNP
10-11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
TABLE OF CONTENTS.

INTRODUCTION.
Page
Division into Public and Private International Law. . . . . . . . 1
Deﬁnition of Public International Law or the Law of Nations 1
Deﬁnition of Private International Law . . . . . . . . . . ..' . . . . . .. 2-4
Views as to Nature of these Rules of Conduct . . . . . . . . . . . . . . 5-6
Sources of International Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6-9
International Law a Part of the Municipal Law . . . . . . . . . . . 9-10
International Law a Branch of True Law . . . . . . . . . . . . . . . . . . 11-12
CHAPTER I.
PERSONS IN INTERNATIONAL LAW.
Who are Persons in International Law . . . . . . . . . . . . . . . . . . . . 15-16
Deﬁnition of a State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 17-18
Personality or Identity of State—How Affected . . . . . . . . . . . . 18-19
Union of States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Personal Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20-21
Real Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Federal or Centralized State . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Confederated States, or Confederate Union . . . . . . . . . . . . . 22-23
Protected States—States under Suzerainty . . . . . . . . . . . . . . 24-25
Neutralized States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
What States the Subjects of International Law . . . . . . . . . . . . . 25-26
De Facto States—Belligerency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26-27
Right of Belligerent States to Demand Recognition . . . . . . . . . 27-28
When Recognition of Belligerency Permissible . . . . . . . . . . . . 28-30
Eﬁect of Recognition of Belligerency . . . . . . . . . . . . . . . . . . . . . . 31
Equality of States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31-32
CHAPTER II.
THE COMMENCEMENT OF STATES—FUNDAMENTAL RIGHTS AND
25.
26.
INTERNAT. LAW
DUTIES.
Date of Commencernent of State . . . . . . . .. . . . . . . . . . . . . . . .. . 33-34
When Recognition of New State by Third States Proper. .. . 34-35
(vii) '
viii
TABLE or‘ CONTENTS.
Section
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37 .
38.
39.
40.
41.
42.
43.
45-46.
47.
48.
49.
50. w
51.
52.
53.
55.
56-58.
59.
61.
i Page
Methods of Recognition of New State . . . . . . . . . . . . . . . . . . . .. . 35-36 '
Effect of Change of Sovereignty—Upon Public Rights and
Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36-39
Upon Private Rights. . .- . . . . . . . . . . . . . .1 . . . . . . . . . . .'. . . .. . 39-40
The Fundamental ' Rights of States—To Maintain and De-
velop State Existence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40-41
Alienating and Using Territory, etc . . . . . . . . .' . . . . . . . . . . . 41-42
Independence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42-43
The Fundamental Duties of States. . . . . . . . . . . . . . . . . . . . . . . . 44
CHAPTER III.
TERRITORIAL PROPERTY OF A_ STATE.
In General .' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ~ 45
Modes of Acquiring Territorial Property—Occupancy . . . . . . . 45-46
Area Affected by Occupation . . . . . . . . . . . . . . . . . . . . . . . . . . 47-49
Cession ................................... ...... .. . 49-50
Prescription . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50-52 .
Accretion . . . . . ' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I I. 52-53 .
‘Acquisition of Rights in Foreign Territory—Servitudes . . . . . . a 53-54
The Navigation of Rivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54-56
Boundaries of States-How Determined . . . . . . . . . . . . . . . . . . . . 56-57
Territorial Waters of a State. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57-59
Present Rule as to Marginal VVa'ters . . . . . . . . . . . . . . . . . .. 59
Bays, Gulfs, and Straits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60-63
CHAPTER IV.
TERRITORIAL JURISDICTION.
Meaning of Term “Exterri'toriality”. . . . . . . . . . . . . . . . . . . . . . . . 64-65
Sovereigns and Their Suites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65-67
Diplomatic Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .- . . . . . . 68
Criminal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68-70
Civil Jurisdiction ................ . . .’. ............. .. 7041
Family and Suite of Diplomatic Agent . . . . . . . . . . . . . . . . . . 71-72
House of Diplomatic Agent . . . . . . . . . . . ._ . . . . . . . . . .3 . . . . . 72
Right of Asylum in Legations . . . . . . . . . . . . . . . . . . . . . . . . . . 73-74
Immunities as to Evidence.v . . . . . . . . . . . . - . . . . . . . . . . . . . . . 74
Vessels of War, Public Vessels, and Armed Forces. .. ... . . . . 74-77
Merchant Vessels - . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Right of . . . . . . 77-79
Aliens—Exemptions from Military or Naval Duty. . . . . . . . . . 80-81
TABLE on CONTENTS. ' ix
Section 1 Page
62-65. Extraterritorial Acts of Persons by Direction of Their State. 81-83
66. Responsibility of a State in Case of Civil Commotion and
Mob Violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83-85
67. Extradition of Fugitives from Justice. . . . . . . . . . . . . . . . . . . . . 85-86
68.‘ Political Oifenses .. . .Y . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86-87
69.” Extradition of Its Own Citizens by a State . . . . . . . . . . . . . . 87-88
' 7o. Jurisdiction of Offenses beyond the Limits of the State... . 88-90
CHAPTER v.
JURISDICTION ON THE HIGH SEAS AND UNOCCUPIED PLACES.
71. Nature of Jurisdiction over Members of the State Com-
munity, and Property . . . . . . . . .I . . . . . . . . . . . . . . . . . . . . . . . . . . 91
72. Territoriality of Merchant Ships—Jurisdiction over . . . . . . . . . 92-96
73-74. Piracy .. ...................................... .. 97-101
75. Rebels and Insurgents as Pirates . . . . . . . . . . . . . . . . . . . . . .101—103
76. . Letters ofLMarque—Privateers . . . . . . . . . . . . . . . . . . . . . . . .103—104
77. The Slave Trade as Piracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
CHAPTER VI.
THE AGENTS or‘ ‘A STATE IN INTERNATIONAL RELATIONS.
78. Who are Agents in International Aﬁairs . . . . . . . . . . . . . . . . . . .105—106
79. Public Diplomatic Agents—Classiﬁcation of . . . . . . . . . . . . . . . . 106
80. Refusal to Receive Diplomatic Agent . . . . . . . . . . . . . . . . . . .106—107
81. Commencement of Mission . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
82. _ Rights of Diplomatic Agents. . . . . . . . . . . . . . . . . . . . . . .. . . .108—109
83. Termination of Mission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .109—111
84. Rights of Diplomatic Agents in Third States . . . . . . . . . . .112—114
85-86. Consuls . . . . . . . . .' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
.87. Functions . . . . . . . . . . . . .' . . . . . . . . . . . .' . . . . . . . . . . . . . . . . .115—116
88. Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .116—117
89. Dismissal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117-118
90. Privileges .......... ..‘ ......... . .6 .......... ... .... . .118—119
CHAPTER VII.
INTERVENTION.
91. In General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .120—124
X TABLE OF CONTENTS.
CHAPTER VIII.
NATIONALITY.
Section Page
92. Deﬁned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .125-127
93. Citizenship . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .127-129
94. Indelible Allegiance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
95. . Expatriation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .130-131
96. Naturalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .131-132
97. Effect of Incomplete Naturalization—As to New State . . . . . . .132—133
98. As to Other States. . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . .133-136
99. Status of Indians in the United States . . . . . . . . . . . . . . . . . . . . .137—138
CHAPTER IX.
TREATIES.
100. Treaties Deﬁned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
101. Essentials of Valid Treaty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .140—142
102. Form of the Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
103. Ratiﬁcation ................................. ..‘ ........ . .142-144
104. Rules for Interpretation of Treaties . . . . . . . . . . . . . . . . . . . . . . ..144-146
105. Conﬂicting Provisions of the Same Treaty or of Different ‘
Treaties . . . . . . . . . . . . . . . . . . . . . . ............_.............146-148*
106. Treaties of Guaranty . . . . . ..' . . . . . . . . . . . . . . . . . . . . . . . . . . . .~ . .148—149
107. When Treaty Becomes Operative . . . . . . , . . . . . . . . . . . . . . . . . . .149-151
108-109. Extinction of Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .151—152
110. Voidable Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .153—154
111. Renewal of Treaties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
112. Most-Favored Nation Clause . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . 154
CHAPTER . X.
AMICABLE SETTLEMENT OF DISPUTES.
113. Mediation . . . . . . . . . . . . . . . . . . . . . . . . . . 155
114. Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .155-156
115. Disregard of Award . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .156—157
116. Measures of Restraint Short of War . . . . . . . . . . . . . . . . . . . . .. . 157
117. Retorsion . . . . . . . . . . . . . . . . . . . . . . . . . . 157
118. Reprisals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .158—159
119. Embargo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160-161
120. Paciﬁc Blockade . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3161-163
TABLE OF CONTENTS. xi
CHAPTER XI.
INTERNATIONAL RELATIONS IN WAR.
Section Page
121. Deﬁnition of War. .. .. .................. ... ..... .... ..167-168
122-124. Kinds of War . . . . . . . . . . . ‘. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .168-171
125. Causes of War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .171-172
126. Object of War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
127. Object not Limited to Cause for Which Commenced . . . . . . . . 173
128. Declaration of War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .173-174
129. Date of Commencement of War . . . . . . . . . . . . . . . . . . . . . . . .. . 175
(JIIIIIHIUEIE'IIII.
EFFECTS OF WAR—AS TO PERSONS.
130. Who are Enemies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .176-178
131. Effect upon the Relations of Enemies . . . . . . . . . . . . . . . . . . . . . .178-179
132. Who are Noncombatants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
133. _Who are Combatants . . . . . . .* . . . . . . . . . . . . . . . .‘ . . . . . . . . . . . . . .181-184
134. Maritime War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
135. Privateers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .184-186
136. Volunteer Navy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
137. Prisoners of War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .187-188
,138—142. Treatment of Prisoners of W’ar . . . . . . . . . . . . . . . . . . . . . . . . . . . .188—189
143. Exchange of Prisoners of War . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 ‘
144. Ransom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190
145. Parole . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .190-191
CHAPTER XIII.
EFFECTS OF WAR—AS TO PROPERTY.
146. - The Old Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
147. Property Owned by the State—Movable Property . . . . . . . . . . .192—193
148. Immovable Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .193-194
149. Private Property in Enemy Territory—Immovable Property. . 195
150. Movable Property—Contributions and Requisitions . . . . . .195—197
151. Foraging .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
152. Booty . . . . . . . . . . . . . . . . . . . . .' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 198
153. Private Property Within Enemy’s Jurisdiction . . . . . . . . . . . . . .198-200
154. Property of the Enemy Aﬂoat in Ports, etc . . . . . . . . . . . . . . . . .200-201
155. Private Property not Within the Territory of any State. . . . . .201-202
156.
Rule as to Fishing Vessels. . . ._ . . . . . . . . . . . . . . . . . . . . . . . . . . . .202-203
xii
’TABLE OF CONTENTS.
Secﬁon _
157.
158.
159.
160.
161.
162.
163.
164.‘
165.
166.
167.
168.
169.
170.
. 171.
172.
173-174..
175.
176.
177.
178.
179.
180.
181.
182.
183.
_ I Page
What Constitutes a Valid Capture . . . . . . . . . . . . . . . . . . . . . . . . .203-204.
Disposition of Captured Property . . . . . . . . . . . . . . . . . . . . . . _. 205
Ransom ............ .f ............................... . .206-207
Loss of Captured Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .207-208
CHAPTER XIV.
POSTLIMINIUM.
Postliminium Deﬁned . . . . . . . . . . . . _. . . . . . . . .' . . . . . . . . . . . . . . .209-210
Limitations upon the Rights of Postliminium . . . . . . . . . . . . . . .210—211
Acts in Excess of Legal Powers. .. .. I. . .* . . . . . . . . . . . . . . . . . .211-212
Effect of Expulsion of the Enemy by a Power not anAlly. . .212-213
Recapture . . .5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
Salvage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ._ . . . . . . . . . . 214
Rescue by Neutrals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215
CHAPTER XV.
MILITARY OCCUPATION
Military Occupation Deﬁned . . . . . . . . . ._ . . . . . . . . . . . . . . . . . . . . .216-218
Extent of the Rights of Military Occupation . . . . . . . . . . . . . . . .218-219
The Beginning of Occupation . . . . . . . . . . . . . . . . . . . . . . . . . . . . .219-220
Constructive Occupation . . . . . .7 . . . . ._ . . . . . . . . . . . . . . . . . . . . . . .220—221 I
Rights Exercised over the Persons of the Occupied Territory.221-223
Practice in Regard to Administrative Matter-s . . . . . . . . . . . . . . 224
Duties of an Occupant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .224—225
When Occupation Ceases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
CHAPTER XVI. ,
MEANS OF CARRYING ON I-IOSTILITIES.
Instruments of War. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
Limitation upon Instruments Used-Use of Instruments Ren-
dering Death Inevitable.’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226
Devastation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
Attack of Forts, Fortiﬁed and Other Places . . . . . . . . . . . . . . . .227-228
Employment of Deceit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .229-230
Spies .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .230-231
Employment of Balloons . . . . . .- . . . . . . . . . . . . . I . . . . . . . . . . . . . .' 231
TABLE OF CONTENTS. xiii
CHAPTER XVII.
ENEMY CHARACTER.
Section ‘ Page
184. To Whom Attributed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .232—233
185. Domicile . .. ........................................ ..233-234
186. Change of Domicile . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . 235
187. House of Trade . . . . . . .i . . . . . . . . . . . . . . . . . . . . . .\ . . . . . . . . . . . .236—237
188. Enemy Character as to Property . . . . . . . . . . . . . . . . . . . . . . . . 237
189. Transfer of Property in War, or in Anticipation of War. . . . . 238
190. Merchandise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238
191. Vessels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .238—239
192. Transfers in Transitu . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .239—240
193. Goods Consigned from Belligerent Ports by Belligerents to
Neutrals, and Vice Versa. .. . .‘ . . . . . . . . . . . . . . . . . . . . . . . . . . .240—241
194. Effect of Occupation by the Enemy of Territory of Other
Belligerent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
CHAPTER XVIII.
NON—HOSTILE RELATIONS.
195. Commercia Belli ............. ..l ..... > 243
196. Flags of Truce . . . . . . .‘ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244
197-198. Passports and Safe-Conducts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245
199—200. Suspensions of Arms, Truces, and Armistices . . . . . . . . . . . . . .245-247
201. Commencement of a Truce or Armistice . . . . . . . . . . . . . . . . . . . 248
202. Conclusion of Truce or Armistice . . . . . . . . . . . . . . . . . . . . . . . .. . 248
203. Cartels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
204. Cartel Ship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 249
205. Capitulations ...................................... .. 250
206. Safeguards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251
207. Licenses to Trade ........................ ......... .....251-253'
CHAPTER XIX.
TERMINATION OF WAR.
20,8. Methods of Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
209. Under Treaty of Peace . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .254—256
210. By a’ Simple Cessation of Hostilities . . . . . . . . . . . . . . . . . . . . .. . 256
211. Eﬁect of a Proclamation of the Executive in a Civil War. . . . 257
212. The General Eﬁect of a Treaty of Peace . . . . . . . . . . . . . . . . . . . 257
213: The Principle of Uti Possidetis . . . . . . . . .~ . . . . . . . . . . . . . . . . . . .
258
xiv
TABLE OF CON TENTS.
Section
214-216.
217.
218.
219.
220.
221.
222.
223.
224.
\ Page
The Effect of a Treaty of Peace upon Acts Done Before the
Commencement of War . . . . . . . . . ._ . . . . . . . . . . . . . . . . . . . . . ‘ 259
Eﬁect of a Treaty of Peace upon Acts Done During the War.259-260
Effect of a Treaty of Peace upon Acts Done After the War. . 260
Conquest . . . . . . . . . . . . . . . . . . . . ; . . . . . . . . . . . . . . . . . . . . . . . . . . .261—263
Effects of Conquest . . . . . . . . . . . . . . . . . . . . . . . . .p . . . . . . . . . . . . .263—264
CHAPTER XX.
IN GENERAL OF NEUTRALITY.
Neutrality Deﬁned—Sketch of the Subject . . . . . . . . . . . . . . . . . .267—272
Permanent Neutrality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272
Armed Neutrality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273
Division of Subject . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .274—275
CHAPTER
THE LAW OF NEUTRALITY BETWEEN BELLIGERENT AND NEU—
225.
226.
227.
228.
229.
230.
231.
232.
233.
234.
235.
236.
237.
238.
239.
240.
241.
TRAL STATES.
Furnishing Troops to a Belligerent under Treaty . . . . . . . . . . .276—277
Loans to Belligerents—By a Neutral State . . . . . . . . . . . . . . . . . . 277
By Neutral Individuals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .' 278
Sales of Munitions of War, etc., by a Neutral State . . . . . . . . . .279—280
Levies of Troops within Neutral Territory by a Belligerent. 1280-281
Use of Neutral Territory for Transit of Troops . . . . . . . . . . . . .281—282
Commission of Hostilities in Neutral Territory . . . . . . . . . . . .. 283
Use of Neutral Territory as a Base of Operations . . . . . . . . . . .283—284
Fitting Out Hostile Expeditions in Neutral Territory . . . . . . . .284—285
Equipment of Vessels of War in Neutral Territory . . . . . . . . . .286—293
Effect of Neutral Territory upon Persons—Prisoners of War.293—294
Right of Asylum to Belligerent Troops . . . . . . . . . . . . . . . . . 294
Right of Asylum to Naval Forces . . . . . . . . . . . . . . . . . . . . . .294—295
Effect of Neutral Territory upon Property of Belligerent. .. . 295
Duty of Neutral State in Regard to Injuries to Belligerents
Committed upon Its Territory . . . . . . . . . . . . . . . . . . . . . . . . . . . 296
‘Property Captured in Violation of Neutrality . . . . . . . . . . . . . 297
Captured Vessel Converted into Public Vessel of Belligerent. 297
TABLE OF CONTENTS xv
Section
242.
243.
244.
245-246.
247.
248.-
249-250.
251.
252.
253.
254.
255.
256.
257.
258.
259.
260-261.
262.
263.
264.
265.
266.
267.
268.
269.
270.
271-272.
1 273. ‘
274.
. 27 5.
CHAPTER XXII.
CONTRABAND.
Page
Contraband Deﬁned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .298-301
Arms and Munitions of War. . ._ . . . . . . . . . . . . . . . . . . . . . . . . . . . 302
Articles for Manufacture of Same, and Equipments . . . . . . . . .303-306
Penalty for Carrying Contraband... .. . . . . . . . . . . . . . . . . . . . ..307-308
Pre-empti-on . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308
Time when Penalty Attaches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .308-309
The Carriage of Dispatches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .309-310
Carriage of Persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 310
Penalty for Carrying Hostile Persons and Papers.- . . . . . . . . . .311-312
Carriage of Same in Ordinary Course of Business . . . . . . . . . . .312-314
CHAPTER XXIII.
BLOCKAD'E.
Blockade Deﬁned . . . . . . . . . . . . . . . . . . . .' . . . . . . . . . . . . . . . . . . . .315-316
Places That can be Blockaded . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316
Commercial Blockade . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .316—317
Notiﬁcation of Blockade . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .317-318
What Constitutes a Valid Blockade . . . . . . . . . . . . . . . . . . . . . . 318-319
When a Blockade Ceases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .319-320
Eifect of Blockade upon Vessels in the Blockaded Port . . . . . .320-321
What is a Breach of Blockade . . . . . . . . . . . . . .. . . . . . . . . . . . . . . 322
Penalty for Breach of Blockade . . . . . . . . . . . . . . . . . . . . . . . . . . . 323
When Penalty Attaches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323
Blockade of a River Partly in Neutral Territory . . . . . . . . . . . . 324
The Rule of the War of 1796 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .324—325
Continuous Voyages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .326-327
CHAPTER XXIV..
VISIT AND SEARCH, AND RIGHT OF ANGARY.
‘The Right Deﬁned ..................................... .. 328
Who can Visit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329
Who Liable to Exercise of the Right.‘ . . . . . . . . . . . . . . . . . ._.. . 329
Convoy Deﬁned—Exemption from Visit and Search . . . . . . . .329-331
Formalities in Exercising the Right of Search . . . . . . . . . . . . . .331—332
When a Vessel may be Captured . . . . . . . . . . . . . . . . . . . . . . . . . .332-334
Spoliation of Papers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 334
xvi TABLE OF CONTENTS. -
Section ' Page
276. The Right of Search in Time of Peace. . . . . . . . . . . . . . . . . . . . .334-335
2770 OaptOILHHu o n o o a o c s nono0000o0000000000000335_336
278. Capture of Enemy’s Goods in Neutral Vessels. .. .. .. .. .. .. .336-337
2N‘ AngaryooiIo000000000.000000.000000‘\OQIOI00337_338
APPENDIX.
Instructions for the Government of Armies of the United States in the
Field, (Lieber.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .839-364
Papers Carried by Vessels in Evidence of their Nationality, and other
Papers which Ought to be Found on Board. . . . . . . . . . . . . . . . . . . . . . . .365-370
The Declaration of Paris . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .871—372
The Declaration of St. Petersburg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373
The Geneva Convention for the Amelioration of the Condition of the
Sick and Wounded of Armies in the Field . . . . . . . . . . . . . . . . . . .‘ . . . . . .374-375
The Laws of War on Land (Recommended for adoption by the Institute
of International Law at its session in Oxford, September 9, 1880.). . .376-388
The Brussels Conference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i. . . .389-412
LIST OF AUTHORITIES.

AMERICAN & ENGLISH ENCYCLOPEDIA OF LAW. 1887.
AUSTIN, JOHN. Jurisprudence. 3 vols. London. 1861.
BIRKHIMER, W. E. Military Government and Martial Law. Washington,
D. C. 1892.
BLUNTSCHLI, J. C. Droit International. French Ed. 1 vol. 1886.
BYNKERSHOEK, C. VAN, by Du Ponceau, P. T. Treatise on the Law of
War. Philadelphia. 1810.
CADVVALATER, JOHN L. Digest of the Published Opinions of Attorneys
General, and Leading Cases on International Law, etc. Goverment Print-
ing Oﬂ'ice, Washington. 1877.
CALVO, CHARLES. Le Droit International, Theorique et Pratique. French
Ed. 5 vols. 1887—88.
CREASY, EDWARD S. First Platform of International Law. London. 1876.
DAHLGREN, J. A. Maritime International Law. Boston. 1877. _
DAVIS, GEO. B. Outlines of International Law. New York. 1887.
DAVIS, J. C. BANCROFT. Mr. Fish, The Alabama Claims. Boston and
New York. 1893. ' ~
_ FIELD, DAVID DUDLEY. Outlines of an International Code. 2d Ed. New
York. 187 6.
GALLAUDET, E. M. A Manual of International Law. 4th Ed. 2 vols. New
York. 1892.
GROTIUS,-HUGO, by Whewell, William. De J are Belli et Pacis. 3 vols-
Cambridge. 1853.
HALL, W. E. A Treatise on International Law. Oxford. 1890.
HALLECK, H. W. International Law. Baker’s Ed. 2 vols. London. 1878.
HASWELL, JOHN H. Treaties, etc., between the United States and Other
Powers. 1776-1889. Government Printing Ofﬁce, Washington.
HEFFTER, A. G. Le Droit International put. de l’Europe. 1 vol. Paris.
1866.
HOSACK, JOHN. The Rise and Growth of the Law of Nations. London.
1882.
)KENT, JAMES. Commentaries on American Law. 4 vols. Philadelphia.
1889.
INTERNAT-LAW.—b (xvii)
~ xviii LIST or AUTHORITIES.
KLUBER, J. L. Droit des Gens Moderne de l’Europe. Paris. 1861. _
KLUBER, J. L. Droit des Gens Moderne de l’Europe. 2d Ed. Paris. 1874.
LAWRENCE, T. J. Essays on Some Disputed Questions in Modern Inter- ‘
national Law. Cambridge. 1885.
LAWRENCE, T. .I. Handbook of Public International Law. 3d Ed. 1 vol.
Cambridge. 1890. v _
LEVI, LEONE. International Law. 1 vol. New York. 1888.
MAINE, H. S. Ancient Law. 1 vol. New York. 1888.
MAINE, H. S. International Law. 1 vol. New York. 1888.
MANNING, W. 0., by Sheldon, Amos. Commentaries on the Law of Nations.‘
1 vol. London. 1875. ' '
MOORE, JOHN BASSETT. Extradition and Interstate Rendition. 2 vols.
Boston, 1891. '
NYS, ERNEST. Droit International. 1 vol. French Ed. 1894.
OPINIONS OF THE ATTORNEYS GENERAL OF THE UNITED STATES.
Vols. 1 to 20.
PAINE, WILLIAM P. Chronology and Analysis of International Law. 1 vol.
London. 1889.
PHILLIHORE, ROBERT. Commentaries on International Law. 3 vols.
Philadelphia. 1854.
PITT, COBBETT. Leading Cases and Opinions on International Law. 2d
Ed. London. 1892.
RED BOOK, The. Diplomatic Correspondence of the United States from
1870 to 1894.
SNOW, FREEMAN. Cases and Opinions on International Law. 1 vol. Bos-
ton. 1893.
SNOW, FREEMAN. Treaties and Topics in American Diplomacy. Boston.
' 1894. .
SPEAR, S. T. The Law of Extradition. 1 vol. Albany. 1879.
STEPHEN, SIR JAMES. History of the Criminal Law of England. 3 vols.
London. 1883. . '
STEPHEN, J. K. International Law and International Relations (an Essay).
London. 1884.
STORY, .IOS. Commentaries on the Constitution of the United States. 2
vols. Boston. 1873.
TWISS, TRAVERS. The Law of Nations. 2d Ed. 1 vol. Oxford and Lon-
don. 1875.
VATTEL, E. de, by lngraham. The Law of Nations. 1 vol. Philadelphia.
1870.
LIST or AUTHORITIES. . xix
WALKER, T. A. The Science of International Law. 1 vol. London. 1893.
WESTLAKE, JOHN. Chapters on the Principles of International Law.
Cambridge. 1894.
WHARTON, FRANCIS. A Treatise on Criminal Law. .3 vols. Philadelphia.
1874.
WHARTON, FRANCIS. Digest of the International Law of the United
States. 2d Ed. 3 vols. Washington. 1887.
WHEATON, HENRY, by Dana, R. H. Elements of International Law. Bos-
ton. 1866.
WHEATON, HENRY. Law of Nations in England and America. New York.
1845.
WOOLSEY, THEO. S. Introduction to the Study of International Law. 6th
Ed. 1 vol. New York. 1894.
HAN D-BOOK
OF
INTERNATIONAL LAW.

INTRODUCTION.
Division into Public and Private International Law.
Deﬁnition of Public International Law or the Law of Nations.
Deﬁnition of Private International Law.
Views as to Nature of these Rules of Conduct.
Sources of International Law.
International Law a Part of the Municipal Law.
International Law a Branch of True Law.
I‘JFDPIEFFPNI"
DEFINITION OF INTERNATIONAL LAW.
1. International law is either
(a) Public, or
(b) Private.
2. PUBLIC—Public international law, or, as it is other-
wise called, the “ law of nations,” consists in certain rules
of conduct which modern civilized nations regard as bind-
ing on them in their relations with one another. and en-
forceable by appropriate means in case of infringement.1
1 Some other deﬁnitions are as follows: The rules of conduct regulating
the intercourse of states. 1 Halleck, Int. Law, 41. Consisting of those rules
of conduct which reason deduces, as consonant to justice, from the nature
of the society existing among independent nations, with such deﬁnitions and
modiﬁcations as may be established by general consent. Wheat. Int. Law,
D, § 14. The aggregate of the rules which Christian states acknowledge as
obligatory in their relations to each other, and to each other’s subjects. The
rules also which they unite as in treaties to impose on their subjects, re-
INTERNAT.LAW——1
2 INTRODUCTION.
3. PRIVATE—Private international law consists in the
rules by which courts determine within what national
jurisdiction an action or proceeding equitably falls, or by
what national law it is just that it should be decided.2
From the foregoing deﬁnition it will be noticed that certain con-
cessions or relaxations of sovereign rights by civilized states have
given rise to the body of usage known as “private international
law.” This affects more particularly the relations of individuals,
and is not so much concerned with the relations of states as such.
Naturally, in so far as individuals are affected, it is as members
(of their state, and this more particularly in regard to their private
rights and relations. From this fact the term “private” is ap—
plied, since it is more descriptive of the class of subjects treated.
It is called “international,” because, where municipal laws clash,
civilized states have quite generally adopted the same principles
' in their judicial decisions. It is generally held, for instance, that
a debtor residing in one state cannot claim the beneﬁt of the exemp-
tion laws of that state in garnishment proceedings in another state,
and that a. person who furnishes materials in one state for a build-
ing in another state‘canno-t claim the beneﬁt of the mechanic’s
lien law of the latter state, since the exemption laws and the me-
spectively, for the treatment of one another, are included here, as being in
the end rules of action for the states themselves. Wools. Int. Law (6th Ed.)
§ 5. International law is the collection of recognized facts and principles
which unite different states into a juridical and humanitarian association,
and which, in addition, assures to the citizens of the several states com-
mon protection in the enjoyment of the general rights pertaining to them
as human beings. Bluntschli, Droit International, art. 1.
2 “Private international law is that branch of municipal law which de-
itermines before the courts of what nation a particular action or suit should
be brought, and by the law of what nation it should be determined; in
other words, it regulates private rights as dependent on a diversity of mu-
nicipal laws and jurisdictions applicable to the persons, facts, or things in
dispute, and the subject of it is hence sometimes called the ‘conﬂict of
laws.’ Thus, questions whether a given person owes allegiance to a par-
ticular state where he is domiciled, whether his status, property, rights, and
duties are governed by the lex situs, the lex loci, the lex fori, or the lex
domicilii, are questions with which private international law has to deal.”
Black, Law Dict. tit. “International Law”; Sweet, Law Dict.
DEFINITION OF INTERNATIONAL LAW. 3
chanic’s lien laws have no extra territorial effect. The validity of
contracts is governed by the law of the state in which they are
made; the enforcement of them, by the law of the state in which
action is’brought. These are rules of private international law.
Since this body of laws derives its force from the sovereignty of
the state administering it, it is in effect a subdivision of municipal
law. In consequence, it‘ forms no part of international law proper
or public international law, and further discussion or consideration
of it will not be undertaken.
In illustration of a question of public international law may be
‘cited the Case of General Barrundia, Ex-Secretary of war of Guate-
mala. He had been exiled for certain revolutionary acts in con-
nection with placing himself in power. In 1890 he took passage
in a steamer from the Mexican port of Acapulco for Panama, but
this steamer en route put in, as was customary, at the port of
.San J osé, in Guatemala, and the authorities of Guatemala decided
to arrest him. In attempting to do so on board this steamer, the
general was killed by the police, because he resisted arrest. This
arrest was made with the sanction of the American minister, Mr.
Mizner, who attempted to justify his action mainly upon the ground
that there was imminent danger of the destruction of the vessel
itself, his fears being based upon threats that had been made by
the authorities. ' This involved the question of the right of asylum,
.and there is no question but that, since the offenses of General
Barrundia were exclusively of a political nature, the action of the
Guatemalan authorities was a ﬂagrant violation of the right- of
.asylum on board of a vessel ﬂying the ﬂag of the United States.
‘The correspondence upon this subject was closed by a warning
from the Executive of the United States that protection would be
,aﬁorded in such cases by stationing vessels of war in the vicinity,
if necessary.
Origin of the Terms “Law of Nations” and “International Law.”
The English appellation of, this science was formerly the “law
of nations” from the. jus inter gentcs of Professor Zouch, of Ox-
ford, in the seventeenth century. This jus inter gentes must not
'.be confounded with the jaw gentium of the Romans. The latter ,
term was applied by them to the laws common to both the Roman
4 9 INTRODUCTION.
and Italian law, and sprung into existence from the fact that
the Romans were unwilling to extend to strangers the full beneﬁts
of their jus civile, and from the necessity that existed for some
laws to regulate trade and commerce with foreigners. Maine says:
“The sum of the common ingredients made up a body of law called
the ‘jus gentium.”’ It was the common law of all men; that
' ' which is ‘equally observed among all people.8 Neither should the
term be confounded with the jus naturale which Grotius defines'to
be “the dictate of right reason, indicating that any act, from ‘its
agreement or disagreement with the rational and social nature [of
man], has in it a moral turpitude or a moral necessity; and conse-
quently that such act is forbidden or commanded by God, the
author of nature.” 4 Much-study and research has been expended
upon ascertaining the true signiﬁcation of the foregoing expres-
sions, and has resulted in more or less confusion of ideas, particu-
larly in regard to the term “law of nations,” which many recent‘
writers upon this subject claim does not express with sufficient
accuracy the characteristics of that system of rules of conduct‘
which obtains between independent societies of men. In conse-
quence, Jeremy Bentham, in suggesting the term “international
law” (droit international) as being well adapted in our language to
express in a more signiﬁcant manner that system of jurisprudence-
which commonly goes under the name of “law of nations,” speaks of x
the latter as “a denomination so uncharacteristic that, were it not
for the force of custom, it would rather seem to refer to internal
or municipal jurisprudence.” 5 At present, however, these terms
are used interchangeably in our language without confusion.6
8 Maine, Anc. Law, p. 47.
4 Gro. De Jure B. p. 1, c. 1, § 10.
5 2 Benth. Leg. 256.
6 For more extended discussions of the origin of these terms, see Wheat.
Int. Law, D, 4-6,_ 16-21; Wools. Int. Law, 10; Creasy, Int. Law, 17—21;.
Westl. Int. Law, p. 18 et seq.; Maine, Anc. Law, p. 45; Walk. Int. Law,
62-79, 104; Maine, Int. Law, 20, 26-28.
VIEWS AS TO NATURE OF THESE RULES OF CONDUCT. 5
VIEWS AS TO NATURE OF THESE RULES OF CONDUCT.
4. These rules of conduct may be considered either
(a) As an imperfect attempt to give effect to an ab-
solute right which is assumed to exist and to
be capable of being discovered, or
I (b) As a reﬂection of the moral development and the
' external life of the particular nations which
are governed by them.
Many text writers adopt the former view, and frequently prescribe
‘what they think ought to be, instead of what is, the practice of
nations; and this has tended very much to lessen the esteem in
which the rules of conduct forming the body of international law are
held. . Mr. Hall says, in speaking of this view: “A distinction must
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 rules 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 these
rules can only be effected through the same means by which they
were originally found, namely, by growth in harmony with changes
in the sentiments and external conditions of the body of states.M
Is there an absolute right applicable to human affairs, and, if so,
where are we to ﬁnd it? Suppose it is granted that there is such
a right, the next question that presents itself is, what standard is to
be set up to determine it? There is greater trouble in answering
this question when we have to deal with the relations of states inter
se than when the internal affairs of a state are under consideration,
because, in regard to the latter relations, there is in each state a
superior invested with authority to declare what the law is and to
enforce it. On the other hand, states are independent beings,
recognizing no superior, being subject to no control, and having no
7 Hall, Int. Law, 1, 2.
6 INTRODUCTION.
person or persons to declare what is the law applicable in the regue
lation of their external affairs. Under such conditions, there can
be no rules applicable to their conduct of these affairs which have
not been arbitrarily adopted by the general consent of these in-
dependent states, or the general principles applicable to such af-
fairs must be agreed to by them. Granting that the theory of the
existence of an absolute right is generally acknowledged, we still
have no measure of the obligations of a state except in the rules
of positive law accepted by the body of states as ,such. No moral
obligation can be enforced against a state unless the recognized legal
obligation coincides with it, any more than can an obligation of
an individual of the state be measured by the moral idea of the
society of which he is a member, which is not expressed in the
legal rules, orwhich is in advance of the municipal law deﬁning
his obligation. If, then, international law consists of those prin- .
ciples and deﬁnite rules which states agree to regard as obliga-
tory, where are we to ﬁnd the proof that these principles and rules
have received the sanction necessary to constitute international law?
Since no code has been adopted with international sanction, and
since these rules are unexpressed, the evidence of their existence
must be sought in national acts. And here it may be further ob—
served that there will be found some uncertainty and want of au-
thority in regard to these international rules, due tochanges in the
science growing out of changes in the intellectual and moral def
, velopment of successive generations, and to the fact that states
set up different rules of action according to their temporary or
permanent interests. The same uncertainty and want of authority,
however, attend other political and jural sciences.
SOURCES OF INTERNATIONAL LAW.
5. The following are the chief sources of information to
which reference may be made to ascertain what national
acts constitute international law:
(a) Treaties and conventions, which are either:
(1) Declaratory of common international law,
as understood by the parties.
SOURCES OF INTERNATIONAL LAW. 7
(2) Stipulatory for practices which the parties
desire to incorporate into international law,
although they are aware that the present
rule is otherwise.
(3) Mere personal contracts.”
(b) The works of eminent jurists upon this and kindred
subjects.
(c) The decisions of prize courts, of tribunals of in-
ternational law in each state, and of boards of
arbitration.
(d) The Roman law.
(e) The histories of important epochs; histories both
of war and peace; state papers on controverted
points, etc.
Treaties and Contentions.
Treaties of the ﬁrst class mentioned above, by their nature in-
valuable as being in their inception directly intended by the parties
to them to express their view of actually existing law, are equally
by their nature exceedingly rare. Some examples cited as of this
class are the Declaration of Paris, 1856; Conference of London,
1870; Treaty of Washington, 1870. Those of the second class
are unreliable and uncertain as evidence because they imply the
existence of international law in the sense contrary to that from
which they stipulate, or that international law is silent or has not
suﬁ‘iciently declared itself on the point. When made, these treaties
can have effect only as between the parties to them; and yet, when
their number is large, they can be cited as an argument in favor of
the popularity of the practice they represent. The third class,
being mere bargains, possess no especial value, and scarcely any of
the states are consistent in their treaties with other states. If their
treaties for an extended period are examined, it will be found that
diametrically opposite doctrines or principles are embodied in those
covering the same subjects with different states, and many treaties
are made incorporating an agreement which is contrary to the estab-
8 Walk. Int. Law, 50, note 2.
8 \ INTRODUCTION. ‘
lished practice of one of the contracting parties. Treaties do not
make international law, are not a source of international law, and
are not even conclusively binding, but are evidence as to the ex-
istence of certain rules observed as international law, and valuable
to the international lawyer because the doctrines and principles con-
tained in them are set forth in concise form.
The Works of Eminent Jurists. .
The works of eminent jurists upon this and kindred subjects are,
of course, a most ‘obvious source of information to which we have
recourse. “In cases where the principal jurists agree, the pre-
sumption will be vvery great in favor of their maxims, and no civil-
ized nation that does not arrogantly set all law and justice ‘at de-
iiance will venture to disregard ‘the uniform sense of the establish-
ed writers on international law.”12 These eminent jurists are very
generally appealed to as authorities by Europe and America in
the settlement of their difficulties. It is not only to‘text-books of
authority that reference is made, but other writings of eminent
jurists. Manuals of the usages of war, the oldest of which is
“Instructions for the Government of Armies of the United States in
the Field,” prepared by Francis Lieber during the American Civil
War, are useful, recent productions, being to a certain extent codi-
ﬁcations of the laws of war; and perhaps the most singular feature
of these manuals is the number of rules adopted in them which have
been literallyborrowed from the “De Jure Belli et Pacis,” 1* and
specially from its third book.
The Decisions of Prize Courts, etc.
Another source of information is in the decisions of prize courts,
and of other tribunals of international law- in each state, and of
boards of arbitration. Prize courts are not merely courts of the coun-
try in which they sit, but also courts of international law. Many
cases of international law are adjudicated by other courts in each
country, and their opinions, especially in England and the United
States, are much respected. The respect paid to the conclusions
of boards of arbitration depends upon the character and ﬁtness
of the men selected by the states for the amiable settlement of their
differences.
12 1 Kent, Comm. p. 18. 18 Maine, Int. Law, p. 24.
INTERNATIONAL LAw A PART or MUNICIPAL LAW. 9
The Roman Law.
The Roman law may be said to be the basis of international law.
It has been said that the greater number of controversies between
I states would ﬁnd a just solution in this comprehensive system of
practical equity, which furnishes principles of universal jurispru-
dence, applicable alike to individuals and states. From this
law is derived the doctrine of the absolute equality of states con-
sidered, until recently, so essential to the modern conception of the-
rules of conduct governing their external relations. The system
of international rules, as well as the municipal laws of many Euro
pean states, have been copied directly from the Roman law.
The Histories of Important Epochs, etc.
The histories of important epochs, histories both of war and
peace, and state papers on controverted points will prove not only
a fruitful, but an interesting, source of information as to the body
of rules of international law, and contain a reﬂection of the moral
development of the society of states at any given period. “Ubi
societas ibi jus est.”
INTERNATIONAL LAW A PART OF MUNICIPAL LAW.
6. International law is a part of the municipal law of
states.
Every nation, on being received at her own request into the
circle ‘of civilized government, must understand that she not only
retains the rights of sovereignty and the dignity of national char-
acter, but that she binds herself also to the strict and faithful
observance of all those principles, laws, and usages which have ob-
tained currency among civilized states, and which have for their
object the mitigation of the miseries of war.“ “The law of na-
tions, wherever any question arises which is properly the object
of its jurisdiction, is here [England] adopted in its full extent by
common law, and is held to be a part of the law of the land.” 15
The common law of England forms an essential part of American
jurisprudence.
The law of the United States ought not, if it be avoidable, so
1* 1 Whart. Dig. p. 8. 15 B1. Comm. bk. 4, c. 4.
I
10 ' INTRODUCTION.
to be construed as to infringe on the common principles and usages
of nations and the general doctrines of international law. Even
as to municipal matters the law should be so construed as to
conform to the law of nations, unless the contrary be expressly
prescribed.16 An act of the federal congress ought never to be
construed so as to violate the law of nations if any other possible
construction remains, nor should it be construed to violate neutral
rights or to affect neutral commerce, further than is warranted by
the law of nations as understood in this country.17 The inter-
course of the United States with foreign nations and the policy in
I. regard to them being placed by the constitution in the hands of the
federal government, its decisions upon these subjects are by uni-
versally acknowledged principles of international law obligatory
on everybody.18 The law of nations, unlike foreign municipal law,
does not have to be proved as a fact. The law of nations is part of
the municipal law of separate states,—an integral part of the laws
of the land.19 i
From the above American doctrine it will be seen that inter
national law has precedence of both federal and municipal law, un-
less in exceptional cases where federal law has deliberately de'
parted from it. This American view of the conditions upon which
a state is originally received into the family of civilized nations
does not differ from that entertained by the founders of inter-
national law, and is practically submitted to by the sovereign com-
munities of our day. Any nation which disclaims the authority of
international law would probably place herself outside of the circle
of civilized nations.
16 Talbot v. Seeman, 1 Cranch, 1; The Amelia, 4 Dall. 34; The Charming
Betsy, 2 Cranch, 64.
17 The Charming Betsy, 2 Cranch, 118.
18 Kennett v. Chambers, 14 How. 38. .
19 Res Publica v. De Longchamps, 1 Dall. 111; The Scotia, 14 Wall. 170.
Vide, also, Thirty Hogsheads of Sugar v. Boyle, 9 Cranch, 191, 198; Snow,
Cas. 1-5; Wools. Int. Law, § 29. ' I
INTERNATIONAL LAW A BRANCH OF TRUE LAW.
\
INTERNATIONAL LAW A BRANCH OF TRUE LAW.
7. The rules of conduct governing the relations of states
are legal rules, and constitute a body of true law.
Objection to this view is based upon Austin’s deﬁnition of “law,”
which is, in substance: “A rule laid down for the guidance of an
intelligent being by an intelligent being having authority over
him.”20 From this it is easy to draw the conclusion that inter—
national law is excluded. It is true that no one nation lays down a
law for the guidance of all the other members of the international
community, and calls it “international law.” It is equally true,
however, that this deﬁnition is not strictly applicable to municipal
law, which is formulated custom, and grows out of the moral con-
victions, needs, and history of a people, and is imposed, not by the
ruler upon the people, but by the people on the ruler, and is, as
stated, formulated custom; that that is law, and that nothing else
is law, in the larger sense of the word. It may seem that the king
or ruler makes the law, but this is not true, except in a very limited
way, because he is restrained by the usages of the nation. The
greater part of the laws have grown up from long usage and cus-
tom. The common law of England and America consists of noth-
ing more than usages, some of which have never been placed on the
statute books; yet the judges have decided that they are just,
and, although unwritten, they are regarded as just as binding as
an act of congress. The Austin deﬁnition of “law” is not accepted
by writers of authority at the present time. Although some admit
that international law does not conform to the most perfect type
of law, still, notwithstanding all that may be said in regard to
its want of sovereign authority and a tribunal, or of its want of
20 Following the Austin doctrine vide 2 Stephens, Cr. Law, p. 32 et seq.
Holl. J ur. 96, 97, 291-293. .I. K. Stephens’ “International Law” which is a very
interesting essay in two parts,—the ﬁrst, called “International Law,” is
a criticism at some length upon the use of the expression “International
Law,” and the second, called “International Relations,” points out an alterna—
tive method of dealing with international rules of conduct. Vide, also,
“The Franconia” or The Queen v. Keyn, 2 Exch. Div. 63, and discussion of
same in Maine, Int. Law, p. 38 et seq.
12 INTRODUCTION. '
deﬁniteness of sanction, it is not strictly correct to deﬁne it as “in-
ternational morality”; for it is habitually treated as law, and a
large part of it is acknowledged 'to be law, and is not distinguish-
able from it. Further than this, the doctrines of international law
are founded on legal, and not on ethical, ideas; they purport to
be rules of strict justice, and not counsels of perfection; they have
been elaborated and discussed by the methods appropriate to ju-
risprudence, and not by those of moral philosophy; the framers
of state papers concerning foreign policy appeal to precedents, to
treaties and opinions of specialists in a strictly legal manner; the .
conduct of states is attacked, defended, and judged within the
range of international law by reference to legal considerations
only. Furthermore, there is actually an international morality,
distinct from and compatible with international law, violation of
which, however discourteous, high-handed, or odious the same may
be, gives no formal ground of complaint. If, therefore, we ﬁnd that
our deﬁnition of law fails to include international law, the proper
conclusion should be, not that we must class these rules under the
term “international morality,” but that our deﬁnition is inadequate,
and should be changed.21
21 Law Mag, Nov., 1882. Lecture by Sir Frederick Pollock; Hall, Int.
Law, 15.

PART I.
PEACE.

NNNNNNNNNNN w. (13)*
Ch. 1] wno ARE PERSONS IN INTERNATIONAL LAW. 15
CHAPTER I.
PERSONS IN INTERNATIONAL LAW.
8. Who are Persons in International Law.
’ 9. Deﬁnition of a State.
10-11. Personality or Identity of State—How Affected.
12. Union of States.
13. Personal Union.
14. Real Union.
15. Federal or Centralized State.
16. Confederated States. or Confederate Union.
17. Protected States—States under Suzerainty.
18. N eutralized States.
19. What States the Subjects of International Law.
20. De Facto States—Belligerency.
21. Right of Belligerent States to Demand Recognition.
22. When Recognition of Belligerency Permissible.
23. Effect of Recognition of Belligerency.
24. Equality of States.
WHO ARE PERSONS IN INTERNATIONAL LAW.
8. The persons of international law are communities
known as sovereign or independent states that voluntarily
subject themselves to it.
To a certain extent, international law affects and gov-
erns the relations of individuals and communities possess-
ing characteristics analogous to states.
It is assumed of the sovereign states, who are the persons in in-
ternational law, that they have a moral nature corresponding to
that of individuals, and that in their relations towards one another
they occupy a corresponding position to that of individuals towards
each other. The international person must possess a sense of right,
and recognize an obligation to act in accordance with this right, in
order that we may have a true conception of the existence of law.
It follows that any community, to become a person in international
law, must possess characteristics of such a nature as to convince
other similar communities that it can be held responsible for its
16 PERSONS IN INTERNATIONAL LAW. [Ch. 1
acts. Therefore, no society whose existence is uncertain can offer
sufﬁcient evidence of its ability to carry out its obligations to war-
rant other states in entering into contractual or similar ‘relations
with it.
Men, as individuals, are not international persons in the true sense
of the word, although they have a right to the protection of inter-
national law, when the rights guarantied to each individual by this
law have been violated in their persons. Man considered as a
citizen possesses private rights which are protected by the public
laws of his own state, but, considered in his quality as a human
being, he has rights which go beyond the limits of the state of his
citizenship, and the protection of these pertains to international law.
These international rights are protected by or through the repre-
sentatives of his own government when violated or threatened in a
foreign state, provided any such are accredited to such state. In
certain instances the United States and Germany have oﬁered their
protection to citizens of Switzerland in countries where no proper
representatives were accredited by her. England and Russia have
gone further, and perhaps exceeded their strictly legal authority,
1L A sia, by offering their protection to individuals whose rights they
were not duly authorized to protect.
Political parties, even though engaged in war, as, for instance,
trying by force of arms to form a new state, are not considered inter-
national persons in the true sense of the word, although they may be
required to respect the obligations imposed by international law,
and can, under certain circumstances, place their demands under the
protection of this law.
The Christian churches are not international persons in the true
sense of the word, but they have entered into relations with states
similar to those entered into by states with each other. The his-
tory of the Roman Catholic Church, especially during the middle
ages, shows the very close connection of this church with all in-
ternational relations in Europe. This church was at that epoch re-
garded as of the highest authority in such relations.
It is scarcely necessary to point out that sovereigns, princes, and
diplomatic agents of states are not international persons, although
they enter into relations with states. They do so simply as agents
of the state or person par excellence.
Ch. 1] DEFINITION or A STATE. 17
DEFINITION OF A STATE.
9. A state is a community of persons occupying a ﬁxed
territory, and living under a stable and responsible or-
ganization, for a political end, in accordance with justice.
The organ of a state by which its relations with other
states are managed is the government.1
As soon as a community of persons shows that it possesses the
following attributes, viz.: That it exercises undisputed and exclu-
sive control over all persons and things within its territory of ﬁxed
and determined limits; that it regulates its external affairs inde-
pendently of the will of any other community; that it gives suf-
ﬁcient guaranty of its stability; and that it intends to conform to
the requirements of international law,—-it becomes at once a person
or subject of this law, and is a sovereign state.2 Mr. Woolsey, after
reciting substantially the above requirements, says: “We ﬁnd it
necessary for the conception of states, and for their occupying the
sphere which the author of society has marked out for them, to
predicate of them sovereignty, independence, and the equality 3 of
each with the rest. And these its attributes or rights each has a
right to preserve; in other words, to maintain its state existence.
These three attributes cannot exist apart, and perhaps the single
conception of sovereignty or‘of self-protection may include them
all.” Mr. Hall asserts that neither the absolute independence of
states nor the possession of a ﬁxed territory is strictly a necessary
requirement to the conception of a legal relation existing between
communities independent with respect to each other, but is con-
ceived to be so on account of the condition of society at the time in-
ternational law assumed its shape. Since a state must show that
it is in possession of these attributes before it becomes an inter-
1 For other deﬁnitions, vide Bluntschli, §§ 18-21; Gall. Int. Law, p. 62;
Wools. Int. Law, § 36; Halleck, Int. Law, vol. 1, p. 58; 1 Philliin. Int. Law, p.
81; Vatt. Int. Law, bk. 1, c. 1; Calvo, Int. Law, § 39; Pitt-Cobbett, Cas. Int.
Law, ‘pp. 3, 4; \Vheat. Int. Law, D, 29, 30; Cherokee Nation v. Georgia, 5
Pet. 1.
2 W ools. Int. Law, § 37 ; Hall, Int. Law, pp. 19—21.
3 Vide post, p. 31, § 24.
1NTEnNAT.LAw—2
18 PERSONS IN INTERNATIONAL LAW. [Ch. 1
national person, it follows that international law has nothing to do
with matters anterior to the acquisition of these attributes; so
that, when they have been acquired by a duly organized com-
munity, thereby conferring upon it the legal status of an interna-
tional person, it is a matter of perfect indifference as to what faults
may have been committed or what rights violated in the accomplish-
ment of this result, provided there was nothing done to indicate an
unwillingness or inability to' perform the duties attaching to this
status.
PERSONALITY OR IDENTITY OF STATE— HOW AFFECTED.
10. The identity or personality of a state is not affected
:in any manner by internal changes, because the interna-
tional association is composed of states monarchical and
republican, absolute and representative, large and small,
having no special constitution and no prescribed amount
-of territory.‘
11. A state may lose its identity, however, in the follow-'
ing ways:
(a) By being entirely absorbed by another state as a
result either of conquest or of agreement.
(b) By being divided up into two or more states in
' such a manner that no subdivision represents the
original state.
(0) By uniting with another state upon equal terms to
form a new state. '
The government is regarded as the agent of the community for
expressing its will, and, although duly authorized, may be super-
seded by the community at any time. It is evident that the idea of
the permanency of a particular form of agency must be entirely dis-
connected from the state person, for otherwise there would be a
change in a state’s international affairs with every change of state
4Vide, as to state identity, Hall, Int. Law, 22, 28; Wheat. Int. Law, D,
§ 22; Bluntschli, §§ 39,‘ 40; Wools. Int. Law, §§ 38, 39; Pitt-Cobbett, Cas.
Int. Law, p. 5.
Ch.»1] PERSONALITY OR IDENTITY 0F STATE—HOW AFFECTED. 19
agent, and the independence of the state itself would be seriously
affected at the same time. This is true to the extent that a state
under anarchy for a short period of time, and unable to perform its
international duties, does not on that account lose its state ex-
istence, so long as this anarchistical condition is not, permanent.
So also the established order of things may be disturbed by a revolu-
tion or other similar uprising, and yet the state existence remains
intact until it becomes evident that it is manifestly impossible to
re-establish the original state of things upon the same territory with
the same population. A state’s identity is not therefore in general
aifected by any internal changes in its aﬁairs.
A state’s identity is not in general aﬁected by external modiﬁca-
tions, such as the loss or acquisition of territory. In the case of
acquisition of territory there can scarcely a question arise as to the
ability of the acquiring state to perform its international obliga-
tions, and the acquired territory is simply merged in that of the
. vacquiring state. The principal questions arising under such change
of circumstances are as to the responsibility for the debts or obliga-
tions of the aﬁected territories. The acquired territory becomes
. subject to the obligations of the acquiring state, while the latter is
not bound by the personal obligations of the former except in case
of the absorption of an entire state with the whole of its property,
, in which case its obligations would naturally attach to the acquiring
state. In the case of loss of territory by a state its identity is not
lost, provided enough of its territory is retained to enable the re-
maining state to perform its obligations. A state can also volun-
tarily subject its action in regard to external matters to the will of
another state without loss of identity, provided this action is not
permanent, or is revocable by unilateral action.
20 PERSONS 1N INTERNATIONAL LAW. [Ch. 1
JOINDER OR UNION OF STATES.
12. Where one state joins or unites with another, the
international relations of each are affected more or less
according to the nature of the union; but the identity of
neither is necessarily lost.5 The joinder of states may re-
sult in either:
(a) A personal union.
(b) A real union.
(0) A federal or centralized state.
(61) Confederated states, or a confederate union.
(e) Protected states, or states under suzerainty.
(f) Neutralized states.
Where states are joined to other states by unions, the effect of
the union upon the independence of the individual states composing
it depends upon the nature of the bond which unites them. The in-
dependence of a state can be impaired to a certain extent, and the
individual state still be partially subject to international law. In
other words, the personality of a state forming a union with another
is not necessarily wholly merged, and in those matters which have
not been committed to the will of the other by the articles of union
it retains its personality. It is true, perhaps, that ‘the nature of this
bond of union pertains more to public law than to international
law; but it is necessary to understand its nature in order to deter-
mine the relation of the individuals composing the unions to the-
international society.
SAME—PERSONAL UNION.
13. A personal union exists when two or more states,
distinct in every respect, are united under one sovereign.
The states composing such a union are properly considered in in-
ternational law as separate and independent states, who have em-
5 For general discussion of the classiﬁcation of states, vide Creasy, Int.
Law, 135-142; 1 Phillim. Int. Law, 94-101; Calvo, Int. Law, § 44 et seq.;
Pitt~C.obbett, Cas. Int. Law, 7; 1 Halleck, Int. Law, 62-66; Bluntschli, §§
70-76; Hall, Int. Law, 25-31; Wheat. Int. Law, D, § 40 et seq., note 32.
Ch. 1] JOINDER on UNION or STATES. 21
ployed the same ruler or agent for the transaction of a certain class
of their affairs. Being wholly independent of each other, and in no
sense responsible for the acts of the other, they can be and are
represented by different diplomatic agents, and in a congress of
nations each has of right a representation. Great Britain and Han-
over from 1714 to 1837 were ruled by the same Prince, and Charles
V. was Emperor of Rome and King of Spain for about 40 years,
commencing in the early part of the sixteenth century. During
these periods the individual states composing these unions retained
their separate identity as sovereign states.
SAME—REAL UNION.
14. A real union exists when two or more states become
politically united permanently under the same sovereign,
even though they do not possess the same constitution.
In such a case there is, as a rule, but one personality, and one dip-
lomatic representative; but each state composing the union could
be authorized to have its own diplomatic representative under con
ditions which show that the individual interests of each require such
representation. It is quite apparent that a personal union may de-
velop into a real union by having the conditions last sufficiently long
to clearly indicate permanency. The union of England with Scot-
land and Ireland was formerly a personal union; that of Russia and
Poland from 1815 to 1830 was the same. The three ﬁrst named
became an incorporate or real union, which included all three states
in 1801.; the ﬁrst two, England andScotland, were so united in 1707.
Russia and Poland have formed a real union since 1863. One of
. the best examples of a real union to-day is that of Sweden and
Norway, who have the same king, but have not the same govern-
ment nor the same legislative body. The relations of these two
countries are of such a nature as to indicate durability, even though
there be an extinction of the present dynasty, as provision is made
for permanent succession.
22 PERSONS IN INTERNATIONAL LAW. [611. 1
SAME—FEDERAL OR CENTRALIZED STATE.
15. A federal state is one composed of two or more states
joined together under a central government, which con-
ducts all the external affairs of the state, no single mem-
ber of the union possessing the right to withdraw there-
from.
The state resulting from such a union is the international per-
son, for this central government expresses the joint will of all the
individuals, and the citizens of each of the individual'states are
citizens of the federal state. The United States furnishes one of
the greatest and at the same time one of the best examples of
such a state. To this federal government under the constitution
is granted the power of regulating commerce, accrediting diple
matic representatives, providing for the common defense, making
treaties, declaring war, concluding peace, granting letters of
marque and reprisal. Another example of such a state is the Ger-
man empire under the constitution of 1871. Although some of the
states composing the empire have the privilege of receiving minis-
ters at their courts, and accrediting ministers to foreign courts, yet
they possess but limited powers. Other federal states now in exist-
ence are Mexico, Venezuela, Colombia, Argentine and Swiss confed-
erationsﬁ-
SAME—CONFEDERATED STATES, OR CONFEDERATE UNION.
16. Confederated states are those which are joined to-
gether for certain purposes of protection, which are con-
sistent with their retaining their individuality as states.
This is the most ancient form of union of states. In it there ex-
ists in general no absolute central sovereignty for the combined
6 For description of Germanic confederation with the powers under the
constitution, vide section 55 of 1 Calvo, “Droit International”; for that of
the Swiss or Helvetique, sections 56 and 57; for the points of resemblance
between the constitutions of the Argentine confederation and the United
States, sections 58-61; and the differences between these two, in section
62 et seq.
Ch. 1] JOINDER OR UNION or‘ STATES. 23
states. The diplomatic representation pertains to the individual
states who have consented to give up permanently only a part of
their freedom of action, so that the'central government does not
appear to their exclusion. The central government can and does
cause itself to be represented, and is authorized to conclude trea-
ties, etc.; but the essential difference, in so far as international re-
lations are concerned, between this union and a federal union, is
that the central sovereignty in the former case has not the power to
enforce its decrees, and does not enter into direct relations with
the inhabitants of the different states. Another test to be applied
is to determinewhether each state of the union has reserved the
right to determine for itself whether it will be at peace or war
with a foreign state. If such right is reserved, the union is con-
I'ederate. The Swiss confederation from 1804 to 1848, the confed-
eration of the thirteen original states of the United States fro-m 1776
until the adoption of the present constitution, and the German
confederation of 1815 to 1866 are types of this class of union.7
7 For more complete understanding of the relations existing between. the
states of the German empire under the diet, vide Hall, Int. Law, pp. 28, 29;,
C-alvo, Int. Law, §§ 52-55; the ancient Swiss confederation, vide Calvo, Int.
Law, § 57 et seq. The Articles of Confederation of the thirteen original colonies
declared: Article 1: The style of the confederacy to be “The United States
of America.” Article 2: That each state retained its sovereignty, freedom,
and independence, and every power, jurisdiction, and right which was not
by thisconfederation expressly delegated to the United States in congress
assembled. Article 3: That the purposes of the confederation were to form
a league of friendship for their common defense, the security of their
liberties, and their mutual and‘ general welfare, binding themselves to assist
each other against all force offered to or attacks made upon them, or any
of them, on account of religion, sovereignty, trade, or any pretense what-
ever. Article 4: That citizens of the several states enjoy the privileges
of citizenship, trade, and commerce in each state; and that full faith and
credit be given in each state to the records and judicial proceedings of every
other state. The following articles provided for a general congress, the
individual ‘representation, mode of election, and the powers thereof. Con-
gress was solely and exclusively empowered to determine upon peace and
war, except in case of invasion or imminent danger, of sending and receiving
ambassadors, entering into treaties and alliances, regulating captures on
land and water, disposition of prizes by land or naval forces, appointing
courts of prize and appeal courts concerning captures, courts of appeal
for determining disputes between states, power of regulating the value of
24 PERSONS IN INTERNATIONAL LAW. . [0b. 1
SAME-PROTECTED STATES—STATES UN DEB SUZERAIN TY.
17. A protected state is one which has placed itself un-
der the protection of another, or has been so placed by
other powers.
There is a multitude of gradations between the state of complete
liberty and the state of dependence, permitting diplomatic relations
by a state with others only through the medium of another sover-
eign state. The protected‘state is usually called the vassal state,
and the other the protecting or sovereign state. In the case‘
of a protected state the presumption, prima facie, is that it is in-
dependent and in possession of all the rights that it has not re-
signed; while, in the case of a state completely under the suze-
rainty of another, the fact of its being a part of another state pre-
cludes the presumption of rights except such as may have been
granted to it by the suzerain. If the citizens of a protected state
retain a distinct nationality, and‘ can remain neutral in the case of
a. war undertaken by thesovereign power, it is considered to be
sufﬁciently independent to be a subject of international law.
Sovereignty tends naturally to unity, and the relation existing be-
tween sovereign and vassal states cannot subsist for an extended
time. Either the vassal rises to the rank of an independent state,
or the suzerain gradually absorbs more and more of the vassal’s
powers, until there is only one sovereignty. '
In the middle ages there existed both in Europe and Asia a num-
ber of vassal states which to-day are either independent or com-
pletely absorbed by the sovereign power. One of the best exam-
ples of a protected state is the Ionian Islands, since 1864 a part of
Greece, but previous to that time under the protection of England.
Colonies, although dependent politically upon the mother country,
possess a certain amount of independence, and are in a limited de-
gree subjects of international law. The mother country, at the
coin of the United States, ﬁxing the standard of weights and measures,
regulating trade with and affairs of the Indians, regulating postal affairs,
making rules for government of the land and naval forces, the appointment
of all naval ofiicers, and of all army officers except regimental officers, and
some other minor powers. V ide 1 Story, Const. § 229 et seq.
Ch. 1] WHAT STATES THE SUBJECTS or INTERNATIONAL LAW. 25
outset, is usuallythe only sovereignty; but, as the colony develops,
a greater degree-of freedom of action is necessary for it. Some-
times also on account of distance, as in the case of Canada and
Australia from England, and for other reasons, a separate govern-
ment and‘ distinct representation become necessary: The history
of America shows how these colonies gradually develop into in-
dependent states. ’
The Indian empire and Algeria are under the protection of Eng-
land and France, respectively; but these, on account of the nature
of their civilization, are not subjects of international law.
SAME—NEUTRALIZED STATES. .
18. A neutralized state results when its territory has
been declared by convention to be. neutral.
A state thus situated gives up of necessity some of its liberty of
political action. It must remain in a state of absolute impartiality
in the event of a war, entering into no engagements that can in-
terfere with this relation. The histories of Switzerland and Bel-
gium afford instances of such states.
'WHAT STATES THE SUBJECTS OF INTERNATIONAL ~LAW’.
19. States possessing the modern European civilization,
and such others as have been formally admitted by them,
constitute the international community.
International law is a product of the special civilization of modern
Europe, which is a highly artiﬁcial system, understood and appre-
ciated only by the inhabitants of those countries which have bu;lt
it up, and by those who have inherited it directly from them. The
presumption in favor of these two classes being subjects of in-
ternational law is so strong as to require some positive act of
withdrawal to free them from its burdens; and a new state coming
into existence in possession of this civilization is at once assumed
to have voluntarily become an international person, until‘ it shows
positively a contrary purpose. On the other hand, states possessing
a different civilization must, in order to gain admittance into this
26 PERSONS IN INTERNATIONAL LAW. [0b. 1
community, perform some act or acts acquiesced in by this community
or some of its members, which indicates an acceptance of this law
in its entirety. By the treaty of Paris in 1856, Turkey was admitted .
by express declaration, and this treaty was actually signed in her
behalf. In the absence, however, of this express declaration to
that eﬁect, it is not believed that her signature to this treaty would
be considered as sufﬁcient to admit her into this community of na-
tions. It is safe to state, also, that the act of sending and receiv-
ing diplomatic representatives is not sufﬁcient to signify the accept-
ance of the state into this community.8
DE FACTO STATE—BELLIGERENCY.
20.v A community which, in attempting to separate from
the parent state, sets up its own government, is, under
certain conditions, recognized as a belligerent community,
and a de facto state results.9
‘ This recognition must be accorded either by ‘the parent state from
which the community attempts to separate itself, or by one or
more foreign powers. It is entirely consistent with uncertainty as
to result of the struggle for independence, its eﬁect being merely to
accord to the recognized community the privileges of the law. In
case this recognition comes from a foreign power, the effect, as-
suming that the recognition is made in good faith, is to compel the
parent state to treat this power as a neutral between two legitimate
combatants, and to confer upon the belligerent community the rights
and duties of a state, for the purposes of its warlike operations,v as
between it and the recognizing country. In case the parent state
recognizes this community, the effect is to at once confer the charac-
ter of enemies upon her revolted subjects, and to confer upon foreign
‘powers the rights, and impose upon them the duties, of neutrality. '
In the ﬁrst case the parent state ceases to be responsible to the
8 Hall, Int. Law, pp. 42-44. ,
9 For general subject of belligerency, vide Hall, Int. Law, pp. 31-42; 1 Hal-
leck, Int. Law, p. 68 et seq., note 2; Wheat. Int. Law, D, note 15; Wools. Int.
Law, §§ 41, 180; Bluntschli, § 512; 1 Whart. Dig. § 69; The Lilla, 2 Spr. 177,
Fed. Gas. No. 8,348.
Ch. 1] RIGHT TO DEMAND_ RECOGNITION. 27 _
recognizing state, and in the second case to all other states, for acts
of the insurgents, and for the losses and inconveniences of these
foreign states and their citizens by reason of inability to perform
its international obligations in such parts of' its territory as may not
be under its control. With such important results attaching to
the status of recognized belligerency, it is very necessary to de-
termine under what circumstances this recognition can be properly
accorded, and whether it can be demanded by the community seek-
ing independence.
RIGHT OF BELLIGERENT COMMUNITIES TO DEMAND
RECOGNITION. '
21. Belligerent communities are not legal persons, and
do not possess permanent independence, so that there is
‘no legal ground upon which they can demand recognition.
When accorded, it is an act of pure grace.
Those who claim 1° that, when a considerable portion of the in-
habitants of a state are in arms against the remaining portion for
10 Bluntschli, § 512. The quality of belligerent is, however, accorded to
armed parties who, without having received from an already existing state
the right to‘ combat with armed forces, have militarily organized them-
selves, and struggle in good faith, in their own state, for a political right.
Note 1. Here is an exception to the rule that the war exists only between
the states. But, when a political body pursues the realization of certain public
ends, and has organized itself into statehood, it becomes in a certain
measure a state. The laws of humanity require that the quality of belliger-
ent be accorded to the party, and that it be not considered as a gathering
of criminals. The party who is strong enough to create powers analogous
. to those of the state, and who, by its military organization, offers sufficient
guaranty of order, and proves by its political conduct its determination to
become a state, such party has a natural right to be treated in the same
manner as an already existing state. The dangers of war are thus dimin—
ished, not only in favor of the new community, but again in favor of its
adversaries. If, on the contrary, these insurgents are pursued criminally,
the struggle becomes more savage, and that the two adversaries will seek
mutually to surpass each other in their acts of barbarism and ‘the cruelty
of their retaliatory measures is to be feared.
. Note 3. It is indispensable to respect in wars the above mentioned principle.
The party in possession of the constitutional authority will more readily
28 . PERSONS IN INTERNATIONAL LAW. ~ [Ch. 1
the attainment of a political end, and are conducting hostilities in
accordance with international usage, resemble a state so nearly as
to be entitled to recognition as belligerents, base this claim upon
moral instead of legal grounds. The obligations imposed both upon
the, parent state and foreign states by these authorities ﬂow from
the moral duties of human conduct, and from the fact that a foreign
state has no right to inﬂict a penalty where it has no right toijudge.
WHEN RECOGNITION OF BELLIGERENCY PERMISSIBLE.
22. To warrant recognition of belligerency, there must
be an actually existing war, and the interests of the for-
eign state must be so affected as to render such action a
reasonable measure of self-protection. Three classes of
cases arise, namely: '
(a) Where the conﬂict is solely upon land, and the for-
eign state is not contiguous. '
(b) Where the conﬂict is solely upon land, and the for-
eign state is contiguous.
(c) When there is a maritime war, and the commer-
cial interests of foreign powers and the parties
at conﬂict are large.
allow itself to treat its adversaries as rebels. The insurgents on their part
will seek to accuse the governing power of high treason or of violating the
constitution. \Vhen the criminal tribunals cease to be respected, and
in fact the communities are at war, it will be more logical to suspend the
application of the penal laws, and consider politically and militarily its
adversaries as insurgents. Actual international law has then progressed
in showing itself disposed .to accord the quality of insurgents to a revolution-
ary body. But for this the following rules must be observed: (1) They
must have military organization. (2) They must respect the laws of war
and struggle for a political right.
A civil war is never declared. It becomes such by its accidents—the
number, power, and organization of the persons who carry it on. When
the party in rebellion occupy and hold in a hostile manner a certain
portion of territory, have declared their independence, have cast on‘ their
allegiance, have organized armies, have commenced hostilities against their
former sovereign, the world acknowledges them as belligerents, and the
contest a war. Prize Cases, 2 Black, 667.
l
Ch. 1] WHEN RECOGNITION OF BELLIGERENCY PERMISSIBLE. 29
In the ﬁrst class of cases recognition can scarcely be justiﬁed
under any conditions that may be conceived, and it is contrary to the
practice of nations to accord it. The interest of foreign states are ‘
not usually affected, and, if at all, in so slight a degree as to render
recognition of belligerency unnecessary. .
In the second class, each case must be dealt with as it arises. The
foreign state is entitled to determine for itself whether its interests
will be best served by granting or refusing recognition. The usage
‘of nations is to exercise their rights in this respect in each case as it
arises.
In the third class of cases the interests of other nations, especially
those in possession of a mercantile marine, are such as to render it
not only advisable, but necessary, to have the status of the parties
to the conflict determined as soon as practicable. This status must
be determined by the political department of the government, to
which all the private citizens, executive and judicial officers, look,
so as to regulate their conduct. It is customary for this depart-
ment of the government to decide whether the contest is or is not a
war.11 If this decision is announced prematurely, it may be prop-
erly considered as a gratuitous and unfriendly act. D
On the other hand, it is due to its own citizens, to the contending
parties, and to the world at large, to arrive at a decision seasonably.
The recognition of the belligerency of a revolted community against
the established government assumed great political importance dur-
ing the great Civil War in the United States. The. early recogni-
tion of the belligerency of the Southern Confederacy by the procla-
mation of neutrality of Great Britain on May 13, 1861, was con-
sidered by the United States as hasty and an unwarranted act of
intervention. From the facts, we ﬁnd a number of states, whose‘
territories made a continuous whole, seceding from the Union, form-
ing a constitution, and choosing public oﬁcers, a president among
the rest. This president made a proclamation touching letters of
marque and reprisal, and told his congress that two vessels had been
11 When a civil war rages in a foreign nation, one part of which separates
itself from the old established government, and erects itself into a distinct
government, the courts of the Union must view such newly-constituted govern-
ment as it is viewed by the legislative and executive departments of the
government of the United States. U. S. V. Palmer, 3 Wheat. 610.
30 PERSONS IN INTERNATIONAL LAW. [Ch. 1
l
purchased for naval warfare. We ﬁnd next two proclamations of
the president of the United States, one of April 15th, calling for a
large force of the militia of the states, and another of April 19th,
announcing the intention to set on foot a blockade, after the procla-
mation of the Confederate, president, inviting letters of marque and
reprisal, had become known at Washington. The action of the
Confederate president was ratiﬁed by his congress on May 6th. In-
telligence of President Lincoln’s blockade reached London on May
2d, copies of it being received between May 5th and May 11th.
Two days afterwards the proclamation of neutrality was published.
The effect of the proclamation of blockade was to declare that a
maritime war existed, and to recognize the belligerency of the states
in rebellion. In addition to this it may be added that there existed,
as stated by Mr. Hall, every element of a state of war between a
legitimate government and a de facto sovereignty, of such a nature
as to render it necessary for Great Britain, on account of the large
and incessant intercourse between the two countries and the large
value of the cargoes belonging to her subjectsin American ports, to
warn her traders of the existence of a state of things which affected
them with duties, and by which a restraint was placed upon their
commerce. In conclusion, it is noted thatthe supreme court of the
United States in the Prize Cases 12 decided that this blockade was
an act of war, and these decisions in effect sustained the validity of
the act declaring neutrality.13 In the case of “The Lilla,” a vessel
condemned by a prize court of the Confederate States, and after-
wards sailing under the British flag, it was held that the federal
courts would not acknowledge the validity of the decisions of-the
prize courts of the Confederacy, although they had recognized the
belligerency of the government.
12 “Alabama Question,” New Englander, July, 1869; Prize Cases, 2 Black,
635; Wheat. Int. Law, D, 374, 375; Wools. Int. Law, § 180; Case of United
States before Tribunal of Arbitration at Geneva, p. 17; Bluntschli, Rev.
du Droit Int. “
13 For full discussion of the recognition of belligerency, vide Whart. Dig.
§ 69, with cases and authoriﬁes cited; Hall, Int. Law, pp. ‘39-42.
Ch. 1] EQUALITY OF STATES. 31
EFFECT OF RECOGNITION OF BELLIGERENCY.
23. When accorded, recognition of belligerency is irrev-
ocable, except by agreement, during the continuance of the
same state of things.
This is not because, as between grantor and grantee, there is any
legal obstacle to revocation, but because this act creates new legal
relations aﬁecting third parties, which, so long as the state of war
exists, cannot be determined at will. The fact of according recogni-
tion, being an act of grace, is assumed to be an advantage to the state
at the time the action was taken by it, and this state must accept the
corresponding burdens, even though they prove to be out of pro-
portion to the beneﬁts.
EQUALITY OF STATES.
24. All sovereign states are generally considered politi-
cally equal.14
In international law, from the time of Grotius all sovereign states
have been considered as politically equal. Equality among states
is the same as equality among men. Diﬁerences in extent of ter-
ritory, of power, of rank, do not modify this equality, for it con-
sists in the fact of recognizing in states the quality of judicial per-
sons, and in the application of the principles of international law to
all without distinction.15 Mr. Lawrence, in his lecture upon the
“Primacy of the Great Powers,” after tracing the “Concert of Eu-
rope” (which means nothing more than the agreements of the great
powers) from its origin, March, 1814, until the present time, says:
“it is impossible to hold any longer ,the old doctrine of the absolute
equality of independent states before the law; it is dead; and we
ought to put in its place the new doctrine that the great powers have
14 Vide Wools. Int. Law, § 54; Bluntschli, § 81; 1 Halleck, Int. Law,
0. 5; Man. Law Nat. bk. 3, c. 1, p. 100; Wheat. Int. Law, D, § 33.
15 Bluntschli, § 81; Wools. Int. Law, § 52; Halleck, Int. Law, 99 et seq.;
Wheat. Int. Law, D, 52; Calvo, Int. Law, § 210; Creasy, Int. Law, 114;
Walk. Int. Law, 112; Vattel, Int. Law; Gro. De J ure B.
3L PERSONS IN INTERNATIONAL LAW. [Ch 1
by modern international law a primacy among their fellows, which
bids fair to develop into ‘a central authority for the settlement of all
disputes between the nations of Europe. * * * No doubt, it [the
Concert of Europe] is at present in a very rudimentary condition,
and there are often jealousies and intrigues among the states which
compose it. Its decisions often fall short of the demands of justice.
They are patched up as compromises between opposing views, rather
than delivered as the judgment of an impartial tribunal. Still, with
all its faults, it has done great good by settling, on the basis of
mutual concession, disputes which might otherwise have led to war;
and, above all, it is a natural and healthy growth. It has sprung
without any forcing out of the circumstances of modern Europe,
and therefore it possesses a chance of permanence. It is probably
destined to become more and more effective as the desire for a peace-
ful settlement of their quarrels increases among the nations, and it
may in some far distant time develop into that supreme court of
international appeal for which statesmen, philosophers, and divines
have longed throughout the last three centuries.” 1“ This doctrine
of equality of states has not only been considered a fundamental
principle of the law, but has been a source of great good in transac-
tions between states, in that it has tended to save the weak from the
strong, and has arrayed the public opinion of nations upon the side
of justice.
16 Lawr. 1m. Law, pp. 232, 233; ore‘asy, Int. Law, p. 117.
Ch. 2] ' DATE or COMMENCEMENT or STATE. 33
\
CHAPTER II.
THE COMI'IENCEMENT OF STATES—FUNDAMENTAL RIGHTS AND
DUTIES.
' 25. Date of Commencement of State.
26. When Recognition of New State by Third States Proper.
27. Methods of Recognition of New State.
28. Effect of Change of Sovereignty—Upon Public Rights and Obligations.
29. Upon Private Rights.
30. The Fundamental Rights of States—To Maintain and Develop State
Existence.
31. 'Alienating and Using Tern'tory, etc.
32. Independence.
33. The Fundamental Duties of States.
DATE OF COMMENCEMENT OF STATE.
25. A new state dates its commencement from the time
of its recognition by the previously existing- powers.1
The question of the actual existence of a state pertains to public
law. It of right enters into the community of nations as soon as
it possesses the necessary attributes of a state. ‘There is, however,
the right of ascertaining, each for itself, by the existing powers,
whether these attributes are possessed, before according recogni-
tion; and, until this is accorded, the legal relations have not been
established. As new states generally come into existence by sepa-
ration from an already existing state,2 recognition of the new state,
like recognition of belligerency, may be accorded either by the par-
ent state or by third powers. Authorities are not in accord as to
the effect of recognition in the two cases. When ‘this recognition
is ‘accorded by the parent state, third powers will more readily do
so, because this action implies the abolition of all claims to au-
thority over the insurgent community, and renders more clear the
1 Vide Wheat. Int. Law, D, § 27', and note 16; Bluntschli, § 29; 1 Halleck,
Int. Law, 7, note 1; Hall, Int. Law, 87 et seq.
2As an example of a state created under different circumstances, vide
“Creation of Congo State,” Hall, Int. Law, 88, note.
IN PERNAT. LAW—3
34 COMMENCEMENT OF STATES—RIGHTS AND DUTIES. [0b. 2
fact ‘that the pretensions of this community to independence are
well founded. Furthermore, the parent state, after having ac-
corded recognition, cannot place other states in a false position by
claiming that they have acted prematurely or unjustly. It is not
necessary, however, for other states to wait for theparent state to
take action before according recognition, as it is generally more
difficult for this state to take such action in consequence of a tend-
ency to delay longer than others less interested, or than the cir-
cumstances warrant. France in her recognition of the United
States, England in her recognition of the South American states, and
third powers in their recognition of these latter states, acted before
the parent state; but, unless some question of policy intervenes, or
the propriety of doing so is beyond dispute, the practice is to avoid
giving cause of complaint by refraining from acting hastily.
WHEN RECOGNITION OF INDEPENDENCE BY THIRD ‘
STATES OF A NEW STATE PROPER.
26. When, in a revolutionary contest, the party strug-
gling for independence has, as a matter of fact, established
its independence so as to leave the chance of the opposite
'party to recover dominion utterly ‘desperate, recognition _
--of its independence may be properly and safely accorded
to it.3
This is the American and English doctrine upon this subject.
Mr. Adams, in recognizing the South American republics, says: ,
“Under these circumstances, the government of the United States,
far from consulting the dictates of a policy questionable in‘its
morality, yielded to a duty of the highest order by recognizing, as
independent states, nations which, after deliberately asserting their
right to that character, have maintained and established it against
all the resistance which had been or could be brought to oppose
it. This recognition is neither intended to~invalidate any right
of Spain, nor to affect the employment of any means which she
may yet be disposed or enabled to use with the view of reuniting
8 1 Whart. Dig. § 121; Bluntschli, § 31 et seq. ; Creasy, Int. Law, 677-681;
Pitt-Cobbett, Cas. Int. Law, pp. 4, 5.
Ch. 2] METHODS or RECOGNIZING NEW STATE. 35
these provinces to the rest of her dominion.” * When a sovereign
has a reasonable hope of maintaining his authority over the insur-
gents, the acknowledgment of their independence would be an act
of intervention,—an international wrong. It is otherwise when
the parent state is manifestly unable to maintain the contest.
Neutral powers must determine for themselves when the independ-
ence of an insurgent community has been established as a fact,
and, in arriving at such determination, should consider the past
relations, the present condition, and, as far as practicable, the
future.
METHODS OF RECOGNIZING NEW STATE.
2'7. A new state may be recognized in the following
ways, namely: -
(a) By express declaration addressed to the new state,
, issued separately or contained in a convention
with it.
(b) By a protocol.
(0) By being admitted as a party to a treaty with the
great powers as signataries. v
((1) By the official reception of ministers accredited by
the new state, and by dispatching ministers
thereto, or by the grant of an exequatur to its
consul, or any other act which clearly indicates
the intention to accord this recognition.
The ﬁrst method was employed by England and Germany in the
recognition of the Congo State; the second method, in the recogni-
tion ‘of Greece by England, France, and Russia, and also in the
recognition of the German empire in 1871. The third method was
employed in the case of Belgium. The treaty in question, being
one to ﬁx the boundaries, also declared Belgium to be a neutral
state. The fourth method has been generally considered to be
suiﬁcient to acknowledge independence of a new state. In regard
to its effect, Mr. Adams, in a letter to the president of January 28,
4 Mr. Adams, secretary of state, to Mr. Anduaga, W hart. Dig. § 70. Vide,
.also, ‘Hall, Int. Law,v 91, 92.
36 COMMENCEMENT or STATES—RIGHTS AND DUTIES. [Ch. 2
1819, said: “Consuls are, indeed, received by the government from
acknowledged sovereign powers with whom they have no treaty.
But the exequaturl for a consul general can obviously not be granted
without recognizing the authority from whom his appointment pro-
ceeds as sovereign.”
EFFECT OF CHANGE OF SOVEREIGNTY—UPON PUBLIC
RIGHTS AND OBLIGATIONS.
28. Three classes of cases arise, namely:
(a) When a new independent state is formed by
separation from an existing state. '
(b) When a portion of a state is lost by cession.
(c) When a state is wholly absorbed.
In the ﬁrst case two separate and distinct international persons
'exist instead of one, and the new state has nothing to do with the
personal rights and obligations of the parent state, which still
possesses its identity. So, also, the parent state remains in sole
possession and enjoyment of its separate property and the rights
connected therewith. Treaties of alliance, of guaranty, or of com-
merce are not binding upon the new state, nor is it liable for the
general debt of the parent state. The new state comes into pos-
session of rights, including those under treaties, and obligations con-
nected with the property within it. It is entitled to the privileges
of navigating rivers that its citizens possessed by virtue of being
citizens of the parent state, and is bound by the obligations con-
nected therewith, such as regulations in regard to the dues, etc.
It becomes liable for local debts, including those for local objects
and those secured by local revenues. In the latter case the debts
should be apportioned by the two states, as the revenues from cus-
toms, etc., of both states have been hypothecated. Certain prop-
erties are transferred by the separation, and consist of public
buildings, museums, and art collections, communal lands, charita-
ble and other endowments connected with the state, etc. When a
portion of the land belonging to a commune or to an endowment
lies within the boundary of the new state, it is only considered
that a right to the value of the property is transferred. Conven-
ience may dictate expropriation from-the property itself, and it is
‘Ch. I, 2] EFFECT or‘ CHANGE OF SOVEREIGNTY. 37
only then necessary to pay its full value by way of compensation.5
In the case of cession of a portion of the territory of one state
to another, the state losing the territory is in the same position
with regard to rights, obligations, and property as it would he were
the lost territory to have become an independent state. The ac-
quiring state assumes the same local obligations and acquires the
same local rights and property as would belong to the ceded por-
tion were it independent. The ceded portion by incorporation
acquires a share in all the rights, and is bound by all the corre-
sponding obligations, pertaining to the acquiring state. This is
illustrated by the annexation of Texas to the United States. Pre-
vious to the annexation, which occurred in 1845, Texas had issued
several million dollars of bonds, some of which were held in Eng-
land; and an attempt was made before the claims commission of
1853, organized for the adjustment of claims between England and
the United States, to hold the federal government responsible for the
payment of the Texan bonds. The indebtedness of Texas was a dis-
tinct agreement by the terms of the Union. The vacant and unap-
propriated lands within the limits of Texas were to be retained by
her, and applied to the payment of the debts and liabilities of the re-
public of Texas; and the residue of the lands, after discharging
these debts and liabilities, was to be disposed of as the state might
direct; but in no event were the debts and liabilities to become
a charge upon the government of the United States.“ The lands
of Texas were thus speciﬁcally set apart by agreement of the two
governments in addition to any separate pledge previously made by
Texas of this property, fo-r the payment of these debts. Subse—
quently, for the consideration of $10,000,000, large tracts of this
land were ceded by Texas to the United States. $5,000,000 of this
BBluntschli, §§ 47, 55-60; Hall, Int. Law, 96, 97, note; 1 Kent, Comm. 25,
“States.” “So, 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.” This is true in the one case of the
state so splitting up into parts as to completely lose its identity. See, also,
to same effect, ‘Vhart. Dig. p. 19. Vide, also, discussion of “British-Ameri-
can Fisheries,” “The Mosquito Protectorate,” “The Maine Boundary,” Hall,
Int. Law, pp. 97-102. ‘ ‘ ~
6 5 Stat. 798.
38 COMMENCEMENT or STATES—RIGHTS AND norms. ['Ch. 2
amount was to be retained by the United States until holders of
bonds, for which duties on imports were speciﬁcally pledged, should
ﬁle releases of all claims against the United States.7 The United
States had from the outset acted in concert with Texas in making
express provision for the payment of these debts. A difficulty
arose in carrying out this law because the pledge of payment of the
debts of Texas was made generally upon her revenues, and was
not specific on imposts eo nomine, and for the further reason that
doubts arose whether any portion of the debts could be paid under
this contract, unless the whole could be discharged. It certainly
would not be satisfactory to say'that the United States discharges
its obligation to the creditors of Texas, to whom her customs were
pledged, by paying only the amount of customs received. The
United States determines what those duties shall be in reference to
the interest and policy of the whole republic. The condition
of Texas is changed by her annexation. The new government has-
a large control over the material resources of the inhabitants, in
the way of internal revenues, excise, or direct taxation, in its
demands on the services of the people, and in the debts‘ it can
impose. In fact, the entire public system of Texas has passed
into other hands, and no such state of things any longer exists
as that to which the creditor looked. It may be better or worse,
but it is not the same; and, if the duties laid by the United States
and collected in Texan ports did not in fact pay the debts, it
would be unjust for the United States to limit the payment of the
creditor to them. The truth is, by the'annexation the United
States changed the nature of the thing pledged, and is bound gener-
ally to do equity to the creditor.8
In the acquisition of Lombardy and Venice by Italy in 1859 and
1866, respectively, no part of the general debt of Austria was as-
sumed, but only the local debts of the ceded provinces. Also, in
the acquisition of the provinces of Alsace and Lorraine, in 1871,
Germany assumed no part of the general debt of France. Two in-
stances are noted by Mr. Hall in which a part of the general debt
of a state was assumed by the state which had seized a part of its
7 9 Stat. c. 49, p. 446.
8 Whart. Dig. pp. 19—21; IVheat. Int. Law, D, § 30, note 18; Id. L. (Ed. 1863)
p. 54, note.
Ch. 2] EFFECT OF CHANGE or SOVEREIGNTY. 39
territory,-the ﬁrst in 1866, when the debt-of Denmark was divided
between that country and Schleswig-Holstein ; and, in the same year,
Italy, by convention with France, took upon herself so much of the
papal debt as was proportionate to the revenues of the papal prov-
inces which it had appropriated.
In the third case the absorbing state acquires all the local rights,
obligations, and property of the absorbed state, and the latter is
affected by all the treaty obligations which have been concluded by
the annexing state. In regard to the treaties which have been
concluded by the annexed state, it is certainly clear that wherever
these conﬂict with the constitution of the annexing state they are
annulled, and such is conceived to be the case in regard to all those
which are in conﬂict with the practice of the annexing state. The
absorbing or annexing state also becomes liable for the whole of
the debts of the acquired state, because it has come into possession
of all of the property of this. state.9
SAME—EFFECT-OF CHANGE OF SOVEREIGNTY UPON PRI-
VATE RIGHTS.
29. A mere change of sovereignty does not produce any
change in private rights of property in the soil, whether
the interest was acquired by a grant from the state or by
individual contract.10
It is very unusual for a conqueror to do more than displace the sov-
ereign, and assume dominion over his country. Any other action
would be contrary to the modern international usage or law. The
effect of this is to cause the people of the acquired territory to change
their allegiance to the new sovereign upon the dissolution of their
relations with the deposed sovereignty, but their relation to each
other and their property rights remain undisturbed. This being the
eﬁect in the case of acquisition by conquest, it would certainly be the
rule in case of an amicable transfer of territory. The sovereign
never transfers more than he possesses, and, having already granted
his title to the individual citizen, it remains in the latter’s possession.
9 V ide Whart. Dig. pp. 23, 24, § 5.
10 Mutual Assur. Soc. v. Watts, 1 Wheat. 279; U. S. v. Percheman, 7 Pet. 5].
4O COMMENCEMENT OF STATES—RIGHTS AND DUTIES. [0b. 2
“A mere change of sovereignty does not produce any change in. pri-
vate rights of property in the soil, whether the interest was acquired
by law under a grant from the state, or by individual contract.”11
Mr. Bayard says: “The right of conquest cannot aﬁect the prop-
erty of private persons. War being only a relation of state to state,
it follows that one of the belligerents who makes conquests in the
territory of the other cannot acquire more rights than the one for
whom he is substituted; and that thus, as the invaded or conquered
state did not possess any right over private property, so also the in-
vader or conqueror cannot legitimately exercise any right over that
property. Such is today the public law of Europe, whose notions
have corrected the barbarism of ancient practices which place private
as well as public property under military law.” 12
THE FUNDAMENTAL RIGHTS OF STATES.
30. From the nature of a state, it possesses the right to
maintain and develop its existence, and this includes the
right——
(a) To select its own organization.
(10) To do within its own dominions anything- which it
deems advisable to promote its prosperity or
strength.
(0) To occupy unappropriated territory, and to acquire
new provinces with the free consent of the inhab-
itants, provided the rights of another state‘over
such provinces are not thereby violated.
It has already been stated that international law is not concerned
with the particular form of government adopted by any member
of the community, and it may be here added that~ every state has
the right to live its state life in such manner as may be most
11 Strother v. Lucas, 12 Pet. 410.
12 Mr. Bayard, secretary of state, to Mr. Roberts, [March 20, 1886, MSS.
Instr. Chili; Leitensdorfer v. Webb, 20 How. 176; U. S. v. Moreno, 1 Wall. 400;
U. S. v. Auguisola, Id. 352; Townsend v. Greeley, 5 Wall’. 326; Dent v.
Emmeger, 14 Wall. 308; Airhart v. Massien, 98 U. S. 491; Delassus v. U. S.,
9 Pet. 117; Mitchell v. U. 8., Id. 711. - ‘
. T' ‘N A. is T T . ‘
Ch 2 HE FUNDAMD T l R n s or s ATEs 41
acceptable to it, without interference from any other state, so
long as it does not interfere with the rights of others in this re—
spect. So, likewise, a state may pursue such course as it may
deem desirable to promote its commercial interests; may erect
fortiﬁcations to the extent deemed necessary within its dominions;
may organize and maintain a military and naval force in such man-
ner and to such extent as its judgment may dictate to be necessary
or advisable, provided there is no menace to the existence of other ;
states in so doing- There is a point beyond which it is conceived
that it is not safe for a state to pursue its right of organization of
land and naval forces, which point is reached when this right is
carried so far as to indicate clearly, even if taken in connection with
other acts or ambitions, that the right of self-preservation pertain-
ing to other states authorizes them to interfere with and prevent
further measures, and to demand security against the natural‘con-
sequences of this policy. This right of self-preservation will, under
certain circumstances, warrant these other states in demanding the
abandonment of the measures pursued, and even to resort to arms
in case of failure to satisfy them that their fears are groundless.
31. Another fundamental right of a state is the right of
acquiring, using, and alienating territory and other prop-
erty susceptible of being held and owned by a state. -
By this is not meant the absolute right of property as understood
in public law, or as'is generally understood in speaking of the abso-
lute rights of property of individuals; for, when a state holds prop-
erty in this manner, it is subject to municipal law. A state has in
the property of the members of the community what is known as
the right of eminent domain, or more generally the rights pertain-
ing to or derived from sovereignty, among which may be mentioned
the right of disposition for the public good. But a state, considered
as an international person, possesses the absolute right of property
within its dominions, to the exclusion of all other international per-
sons or states, and, in so far as other states are concerned, can ac-
quire rights in property in any manner not inconsistent with the
rights of other states, and the property acquired can be held and
peaceably enjoyed. It may be noted that, as individuals are not
42 COMMENCEMENT OF STATES—RIGHTS AND DUTIES. [Ch. 2
recognized internationally except through their state, any rights
they may wish to assert of an international character must be as-
sumed and asserted by the state.
In regard to the alienation of property by a state, Mr. Blunts-
chli says: “In order that a cession of territory may be valid, there
must be: (a) The agreement of’the ceding and acquiring states.
(b) An effective taking of possession by the acquiring state. (c) At
least the recognition of the cession by the persons who, inhabiting
the territory and enjoying political rights there, pass to the new
state. (d) The absence of grave obstacles of an international na-
ture.” 13 Calvo says that “henceforth, in order to render valid and
deﬁnite the cession, transfer, or sale of a territory, the inhabitants
thereof must give their express or tacit consent to the change,” and
says that a new rule of international law has been established and
has prevailed since the treaty of Turin, March 24, 1860 ; citing treaty
of London 13th July, 1863, and the treaty of Prague in 1866.“ It
is not believed that either statement is correct or gives the exact
law upon this subject, as no citizen or community of citizens in a
given territory short of the whole community, and acting as such,
has any right to conﬁrm or reject the action of the state,-since an
act done by the state is binding upon the whole of the community.
If the rule is as stated by either authority, then there is an end to
acquisition of title by conquest.
32. Another fundamental right of states is the right of
independence. This is the right of exercising its will freely
at all times, and in all affairs with regard to which it acts
as a state community, without interference from any
foreign state.
Thus, in regard to other states the right of independence incorpo-
rates the privilege of making treaties of a political or commercial
nature, the forming of special alliances, especially those of friend-
ship, regulating its intercourse with other states, making any con-
- tracts that are not repugnant to the law, and making demands for
reparation, or making war, for acts done by other states. In re-
13 Bluntschli, §286. 14 1 Calvo, Int. Law, § 290.
Ch. 2] THE FUNDAMENTAL RIGHTS OF STATES. 43
gard to persons and things coming under its direct control or the
rights pertaining to sovereignty, a state can exercise an exclusive
jurisdiction over all persons within its own dominions, deciding what
acts shall or shall not be done there, either by its own citizens or by
foreigners, so long as they remain within the bounds of the state,
also over all property situated within its limits to whomsoever it
may belong. Subjects of a state do not by absence free themselves
from allegiance to it. They are subject to its laws, and can be
punished for infringement thereof after they return, should their
state desire to act; but this action cannot be taken upon the territory
of another state without its consent. Their domestic relations are
regulated by the laws of their own state, such as marriage, divorce,
legitimacy, or illegitimacy of their children, and their attainment of
majority, in so far as they concern their effects at home, and they
are even liable for crimes committed by them. The sovereignty
rights of a state logically confer upon it exclusive jurisdiction
over foreigners temporarily within its limits, but this is limited
in practice for various reasons which will be noted more fully in
the discussion of jurisdiction, noting here that a foreigner is re-
quired during his sojourn in a state to conform to its laws espe—
cially in regard to police regulations, and he must do nothing
prejudicial to the political interests‘ of the country. Foreigners are
in general amenable to the criminal jurisdiction of the country in
which they ﬁnd themselves temporarily; and this state can by its
laws regulate the formalities necessary to give legal effect to their
contracts, and determine their competency in regard to contract and
property rights within its limits.
44 COMMENCEMENT or STATES-t-RIGHTS AND DUTIES. [0b. 2
§
THE FUNDAMENTAL DUTIES OF STATES.
33. States owe to other states:
, (a) The duty of enacting, and using reasonable
diligence in the enforcement of, laws to pro-
tect the rights of foreigners within their ter-
ritory. '
(b) The duty of respecting the independence of
other states subject to the right of self-pres-
ervation.
(c) The moral duty of good faith.15
International law contemplates that members of the international
community shall provide themselves with laws, the enforcement of
which will place foreigners in such a position that they can have
reasonable justice as between themselves and subjects of the state,
and as betweenthemselves; and, when a state fails to insure this
protection, it is within the power, and it is the duty, of other states
to provide for it by suitable means. This is now done in many
countries, such as Turkey, Roumania, Servia, and others whose civili-
zation is such as to render their civil and criminal jurisdiction out of
harmony with European ideas.‘ The duty of good faith is applicable
more especially to the subject of contracts or their enforcement.
15 The duty of good faith is applicable more particularly to state contracts.
For discussion of the “Duty of Permitting Commercial and Other Inter-
course,” “The Duties of Courtesy,” vide Hall, Int. Law,‘ pp. 58-62. Vide,
also, on general subject of fundamental rights and duties of states, Wheat.
Int. Law, D, §§ 60-62; 1 Halleck, Int. Law, 80—82.
Ch. 3] Movies 0F ACQUIRING TERRITORIAL PROPERTY. 45
CHAPTER III.
TERRITORIAL PROPERTY OF A sTATE.
34. In General.
35. Modes of Acquiring Territorial Property—Occupancy.
36. Area Affected by Occupation.
37. Cession.
38. Prescription.
39. Accretion.
40. Acquisition of Rights in Foreign Territory—Servitudes.
41. The Navigation of Rivers. '
42. Boundaries of States—How Determined.
43. Territorial Waters of a State.
44. Present Rule as to Marginal Waters.
45-46. Bays, Gulfs, and Straits.
IN GENERAL.
34. The territorial property of a state consists of all the
land and water within that portion of the earth’s surface
which it claims by legal title, and, when it abuts upon the
sea, together with a certain margin of water.1
MODES OF ACQUIRIN G TERRITORIA L PROPERTY 2 —- OC-
CU PANCY.
35. When a state takes actual possession of an unoccu-
pied territory, or of one that is occupied by a barbarous
1 Hall, Int. Law, § 30. Wools. Int. Law, § 56, says: “(1) The territory
of a state includes all that portion of terra ﬁrma which lies within the
boundaries of a state, as well as the waters; that is, the interior seas, lakes,
and rivers wholly contained within the same lines. (2) The mouths of rivers,
‘bays, and estuaries furnishing access to the land. (3) The coast line to the
distance of a marine league.” Wheat. Int. Law, D, § 162. Vide, also, Law-
rence, Handbook, p. 41.
2 Field Int. Code, p. 17, says: A nation may acquire territory (1) by occu-
pation; (2) by accession; (3) by transfer‘; (4) by conquest. A nation may
lose territory (1) by abandonment; (2) by destruction; (3) by transfer; (4) by
conquest. Vide 1 Halleck, Int. Law, c. 6, p. 131 et seq; Hall, Int. Law, §
46 TERRITORIAL PROPERTY or A STATE. [Ch. 3
people, and indicates clearly an intention to hold the ter-
ritory thus seized, she acquires a right of property .therein
.or title by occupancy. '
This title, by continued holding, ripens into title by prescription.
States, in their eagerness to acquire as much territory as possi-
ble, have based their claims to exclusive title or right to this ter-
ritory upon acts which show but an intention coupled with momen-
tary enjoyment, and not an actual possession and enjoyment, and
also by considering as attendant upon that occupied by colonies
large tracts of unoccupied territory. The bare fact of discovery,
which for an extended period was claimed to confer absolute title
to land previously unknown, is now, and for a long time has been,
determined to be an‘insufﬁcient claim to territory.3 The inchoate
title acquired by discovery must, in order to be converted into a
deﬁnite title, be accompanied by possession within a reasonable
time. “There must be also beneﬁcial occupation. This may be by a
fur-trading post, by a ﬁshing station, or by agricultural settle-
ment.“ If discovery is coupled with an assertion of ownership
.and further explorations or temporary lodgments in the country,
the inchoate title may be kept alive for a long time, provided some
other state does not in the meantime acquire, without pro-test, a
more perfect title. The occupation must be effected by the state
itself, either through its duly authorized agents or by the ratiﬁca-
tion of acts by colonists in its behalf. The declaration of a com-
missioned ofﬁcer, and probably the acts of a corporation duly au-
thorized by the state to make settlements, etc., in an uncivilized
country, which indicate an intention to take possession, are suffi-
cient to create them acts'o-f the state itself. If an uncommissioned
navigator, in attempting to take possession on behalf of his state,
fails to take actual possession by establishing a settlement, no legal
validity attaches to his act by ratiﬁcation thereof by the state.“ I
:31; Wools. Int. Law, § 55; Walker, Int. Law, pp. 158, 159; Wheat. Int. Law,
D, § 161.
8 Johnson v. McIntosh, 8 Wheat. 543.
4 Wools. Int. Law, p. 67, § 55. .
BBluntschli, §§ 278, 279. “The sovereignty of territories which form no
part of a state is acquired by taking possession of them by an existing
Ch. 3] MODES OF ACQUIRING TERRITORIAL PROPERTY. 47
SAME-AREA AFFECTED BY OCCUPATION.
36. When a settlement has been made, the colony is en-
titled to all land actually occupied and controlled by it,
to all that is necessary for the security of the settlement,
and to all that is fairly attendant upon it.
When, as is usually the case, a settlement is made upon the
coast, and the territory occupied is a moderate sized island, the
whole of it is usually considered as belonging to the settlement. In
case the island is large or the settlement is made upon a continent,
the rule is that the settlement does‘ not extend inland further than
state. The simple intention of taking possession, and even the symbolic or
formal expression of this intention, as also the provisional taking of pos-
session, are insufficient. The taking of possession can be effected by in-
dividuals in the name and by direction of their state, but on condition
that the colonists organize a government in the recently occupied country.
If the colonists act without powers, their acts should be ratiﬁed by their
state.” See, also, the Oregon question, Wheat. Int. Law, D, §§ 172, 173.
The claim of the United States to this territory rested upon the following
grounds: (1) The ﬁrst discovery of the mouth of the Columbia river by
Capt. Gray, of Boston, in 1792; (2) the recognition by Great Britain of the
title of the United States in the restitution of the settlement of Astoria or
Ft. George; (3) the acquisition by the United States of all titles of Spain
which were based upon the discovery of the coast of the region in question;
(4) Lewis and Clarke’s exploration of the Columbia river in 1805-06; (5)
contiguity, the dominion of the United States being acknowledged as far
as the Rocky Mountains. This claim was resisted by Great Britain on the
following grounds: (1) That. Capt. Gray had not discovered the Columbia
river, but only entered its month, which was discovered four years previ-
ously by Lieut. Meares; that Lewis and Clarke’s expedition was not con- _
ﬁrm-atory, because the British Northwest Company had established their
posts upon the head waters of the main branch the same and subsequent
years, if not before; (2) the restitution of Astoria in 1818 was accompanied
by an express reservation of Great Britain to that territory; (3) that the
Spanish titles conferred only the rights to settle on any part of that terri-
tory, to ﬁsh in their waters, and trade with the natives; (4) that the
charters by British sovereigns to colonies on the Atlantic coasts were
simply cessions to the grantees, and required conﬁrmation by treaties.
‘This controversy was ﬁnally settled by the treaty of June 15, 1846. Vide
Treaties and Conventions of United States with Other Powers, 1776-1887,
p. 438.
.48 TERRITORIAL PROPERTY OF A STATE. [0b. 3
the crest of the watershed; and in regard to the lateral boundaries,
which are more difficult to determine, it seems to be generally ac-
knowledged that the occupation of the coast carries with it the right
to the territory drained by the waters emptying within the lines
occupied by the settlers. The rule laid down by the United States
commissioners to settle the boundary of Louisiana is “that, when
any European nation takes possession of any extent of seaco-ast,
that possession is understood as extending into the interior country
to sources of the rivers emptying themselves within that coast, to all
their branches, and the country they cover, and to give a right in
exclusion of all other nations to the same.” 6 This rule must be
construed so as to have the territory claimed bear some reason-
able relation to the extent of coast occupied. For instance, the
simple establishment of a fort or settlement at the mouth of a
river is not in itself sufficient to establish a valid claim to the whole
of a large basin of this river, nor would the occupation of one side of
a river be suﬁ‘icient to bar another state from acquiring a claim to
the territory on the other side of the stream. When two states
have established settlements upon a coast, and the extent of their
claims has not been determined, the usual course followed for the
determination of their respective claims is to have the boundary line
established midway between the last settlements of each, without
any regard to the natural features of the intervening country.7
‘The onlyT country of any great extent that is at present subject to
the acquisition of territory therein by other state-s is the continent
of Africa, and this has been made the subject of a special agree-
ment by those countries that are liable to acquire territory therein
by occupation, from which agreement it will be‘noted that there
is a tendency to require more solid grounds upon which to base title I
to territory thus claimed. This should be so because the reasons
for the laxity in the rules in this respect no longer exist, as the
present means of communication are such as to do away with the
' necessity that existed for giving undue value to acts upon which
states relied to perfect their claims to territory. The question as
6 Walker, Int. Law, 161; Hall, Int. Law, 111; Snow, Cas. 12, note 1. ‘ t
7 Vide Bluntschli, §§ 278, 279; the Oregon question, Wheat. Int. Law, D,
§172 et seq. See, also, for illustration, the Louisiana question (Texas), Hall,
Int. Law, pp. 111, 112.
Ch. 3] MODES 0F ACQUIRING TERRITORIAL ,PRorERTY. 49
to whether a state can abandon rights acquired by discovery and
occupation can best be explained by a statement of facts in regard
to Santa Lucia. In 1639 this island was occupied by an English
colony, which was massacred by the Caribs ‘in 1640, and no attempt
was made by the English during the next ten years to recolonize the
island. In 1650 the French took possession of it as unappropriated
land, and remained in possession until 1664, when they were at-
tacked by the English, and driven into the mountains, where they
remained until the English retired, three years later, when they
returned and reoccupied their lands. It does not appear what
became of this French colony, for at the treaty of Utrecht it was
regarded as a “neutral island,” and by the terms of the peace of 1763
it was declared to belong to France. ' Mr. Hall says: “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 supposing England to have acquiesced in the results
of the massacre, and that their occupation was consequently good
in law.” 8 In the case of the Delagoa Bay, claimed by England
through a cession of the natives, and by Portugal on the ground of
continuous occupation, the award was’ made to the last named
country principally on the ground of ﬁrst discovery in the sixteenth
century, and of continued control and occupation of the territory
since that time, although the actual occupation had not been con-
tinuous. The interruption therein in 1823 had not been sufficient
[to oust a title supported by occasional acts of sovereignty extend-
ing through three centuries.9
SAME—CESSION.
3'7. Territory is acquired by cession where one state as-
signs, transfers, ‘or yields up territory to another, either in
time of peace, or as the result of war.
The cession of territory is generally consequent on war, and
ratiﬁed by treaties which conclude it, but instances are numerous
where these have been made in time of peace. The transfer may
8 Hall, Int. Law, p. .119. a Hall, Int. Law, pp. 119, 120.
INTERNAT.LAW—4
50 TERRIToRIAL PROPERTY OF A sTATE. [Ch. 3
be made by way of sale, gift, and exchange, and formerly by will;
but the alienation by way of testamentary devise is no longer con-
sidered possible, because the sovereign does not possess a proprie-
tary right in the territory. The United States acquired, by ces-
sion, Louisiana, Florida, and Alaska; and the latest example of ac-
quisition by conquest is that of Alsace and Lorraine,after the war
of 187 0—7 1, by Germany from France.“ "
SAME—PRESCRIPTION.
38. Title by prescription arises from the uninterrupted
possession of territory or other. property by a state for a
certain length of time.
' That title by prescription has any place in international law has
been denied; 11 but, as Mr. Hall says, “a denial of title by prescription
has as yet rarely been 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 nation-
ality.” 12 On the other hand, Phillimore quotes approvingly Burke,
who speaks of “the solid rock of prescription” as “the so-undest, the
most general, the most recognized title between man and man that’
is known in municipal or public jurisprudence,-a title which,
though not ﬁxed in its terms, is rooted in its principles in the law
of nature itself,- for all property in soil will always be traced back
to that source, and will rest there. In England we have always
had a prescription or limitation, as all nations have against each
other.” 13 There is no doubt that long continued, peaceable posses-
sion and enjoyment of a territory confers upon the state so holding
a sovereign title to the same, so that an attempt to subvert it by
subjects would be a rebellion, and by ‘other nations an attempted
conquest. The principle upon which it rests is the same in inter-
national law as in municipal law, being modiﬁed by the fact that in
10 For other instances in illustration, vide 1 Phillim. Int. Law, §§ 268-270;
also, § 275; also, 1 Calvo, Int. Law, §§ 291-299. -
11 Kluber, §§ 6, 125; Martens, bk. 2, c. 4, § 71.
12 Hall, Int. Law, p. 122, note 1.
18 1 Phillim. Int. Law, § 258.
Gb. 3] MODES or‘ ACQUIRING TERRITORIAL PROPERTY. 51
the former there is no tribunal to decide ﬁnally, as there is in the
latter. The object in all cases is to give security to title, and pre-
vent litigation (or, in international law, quarrels) by the efﬂux of
time. Quarrels among nations are so serious in their nature, and
so much more to be dreaded and avoided than quarrels among in-
dividuals, especially as they are liable to result in war, that the
maintenance of peace and harmony among nations, as well as
"human progress, demand that, when title to ‘territory has received
the consecration of time, it should be declared valid. It is true
that prescription has been appealed to by nations to cover claims
to territory that are based upon immoral acts of acquisition, as in
the case of Poland; but these claims of ownership have been ac-
quiesced in by other nations because the acquisition promises to
be permanent, which is a much desired end.
Length of Time Necessary.
The length of time that must elapse in order to perfect title by
- prescription, or what is a reasonable time under such circumstances,
has never been determined. Field recommends a uniform period
of ﬁfty years as ‘a necessary period to found a national prescrip-
tion. The lapse of time necessary for a generation to be born,
educated, and come into possession of the powers and duties of
the state’has been given as the negative limit. Phillimore says:
'“To the question, what duration or lapse of time is required by the
canons of international jurisprudence in order to constitute a law-
ful possession? it is enough to reply: First, that the title of na-
tions in the actual enjoyment and peaceable possession of their ter-
ritory, however originally obtained, cannot be at any time ques-
tioned or disputed; secondly, that a forcible and unjust seizure of
.a country, which the inhabitants, overpowered for the moment by
the superiority of physicaLforce, ineffectually resist, is a possession
which, lacking an originally just title, requires the aid of time to
cure its original defect; and if the nation so subjugated succeed,
vbefore that cure has been effected, in shaking off the yoke, it is.
legally and morally entitled to resume its former position in the
‘community of states.”14 The best and most generally accepted
1* Wools. Int. Law, s55; Grotius, De Jur. Bel. bk. 2, e. 4; Vatt. Int. Law,
‘.bk. 2, c. 11; Wheat. Int. Law, D, § 16-1, note 101; Greasy, Int. Law, 250—
52 TERRITORIAL PROPERTY or A sTATE. [Ch. 3
. idea is that no arbitrary rule as to time can be ﬁxed, nor is it desir-
able that such a general rule should be adopted.
SAME—ACCRETION.
39. Accretion is the formation of new land by the action
of ‘water by alluvion or dereliction. This may occur as
follows:
(a) Upon land that is actually appropriated by a state.
(b) In a river or lake which forms the boundary be-
tween two states.
(0) Near the territory of a state, either in the open sea
or in the waters lying between the state and a
neighboring state. ‘
In the ﬁrst case, the new land belongs, of course, to the state to
which it attaches itself. In the case of rivers which form the
boundary, and the bed of which belongs equally to the bordering‘
states, an island forming wholly on one side of the center of the
deepest channel belongs to the state owning the nearer shore, and
one forming in midstream is divided between the two states, the
dividing line following the original center of the channel. If the
river forming the boundary should suddenly change its bed, and
form a new channel, wholly within the territory of one of the states,
no change of ownership of territory occurs, as the boundary would
remain in the deserted river bed. The same is true in regard to a
lake which belongs wholly to a state, which suddenly overﬂows into
the lowlands belonging to another state. In the last case the new
land belongs to the nearest state, and this has been held to be true
whatever he the nature of the soil of which the new land is composed,
whether it be of earth or solid rock, as the right of dominion does not
depend upon the nature of the soil.15 In case an island is formed by _
alluvion in the sea, it becomes a part of the state to which the coast
belongs, even though formed outside of the territorial limits. It can-
255; Bluntschli, § 290; Calvo, Int. Law, p. 386, § 264; 1 Phillim. Int. Law, §
255 et seq.; Field, Int. Code, p. 22; Rhode Island v. Massachusetts, 4 How. .
639. v '
15 The Anna, 5 C. Rob. Adm. 373; also, Snow Cas. p. 393.
Ch.‘ 8] I ACQUISITION or RIGHTS IN FOREIGN TERRIToRY. 53
not be occupied by foreign states, and is so completely a part of the
state to which the coast belongs that the waters surrounding it be-
come territorial to the recognized radius. This is true even though
its soil be of mud, and can serve no useful purpose. When the
boundary between two states is a ﬁxed line, accretions belong to the
state on whose side of the boundary they form.16
ACQUISITION OF RIGHTS IN FOREIGN TERRITORY—
SERVI'I'UDES.
40. .Restrictions upon the complete and entire sover-
eignty of a state, consisting either in the prohibition of
certain acts by it, or in the permission to a foreign state
to perform certain acts otherwise prohibited upon its ter-
ritory, are servitudes.
Assuming that only those restrictions that arise from immemorial
usage or prescription are to be considered as servitudes, it is prob-
ably correct to state that only the following have a general or custo-
mary basis: (1) The right of innocent use of territorial seas; (2)
military passage through a foreign state to outlying territory; (3)
customary rights over forests, pastures, and waters for the beneﬁt
of persons living near a frontier which exist in some places. But,
when is included under this title the restrictions arising from treaty
or equivalent agreement, we have the subdivision into negative and
positive servitudes; the former being those by which the servient
state is under obligation not, to do certain things, and the latter be-
ing those by which the servient state is under obligation to permit
the owner of the jus serv-itutis to do something upon its territory .
that wouldnot be lawful without the existence of the servitude.17
16 Vide 1 Phillim. Int. Law, §§ 238-240; Calvo, Int. Law, § 291; Bluntschli,
§§ 295—299; 1 Halleck, Int. Law, 146; Greasy, Int. Law, 241, 24¢9,—for more
extended discussions of title by accretion.
17 Bluntschli: -
“Sec. 356. The negative servitudes are: (a) The obligation of a state to
have no more than a certain number of soldiers, not to construct any war
vessels but of a determined kind, or to have but a certain number of war ves-
sel-s, fortiﬁed places, etc.; (b) the obligation of a state to abstain from all acts
of jurisdiction over those under the protection of another state; (0) the re-
strictions brought in favor of a foreign state to the laws of the country upon
54 TERRITORIAL PROPERTY OF A sum. [Ch. 3
The most important of these servitudes is the right of innocent pas-
sage through territorial waters which are so situated as to render
their free navigation necessary or convenient to 'the navigation of
the open seas. In regard to these it may be said that this right
of innocent use for commercial navigation of such waters is and has
been for centuries well established, This right of innocent use is
not extended to include vessels of war, and this because the same
reasons‘ cannot be advanced, and such a privilege may be of serious
hurt to a third state, and is at best of advantage only to the state
to whom the vessels of war belong. A state, therefore, always has
the right to refuse the use of its territorial waters to the armed ves-
sels of another state.
SAME—THE NAVIGATION OF RIVERS.
41. The navigation of rivers presents the following
phases: . '
(a) A river wholly within the boundaries of a state
is territorial water, and its navigation is not a
recognized international right.
(b) A navigable river which forms the boundary of
two or more states is of right open to the free
the exercise of religious worship; (d) the exemption of taxes granted by
treaty‘ with a foreign power, to certain persons, corporations, or classes of
persons; (e) the obligation for a state not to establish any custom-houses along
the frontier of another state.”
“See. 357. As example of positive servitudes,‘ the treaties mention: (a)
The right of way through another state for the passage of troops; (b) the
right, in certain cases, to occupy with its troops a part of the foreign terri-
tory; (c) the right to exercise law and order, or of collecting the taxes upon
a part of the foreign territory; ((1) the right to establish and maintain cus-
tom-houses, and to take the necessary steps for the discovery of frauds
[smuggling]; (e) the right to organize and maintain postal services.”
“Sec. 359. The international servitudes cease: (a) By treaty between the
two states; (b) by waiver on the part of the state who has the right of servi-
tude (the non-exercise of the liability during a generation, when occasion to
use it Occurred several times, is equivalent to a waiver); (c) when the lia-
bility is no longer compatible with the development of international law; ((1)
when the liability is incompatible with the development of the constitution,
with public ‘order, and the needs of the state.”
Ch. 3] ACQUISITION or RIGHTS IN FOREIGN TERRITORY. 55.
navigation of each, even though it desert its
channel and form a new one wholly within the
territory of one of the states.
(0) When a river rises in one state, and, before empty-
ing into the sea, passes through one or 'more
other states, the state upon the upper waters has
no strictly legal right to‘ its navigation through
the lower states, but a strong moral claim
thereto.
In regard to navigable rivers wholly within the territory of a state,
it can safely be said that but few, if any, such rivers, are now open
to the free navigation of other nations. It has been claimed that
not only riparians, but non-riparians, have a right of free navigation
‘of rivers upon the ground of innocent use, or that things of which the
use is inexhaustible, such as the sea and running water, cannot be so
appropriated by a state as to exclude others from using these ele-
ments in any manner which does not occasion a loss or inconvenience
to the proprietor; and that, in the case of those living upon the up-
per waters of a river, a servitude is possessed by them over nature’s
pathway, through the property of their neighbor, to reach the great
highway of nations, provided security be given against trespass and
all equitable charges are paid; and that as those who live upon the
upper waters would have no right to divert the stream so those on
the lower cannot rightfully exclude them from its use.18 Should a
state force its passage over the waterway of another which is situated
7 between itself and the sea on the grounds above stated, there can be
no doubt that it would commit a trespass upon the property of this
18woo1s. Int. Law, § 62; wheat. Int. Law, D, § 193; Hall, Int. Law, p.
134, note 1. “If the freedom of the sea is a principle of justice deﬁnitely es
tablished in the law of nations, and recognized by the practice of nations, it
seems logical and natural, at ﬁrst view, to apply it equally to the navigation
of rivers, in which one is compelled to see a necessary means of communica-
tion between progressive and civilized people. There is no reason which pre~
‘ vents placing rivers upon the same basis as the sea.” Calvo, Int. Law, § 302.
And see 1 Halleck, Int. Law, 147, 148. “Waters and navigable rivers which
communicate with the open sea are open in-time of peace to all nations. The
right of free navigation can be neither abridged or restrained to the detriment
of other nations.” Bluntschli, § 314.
56 , TERRITORIAL PROPERTY OF A sTATE. [0b. 3
neighboring state, however much might be the wants or necessities
of the upper state, or however just such action ~might be upon moral
grounds. International law does not recognize any such right, and,
in so far as this law is concerned, it is correct to say that a state may
open or close its rivers at will, and that it may tax or regulate
transit over them as it chooses.19 It is true that practically the
same result has been attained by other means, as the navigation of
all or nearly all streams ﬂowing through Christian states is now free
to all mankind, which is probably due to the tendency to do away
with the prohibition or restriction of river navigation by foreigners;
and this tendency dates from the beginning of the present century.
In the UnitedStates all of the great rivers are open to navigation by
foreigners; yet the right of navigation is expressly denied.20
BOUNDARIES OF STATES—HOW DETERMINED.
42. State boundaries are either arbitrary lines connect-
ing natural or artiﬁcial points, or consist of natural fea-
tures, such as lakes, rivers, mountains, etc. They are de-
termined as follows:
(a) When two states are separated by a range of hills
or mountains, the water divide is the boundary
line or frontier.
(b) When a river, not the exclusive property of one
of the riparian states, separates two states, the
middle of the stream in non-navigable rivers,
and the center of the deepest channel, or “thal-
weg” in navigable rivers, is the boundary or
frontier.21
19 1 Twiss, Law Nat. § 141: “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 terri-
tory.” 1 Phillim. Int. Law, § 170; Hall, Int. Law, p. 139.
20 Hall, Int. Law, p. 137. For discussion of the opening of the Mississippi,
St. Lawrence, European, and South American rivers, vide Snow, Cas. pp.
33-41, and Wools. Int. Law, § 62. -
21 Vide opinion Atty. Gen. Cushing, 8 Op. Attys. Gen. 175, as to river
boundary between United States and Mexico.
Ch. 3] TERRI'IORIAL WATERS OF A sTATE. 57
(c) When the boundary is a lake, unless one of the
states can show that another line has been estab-
lished by usage or treaty, a line through the
middle of this lake constitutes the frontier.
The above rules may be said to be established for application in
determination of frontiers that have not been ﬁxed by agreement, or
where there is for any reason a doubt as to the true frontier. A
state that claims to own the whole of a stream or lake must give
evidence of its title, either by treaty or by showing the exercise of
continuous ownership over I, e waters claimed; and, if the owner-
ship of the entire stream fablished, the ownership of the op-
posite bank goes with it, 'eing necessary to the use of the stream
itself. As to how much of this shore should be considered as ac-
cessory to this use has never been determined; In the case of the
river Oder, which was ceded to Sweden in 1648, the claim to ter-
ritory on the opposite shore to the extent of two German miles was
established as an inseparable accessory. Prussia, in 1773, establish-
ed a claim to the opposite shore of the Netze, under a cession of the
stream.22 In the United States the question of territorial bounda-
ries, in a controversy with a foreign government, are determined by
the political departments, and not by the judicial departments, and
the latter will follow the decisions of the former.23
TERRITORIAL WATERS OF‘A STATE.
43. The ocean or open sea is free and open to all na-
tions.
The above is the consensus of the opinions of all modern text
writers and jurists, although this conclusion has not been reached
by the same course of reasoning. With some it is claimed that
the open sea, on account of its nature, cannot become property, or
is insusceptible of occupation; that it is indivisible, inexhaustible,
and productive without the labor of man; that its destination is
22 Hall, Int. Law, 126; 1 Twiss, Law Nat. §§ 143, 144.
23 Whart. Dig. § 22, and cases cited. Vide, also, In re Cooper, 143 U. S.
472, 12 Sup. Ct. 453. As to ‘general question of boundaries, vide Hall, Int.
Law, 125, 126; Bluntschli, §§ 296-303.
58 TERRITORIAL PROPERTY OF A sTATE. [0b. 3
for the common beneﬁt of mankind; and that it is a common path-
way intended for all alike. Others maintain that up to the present
century the sea could be and was effectively appropriated in some
instances, but that as this appropriation, particularly of large areas,
was burdensome to strangers and to the appropriating states as
well, without sufﬁcient compensating advantages attending it, these
states gradually abandoned their claims by exercising inadequate
or intermittent control, until the larger claims entirely disappeared
or narrowed down to those waters which were regarded as neces-
, sary to the safety of the state, and which were looked upon as being
within the power of the state to command. Among the extrava-
gant claims that were advanced to proprietary rights over the sea
may be mentioned the claim of Spain to dominion over the Paciﬁc
Ocean and Gulf of Mexico, and that of Portugal to the Indian
Ocean and to all of the Atlantic Ocean south of Morocco, during the
ﬁfteenth century. It was on account of these pretensions that
Hugo Grotius was induced to write his celebrated work “Mare
Liberum,” which appeared in 1609. In the beginning of the seven-
teenth century it is believed that all of the seas surrounding Europe
_ were subject to some claim of proprietary right. In this century
England claimed all of the sea surrounding Great Britain as far
as the coasts of the surrounding countries, in support of which
claims, and in answer to the “Mare Liberum,” Selden, in 1635, wrote
his “Mare Clausum.” One of the most interesting and at the same
time most recent claims is that advanced by the United States to
territorial property in the waters of Kamschatkan Sea, which gave
rise to what is known as the “Behring Sea Controversy” between
the United States and England, wherein the United States claimed
the right to prevent British subjects from sealing in the waters of
this sea, basing the claim upon territorial property in the waters
thereof, which waters are not even inclosed by American territory.
This claim is not quite so extensive, but fully as valueless, as that
of Russia to territorial property in all. of the Paciﬁc Ocean north
of the ﬁfty-ﬁrst parallel. This claim is placed on the ground that it
was inclosed between shores which were exclusively within her
jurisdiction, and was successfully resisted by both the United
States and Great Britain in 1824 and 1825. The result of the rea-
soning of all the authorities is summed up in the statement made
Ch. 3] TERRITORIAL WATERS or A sum. 59
as to the freedom of the open sea, and the rule in regard to the
proprietorship of territorial waters is that a maritime occupation,
in order to be valid, must be effective, and these territorial waters
are subject to the free navigation by other states.“
SAME—PRESENT RULE AS TO MARGINAL WATERS.
44. The jurisdiction of a state over its marginal waters
extends from the shore to such distance as the power of
the state is effective, the generally accepted distance, being
a marine league (3 1-2 English miles), is determined by
the effective range of cannon.
Whatever may be said to be the reason for the appropriation of
these marginal waters, whether it is because a state has the right
to protect the lives and property of its citizens on the land against
the acts of violence of persons whose states, could not be held re-
sponsible unless the right of pursuit and capture be recognized, or
whether it be that the state has the right to preserve for its own
citizens the natural products of the sea within these belts, or
~whether it be that this right is necessary for the proper administra-
tion of its revenue laws, etc., there can be no doubt that states can
effectively control from the shore the present accepted extent of
marginal waters, which consideration has in all probability had a
‘ large, if not a controlling, inﬂuence in the determination of this rule.
In the acceptance of the marine league as the limit of territorial
property in marginal waters, the controlling factor was that, at the
time it was determined, this distance was the accepted eﬁective
range of cannon. At the present time, however, the effective
range of cannon has been very much increased, and modern guns
are effective for at least double this distance; and there can be
little, if any, doubt as to the absolute right of a state to extend its
territorial waters to correspond with this increased range.25 1
24 For history of attempts to maintain ownership of the open sea, vide
Wheat. Int.‘Law, D, note 113; Wheat. Hist. Nat. 152-162; 1 Phillim. cc. 6,
8; Wools. Int. Law, § 59; Walk. Int. Law, 163-171; Hall, Int. Law, § 40;
Greasy, Int. Law, 226-231; Galvo, Int. Law. § 34:? et seq.
25 Hall, Int. Law, p. 153, says of the threemile rule: “As it has been de-
termined, if determined at all, upon an assumption which has ceased to hold
60 TERRITORIAL PROPERTY OF A STATE. _ [Ch. 3
SAME—BAYS, GULFS, AND STRAITS.
45. Bays and gulfs running wholly within the territory~
of a single state can be included in its territorial waters.
46. The rule in regard to marginal seas is applied also to
straits as follows:
(a) If the strait is more than six miles wide, the space
between the marine league from each shore is
free.
(b) If it is less than or only six miles in width, the
whole of the strait belongs to the state or states
to whom the shores belong. I
Bays and G-ulfs. . _
The rules in regard to these waters are as stated above, but an
examination of the claims of different states and their practice does
‘not show a very close adherence to them. The United States at
one time claimed, as territorial, all the waters inclosed within lines‘
stretched from quite distant headlands, the most extensive claim
being from the south cape of Florida to the Mississippi; and today
they claim that the waters of the Chesapeake and Delaware Bays
and similar inlets are territorial.26 France and Germany claim that
all bays, inlets, and recesses that are not more than ten miles wide
at their entrance, measured in a straight line from headland to head-
land, and in the case of the Bay of Cancale, which is seventeen miles
wide at its entrance, are territorial waters. England holds that the
whole of the British Channel between Somerset and Glamorgan is
British territory,27 and that Conception Bay, in Newfoundland, which
good, it would be pedantry to adhere to the rule in its present form; and per-
haps it may be said without impropriety that a state has the right to extend
its territorial waters from time to time at its will with the increased range
of guns, though it would undoubtedly be more satisfactory that an arrange
ment upon the subject should be come to by common agreement.” Whart.
Dig. § 32; Bluntschli, § 302; Creasy, Int. Law, 233-240; Calvo, Int. Law, §
356. Vide, also, Queen v. Keyn, 2 Exch. Div. 63; Wools. Int. Law, 68—70; 1
I-Ialleck, Int. Law, pp. 134-138.
26 Whart. Dig. § 28; Hall, Int. Law, p. ‘154; The Grange, 1 Op. Attys. Gen.
32.
27 Reg. v. Cunningham, Bell, Cr. Cas. 72.
Ch. 3] TERRITORIAL WATERS or A STATE. 61
is over ﬁfteen miles wide, and extends from forty ‘to ﬁfty miles into
the interior, is a British bay, and forms a part of the territorial
waters of Newfoundland.28 In the settlement of the northwest
boundary line between the United States and Great Britain, de-
clared in a protocol at Washington on March 10, 1873, in accordance
with the decision of the emperor of Germany, it was determined
that this line passes down the middle of a strait that is ﬁfteen miles
wide, and further inland it passes through the middle of a body of
water that is thirty miles long and twenty miles wide.29 It is impossi-
ble to state with any great amount of deﬁniteness just what rule will
be followed in regard to all bays and gulfs, especially if they extend
for any great distance into the territory of a state, and have rela-
tively small inlets, further than to say that the present tendency is
to limit these claims much more than formerly, and in future it is
not likely that very broad gulfs with large mouths will be seriously
claimed by any state. -
Straits.
The most celebrated and at the same time one of the best illustra-
tions of claims to territorial property in this class of waters is that
of Denmark to the Baltic’ Sound. Her claim to the right of collect-
ing what is known as “Sound dues” was based upon immemorial pre
scription extending over a period of 600 years, and upon the sanc-
tion of a long list of treaties. \ The collection of these dues became
ﬁnally so troublesome to other nations that American and European
states, by treaty of 1857, capitalized and forever abolished them by
paying Denmark 35,000,000 rix-dollars. The United States declined
to be a party to this treaty, because “Denmark does not Offer to
submit to the convention the question of her right to levy the Sound
dues,” and, further, because the proposition contained a political
result,——“the balance of power among the governmentslof Europe.”
The same result was accomplished by this country in the following
year (1857) by a separate convention, in which the recognition of
the right of Denmark to collect the dues was avoided, as the United
States agreed to pay 717,829 rix-dollars ($393,011 in the currency of
28 Direct U. S. Cable Co. v. Anglo-American Tel. 00., 2 App. Gas. 394.
29 Treaties and Conventions of United States and Other Powers, p. 495.
62 : TERRITORIAL PROPERTY OF A sTATE. [0b. 3
the United States) in consideration that Denmark keep up lights,
buoys, and pilot establishments.30
The Black Sea was formerly wholly within the territory of Turkey,
and at that time was regarded as the property of that state; but, ~-
after the acquisition of rights by Russia, she, with all other mari-
time states, acquired the right to participate in the commerce of this
sea, and with it the right of free navigation of the Dardanelles. The
treaties regulating this were in 1829, 1841, 1856, and 1871. The last
named, which modiﬁed that of 1856, threw open the Black Sea to
the merchant vessels of all nations; and by it the sultan was au-
thorized to pass ships of war in time of peace to carry out the pro-
visions of the treaty of Paris. The last named treaty (1871) also
enlarged the powers of both Russia and Turkey in regard to the
fleets that could be maintained in the Black Sea. The United
States was not a party to this treaty, and has never recognized the
abstract right of the Turkish government to obstruct the naviga-
tion of the Dardanelles; yet the practice is for all American Men-
of-war to obtain permission of the Sultan before passing through.31
Suez Canal.
The Suez Canal occupies a unique position in international law,
.as, being a narrow waterway, connecting two open seas, it can be
looked upon as having the same international position as a strait, ‘
.and again, since it is wholly within the territory ‘of a single state,
.as being an internal waterway, under the complete control of the
sovereign, except in so far as his rights have been parted with by
contract. In accepting either theory, a mistake is made, because
each disregards certain important facts in connection with this arti-
ﬁcial channel. Regarding it as a- strait, it would, under the present
state of the law, be subject to the servitude of innocent passage,
because such passage is necessary to the free navigation of the high
80 Snow, Cas. pp. 41—43; Treaties and Conventions of United States and
Other Powers, p, 238.
31 Snow, Cas. pp. 43, 44; Schuyler’s Am. Diplomacy, 317. For extended
discussion, vide Hall, Int. Law, pp. 153-156; Whart. Dig. §§ 28, 29; 1 Hal-
leck, Int; Law, 0. 6, §§ 16—22; Wools. Int. Law, §§ 60, 61; Calvo, Int. Law,
§§ 367-375; Bluntschli, §§ 309, 310; Direct U. S. Cable Co. v. Anglo-American
Tel. 00., 2 App. Gas. 394; Pitt-Cobbett, Cas. Int. Law, p. 32.
Ch. 3] TERRIToRIAIj WATERS OF A STATE. ' 63
seas which it connects, and no tolls ‘could be collected for proﬁt,
and in fact none further than such as might be necessary for in
demniﬁcation for the expense of maintaining lights, buoys, etc.,
which theory loses sight of the fact that this canal is an artiﬁcial
instead of a natural waterway connecting two open seas. In ac-
cepting the second theory, one assumes that it is an artiﬁcial chan-
nel, constructed and operated by a commercial company, under a
charter from the Khedive, conﬁrmed by the Sultan, and that it is
situated wholly within the territory of one power. This canal
does possess, however, an international character, for various pow-
ers have entered into negotiations with it and with other nations
in regard to it, and again it is given this character by its constitu-
tion, which declares that the governing body shall consist of mem-
bers representing the principal nations interested in the enter-_
prise.32 This fact upsets the idea of its being an internal water-
way as completely as its being artiﬁcial upsets the idea of its being
a strait. Several attempts have been made to neutralize this canal,
the last being in 1885; but thus far all attempts have been attended
with failure, although the eﬁect has been to show the desirability
of accomplishing something deﬁnite as to the rules that should gov-
ern its use. It is not believed that any treaty of neutralization
can be effected because of the necessity of its use by England for the
passage of her troops and ships of war in the event of a war, and on
account of the further difficulty of arranging a suitable or consistent
status for the local government in the event of a war by it with
some other power. It has been suggested that the state itself be
neutralized; and also that a new state be formed of a strip of- terri-
tory several miles in width on either side of the canal, with territo-
rial jurisdiction over it; and, further, that this proposed state be
empowered to manage and control the traﬁic over it under agreed
conditions. This last seems to be the most satisfactory solution of
this intricate problem, if it could be accomplished.“
82 Statutes Suez Canal Company, 1856, tit. 3, art. 24.
83 For complete discussion, vide Lawr. Essays, Int. Law, 2; Boyd’s Wheat.
Int. Law, §205, b, c; Calvo, Int. Law, §§ 377-379.
64 TERRITORIAL JURISDICTION. . [Ch. 4
CHAPTER IV.
TERRITORIAL JURISDICTION.
47. Meaning of Term “Exterritoriality.”
48. Sovereigns and Their Suites.
49. Diplomatic Agents.
' 50. Criminal Jurisdiction.
51. Civil Jurisdiction.
52. Family and Suite of Diplomatic Agent.
53. House of Diplomatic Agent.
54. Right of Asylum in Legations.
55. Immunities as to Evidence.
56-58. Vessels of War, Public Vessels, and Armed Forces.
59. Merchant Vessels.
60. Right of Asylum.
61. Aliens—Exemptions from Military or Naval Duty.
62-65. Extraterritorial Acts of Persons by Direction of Their State.
66. Responsibility of a State in Case of Civil Commotion and Mob Vio-
lence. . ‘ 1
67. Extradition of Fugitives from Justice.
68. Political Offenses.
69. Extradition of Its Own Citizens by a State.
70. Jurisdiction of Oﬁenses beyond the Limits of the State.
EXTERRITORIALITY .
47. Certain persons and things, such as sovereigns, diplo-
matic agents, armies, vessels of war, etc., when on foreign
territory, enjoy certain immunities from the local jurisdic-
tion with respect to their persons, their retinue, and, in. the
case of public vessels, with respect, ‘to persons on board.
The relations thus established are described by the term
“Ililxterritoriality.”1
1 Wools. Int. Law, § 68: ' “Certain classes of aliens are, by the comity of
nations, exempted in a greater or less degree from the control of the laws in
the land of their temporary sojourn. They are conceived of as bringing their
native laws with them out of their native territory, and the name given to
the ﬁction of law—for it seems there must be a ﬁction of law to explain a
very simple fact—is ‘exterritoriality.’ This privilege is conceded especially
Ch. 4] SOVEREIGNS AND THEIR sUITEs. 65
The immunities conceded to persons and things as above stated
are accorded by reason of the fact that they represent the sover-
eignty of an equally independent state, to which deference and re-
spect are due. I These immunities are accorded as a matter of
comity. If a sovereign should be subjected to the jurisdiction of
a foreign state, in which he happens to ﬁnd himself, the interests
of his own country would necessarily be imperiled. So, also, it
may be said in regard to the armed forces of a foreign state, that,
if interfered with, their efficiency and usefulness to their own country
would disappear, as these qualities depend upon their absolute free-
dom of movement, uncontrolled by foreign interference. So, in re-
gard to the duties of diplomatic agents, it is clear that they could
not be satisfactorily performed if subject to the jurisdiction of the
country to which they are accredited.
SO-VEREIGNS AND THEIR SUITES.
48. A sovereign within foreign territory in his capacity
of sovereign possesses an immunity from all local jurisdic-
tion, to the following extent:
(a) ‘He is exempt from the payment of all dues and
taxes, and is not subject to police or other admin-
istrative regulations.
(b) His house cannot be entered by the authorities of
the foreign state.
(0) His personal immunities extend to members of his
suite.
(d) He can perform such acts of sovereignty as are not
in derogation of the exclusive territorial rights
of the state in which he ﬁnds himself.
(o) A crime committed by a member of his suite can-
not be tried and punished within the precincts
occupied by him, but must be sent home for trial.
(1) to sovereigns traveling abroad with their trains; (2) to ambassadors, their
suite, family, and servants; and (3) to the officers and crews of public armed
vessels in foreign ports, and to armies in their permitted transit through for-
eign territory.”
INTERN.~\T.LAW——5
66 TERRITORIAL JURISDICTION. [Ch. 4
\
(f) Nor can cognizance‘ be taken of an action by a
foreigner against a member of his suite, by the
foreigner himself or his judges. Nor can a judg-
ment in an action between members of his suite
be enforced. Civil actions between them, or be-
tween them and subjects of other powers, must
likewise be sent home for trial. .
(g) But he is bound to commit no acts against the safety
or good Order of the community in which he re-
sides, and to prevent the same on the ‘part of his
attendants; and for such acts he can be placed
under the necessary amount of restraint, and ex-
pelled from the country.
\h) His house cannot be made an asylum for criminals,
not members of his suite. A refusal to deliver
up such a criminal to the proper authorities would
justify expulsion and. use of the necessary force
to prevent the removal of the criminal.
(i) A sovereign may enter. a foreign country as a pri-
vate individual, and as such be liable to the local
jurisdiction, but such jurisdiction must cease at
his will in declaring his identity.
(j) The property of a sovereign possessed as an individ-
ual is subject to the local jurisdiction of the coun-
try in which it is situated.
When the president of a republic travels in a foreign state, he
is generally considered and treated as, a private citizen, but, should
he be acting in his capacity as the head of his state, he assumes
and is entitled to the same position as any foreign sovereign, and
enjoys all the rights and privileges accorded to that status. The
monarch or hereditary ruler is considered at all times the personi-
ﬁcation of the sovereignty of his state, while the rule in regard to
presidents of republics is that they are, as a rule, private citizens,
and but‘ occasionally rulers or representatives of their state sov-_
ereignty. The immunities granted to sovereigns presuppose‘ that
their states ‘are at peace with each other; that the presence of
the sovereign in the foreign state is by the consent, express or
Ch. 4] SGVEREIGNS AND THEIR sUITEs. 67
implied, of this state; and that his status as sovereign is known
and recognized. The entrance can be denied 'to any foreign sov-
ereign by a state, although, if such action is taken without good
cause, it would constitute a lack of courtesy, and might be a cause
of complaint, and even lead to war. It is scarcely necessary to add
that a dethroned sovereign cannot demand these immunities, and,
should he come into a foreign state, he can be considered and treated
simply as a citizen. Distinctions have been made between the real
and personal property of a sovereign situated and owned by him as
a private citizen, in a foreign state, claiming that only personal
property is exempt from the local jurisdiction; but no good rea-
‘son is apparent for such distinction.2
2 Bluntschli, §§ 129, 134, 136-142, 150-153; Hall, Int. Law, pp. 163-167; 2
Phillim. Int. Law, §§ 104, 108. “A foreign sovereign cannot be sued for in-
fringement of a patent; and where a foreign sovereign has his name added
as defendant in a suit against his agents, in order to be in a position to thus
claim his property, he does not thereby subject himself to the jurisdiction of
the court.” Vavasseur v. Krupp, 9 "Ch. Div. 351. A suit cannot be maintained
against a foreign sovereign. The non-appearance of the defendant sovereign
does not prejudice his rights. De Haber v. Queen of Portugal, 17 Q. B. 196.
But see King of Spain v. Hullet, 1 Clark & F. 348; Rothschild v. Queen of
Portugal, 3 Younge & o. Exch. 594. Vide, also, Prioleau v. U. s., L. R. 2 Eq.
659; U. S. v. Wagner, L. R. 2 Ch. App. 582. Vide, also, Queen Christina of
Sweden, 1 De Marten’s Causes Celebres, p. 1; Pitt-Cobbett, Cas. Int. Law,
pp. 78-87,- cases cited and discussed, who says (page 80): “The exceptions
to the rule that foreign sovereigns are not usually liable to be cited in the
municipal courts of other countries are as follows: _(1) Where the foreign
sovereign is at the same time a subject of the country in which the suit is
brought; (2) where he has carried on trade or entered into contracts in the
apparent character of and subject to the same conditions as a private indi-
vidual; (3) where he holds or acquires immovable property within the local
jurisdiction; (4) where he holds or has in the‘hands of his agents even mov-
able property, not connected with the jus eo'ronae; (5) or ﬁnally where he
has initiated the proceedings or otherwise attorned to the jurisdiction.”
68 TERRITORIAL JURISDICTION. _ [Ch 4
DIPLOMATIC,‘~ AGENTS.
49. The immunities of diplomatic agents are in general
terms the same as those above enumerated as pertaining"
to sovereigns, although in more concrete shape, on account-
of being more frequently the subject ‘of discussion and ju-
dicial determination.3
SAME—CRIMINAL JURISDICTION.
50. The courts of a state to which a diplomatic agent is
accredited cannot tryhim for a criminal offense.4 Nor is.
he subject to arrest by the state to which he is accredited
except— ‘ ' ‘
(a) In case of necessity. ,
(b) In case he commits acts of hostility or high trea—
son against the state to which he is accredited.&
3 Whart. Dig. § 93a: “The prevalentview, so far as concerns civil process,‘
is that the doctrine of exterritoriality does not apply (1) in cases‘ where, from
the nature of the case, no other jurisdiction exists than that in which the
embassy holds its seat, e. g., suits for real estate; (2) in cases where the-
ambassadorsues, and the claim against him is set up by way of set-off; (3)
in cases in which the ambassador voluntarily submits to a hearing before _
arbitrators, in the same sense in which a sovereign may agree to an arbitra--
tion; (4) in cases where the ambassador, with the consent of his government,
submits himself to the jurisdiction; (5) in cases where the ambassador is a
' subject or citizen of the state to which he is accredited, or when he is at the-
time in the service of such state; (6) in cases where the ambassador engages
in trade, and the suit is brought in respect to such trading engagements.
This exterritoriality ordinarily protects the diplomatic agent also from pros--
ecutions for crime, unless the crime be of a character so outrageous and con-
spicuous as to forfeit his privileges, or disturb the peace of the country of
his residence. But even in this case the better course is to send him home to‘
his own sovereign, who alone has jurisdiction over him. The privilege of ex--
territoriality no longer gives the ambassador, as was once supposed to be the
case, the power to execute penal discipline upon his subordinates.”
4Bluntschli, §§ 209, 210; Vattel, Int. Law, bk 4, c. 7, § 94 et seq.; 2
Phillim. Int. Law, §§ 157-170; Hall, Int. Law, 168-170; Pitt-Cobbett, Cas.
' Int-Law, pp. 108-110; Walk. Int. Law, 225 et ‘seq.; 1 Halleck, Int. Law, p.
287; Snow, Cas. 83-88; Mann. Law Nat. 110; Wools. Int. Law, pp. 135, 136,.
§ 91; 2 Ward, Law Nat. 537. ‘
BBluntschli, § 210; Prince Cellamare’s Case (in 1718) Snow, Gas. 88;.
Ch. 4] i - DIPLOMATIC AGENTS.- 69
If a diplomatic agent commits a crime either against the state
or against individuals, the usual and at the same time correct course
to pursue. is to make application for his recall; or, if the case is
serious, he'may be ordered to leave without making a formal appli-
cation to his government; or, again, if the case is an extreme one,
his arrest may be warranted.’ In the last mentioned case, if the
state feels that such action is justiﬁed, it must be upon the ground
of self defense, which, under the circumstances, takes precedence
of any duty it may owe to a foreign state of granting the usual
immunities to its representatives. In 1717, on the 29th day of
January, England having information that Count Gyllenborg, the
ambassador of Sweden, which was at that‘ time at peace with Eng-
land, had contrived a conspiracy to invade the country and over-
throw the king, ordered the arrest of that minister and the seizure
of his papers, which was done. This action was acquiesced in by
all of the foreign ministers except Montleone, of Spain, who said
that he regretted that no other way could be fallen on of preserv-
ing the peace of the kingdom than by the arrest of a public min-
ister, and the seizure of his papers, which are the repositories of
his secrets. The answer to his objection is found in the fact that
there was no other way of acting, or that it was justiﬁed upon the
ground of legitimate necessity and self defense.6 In the following
year, Prince Gellamare, who was the Spanish ambassador at Paris,
was arrested and conducted across the frontier for participating in
Count Gyllenbourg’s Case (in 1717) Pitt-Cobbett, Gas. Int. Law, p. 68. The
law in the sixteenth century appears in the Case of Lesley, Bishop of Ross,
Id. p. 65, who was furthering certain schemes in behalf of Mary, Queen of
Scots, among others her marriage with the Duke of Norfolk, and for which
he was arrested and imprisoned in England. The claim being advanced in
his behalf that he was privileged by virtue of being Mary’s ambassador, the
question was submitted to the crown lawyers, who expressed the following
opinion: (1) That an ambassador who raises rebellion against the prince to
whom he is sent has forfeited the privileges of'an ambassador as such, and
is liable to punishment; (2) that the agent of a prince deposed from public
authority, and in whose stead another is substituted, cannot challenge the
privileges of an ambassador. Vide more extended report of case in Pitt-Gob-
bett, Cas. Int. Law, pp. 104, 105; Snow, Gas. 83.
6 Hall, Int. Law, p. 169; Pitt-Gobbett, Gas. Int. Law, p. 103.
7O TERRITORIAL JURISDICTION. [Ch- ,4
a conspiracy for placing Philip V. at the head of the French gov-
ernment.7
SAME—CIVIL JURISDICTION.
51. The local. jurisdiction cannot be exercised so as to
interfere in any manner with the diplomatic action of, or
with the property b Ilonging to, a diplomatic agent in his
representative capacity. But diplomatic agents are com-
pelled to observe all police laws in regard to health and
public safety.
In regard to these immunities of diplomatic agents there is no
dispute among the authorities. The English statute upon this sub-
ject provides that “all writs and processes whereby the goods or
chattels of a diplomatic agent may be seized, distrained, or attached
shall be deemed and adjudged to be utterly null and void to all in
tents, constructions, and purposes whatsoever.” 8 That of the United
States provides that “whenever any Writ or process is sued out
or prosecuted by any person in any court of the United States, or of
a state, or by any judge or justice, whereby the person of any public
ministeriof any foreign state or prince, authorized and received as
such by the President, or any domestic or domestic servant of any
such minister, is arrested or imprisoned, or his goods or chattels
are distrained, seized, or attached, such writ or process shall be
deemed void.” 9 Any infringement is made punishable by the subse-
quent section of the statute. Some Writers claim that except in so
far as stated above, and in respect to his real property situated
in the state Where he is accredited, the diplomatic agent must con~
sent in some manner to the exercise of any local jurisdiction, and
that this consent can be given either by voluntary appearance as
defendant, or by bringing an action in his own behalf, and add
that the effect of the action in either case must be such as notto
interfere with his personal liberty, or with any property that is
7 2 Phillim. § 170.
87 Anne, 0. 12. Vide Magdalena Steam Nav. Co. v. Martin, 2 E1. & El.
111; 28 Law J. Q. B. 310.
9 Rev. St. U; S. §_4063; Ex parte Cabrera, 1 Wash. 0. C. 232, Fed. Gas. No.
2,278; U. S. v. Lafontaine, 4 Cranch, O. C. 173, Fed. Gas. No. 15,550; Wheat-
on’s Case, Wheat. Int. Law, D, 308-310, and note 130.
Ch. 4] ’ DIPLOMATIC AGENTS. '71
exempted by virtue of his oiﬁce, and that withoutsuch action on
his part recourse must be had to his own government or through
its courts.10 Other authorities claim that such an agent is liable
to suits of all kinds in the country to which he is accredited, and
limit the effect of these suits only by the immunities that are un-
questioned.11 The former is the more satisfactory view, and at the
same time is more in accord with the actual practice in such mat-
ters, as the diplomatic agent is liable in his own country, and the
remedy afforded by diplomatic complaint will as a rule be sufﬁ-
cient. It may be added that diplomatic agents should not be per-
mitted to engage in trade or the execution of official trusts which
will involve litigation}2
SAME—FAMILY AND SUI'I'IilOF DIPLOMATIC AGENT.
52. The family of a diplomatic agent living with him,
the secretaries and attaches forming part of his mis-
sion, the domestic servants and other persons in his serv-
‘ice, enjoy the same immunities as are extended to the
agent himself.
These immunities are extended to the family and suite of a dip-
lomatic agent because of their relationship and their necessity to
10 1 Halleck, Int. Law, 285-287; Hall,’ Int. Law, 170-173; Vattel, Int. Law,
bk. 4, c. 8, §§ 110-116. Vide, also, Taylor v. Best, 14 C. B. 487; B1. Comm.
bk. 1, c. 7.
11 Wools. Int. Law, § 92, says that “if he [the ambassador] chance to pos-
sess real property in the foreign country, or personal property, aside from
that which pertains'to him as an ambassador, it is subject to the local laws.”
Vide, also, section 96. In section 91 he says that in the following cases he
does not possess the exemptions. “They are: (1) When he is the subject ,of
~ the state where he acts; (2) when he is in its service; (3) when he volun-
tarily recognizes the jurisdiction of the courts by appearing before them as
a plaintiff, and thus submitting himself to the defendant’s court.” V ide, also,
vBluntschli, §§ 135-140; 3 Calvo, Int. Law, pp. 311, 312; 2 Phillim. Int. Law,
§§ 194-199; Hall, Int. Law, § 50. '
12 For general discussion on the immunities of diplomatic agents from
civil jurisdiction, vide Hall, Int. Law, pp. 170-174; 1 Halleck, Int. Law,
pp. 285—287; Wheat. Int. Law, D, § 225, and note 129; 2 Phillim. Int. Law,
c. 89; Bluntschli, §§ 138-140; Pitt-Cobbett, Cas. Int. Law, pp. 110-112;
Calvo, Int. Law, §§ 1480-1510.
72 TERRITORIAL JURISDICTION. [0b. 4
him in the performance of his ofﬁcial duties and in his private rela-
tions. It is customary for the agent to furnish the government to
which he is accredited with a list of those for who-m he claims the
exemptions; and, in regard to domestic servants and others whose
relations are similar, the practice is for the agent to determine
whether they shall be turned over to the local authorities or sent
to his Own country for trial. Of course, it is necessary for such
persons to be regularly employed in the capacity in which they
claim the exemption in order to have the same accorded to them.13
SAME—HOUSE OF DIPLOMATIC AGENT.
53. The house occupied by a diplomatic agent, includ-
ing the grounds and outbuildings, whether it is Owned by
his government or is rented or is furnished by the state
to which he is accredited, and his effects, are exempt from
local jurisdiction.
This immunity extends to all of his eﬁects necessary for the com-
fort of himself and family, and includes his carriages and also the
papers pertaining to the business of his embassy.“ These exemp-
tions are based upon or grow out of the necessity of securing to
these agents absolute freedom in the exercise of their functions,
although, as previously stated, when an emergency arises affecting
the existence of the ‘nation to which he is accredited, the arrest of
the ambassador would also warrant searching his papers if the
search is made in good faith.
13 Vattel, Int. Law, bk. 4, c. 9, §§ 121-124; Wheat. Int. Law, D, notes 128,
129; Wools. Int. Law, § 95; Bluntschli, §§ 211-215; 3 Calvo, Int. Law,
p. 297; Hall, Int. Law, § 50. England does not recognize this immunity
as pertaining to domestic servants, and claimed the right to arrest the
coachman of the United States minister in London, Mr. Gallatin, for an
assault committed outside of the residence, and to make the arrest within
its limits.
14 But see IVools. Int. Law, § 92.
Ch. 4] DIPLOMATIC AGENTS. 73
SAME—RIGHT OF ASYLUM IN LEGATIONS.
54. The right of asylum in legations is expressly denied
except in the case of political refugees in the Spanish?
American states.
In certain countries where revolutions are frequent, especially in
the Spanish-American states, the custom of granting asylum to
political refugees by foreign legations has become ﬁrmly estab-
lished, and is recognized by the local governments to such an extent
that the houses of consuls are respected. The United States, in
written instructions to its diplomatic agents in 1885, says: “This
government does not sanction this usage, and enjoins upon its rep-
resentatives in such countries the avoidance of all pretexts for its
exercise. While indisposed to direct its agents to deny temporary
~> shelter to any person whose life may be threatened by mob violence,
it deems it proper to instruct its representatives that it will not
countenance them in any attempt to knowingly harbor offenders
against the laws from the pursuit of the ‘legitimate agents of jus-
tice.”15 The British government ,claims the right to enter the
house of a diplomatic agent for the purpose of arresting an offender,
admitting that the agent is entitled to notice only- as a matter of
courtesy, in order that he may ﬁx a time for the arrest to be made
when it will be most convenient to him, or should he so desire to
turn over the offender.16 In the case of a slave who had escaped
from his master, and taken service in the house of the secretary of
the British legation in Washington, an officer of the District of
Columbia removed the slave, and restored him to his master. The
matter coming up under an order to show cause why he should not
be removed from his office, this officer (a constable) was removed
from ofﬁce by order of the court, because he was guilty of a violation
of the privileges of His Britannic Majesty’s Envoy Extraordinary
and" Minister Plenipotentiary.17 It is safe to state that the settled
15 Snow, Gas. p. 143.
' 16 Hall, Int. Law, p. 179; Bluntschli, § 200; Vattel, Int. Law, bk. 4, c. 9,
'§ 118; 2 Philli‘m. §§ 204, 205; ‘Wheat. Int. Law, D, note 129. 1 Whart. Dig.
pp. 650, 651, § 94.
17 U. S. v. .Ieifers, 41 Granch, C. G. 704, Fed. Gas. No. 15,471.
74 TERRITORIAL JURISDICTION. [Ch. 4
practice of states is that the housesof diplomatic agents furnish no
protection to persons accused of crimes against the state, and it is
the duty of ministers to refuse to harbor them. They must deliver
them up to the-localv authorities upon demand.
I
SAME—IMMUNITIES AS TO EVIDENCE.
55. The diplomatic agent, members of his suite, and
others in his employ invested with his immunities, cannot
be‘ compelled to give evidence, or to appear before the
local courts for that purpose. ‘
The above is the ‘rule in regard to the matter of evidence, but,
when such evidence is necessary in the interests of justice, it is
customary for the agent to furnish the required evidence in the
shape of depositions taken before the Secretary of Legation or such
person as the agent may designate for the purpose. In the United
States, in criminal cases the accused has the right to have the evi-
dence taken orally in his presence, and with it the right'of cross-
examination, so that a written deposition would be inadmissible.
It is in such cases considered proper for the person possessing im-
munity to submit himself for such examination, and a refusal to do ‘
so by the Dutch minister in \Vashington in 1856 resulted in his
recall.“3 '
VESSELS OF WAR, PUBLIC VESSELS, AND ARMED FORCES.
56. Vessels of war and other public vessels of the state,
while in the ports or waters of a foreign power, and
armed forces of a state while“ passing through or when
garrisoned in a foreign state, with which their state is at
peace, are not subject to the local jurisdiction.19 But
a vessel of war or public vessel must respect the territo-
18 1 Halleck, Int. Law, 294, 295; 3 Calvo, Int. Law, §§ 1519, 1520, and note
-1, p. 319.
- 19 Hall, Int. LaW, §§ 54, 57; The Exchange v. McFaddon, 7 Cranch, 116;
The Santissima Trinidad and The St. Ander, 7 -Wheat. 283; Whart. Dig. §\3G;
Bluntschli, §321; 1 Halleck, Int. Law, pp. 176-180; The Sitka, 7 0p. Attys.
Gen. 122; The Parlement Belge, 5 Prob. Div. 197.
Ch. 4] vEssELs OF WAR, PUBLIC vEssELs, AND ARMED FORCES. 75
rial law and administrative rules in regard to quarantine
regulations, rules of the port, and local revenue.
57. The crew and persons on board of a vessel of war
or other public vessel of the state in foreign ports or
waters must respect the laws of the country in which the
vessel is lying, except——
(a) In regard to all matters pertaining to the economy
of the vessel or in all matters affecting only the
relations of those on board.
(b) In cases where a special custom authorizes a con-
trary course. '
58. Members of the crew, including the captain in re-
spect to all matters not in his capacity as agent of his state,
when on shore, are liable in every respect to the local
jurisdiction.
When necessary or desirable to have armed forces pass through
the territory of a friendly foreign state, the usual course is to regu-
late by conventions the route to be pursued and all of the details,
with as much minuteness as practicable, so that the presence of
the troops will be as little burdensome as practicable. It is not
customary, however, in such conventions, to change the jurisdiction
to be exercised by the nations interested, so that this is the same
as if no convention existed. It is generally conceded to be neces-
sary and essential that jurisdiction over the troops should be
exercised exclusively by their own government, because the exer—
cise of the foreign jurisdiction is scarcely compatible with the
eﬂiciency or discipline of an army, and would tend to destroy its
usefulness to its own government. Oifenses against the inhabit-
ants of the foreign country committed by the troops are usually
dealt with by the military authorities, although culprits may be
turned over to the local authorities in certain cases in the discre
tion of the commander of the forces.20
Previous to the decision of the supreme court by Chief Justice
Marshall,‘~’1 the exemption of public vessels of war from local juris-
20 Hall, Int. Law, p. 196.
21 The Exchange v. McFaddon, 7 Cranch, 116.
76 TERRITORIAL JURISDICTION. [Ch. 4
diction when within our territorial waters was not recognized. At-
torney General Bradford, on June 24, 1794, delivered an opinion that
a writ of habeas corpus might be awarded to bring up an American
citizen on board of a foreign ship of war, the commander being fully
within the reach of and amenable to the jurisdiction of the state
where he happens to be.22 This opinion was followed in 1799 by
the opinion of Attorney General Lee, holding that it was lawful to
serve either civil or criminal process upon a person on board a
British Man-of-War lying within our territory.23 Such was also the
doctrine held by England at the same period.“ The courts of the
United States have uniformly followed the doctrines laid down by
Chief Justice Marshall, and have adopted unequivocally the doc-
trine 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.25 England
has also adopted, in substance, the same view of the law by stating
that the laws of a state cannot be executed on board of a foreign
vessel of war lying in its waters, unless by the order or permission
of the commanding ofﬁcer.26 The general practice of nations is to
accord exterritoriality to all such vessels. If persons in possession
of the immunities enumerated fail to respect the territorial law,
within the limits prescribed, the course to be pursued is to seek
redress through the government of the offending person, although a
ship of war may be proceeded against in extreme cases by ordering
it out of the territory or forcibly expelling it therefrom. If a person
on board a public vessel commit some act which takes effect out-
side of the vessel, or if the captain harbor a person to whom he has
no right to grant asylum,-—as, for instance, a criminal fugitive from
justice,—and refuse to give him up on demand, application for re-
dress must be made through diplomatic channels, as the vessel can-
not be entered for any purpose whatever. Instances are given in
22 1 Op. Attys. Gen. 47.
23 1 Op. Attys. Gen. 87.
24 1 Phillim. Int. Law, § 346. ‘
25The Exchange v. McFaddon, 7 Cranch, 116; The Santissima Trinidad
and The St. And'er, 7 Wheat
26 Hall, Int. Law, p. 190.
Ch. 4] I MERCHANT vEssELs. 77
which courts have been induced to sit as a court of inquiry simply,
without any attempt to enforce its decree, and-with the sole purpose
of determining the facts, which determination was afterwards used in
support of a claim diplomatically urged, and not voluntarily recog-
nized, by a foreign government, in case of acts which take effect
outside of the vessel, and which, if done on board of av foreign mer-
chant vessel, would have been cognizable by the local courts. The
right of asylum to political refugees has been accorded in certain
cases where hospitality has been extended without the vessel having
sought them out, and the territorial government has no right to
expel the ship for according this protection.
The immunities accorded to these vessels is to them as a whole,
so that, if the vessel is abandoned, she becomes mere property; andv
the crew, if separated from her or her belongings, follow the rule laid
down above. This is true especially of the crews of vessels which
possess an exemption on account of their cargo belonging exclu-
sively to the government of their state, as they are replaced in the
same manner as crews of vessels of the merchant marine; and it
is not believed that they are exempt from arrest on board of such
vessels for criminal acts against the foreign state.
MERCHANT vEssELs.
59. Merchant vessels of one country visiting the ports
of another, for the purposes of trade, subject themselves
to the laws which govern the port they visit, so long as
they remain, unless otherwise provided by treaty.27
60. Merchant vessels possess vno right of asylum even
for political refugees.
What is known as the French rule in regard to merchant vessels
lying in foreign ports is “that all matters of discipline and all things-
done on board which affect only the vessel or those belonging to-
her, or which do not involve the peace and dignity of the country
or the tranquillity of the port, should be left by the local govern-
27 Whart. Dig. §§ 35, 35a; Hall, Int. Law, § 58; 1 Halleck, Int. Law, 0. 7,
§§ 26, 27; Bluntschli, § 319; 1 Phillim. Int. Law,¢§ 348; Pitt-Gobbett, Gas. Int.
Law, p. 73; The Atalanta, 8 Op. Attys. Gen. 73; Calvo, Int. Law, §§ 469-471.
.78 TERRITORIAL JURISDICTION. _ [0b. 4
ment to be dealt with by the authorities of the nation to which the
vessel belongs.28 The French courts take jurisdiction in case of
a murder committed on board of a foreign merchant vessel‘lying
‘ in a French port, on the ground that such a grave crime amounts
to a disturbance of the peace of the port“? A large number of
:states follow the same practice as the French courts, and a large
number of conventions contain the stipulation that consuls should
have jurisdiction of the class of cases referred to.30 Mr. Hall,
’ after stating that the French view has no authority of law, says:
'“The practice which is being founded by these conventions, and by
voluntary abstention from the exercise of jurisdiction, is so reason-
able a one in the abstract, and so little open to practical objections,
that it would be worth while to adopt it into the recognized usage
(of nations.” 31
Right of Asylum. .
Merchant vessels possess no right of asylum even for political
refugees. Several cases have arisen illustrating the views of dif-
_, ferent countries upon this subject, all ‘of which, with one exception,
.announce the law as above stated. The ﬁrst is the Case of Sotelo.
_In this case it is shown that the right of granting asylum to political
refugees does not belong to merchant vessels, in the‘ ports of such-
refugees? country. M. Sotelo, a Spanish politic-a1 refugee, took
passage on the French packet boat l’Ocean, at the Spanish port
Valence. This vessel afterwards entered the Spanish port Alicant,
‘where he was recognized, seized, and imprisoned by the local author-
ities. The diplomatic correspondence between France and Spain
showed in the most conclusive manner that the action of the local
authorities was completely justified; that no disrespect was shown
to the French ﬂag, because this was the exercise upon an ordinary
merchant vessel of the police power (Hau-te police) within the local
port. M. Sotelo had surreptitiously embarked at Valence, a Span—
ish port, and was regularly seized and arrested upon the l’Ocean
28 The Newton and The Sally, 1 Ortolan Dip. de la Mer, p. 271; Pitt-Cob-
bett, Cas. Int. Law, p. 74.
29 The Tempest, 1 Ortolan Dip. de la Mér, 455. But vide “L’Anemone,”
where supreme court of Mexico holds contrary doctrine.
80 Wildenhus’ Case, 120 U. S. 1, 7 Sup. Ct. 385’.
31 Hall, Int. Law, pp. 200, 201.
Ch. 4] I MERCHANT vEssELs. ' 79
at another port of the same country; and, ﬁnally, the fact of hav-
ing navigated the open sea before entering Alicant could notalter
the nature of the wrong committed at the point of departure, and
conﬁrmed upon arrival under the empire of the same laws with
the same territorial legislation.32 Lord Aberdeen, on March 20,
.- 1844, says: “There is no stipulation in existing treaties between
this country [England] and Spain which ‘can be deemed sufficient
to debar the Spanish government from exercising the right which,
in his Lordship’s opinion, appertains to that government of claiming
its own subjects when they may be found in a Spanish port as pas-
sengers on board vessels hired to convey the mails between this
country and the peninsula.” 33 Mr. Bayard, on March 12, 1885, in
his instructions to Mr. Hall in regard to the proposed arrest of the
_ political refugee Mr. Gomez from Nicaragua, afﬁrmed the jurisdic-
tion of the local authorities over a merchant vessel so long as it
remained in the ports of the country. This is the law in this coun-
try, although the instructions of Mr. Blaine in regard to the Case
of Barrundia in 1890 set up a different rule.34
Jurisdiction over Passing Vessels.
The French rule, it is believed, should be applicable to the case
of merchant vessels passing through the territorial waters of an-
other state. It is true that in the case of Regina v. Keyn it was
held that the jurisdiction of England did not extend over the mar-
ginal waters for the distance of a marine league; but, as previously
stated, this was remedied by subsequent legislation, and that case
was decided by a court as equally divided as possible, standing seven
to six. The same reasons for territorial jurisdiction to be exercised
in the case of these vessels being in port are applicable to the case
of passing vessels of the same kind, and the interest of the state in
exercising jurisdiction extends only to such acts as take effect out-
side of the vessel affecting either the inhabitants of the state or
the state itself.35
32 Calvo, Int. Law, § 470.
88 Rep. Fugitive Slave Commission, p. 154.
34 U. S. Foreign Relations, 1885. .
.36 Hall, Int. Law, pp. 201, 202; Pitt-Cobbett, Cas. Int. Law, p. 72.
80 , . TERRITORIAL JURISDICTION. [0b. 4
ALIENS—EXEMPTIONS FROM MILITARY OR NAVAL DUTY.
61. Resident aliens who have not become naturalized
are exempt from military and naval service in the country
of their residence, except— '
(a) When this country is threatened by an invasion
of savages or uncivilized nations.
(b) They may be compelled to maintain the social or-
der provided the services required of them do
not overstep the limits of police as distinguished
from political action.
This question came up quite frequently during the American Civil
War; (vide act of March 3, 1863; proclamation of the President of
May 8, 1863; and section 18 of the act of February 24, 186,4.) In the
last named act it was provided “that no person of foreign birth shall,
on account of alienage, be exempted from enrollment or draft under
the provisio-ns'of this act, or the act to which it is an amendment,
who has at any time assumed the rights of a citizen by voting at any
election held under the authority of the laws of any state or territory,
or of the United States, or who has held any office under such laws or
any of them; but the fact that any such person of foreign ‘birth has
voted or held, or shall vote or hold, ofﬁce as aforesaid, shall be
taken as conclusive evidence that he is not entitled to \exemption
from military service on account of alienage.” This statute was acted
upon during the war after its passage, and was acquiesced in at
least tacitly by the British government. In the proclamation of the I
President sixty-ﬁve days were allowed to all those who wished to
leave the country in order to avoid the enrollment under this act. Lord
Lyons received upon this subject the following instructions from
his government, namely: That the ‘government “might well be con-
tent to leave British subjects, voluntarily domiciled in a foreign
country, liable to all the obligations ordinarily incident to such
foreign domicile, 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 lim-
ited extent, for the defense of the territory from foreign invasion.”
Mr. Hall seems to think that it was not intended to apply to any
Ch. 4] ExTRATERRIToRIAL mm OF PERSONS. 81
one who was not in any sense a resident, and that, in any event, it
was granting an unnecessarily large concession to the local author-
ity_so
EXTRA'I'ERRITORIAL ACTS OF PERSONS BY DIRECTION
OF THEIR STATE.
62. A state is responsible for all acts or omissions
which occur within its territory and result in causing in-
jury to another state or the subjects of another state.
‘ 63. A state is also responsible for the acts of its public
administrative agents, both civil and military, when act-
ing in their ofﬁcial capacity, which result in injury to
foreign states or subjects until such acts are disavowed,
and is bound to inﬂict punishment and. make reparation
when necessary.
64. The acts of the judiciary of a state which inﬂict an
injury or wrong upon another state or its subjects must
be— compensated for by the state, and laws of the state
which do not insure the equal justice to foreigners that is
accorded to natives must be remedied by legislation.
65. The state is responsible for the acts of its private
citizens which result in injury to another state or its sub-
jects, and which the state has not used reasonable dili-
gence to ascertain knowledge of and to prevent.
A state can evade responsibility for its acts by showing that
those complained of could not have been prevented by the use of
an ordinary diligence or watchfulness under the circumstances, or
that the injury resulting has been accidental, or on account of acts
I independent of those committed within its territorial limits. In the
case of its administrative officers, since these are agents of the
state under the direct control and direction of the Executive, all
36 Whart. Dig. § 202. Vide, also, section 182. As to release from foreign
service of naturalized American citizens, vide Hall, Int. Law, pp. 204—206.
Bluntschli, § 391: “Foreigners cannot be forced into military service. An
exception can be made to this rule if this is necessary to defend a locality
against brigands or savages.” I
INTERNAT.LAW—6
82 TERRITORIAL JURISDICTION. [Ch. 4
of their acts are considered asstate acts until disavowed, punish-
ment being awarded in suitable cases. The connection of the ju-
diciary with the administrative branch of the government is nec-
essarily more remote than that of the foregoing class, and yet these
officials may effect an international wrong, in certain cases, by ren-
dering a decision directly in accordance with the municipal law
of their state, or again these officials may be absolutely corrupt, and
the administrative branch of the government be possessed of no
power to remedy the eﬁects of the resulting wrongs. In such cases
it is necessary for the state to make the necessary corrections in
their laws which will insure to foreigners the equal protection of
the laws, and which will render its judiciary competent, so ‘that
it cannot be said to favor injustice, and thereby render itself per-
sonally responsible. If the laws of a particular country do not rec-
ognize and respect international law, the other states will be fully
justiﬁed in requiring that the laws of the country be modiﬁed and
placed in harmony with international principles.
In regard to.._the acts of private individuals, the responsibility of
the state rests upon the fact that it exercises exclusive control over
all persons and things within its territory. In the Geneva Arbitra-
tion the following questions were discussed: (1) If attempts are
made to disguise 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) Is the legal
power actually 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? In answer to the ﬁrst,
it may be said that if a state uses the same care that it would use
under similar circumstances in its own interests, or if it uses that
amount of care which the circumstances, to the mind of average
intelligence, indicate to be in proportion to the facts of the situa-
tion, or if the government makes the inquiries and exercises the
governmental powers which have been found sufﬁcient for state
purposes, there cannot or should not be anything further required,
assuming that the acts performed have been honestly performed.
In reply to the second question, it may be stated that, while a
state is bound to provide the necessary means for carrying out its
international obligations, it is not incumbent that it should provide
Ch. 4] RESPONSIBILITY IN men or. CIVIL COMMOTION. 83
itself with the most eﬁ‘icient means that ingenuity can devise; it
being sufficient that ‘all states shall provide the best means that
its national institutions will admit ‘of, it being understood that a
state cannot avoid its international obligations on the ground that
it has chosen to live under anarchy, and it being further under-
stood that the institutions of a state are such as a well ordered state
to an average extent adopts.37
RESPONSIBILITY IN CASE OF CIVIL COMMOTION AND MOB
VIOLENCE.
66. In the case of civil commotions or insurrections, the
state is not responsible for an injury to the person or
property of a foreign subject received in the course of
the struggle, either through measures rendered necessary
-on its own behalf or through acts on the part of the in-
.surgents.
In the case of the riots which broke out in New Orleans in 1851,
the Spanish consulate was attacked, and‘ much injury was done to
both persons and property. The Spanish government made a formal
demand for reparation upon the government of the United States.
Mr. Webster replied: “While this government has manifested a
willingness and determination to perform every duty which one
friendly nation has a right to expect from another, in cases of this
kind it supposes that the rights of the Spanish consul, a public
officer residing here under, the protection of the United States
government, are quite diiferent from those of the Spanish subjects
who have come into the country to mingle with our citizens, and
‘here to pursue their private business and objects. The former may
claim special indemnity, the latter is entitle-d to such protection
as is afforded to our own citizens. While, therefore, the losses of
‘individuals, private Spanish subjects, are greatly to be regretted, yet
it is understood that many American citizens suﬁered equal losses
from the same cause. And these private individuals, subjects of
‘her Catholic Majesty, coming voluntarily to reside in the United
871 Halleck, Int. Law, pp. 429-432, note 2; People v. McLeod, 25 Wend.
483; Hall, Int. Law, pp. 213-219; Whart. Dig. § 21. '
84 TERRITORIAL JURISDICTION.
[Ch. 4 .
I
States, have certainly no cause of complaint if they are protected
by the same law and the same administration of law as native born
citizens of this. country. They have in fact some advantages over
the citizens of the state in which they‘happen to be, inasmuch as»
they are enabled, until they become citizens themselves, to prose»
cute for any injuries done to their persons or property in‘ the courts-
of the United States or the state courts, at their election.” 38 A state-
should not, from the nature of the case, be liable in such cases, as-
it can have no control; and it is for the best interests of the state-
to avoid in so far as'possible such conditions as must exist, so that
no carelessness will be assumed on its part under such circumstances.
A case illustrating the question of governmental liability arose in
New Orleans in 1891. It appears that the chief of police of the-
city of New Orleans had been massacred under circumstances that
indicated that a certain Italian society, known as the “Maﬁa,” was-
implicated in it. Certain Italians had been arraigned, tried, and.
acquitted, which action so incensed the inhabitants of the city that‘
an indignation meeting was called, at which a number of the lead-
ing citizens were present, inﬂammatory speeches were made, and
upon the following morning a mob assembled, without protest from
any of the organized authorities, proceeded to the jail, took out
the accused, and shot or hanged a number of them. The President
promptly expressed regret at these occurrences, and promised to-
lay the matter before Congress, with a recommendation that the:
families of the murdered‘men be granted an indemnity. The Italian
government insisted that the participators should be brought to trial
and punished by the authorities of the United States; but as this,
under our laws, could not be done on account of lack of jurisdic-
tion of the United States courts, the matter was allowed to drop.39
In this case, as these men were in the custody of the state author-
ities, and constructively in the hands of the United States, they‘
were entitled to a special protection. Again, as a government is‘-
liable internationally for injuries done to aliens by a mob, which
by due diligence it could have suppressed, and as it appeared in this
case that there was no attempt upon the part of the authorities to’
88 Mr. Webster, secretary of state, to Mr. Calderon, November 13, 1851,
W hart. Dig. § 226.
39 Snow, Cas. p. 183, note.
Ch. 4] EXTRADITION 0F FUGITIVES FROM JUSTICE. 85
prevent the consequences of the acts committed, the action of the
federal government in the premises was certainly in accordance with
right and justice. '
EXTRADITION FUGITIVES FROM JUSTICE.4o
67. In the absence of treaty, there is no rule of interna-
tional law which requires a state to deliver up a fugitive
from justice from another state. When delivered up under
treaty stipulations, he can be tried only for the offense for
which he was extraolited.41
This subject is regulated almost entirely by treaties between the
different states in which is set forth the offenses for which persons
are to be extradited. Among them the following will be found
to be quite common, viz.: Abortion, arson, barratry, bigamy,
burglary, counterfeiting, crime against nature, embezzlement, false
pretenses or false tokens, forgery, kidnapping, larceny (punishable
by the law of the demanding state by imprisonment exceeding one
year), maiming, manslaughter, murder, perjury, piracy, rape, rob-
bery, and slave trading. Some states have granted the request
of others for persons accused of grave offenses when there existed
no treaty obligation for this action, upon the ground that the general
welfare demanded such action; 42 but however desirable it may be,
upon general principles of justice, thatall persons accused of crime
should be delivered.up on demand, and that a rule of law to that
effect should be recognized, there can be no doubt that, under the
present practice, every state, by virtue of its right of independence,
has a right to grant to foreigners the right of sojourn in its terri- '
40 For general subject of extradition, vide text-books of Spear and Moore;
Walk. Int. Law, pp. 236-238; Bluntschli, § 394; Snow, Gas. pp. 151-171;
Pitt-Gobbett, Gas. Int. Law, pp. 36-72; Wools. Int. Law, §§ 77-80; Whart.
Dig. §§ 268-282; Wheat. Int. Law, D, pp. 180-191; Field, Int. Code, pp. 92-
127 ; Galvo, Int. Law, § 950 et seq.; Greasy, Int. Law, p. 202. Levi, Int. Law,
pp. 242-252, c. 21, gives treaties and offenses extraditable. Hall, Int. Law,
1:). 60; 1 Halleck, Int. Law, p. 193 et seq.
41 Ex parte Dos Santos, 2 Brock. 493, Fed. Gas. No. 4,016; U. S. v.
Rauscher, 119 U. 407, 7 Sup. Ct. 234; Pitt-Cobbett, Gas. Int. Law, p. 41.
42 Whart. Dig. § 268. ‘
86 TERRITORIAL JURISDICTION. [Ch. 4
tory, and this right supersedes the right of a foreign state to have
persons accused of offenses delivered up for trial. The state upon
whom demand is made has the right to make a preliminary examina
tion of the facts, and be convinced that the accused is guilty of the
offense or crime with which he is charged, before acceding to the
request of the state making the demand. The accused can only be
transferred from one sovereignty to another'under a very limited
form of procedure, and ‘demand must be made through diplomatic
channels. In the United States this has been judicially determined
to be exclusively a federal question.
SAME—POLITICAL ' OFFENSES.
68. Political offenses are not generally considered as ex-
traditable, and a state can decline to extradite or expel
persons guilty of them; but a state owes to other states the
duty of preventing these exiles from menacing the public
safety and public order of other states by acts upon their
territory.
Political crimes are necessarily directed against the constitution.
and political system of the state, and are not, in consequence, a7
danger to other states. What might be considered an offense under
the laws of one state could very easily be looked upon as a ﬁght for
liberty in another; so that, if a person be convicted and punished for
the offense in the ﬁrst state, he would be regarded as a martyr to lib-
erty in another. In such cases the second named country under the
plea of justice, humanity, and the political welfare, would be fully
justiﬁed in according to the accused person the protection of its laws.
The greatest difficulty in cases of political offenses is that they are
frequently connected with some crime or common law offense which
is extraditable. “Most codes extend their deﬁnitions of treason to
acts not really against one’s country. They do not distinguish be-
tween acts against the government and acts against the oppressions
of the government. The latter are virtues, yet have furnished more
victims to the executioner than the former. * * * The unsuccess-
ful strugglers against tyranny have been the chief martyrs of treason
laws in all countries. * * * Treasons, then, taking the simulated
Ch. 4] EXTRADITION or‘ FUGITIVES FROM JUSTICE. 87
with the real, are sufﬁciently punished with exile.” ‘*3 Can a distinc-
tion be drawn between acts directed against tyranny and those of a
mere common law character? Since the assassination of President
Garﬁeld in this country, the United States has concluded treaties
with several countries, in which it is stipulated that “an attempt
against the life of the head of a foreign government or against that
of any member of his family, when such attempt comprises the act
either of murder or of assassination or of poisoning, shall not be
considered a political offense or an act connected with such an of-
' fensef’“ The cases upon the subject of extradition show that
where the offense committed is political, even though it is accom-
panied with the commission of some crime, such as murder, it is not
extraditable.45
SAME—EXTRADITION OF ITS OWN CITIZENS BY A STATE.
69. States do not, as a rule, and, in the absence of treaty
cannot be held to, extradite their own citizens who have com-
mitted crimes in a foreign state.
In nearly all states, England and the United States being ex-
cepted, provision is made in the municipal laws for the trial of of-
fenses committed by their subjects in foreign countries, so that there
. is no reason why such citizens cannot be tried and punished at home.
Both‘ of the excepted countries have expressed a willingness to
incorporate into their treaties with other nations a stipulation
covering the extradition of their own citizens, as all offenses com-
mitted are considered and treated as entirely local by these two
countries. The United States, in considering the clause in the
treaty of extradition with Mexico, which declares that “neither of
the contracting parties shall be bound to deliver up its own citizens
‘under the stipulations of this treaty,” while admitting that it would
be a great evil that those guilty of high crime, whether American
citizens or not, should go unpunished, doubted the right of the Presi-
43 Mr. Jefferson to Messrs. Carmichael 8:. Short, March 22, 1792, Whart.
_ Dig. § 272. -
44 With Belgium, 1882; Luxembourg, 1883; Russia, 1893.
*6 In re Castioni [1891] 1 Q. B. Div. 149.
88 TERRITORIAL JURISDICTION. [Ch. 4
dent to extradite the citizen under the treaty, but expressed a will-
ingness and desire to have this question determined judicially,
though the matter is still undetermined.“
JURISDICTION OF OFFENSES BEYOND THE LIMITS OF THE
STATE. '
70. States do assume jurisdiction over certain offenses
committed by their own citizens on foreign territory, but
it is not a recognized international right to exercise such
jurisdiction over acts committed by foreigners on foreign
territory. ‘
As previously stated, the doctrine of England and the United
States is that criminal jurisdiction is strictly territorial, although
both countries do try certain speciﬁed offenses committed abroadf‘7
This territorial jurisdiction extends to all persons and things within -
its territory, except over those that enjoy a special immunity
through the ﬁction of exterritoriality; and any acts committed
by persons within this jurisdiction, whether by foreigners or citi-
zens, are certainly cognizalble by this state. Does this confer a
right to jurisdiction over the oﬁenses committed by foreigners, then
under the jurisdiction, which were committed before arrival in the
country? If such be the case, then the jurisdiction of two states
is concurrent upon the same territory, which is contrary to the funda-
mental conception of a state. No good reason can be ascribed in
the case of ordinary or extraditable crimes why any such jurisdic-
tion should be assumed because the offense, being also an oﬁense
against the laws of the state where committed, could by extradition
be punished there. A. large number of states do claim such a
jurisdiction. Russia, Norway, Portugal, and Germany claim a crim-
inal jurisdiction over all offenses committed by their subjects any-
where, even while in foreign countries, whether committed against
the state itself, its subjects or foreigners. France claims that its
criminal law is a personal statute, which follows its citizens wher-
ever they may be; and in consequence, when a Frenchman has
46 1 Moore, Extrad. 166. ‘ 41 Moore, Extrad.
Ch. .4] JURISDICTION OF OFFENSES BEYOND LIMITs or sum. 89
committed a crime in a foreign country, he can be punished for it
‘when he returns to France.*
In 1886, A. K. Cutting, an American citizen, but for some time a
resident of Paso del No-rte, Mexico, engaged in editing a newspaper
at the last named place. In it he inserted an article reﬂecting upon
the character of a citizen of Mexico for which he was arrested, and
required to sign a “reconciliation,” which’ is similar to a compromise
or settlement. Afterwards he, caused to be published an article
in the El Paso Herald, in Texas, for which, under the Mexican law,
he was arrested, tried, and sentenced to a ﬁne of $600 and imprison-
ment for one year at hard labor. This, on appeal to the supreme
’ court of Chihuahua, Mexico, was affirmed; but the prisoner was
released, because the plaintiff had withdrawn from the suit, it ap-
pearing that the withdrawal had “for its principal object the quiet-
ing of the alarm consequent upon his complaint.” The government
of the United States demanded an indemnity for the imprisonment
of Cutting and the abolishment or modiﬁcation of'the offensive
article of her code, on the ground that the state of Mexico could
not cause a citizen of the United States to answer in Mexican courts
* for an offense committed in the United States simply because the
object of that offense happened to be a citizen of Mexico. Mexico
defended its action on the grounds “(1) that this claim is justiﬁed by
the rules of international law and the positive legislation of various
countries; and (2) that, suchia claim being made in the legislation
ofvMexico, the question is one solely for the decision of the Mexican
tribunals. Each state may provide for the punishment of its own
citizens for acts committed by them Outside of its own territory,
, which makes the penal law a personal one; and, while it may give
rise to inconvenience and injustice in many cases, it is a matter in
which no other government has a right to interfere. To say, how-
ever, that the penal laws of a country can bind foreigners and regu-
late their conduct, either in their own or any other foreign country,
is to assert a jurisdiction over such countries, and to impair their
independence.” ‘*8 The United States has not adhered to the princi-
* Vide Hall, Int. Law, pp. 205-209.
48 Mr. Bayard to the President, Whart. Dig. § 15.
90 - TERRITORIAL JURISDICTION. [Ch. 4
ples laid down in the above case, as it has been held that acts 'com- -
mitted outside of the state, but taking effect within the state, are
to be construed to be done by persons constructively within the
state.49
49 U. S. v. Davis, 2 Sumn. 482, Fed. Gas. No. 14,932; State v. Wyckoff, 31
N. J. Law, 68; Com. v. Macloon, 101 Mass. 1; Com. v. Blanding, 3 Pick." 304;
‘Snow, Cas. 172-174; Whart. Dig. 1,5, 189.
Ch. 5] NATURE OF JURISDICTION. , 91
CHAPTER V.
JURISDICTION ON THE HIGH sEAs AND UNOCCUPIED ‘PLAcEs.
-71. Nature of Jurisdiction over Members of the State Community, and
Property.
72. Territoriality of Merchant Ships-Jurisdiction over.
73-74. Piracy.
75. Rebels and ~Insurgents as Pirates.
76. Letters ‘of Marque—Privateers.
77. The Slave Trade as Piracy.
NATURE OF JURISDICTION OVER MEMBERS OF STATE
COMMUNITY AND PROPERTY.
'71. States, as a general rule. exercise exclusive jurisdic-
tion over members of the state community, and over the
property belonging to the state or its subjects, while in
the possession of the‘ owner, when‘ in places not within
the territorial jurisdiction of any other state.
In regard to the jurisdiction over persons, it may be said that
the state of which they are citizens possesses a better right to
jurisdiction over them than can be claimed for any other state;
and the ownership of property should and does form a reason-
able ground for the attribution of exclusive control to the owner,
when no equal or superior right of control can be shown by an-
other. Wheaton says, “this jurisdiction which the nation has over
its public and private vessels on the high seas is exclusive only
so far as respects offenses against its own municipal laws”; 1 while
Mr. Hall, after stating that the settled usage is as stated above,
says, “for special reasons, however, exceptions are sometimes made
to this usage.” 2
1 Wheat. Int. Law, D. § 106. 2 Hall, Int. Law, p. 244.
92 JURIsDIcTIoN ON THE HIGH sEAs AND UNOCCU-PIED PLAoEs. [Ch 5
TERRITORIALITY OF MERCHANT SHIPS.
72. A state has jurisdiction over its merchant vessels on
the open seas, as follows: '
(a) Full criminal jurisdiction of all acts of subjects or
foreigners, in so far as authorized under- the
procedure of the state itself.
(b) Civil jurisdiction over all subjects, and over all
foreigners, in so far as this jurisdiction can be
exercised upon the territory of the state.
(0) Protective jurisdiction to the extent of guarding
the vessel against interference of any kind on
the part of other powers.
It is admitted by all authorities that a state exercises jurisdic-
tion over its vessels while upon the open sea, but they advance
diﬁerent theories for according this right. ' Some say “that ves-
sels are regarded as ﬂoating portions of the territory ofthe state
upon whose territory they depend, and whose ﬂag they are au-
thorized to ﬂoat.” 3 Others say that this jurisdiction is necessarily
invested in some one particular state, as inconveniences would re-
sult if such were not the case, and, as there is no jurisdiction of the
open sea pertaining to any one or more states, that the owner of
the vessel possesses a greater right to the exercise of this juris-
diction than can be advanced by any one else. The former theory
was maintained in the United States, certainly in 1842, when Mr.
3 Bluntschli, § 317. International law has admitted for a long time the
principle that when a vessel leaves the country to which it belongs, it is
a ﬂoating part of the territory. There exists a natural and patriotic bond
between the vessel and the land which it quits: of which the ﬂag is the --
symbol. Each state is required to protect its vessels against the attacks
of enemies, and to extend the national power and commercial resources of
the country by means of the public and merchant marine. It is then very
important to determine very clearly the nationality of vessels. English
jurisconsults have endeavored for a long time to refuse to recognize these
principles in regard to merchant vessels; they cannot evade the fact in
regard to vessels of war through which the state afﬁrms directly its ex-
istence and power. Merchant vessels as well ‘as vessels of war, every
one admits to-day, are portions of the state whose'ﬂag they carry.
Ch. 5] TERRITORIAIQITY OF MERCHANT SHIPS. 93
Webster said, in writing to Lord Ashburton in regard to impress-
ment of British subjects in American vessels: “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
prima 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.” 4 This doctrine has always been opposed by
England and all of her writers upon international law, who main-
tain that usage is not in accord with the theory, and that the prac-
tice in regard to the seizure of merchant vessels for carrying con-
traband of war, if‘ made upon the high seas, and the exercise of ju-
risdiction by the state owning the territory over these vessels when
in territorial waters, can be more satisfactorily explained under the
second theory than under the theory of their territoriality. “It is ad-
mitted by the most thorough-going asserto-rs of the territoriality of
merchant vessels that so soon as the latter enter the ports of a for-
eign state they become subject to- the local jurisdiction on all points
in which the interests of the country are touched; that when a ves-
sel 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 cul-
prit can be arrested there; that in time of war armerchant ship
can be seized and condemned for carriage of contraband or breach
of blockade. Now it was long ago pointed out that if a mer-
chant vessel is part of 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 ter-
ritory, 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 towhich the territory belongs,
4 The impressment of seamen by England was for a long time maintained
as a right and as ﬁrmly resisted by the United States, and, as is well
‘known, was much discussed before and for some time after the war of‘
1812. This right has not been asserted by England for more than half a.
century, and is positively abandoned, being no longer justiﬁed or defended
by recent English authorities. For liscussion of this right, see Wheat.
Int. Law, §§ 108, 109, note 67, D; 1 Phillim. Int. Law, p. 278 et seq.; Whart.
ig. § 331; Hall, Int. Law, p. 248, note.
94 JURISDICTION oN THE HIGH SEAS AND UNocCUPIED PLACES. [0b. 5
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.” 5 The second theory seems to more
satisfactorily account for the practice, in so much that the acts
enumerated above as being authorized under certain conditions are
made exceptional, and thrown upon their defense, instead of being
placed under the sanction of the general principles of international
law.
The jurisdiction of a state over its merchant vessels on the open
seas may be stated to be as follows: 6 It has (1) full criminal juris-
diction of all acts of subjects or foreigners, in so far as authorized '
under the procedure of the state itself; (2) civil jurisdiction over all
subjects and over all foreigners, in so far as this jurisdiction can
be exercised upon the territory of the state; (3) protective jurisdic-
tion to the extent .of guarding the vessel against interference of any
kind on the part of other powers.
The ﬁrst includes all administrative rules that a country ‘may see
ﬁt to establish for the maintenance of disciplinary authority in virtue
of state control. The question of criminal jurisdiction came up in
the case of John Anderson, an ordinary Seaman on board of the Amer-
ican bark C. O. Whitemore, who stabbed and killed the ﬁrst ofﬁcer of
the ship on the 31st of January, 1879, while the vessel was on her
way from New York to Calcutta, and while on the high seas. It
seems that the American Consul General had invoked the aid of the
local police authorities in securing the safe custody of the accused
until such time as he could be sent to the United States for trial, and
that while thus in temporary custody of the local authorities the
colonial authorities took judicial cognizance of the matter, claiming,
under the advice of the advocate general of the colony, that under
a colonial statute which conferred upon the courts of the colony juris-
diction of crimes committed by a British subject on the high seas,
even though such crimes be committed on the ship of a foreign nation,
and that inasmuch as the accused, although appearing on the Ship’s
articles under the name of John Anderson, subject of Sweden, had
5 Hall, Int Law, p. 249. - .
6 Hall, Int. Law. pp. 244—249. Vide, also, Twiss, Law Nat. § 159; Mann.
Law Nat. (Amos) pp- 117, 118; 3 Whart. Dig. § 331; Wools. Int. Law, § 58;
Pitt-Cobbett, Cas. Int. Law, p. 71.
Ch. 5] , TERRIToRIALITY or MERCHANT SHIPS. - 95
declared that his real name was Alfred Hussey, and that he was a
native of Liverpool, and therefore a British subject, the case came
within the jurisdiction of those courts. Mr. Evarts in writing to
Mr. Welsh, Minister to Great Britain, stated the law upon this sub-
ject as follows: “The matter is now believed to have reached that
point in the judicial proceedings where eﬁective measures for as-
serting jurisdictional rights of the United States would be unavail-
able in this case. And whilst I entertain no doubt that the ac-
cused will receive as fair a trial in the high court of Calcutta,
where it is understood that he is to be tried, as he would in the circuit
court of the United States, in which tribunal he would be arrainged
were he sent here for trial, I deem it proper, at the same time to
instruct you to bring the question to the attention of her Majesty’s
Government, in order to have it distinctly understood that this case
cannot be admitted by this Government as a precedent for any simi-
lar cases that may arise in the future. No principle o-f public law is
better understood nor more universally recognized than that mer-
chant vessels on the high seas are under the jurisdiction of the nation
to which‘ they belong, and that as to common crimes-committed on
such vessels while on the high seas, the competent tribunals of the
vessels’ nation have exclusive jurisdiction of the questions of trial
and punishment of any person thus accused of the commission of a
crime against its municipal laws; the nationality o-f the accused
can have no more to do with the question of jurisdiction than it
would had he committed the same crime within the geographical ter-
ritorial limits of the nation against whose municipal laws he offends.
The merchant ship, while on the high seas, is, as the ship of war is
everywhere, a part of the territory of the nation to which she
belongs.” '’ In reply the British government expressed its “regret
- '1 Whart. Dig. p. 123 et seq., § 33a. The colonial courts in this case did
not administer justice in accordance with the expectation of the United
States, for Secretary Evarts says: “While the verdict of the jury, convict-
ing the man of manslaughter, seems to have been technically right as to
the degree of the crime committed, the partiality and unfairness of the pro-
ceedings, which this government had conﬁdently hoped would be marked by
the most signal impartiality and fairness,‘ cannot but be deduced from the
result of the trial. I refer especially to the keeping back of the testimony
of witnesses who would have shown aggravating circumstances of guilt;
in the notably strong recommendation to mercy; and, more than all, in the
96 JURISDICTlON ON THE HIGH sEAs AND UNocoUPIED PLAoEs. [Ch. 5
that the authorities of Calcutta should have been governed by a >
view of the law which, in the opinion of her Majesty’s Government,
cannot be supported.” The state whose subject is aboard the vessel
of a foreign state may take cognizance of acts or occurrences in such
manner as it sees ﬁt, within its own territory, but cannot supplant the '
primary jurisdiction of the state which owns the vessel.
In regard to the protective jurisdiction of a state over its merchant
vessels, the foregoing statement of the law must be considered in
connection with the following facts, viz.: that in time of war foreign
powers (belligerents) are authorized to restrain certain acts; that
these vessels are bound to commit no acts of hostility againstother
nations, for which their country is responsible to the nation ag-
grieved, and the courts of the vessels’ country must be open to re-
dress wrongful acts committed against foreigners either by them or
by persons on board of them. This responsibility of the vessels’
state does not extend to acts which the foreign country is author- ’
ized to restrain, or to acts which constitute piracy. A foreign state
can also, under certain circumstances, pursue a vessel into 'non-
territorial waters. This right is restricted to the extent that the
noxious act must have been committed on land, or in the territorial
waters of the offended state, and the pursuit must commence while
the offending vessel is still within these territorial waters, or has
just escaped from them; but, when the vessel has escaped pursuit,
it cannot be further molested by the ships of the foreign state.8
character of the sentence, a purely nominal punishment, such as would he
usually inﬂicted for a slight contempt of court, and unheard of before in
any British court as a measure of the penalty for manslaughter, the conviction
for which rested on the verdict of a jury, the prisoner having been set free
within forty-eight hours, without even the form of executive clemency.”
Vide, also, The Atlanta, 8 Op. Attys. Gen. 73. In the case of Reg. v. Les-
ley, Bell, Cr. Cas. 220, it was held that “the master of a British ship may
detain Chilian-outlaws on board of his ship, against their will, while in
Chilian waters, by agreement with the Chilian government; but he cannot
lawfully transport them on the high seas under such agreement.” The
Belgenland, 114 U. S. 355, 5 Sup. Ct. 860.
8 Hall, nit. Law, p. 252, § 80; Bluntschli, § 342; Wools. Int. Law, p. 71,
§ 58. The latter author does not limit or restrict this right, but says: “For
a crime committed in port a vessel may be chased into the high seas and
there arrested, without a suspicion that territorial rights‘ have been vio-
Ch. 5] PIRACY. ' 97
PIRACY.
'73. Piracy may be said to consist of those acts of vio-
lence committed upon the sea, or by descent from the sea
upon the coast, by persons acting without the authority,
, and independently, of any politically organized commu-
nity.9
74. The following acts are recognized as piratical:
(a) Robbery or attempted robbery of a vessel,
by force or intimidation, either by way of
attack from without, or by way of revolt of
the crew, and the conversion of the vessel
and cargo to their own use.
lated, while to chase a criminal across the borders and seize him on foreign
soil is a gross offenseagainst sovereignty.”
9 Some other deﬁnitions are as follows:
“Piracy is robbery'on the sea, or by descent from the sea upon the coast,
committed by persons not holding a commission from, or at the time per-
taining to, ‘any established state.” Wools. Int. Law, § 144.
“The offense of dep'redating on the seas without being authorized by any
sovereign state, or with commissions from different sovereigns at war with
each other.” Wheat. Int. Law, D, § 122.
“Piracy is robbery, or a forcible dep-redation, on the high seas, without
lawful authority, and done animo furandz‘, and in spirit and intention of
universal hostility.” 1 Kent, Comm. p. 183.
“Piracy may be said to consist in acts of violence done upon the ocean or-
unappropriated lands, or within the territory of a state through descent from.
the sea, by a body ~of men acting independently of any politically organizedi.
society.” Hall, Int. Law, p. 257.
“Sont Gonsideres comme pirates les navires qui, sans l’autorization d’une'
puissance belligérante, cherchent a s’emparer des personnes, a faire du butin.
(navires et marchandises), ou a aneantir dans un but criminel les biens;
d’autrui.” Bluntschli, § 343. ‘
“Dans le langage international, il faut entendre par ce mot (piraterie) tout
vol ou pillage d’un navlre ami, toute depradation, tout acte de violence com-
mis a main armee en pleine mer contre la personne ou "les biens d’un étran-
ger, soit en temps de paix, soit en temps de guerre.” 1 Calvo, Int. Law, p.
576, § 485. ~
For other deﬁnitions, vide’ Hall, Int. Law, p. 256, note; \Vhart. Dig. § 380;
also, note to U. S. v. Smith’, 5 Wheat. 157.
INTERNAT.LAW-—7-
98 JURISDICTIoN oN THE HIGH SEAS AND UNoCCUPIED PLACES. [Ch. 5
(b) Depredations upon'- two belligerents at war
with one another under commissions granted
from each of them. .
(c) Depredations committed at sea‘ upon the pub-
lic or private vessels of a state, or descents '
upon its territory from the sea by persons
not acting under the authority of any politi-
cally organized community, notwithstanding
that the objects of ‘persons so acting may be
professedly politica1.1°
Piracy is admittedly one of the most difficult subjects to deﬁne,
and there is perhaps no deﬁnition of it that is not susceptible of criti-
cism, either in that it includes too much, or is not sufﬁciently broad,
or in that it describes acts that constitute the offense. ‘It has been
10 Hall, Int. Law, p. 257. Wools. Int. Law, § 144, says: “It is the act (1)
of persons who form an organization for the purpose of plunder, or with
malicious intent; but who, inasmuch as such a body is not constituted for
political purposes, cannot be said to be a body politic; (2) of persons who,
having in deﬁance of law seized possession of a chartered vessel, use it for
the purpose of robbery; (3) of persons taking a commission from two
belligerent adversaries. The reason for ranking these latter among pirates
is that the animus fw'andz' is shown by acting under two repugnant .au~
thorities. -
Field, Int. Code:
“Sec. 82. Every person whosoever, who, being an inmate of a private ship,
upon the high seas, as deﬁned by article 53, willfully and not in self-defense:
(1) destroys or seizes by force and appropriates, any other ship, or its lad-
ing, or any part of either; or, (2) kills, wounds, or seizes by force and
abducts any inmate whatever of any other Ship,—is deemed a pirate.
“Sec. 83. Every person whosoever, who, without authority from the owner,
and with intent to injure, vex, or annoy any person whomsoever, or any
nation whatever: (1) removes, destroys, disturbs, obstructs, or injures any
oceanic telegraphic cable not his own, or any part thereof, or any ap-
purtenance or apparatus therewith connected, or severs any wire thereof;
or, (2) destroys or injures any international railway, canal, lighthouse, -
or any other structure or work, the perpetual neutrality of which has
been declared; (3) or who beyond the territory of any nation reduces to
slavery or holds in slavery, any person whomsoever, or conveys, or re
ceives with intent to convey, any person whomsoever as a slave,—-is deemed
a pirate.”
Ch. 5] PIRAcY. 99
maintained that the act must be done lucri cause, and the English
common-law deﬁnition of animus furandi must be considered as a
requisite. It is true that most of the cases of piracy possess these
characteristics, but in many cases ships are destroyed, their cargoes
sunk, and other similar acts committed, without any idea of gain,
but through motives of gratuitous malice, or the satisfaction of
private revenge for real or supposed wrongs or injuries by persons or
‘classes of persons, or state communities. These acts constitute in
eﬂTect a menace to all nations, and, notwithstanding the absence of
intention of making gain, their criminality is evident. Acts of piracy
'have one common ingredient, which is that no state can or should
with justice be held responsible for them. If the act of violence is
done under the authority of a state, or in such a manner that its
authority is manifest, the state is responsible, and it alone exercises
jurisdiction. For instance, if a public vessel of a state commit acts of
violence, recourse is had to the state itself for‘redress, and if a murder
or similar act is committed on board of a vessel belonging to the
state, by a sailor or person on board, the laws of this state must be
exerted. On the other hand, when acts of violence are committed on
the ocean by a body of men who are under no recognized authority,
or by members of a crew who have by acts of violence displaced
the constituted authority of the vessel, all states have the right to
treat them as pirates. They are considered as pirates jure gentium,
and can be seized and tried by any nation, irrespective of their na-
tionality. They are considered as hostes humani generis,-—enemies
not of one nation or of one sort of people but of all mankind.11
This common jurisdiction probably arises from the fact that the acts
11 The following suggestions are offered as to the elements of piracy
fur-e gentium: ‘
1. It is not necessary that a purpose to depredate on property, beyond
such as belongs to one nation or one class of persons or one individual,
should-be proved or artiﬁcially presumed. _. _. i
2. The motive need not be Zucri eause’i; nor need the acts and ih'téflt"
square themselves to the English common-law deﬁnitions of animus fumind'i',
.or malice. It is enough if the corpus delictz' exists, and the animus be one
which the law of nations regards as criminal, and hostile to the rights of
persons and property on the high seas.
3. Although the act and intent may be sufficient to constitute piracy,
all nations have not ‘jurisdiction to try it, unless it was committed beyond
100 JURIsDIoTIoN ON THE HIGH sEAs AND UNOCCUPIED PLAcEs. [Ch 5
are usually committed upon the high seas, where no one nation has
jurisdiction, or in a vessel over which there is no national authority.
In the case of U. S. v. Smith, Judge Story says that the acts
of congress of March 3, 1819, and of 1790, passed to carry out the
constitutional provision authorizing congress to “deﬁne and punish
piracies,” which merely referred to the offense of piracy “as deﬁned
by the law of nations,” was sufficiently deﬁned to meet the require-
ments of the constitution. In considering whether the crime of
piracy is deﬁned by the law of nations with reasonable certainty,
he said: “what the law is on this subject maybe ascertained by
consulting the works of jurists, writing professedly on public law;
or by the general usage and practice of nations or by judicial deci-
sions recognizing and enforcing that law. There is scarcely a
writer on the law of nations, who does not allude to piracy as a
crime of a settled and determinate nature; and, whatever may be the
diversity of opinions in other respects, all writers concur in holding
that robbery, or forcible depredations upon the sea, animo furayzdi,
is piracy. The same doctrine is also held by all the great writers on
maritime law, in terms that admit of no doubt. The common law,
too, recognizes and punishes piracy as an offense, not against its own
municipal code but as an offense against the law of nations (which
the exclusive jurisdiction of any nation. To put it in such predicamentr
the act must have been committed not only on the high seas, but beyond
that kind of jurisdiction which all nations concede to each nation over
vessels sailing the seas under at once its de facto and de jure authority
and responsibility, and in the peace of all nations. Crimes, therefore, of
whatever character, committed on board by inmates of such vessels, are not
justiciable of all nations. But, if such a vessel passes into the control of
the robbers or murderers on board, and the lawful authority ‘is in fact
displaced, and she becomes an outlaw, any nation may seize the vessel and
try the criminals. So, if the persons on. board any kind of sea-craft, not in.
fact under any national authority and responsibility, and acting in deﬁance
therﬁepf, board a duly authorized vessel sailing in the peace of all nations,
‘.Iaj'idwommit robbery or murder on board, and depart, leaving the vessel
toi’ts regular authorities, they may still be tried as pirates by any nation
in whose jurisdiction they may be found; although the cruisers of a ‘foreign
nation, by reason of the rule against international interference, could not.
have them taken out of such a vessel, if, after their acts were completed,
they had been secured by the authorities of the vessel and conﬁned in her,
to be taken to port for trial. Wheat. Int. Law, D, note 83.
Ch. ,5] PIRACY. 101
is part of the common law); as an offense against the universal
law of society, a pirate being deemed an enemy of the human race.”
This oﬁense is generallyr referred to as one committed upon the high
seas, and there is no doubt that piracy cannot take place without
some connection with the sea. But a pirate does not lose his pirat-
ical character by landing upon state territory, and it will be noted
that Mr. Hall includes in his deﬁnition of piracy acts of violence
committed upon unappropriated land; and his deﬁnition, taken in
connection with the antecedent explanatory remarks, “If however
a body of pirates land upon an island unappropriated by a civil-
ized power, and rob and murder a trader who may be carrying on
commerce there with the savage inhabitants, 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,”--is in accord with modern practice;12
SAME—REBELS AND INSURGENTS AS PIRATES.
75. Ships and their crews belonging to insurgents, while
conﬁning their acts to the parent government, are not to
be treated as pirates, but they may become such by ex-
tending their hostile acts to the ships or subjects of
foreign states.
Acts of rebels or insurgents, if done under the sanction of an
organized community or sovereign state, would be considered as
acts of war. After belligerency has been recognized they in fact
become lawful as acts of war, but previous to such recognition they
possess all the characteristics of piracy, or‘ at least would be tech-
nically so classed. It is true that the test of piracy is the want of
12 For deﬁnition: “piracy jure gentium,” vide U. S. v. Smith, 5 Wheat. 153;
U. S. v. Palmer, 3 Wheat. 610; U. S. v. Klintock, 5 Wheat. 152; U. S. v.
Pirates, Id. 185; U. S. v. Holmes, Id. 412; Wools. Int. Law, § 1414; 1 Calvo,
Int. Law, §. 485 et seq.; Hall, Int. Law, pp. 252-261; Wheat. Int. Law,
D, § 122 et seq., and notes 83, 84; 1 Phillim. p. 388, § 357 et seq.; Bluntschli,
§§ 342-352; Mann. Int. Law (Amos) pp. 120—122; 1 Halleck, Int. Law,
p. 396, note 1; Whart. Dig. § 330.
102 JURIsDIcTIoN oN THE HIGH SEAS AND UNOCCUPIED PLACES. [Ch. 5
competent authority, but the acts of insurgents are performed
for the purpose of establishing a new order of things, or a new
community, and are undertaken for a public end in contradistinc-
tion to a private pursuit for the satisfaction of personal greed or
personal vengeance by means of murder or robbery on the high
Seas. Such persons are not, and should not be, considered as
enemies of the human race, but simply as enemies of the particularv
country against which their acts are directed. If, therefore, the
insurgents limit their acts to such as are recognized as pertaining
to belligerents, they should not be considered as piratical. If, on.
the other hand, their acts are not limited as stated, but they are
guilty of indiscriminate plunder and other acts of violence, or the
society which they represent is not sufficiently stable to hold out
guaranties that their acts will be so limited and controlled, they
can be treated as pirates. The'right to treat these people as pi~
rates when they overstep the bounds of recognized belligerency
must be recognized, because, if denied, the commerce of all nations
would be. at-the mercy of all marauders and irresponsible insur‘
gents, under the cloak of war. In the case of U. S.- v. The Ambrose
Light, 13 it was held that a vessel onithe high seas, in the hands of
insurgents who have not been recognized as belligerents by any in‘
dependent nation, may be regarded as piratical; but the decision.
in this case has been very much criticised, and in Wharton’s Digest
(section 381) the author not only severely criticises it, but cites let-
ters to the same eﬁect from Fiore, Martens, Baron de Neumann,
Calvo, and others.14 As illustrating the foregoing, certain cases-
arose during the Civil War in this country, in 1861—1865. In the
case of U. S. v. Baker (The Savannah),* Judge Nelson instructed the
jury that the offense committed by the crew was not piracy accord-
ing to the law of nations, for the evidence showed, if anything, an in-
tent to depredate upon the property of one nation only, the United
States, which falls far short of the spirit and intent which are said to
constitute the essential elements of the crime. If the acts consti'
13 U. S. v. The Ambrose Light, 25 Fed. 408.
143 Whart. Dig. § 381; The Magellan Pirates, 1 Spinks, 81; 1 Calvo,
Int. Law, p. ‘591, § 503; U. S. v. Baker, 5 Blatchf. 6, Fed. Gas. No. 14,501;
Wools. Int. Law, § 145; Hall, Int. Law, pp. 254-256.
* 5 Blatchf. 6, Fed. Gas. No. 14,501.
Ch. 5] PIRACY. 103
tuted piracy in this case, it was only such by virtue of the. act of
congress of 1820, and may be denominated a statute oﬁense, as con-
tradistinguished from that known to the law of nations. In 1877
the crew of the Peruvian monitor Huascar revolted, and declared
for the insurgent government of Pierola. This ship proceeded to
sea without opposition, and on the following day the Peruvian gov-
ernment issued a decree stating that it would not be responsible for
the acts of the persons on board of the Huascar, of whatever nature
they might be. In the course of the next few days this vessel
took a supply of coal from a British ship without making any ar-
rangement for payment, and also stopped a British steamer, and
took from her by force two government officials. The English
admiral in charge of the Paciﬁc squadron caused the cruiser Shah
to attack the Huascar. As a result of the undecisive engagement,
the latter vessel was enabled to escape and surrender to the Peru-
vian squadron. The Peruvian government demanded satisfaction
from England for this attack, and the question was submitted to
the law ofﬁcers of the crown, who reported, in effect, that the acts
of the Huascar were piratical. The course pursued by the English
admiral was therefore approved.“
SAME—LETTERS OF MARQUE~PRIVATEERS.
'76. Persons taking letters of marque from one of two
belligerents are not regarded as pirates jure gentium.
The practice of ﬁtting out privateers has been practically aban-
doned by all nations since the treaty of Paris, to which the largest
portion of the civilized states are signatories. The United States
did not sign this treaty, but the uniform practice of the country
has been averse to the practice of granting such letters, and in
the Civil War, although authorized by Congress, the President de~
,clined to act upon the authority; and all of the vessels of the
Southern States were commissioned cruisers of the Confederate
government. A privateer of an organized rebellious community,
acting under letters of marque given by the supreme authority ac-
15 Hall, Int. Law, p. 262; 3 Whart. Dig. p. 474, § 381; The Carthagena,
\Vhart. Dig. 466, and Hall, Int. Law, 261.‘
104 JURISDICTION ON THE HIGH sEAs AND UNOCCUPIED PLAoEs. [Ch. 5
cording to law, is not doing piratical work when, in a state of open
war, it preys on the commerce of its enemy, although its government
he as yet unrecognized, for (1) there is in this case no animus
fumndi; (2') the commission is a special one against a particular
enemy, and not against mankind; (3) and thus the captures made by
such a vessel will not be noticed by the courts of neutral countries
as crimes against the law of nations.“
SAME-SLAVE TRADE AS PIRACY.
77. The slave trade is not piracy by the law of nations.
In the United States and England the slave trade has been de
clared to be piratical, and is punished as such under the municipal
codes of the two states, but the effect of this extension of an interna-
tional oﬁense beyond the recognized limits of international law
can have no effect upon others than subjects, or foreigners under
the jurisdiction, of the enacting states. No municipal deﬁnition ex-
tending or limiting the deﬁnition of piracy by the law of nations
can have any extraterritorial effect. In the United States the gov-
ernment maintained that the British position, “that American citi-
zens employed on French privateers in the war with revolutionary
France were pirates,” and that the French decree, “importing that
every privateer of which two-thirds of the crew should not be na-
tives of England, or subjects of a power the enemy of France,
shall be considered a pirate,” were in conﬂict with settled princi-
ples of international law, and in contravention of the law of na-
tions.17
16 Hall, Int. Law, pp. 258, 259; Wools. Int. Law, § 146; Whart. Dig. § 381;
Ford v. Surget, 97 U. S. 619; Dole v. Insurance Co., 6 Allen, 373; Planters’
Bank v. Union Bank, 16 Wall. 483.
1'! Whart. Dig. § 382; Hall, Int. Law, p. 264; Wools. Int. Law, § 146.
Ch. 6] WHO ARE AGENTS IN INTERNATIONAL AFFAIRS. 105
CHAPTER VI.
THE AGENTS OF A STATE IN INTERNATIONAL RELATlONS.
78. Who are Agents in International Affairs.
7 9. Public Diplomatic Agents—Classiﬁcation of.
80. Refusal to Receive Diplomatic Agent.
81. Commencement of Mission.
82. Rights of Diplomatic Agents.
83. Termination of Mission.
84. Rights of Diplomatic Agents in Third States.
85-86. Consuls.
87. Functions
88. Appointment.
89. Dismissal.
_ 90. Privileges.
WHO AGENTS IN INTERNATIONAL AFFAIRS.
'78. The agents of a state in international affairs are:
(a) The person or persons to Whom is delegated
the management of the foreign affairs of the
state by the constitution.
(b) All persons directly subordinate to them. The
latter are generally designated as diplomatic
agents.
In the United States the executive department of the government
is charged with the management of foreign relations, and appoints
all subordinate agents, subject to ratiﬁcation by the senate. In
all states there is a department known as the “Department of Foreign
Aﬁairs,” which in this country is called the “State Department,”
' whose duties are to communicate directly with foreign governments
through the agents of these governments accredited to the countries.
All such agents or departments are established by the public law
of each state. International law has nothing to do with the par-
ticular form of government, and in consequence the only information
necessary for foreign governments in this respect is as to who are
106 ‘ THE AGENTS or A STATE IN INTERNATIONAL RELATIoNS. [0b. 6
the proper agents with whom they are to establish relations of in-
tercourse, etc. It is enough for them to know that the designated
persons are in possession of the powers requisite for carrying on
the business pertaining to foreign relations.
DIPLOMATIC AGENTS.
79. Public diplomatic agents are:
(a) Ambassadors,‘ legates, and nuncios.
(b) Envoys and ministers plenipotentiary.
(c) Ministers resident, accredited to the sovereign.
((1) Charges d’aﬁ‘aires, accredited to the minister
of foreign affairs.
The relations of states are carried'on by means of diplomatic
agents, who are charged with the general affairs of their own state
in the foreign state to which they are duly accredited. In some in-
stances the diplomatic agent is accredited temporarily, for the pur-
pose of negotiating a special treaty, etc. The right of sending dip-
lomatic agents pertains to each sovereign state, and all states at
the‘present time have their representatives in each of the civilized
States of the world. So great and complex have becomethe relations
of states that it is now regarded as a necessity for states to main-
tain diplomatic relations, and so ﬁrmly ﬁxed is this right of inter--
course that, after having once entered into diplomatic relations with
a state, the dissolution of these ties is regarded as a breach of friend-
ship, and isthe step usually taken immediately preceding a war.
SAME—REFUSAL TO RECEIVE DIPLOMATIC AGENT.
80. Ordinarily one state cannot refuse to receive a dip-
lomatic agent accredited to it by another state. To this
riile there are exceptions, as follows:
(a) When the sovereignty of the state sending the
agent is doubtful, as in the case of a civil war,
when both factions claim the sovereignty, or
when a new state has just been formed, the state
to which he is sent may refuse to receive him.
Ch. 6] DIPLOMATIC AGENTS. 107
(b) A state can refuse to receive an agent whose mis-
sion appears to be inconsistent with its interests
or dignity.
(c) A state may refuse to receive a particular individ—
ual as an agent without giving cause for offense.
The ﬁrst class does not require any special illustration, because it
is apparent that a state is entitled to know with whom it enters
into relations, for reasons that have been previously explained.
England refused to receive the legate or nuncio of the pope when he
was a temporal sovereign. In 1875 the pope refused to receive
Prince Hohenlohe as ambassador from Germany, because, being a
cardinal, he was, ex oﬁicio, a member of the curia. Many more in-
stances have occurred in which states have refused to receive agents
when doing so would imply an acquiescence in claims that are in-
consistent with the rights of the state. “Then the political opin-
ions of a particular individual are known to be at variance with the
established regime, also when the person appointed is a citizen of
the state to which he is sent, all states can and many do make it
a rule never to receive such person as an agent. Finally, any per-
son can be refused who is personally objectionable to the sovereign
of the state to which he is sent, or who is persona non g'rata. It has
been suggested as a prudent and safe course to consult the nation to
whom the agent is to be accredited, before designation, in order to
ascertain if the appointment would be satisfactory, so as to avoid
all doubt as to the acceptability of the appointee. The right of a
state to send whom it pleases as its representative to a foreign state
is exclusive, and, if the state to which the representative is accred-
ited refuses to receive him, such refusal should not be based upon
trivial grounds, or upon grounds that are not considered commenda-
ble by the former state. The refusal in such case need not be ac-
quiesced in. In case the state has made the preliminary inquiry
as to the acceptability of the proposed representative, and no ob-
jection is urged, a refusal to accept must be based upon good cause.1
1 Bluntschli, § 168; Hall, Int. Law, pp. 297, 298.
108 THE AGENTS OF A sTATE IN INTERNATIONAL RELATIONS. [0b. 6
SAME—~COMMENCEMENT OF MISSION.
81. A permanent diplomatic mission commences when
proper credentials have been presented to and received by
the accrediting government. A temporary mission com-.
mences when proper credentials are presented to other
similar agents.
A diplomatic agent is entitled to enter upon_the duties of his
office only after he has presented his credentials to the government
to which he is sent and they have been received by it, or, in case of
a temporary mission, when these credentials have been presented
to and received by the agents of the'other governments. The pa-
pers with which an agent accredited to a single state is usually
furnished are known as “letters of credence” and the “full power.”
At one time both were contained in one letter, but at the present
time they are separate. The letter of credence generally contains
the name of the bearer, speciﬁes his rank, and bespeaks credit for
what he will communicate in the name of his government. The “full
power,” or letter patent, speciﬁes the powers conferred upon the
agent. and is always furnished when the mission of the agent is
special or temporary, and also when the permanent agent is charged
with the negotiation of a special treaty, under which circumstances
he is furnished with a separate letter patent conferring the special
powers. On the other hand,.ambassadors sent upon special mis-
sions are not provided with letters of credence, as their letters patent
contain their full powers.
SAME—RIGHTS OF DIPLOMATIC AGENTS.
82. As soon as a diplomatic agent. enters upon the ex-
ercise of his functions, he becomes possessed of all the
rights pertaining to inviolability;_ the state to which he is
accredited being bound, not only to abstain from all acts
of violence, but to protect him from its inhabitants.2
2 Vide “Immunities,” ante, p. 68.
Ch; 6] DIPLOMATIC AGENTS. 109
He is especially exempt from all violence directed against him for
political reasons, from being held as a hostage, or kept as a prisoner
of war. All attacks upon his person are regarded as attacks upon
his state, and in some cases as an offense against all the states, or an
international offense. In regard to the immunities from local ju-
risdiction, the subject has been sufﬁciently discussed under the
appropriate heading. Diplomatic agents enjoy immunities previous
to the time at which they assume the functions of their oﬁce'
In so far as the ‘country sending him is concerned, he becomes its
A‘ representative from the moment his appointment is complete, so
that, as between the appointing state and the accrediting state, he
is entitled to inviolability from the time he reaches the latter state
until he leaves it, and this because the passports indicate the diplo-
matic character of the holder.
SAME—TERMINATION OF MISSION.
,83. The mission of a diplomatic agent is terminated in
the following ways:3
(a) By recall.
(b) By dismissal by the accrediting government.
'0) By war or the interruption of amicable relations
between his own and the accrediting govern-
ment.
8 Bluntschli, § 237: “The diplomatic mission can be interrupted, and
the validity of letters of credence rendered doubtful, in the following
cases: (a) Through diﬁiculties resulting in the temporary suspension of
diplomatic relations, without causing a complete rupture; (b) as a result of
a revolution in one of the two countries, the issue of which is uncertain; (c)
when personal reasons prevent temporarily the agent from fulﬁlling his func-
tions.”
Calvo, Int. Law, § 1363: “Les missions diplomatiques prennent ﬁn (1)
par la mort ou la démission de ceux qui les remplissent; 2 par la mort du
souverain qui a accrédité l’agent, on par une modiﬁcation radicale de la
forme de son gouvernement; (3) par l’expiratzion ou la revocation des lettres
de créance; (4) par la realisation meme de l’objet en vue duquel la mission a
été donnee; (5) par le rappel spontane ou formellement demande du ministre;
(6) par une declaration de guerre ou par une simple‘ interruption des rela-
tions d’amitié.” '
110 THE AGENTS or A STATE IN INTERNATIoNAL RELATIoNs. [0b. 6
((1) By death of the agent.
(e) By personal departure of the agent for cause stated.
(f) By expiration of letter of credence.
(g) By completion of the speciﬁc duty for which let-
ters of credence were issued.
(h) Perhaps by death of the sovereign, in monarchical
countries.
(1) By a change of government through a revolution.
There is a difference of opinion as to whether the death of a mon-
archical Sovereign of either of the two countries puts an end to
the mission, but the practice is to issue new letters of credence.
‘The accredited agent continues the exercise of his functions, and
does not lose rank on account of the issuing of the new letters.
‘This does not apply to republican governments, where thedeath or
change of the president by election causes no change in the diplo-
matic agents, and this is true also in the case of the election
of a new pope} Mr. Calvo says that a government is bound to re-
call an agent who has become personally unacceptable to the gov: '
ernment to which he is accredited, on the information being com-
municated that he is so, and that it has no right to ask for any
reason to be assigned. Mr. Hall, on the contrary, holds that cour-
tesy to a friendly state exacts that the representative of its sover-
.eignty shall not be lightly or capriciously sent away; if no cause
is assigned, or the cause given is 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 re-
call 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 government also may, and usually does, examine
whether his conduct in fact aﬁords reasonable foundation for the
charges brought 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.5 The United States main-
4 Calvo, Int. Law, § 1367; 1 I-Ialleck, Int. Law, 304.
5 Hall, Int. Law, pp. 302, 303, and note.
Ch. 6] DIPLOMATIC AGENTS. - 111
tains the former view as the correct one. “The official or authorized
statement that a minister has made himself unacceptable, or even
that he has ceased to be persona gram, to the government to which
he is accredited, is sufficient to invoke the deference of a friendly
power, and the observance of the courtesy and the practice regulat-
ing the diplomatic intercourse of the powers of Christendom for
the recall of an objectionable minister.” 6 The government of the
United States will acquiesce in a demand of a foreign government
for the recall of a minister who is personally unacceptable to such
government. Mr. Yrujo, the Spanish minister to the United States
in 1806, was accused of attempting to bribe a Philadelphia news—
paper to advocate the Spanish view of a boundary question then in
controversy between the United States and Spain, and of writing
some insolent letters to the president later on. The United States
demanded his recall, which was ﬁnally acceded to by Spain. Mr.
J ackson’s (the British minister) recall was demanded by the United
States in 1809 because, in a toast at a public dinner, he had accused
the administration of falsehood and duplicity. The English gov-
ernment consented to his recall, but maintained that Mr. Jackson
had not committed any intentional offense against the United
States. Again, in 1871, Mr. Catacazy, the Russian minister to the
United States, by his conduct “for some time past impaired his use-
fulness to his own government, and rendered intercourse with him,
for either business or social purposes, highly disagreeable,” and his
recall was demanded, but his presence was tolerated for some time
afterwards, under an agreement between the two governments.7
The recall of Lord Sackville was demanded in 1888, and three days
afterwards he was dismissed by the United States, because of in-
terference in the internal affairs of the country. He had written
a letter to a naturalized subject of Great Britain, advising him in
regard to voting for a candidate for the presidency.8
6 1 Whart. Dig. pp. 611, 612, § 84.
7 1 Whart. Dig. § 84.
8 Mr. Fish, Secretary of State, to Baron Gerolt, November 21, 1870. For.
Rel. 1870. ‘
112 THE AGENTS or A sTATE IN INTERNATIONAL RELATIONS. [0b. 6
SAME—RIGHTS OF DIPLOMATIC AGENTS IN THIRD STATES.
84. The rights of diplomatic agents in third states are
as follows: “
(a) A diplomatic agent is entitled to a right of inno-
cent passage through ,a friendly third state, en
route to and from the state to which he is to be
accredited; but this right is qualiﬁed by the
right of the third state to prescribe the route to
be pursued, and by the condition that there shall
be no unnecessary delay in ‘the journey.
(b) A diplomatic agent has no right tov enter the terri-
tory of a state which is at war with his own
country, even though accredited to a friendly
country, and, if found on such territory, his sei-
zure cannot be considered an offense against in-
ternational law.
(0) Diplomatic agents sent to a congress or conference
are considered as directly representing their
states, and, as such, entitled to complete diplo-
matic privileges in friendly states.
(d) A diplomatic agent accredited to a state which is
at war with a third state is accorded the usual
rights of inviolability by the last-named state.
The Right of Passage through a Friendly State. ,
Authorities are not in accord as to the rights of an ambassador in
friendly third states. According to one view, the right of inviola-
bility depends upon the same principle as that of a sovereign coming
into a friendly third state with the express or implied permission of
the local government. That both are equally entitled to the pro-
tection of that government, against every act of violence and every
species of restraint inconsistent with their sacred character, and
permission to enter such territory, is implied, in the absence of any
prohibition. The other view is that there is no practical reason for
such immunities, since he does not represent his country, except
when actually engaged in his diplomatic business; his diplomatic
Ch. 6] DIPLOMATIC AGENTS. 113
character is separable from his personality, he having usually no
functions except in the state to which he is accredited; and cases
have occurred where such agents have been pursued both by civil
and criminal process, while in transit through the territory of
friendly powers. In 1854 Mr. Soulé, United States minister to Spain,
was stopped at Calais by the French government, which, while con-
ceding the right to pursue the direct route through France to Spain,
declined to permit him, in consequence of his politicalantecedents,
to make, on his way, a stay (“séjour”) in Paris.9 The rule in the
_United States, as expressed by Attorney General Cushing, is that
“a person coming into the United States as the diplomatic repre-
sentative of a foreign state, with credentials from governing powers
not recognized by this government, is accorded the diplomatic privi-
leges merely of transit, and this of courtesy, not of right, and such
privilege may be withdrawn whenever there shall be cause to be-
lieve that he is engaged in, or contemplates, any act not consonant
with the laws, peace, and public honor of the United States.”
Diplomatic Agents of a Country at War with Another,
It is clear that such an agent is not only an enemy, but one that is
particularly noxious to the state at war with his own government,
on account of the nature of his duties. The leading case illustrating
this is that of Maréchal de Belleisle in 1744. _He was appointed
ambassador from the French to the Prussian court, and when on.
his way to Berlin he was found upon the territory of Hanover, which
country and England were .at the time at war with France. His-
seizure and transfer to England as a prisoner of war were not com—
plained of by himself or his government.
Agents of a. Friendly State Accredited to a State at War.
This question arose during the siege of Paris in 1870, when the-
German authorities declined to permit a messenger with dispatches-
from the United States minister at Paris to pass through the lines
of the German army, except upon condition that the contents of the
bag containing the dispatches be left unsealed. Secretary Fish
. caused the American minister at Berlin to make formal complaint
to the German government, maintainingthat this action was an un-
courteous one, which could not be acquiesced in by the United States.
i 9 Whart. Dig. § 97; Calvo, Int. Law, § 1535.
INTERNAT.LAW—8
114 THE AGENTS or A STATE IN INTERNATICNAL RELATIoNs; [0b. 6
“Blockade by both sea and land is a military measure for the re-
duction of an enemy’s fortress, by the preventing of relief from
without, and by compelling the troops and inhabitants to surrender
for want of supplies. When, however, the blockaded fortress hap-
pens to be the capital of the country where the diplomatic repre-
sentative of a neutral State resides, has the blockading force a right
to cut him off from all intercourse by letter with the outside world,
and even with his own government? No such right is either ex-
pressly recognized by public law, or even alluded to in any treatise
on the subject. The right of legation, however, is fully acknowl-
edged, and, as incident to that right, the privilege of Sending and re-
ceiving messages. This privilege is acknowledged in unqualiﬁed
terms. There is no exception or reservation looking to the possi-
bility of blockade of a capital by‘a hostile force. * * * Indeed,
the rights of legation under such circumstances must be regarded as
paramount to any belligerent right. They ought not to be ques-
tioned or curtailed, unless the attacking party has/good reason to
believe that they will be abused, or unless some military necessity,
which upon proper statement must be regarded as obvious, shall
require the curtailment.” 1° This seems to place the rights of neu-
trals above those of belligerents, which, granting that all that is 4
said in regard to the rights of belligerents in the premises, not being
expressly recognized, to be true, the deductions made can scarcely
be conceded to be true. The right of legation is a right existing
between the two States interested, and is not of such a nature as to
compel a third State to forego its belligerent rights. This is practi-
cally conceded by Secretary Fish in the last sentence above quoted.
As a matter of courtesy, it must be admitted that a belligerent should
permit a friendly State to send and receive dispatches from its
ministers, even in the country of its enemy, since the presumption
is that this correspondence is carried on in good faith, and, as a
rule, no military necessity will exist for interfering with such cor-
respondence.
10 Mr. Fish, Secretary of State, to Mr. Bancroft, American Minister to Ger-~
many, Nov. 11, 1870. MSS. Genn. For. Rel. 1870. 1 Whart. Dig. pp. 661—
662, § 97.
Ch. 6] ' CONSULS. 115
CONSULS.
85. Consuls are persons appointed by a government to
reside in a foreign country, with permission of the latter,
for the purpose of watching and protecting the interests
of the subjects of the appointing state, and generally of
promoting its commercial interests.
86. Consuls are classiﬁed by each country, and the du-
ties of each prescribed, the general classiﬁcation being
into——
(a) Consuls general.
(b) Consuls.
(0) Vice consuls.
(d) Consular agents.11
The classiﬁcation is not material to international law, as all
consuls, of whatever grade, are essentially commercial agents, and,
while agents of the state, they occupy a diﬁerent status from that of
ambassadors and ministers. They are, in general, subject to local
law, while the latter, as previously explained, are not; and it has
been determined that they are not entitled to represent their sov~
ereign in negotiations with foreign states, or to vindicate his pre-
rogative.
SAME—FUNCTIONS.
8'7. The functions of consuls are determined by the laws
of their own country, or by treaties. The more important
duties are:
(a) To watch over the commercial interests of the
country he represents, and to see that the local
11 Field, Int. Code, § 160: “The various classes of consuls, and their
relative rank and powers, are ﬁxed by their respective nations.” By the
United States consular regulations (1870, art. 1), the consular service of the
United States consists of the following officers: Agents and consuls general;
consuls general; vice consuls general; deputy consuls general; consuls; vice
consuls; deputy consuls; consular agents; commercial agents; vice commer-
cial agents; consular clerks; and oﬂice clerks.
116
THE AGENTS OF A‘ STATE IN INTERNATIONAL RELATIONS. [0h.' 6
In certain non-Ghristian countries the status of consuls is very
laws are properly administered in reference to ‘
its subjects, and to see that commercial treaties
are carried out.
(b) To report to his own government information col-
lected in regard to commercial, economical, and
political matters.
(0) To receive protests from masters of vessels; grant
passports; act as depositary of sundry ship’s
papers; authenticate births, deaths, and mar-
riages; authenticate certain judicial and mercan-
tile instruments; and administer the property of
citizens of his country within his district.
(d) To reclaim deserters from vessels, provide for such
as may be destitute, send them home if neces-
sary, and discharge such as have been cruelly
treated.
(e) To arbitrate on differences voluntarily brought be-
fore him by his countrymen, especially in regard
to matters taking place on shipboard, and com-
mercial matters, and to exercise disciplinary
jurisdiction over crews of vessels belonging to
his own state, but not to the exclusion of the
local jurisdiction.
much changed, and their duties very much enlarged. The jurisdic-
tion of the consuls of practically all of the civilized governments in
such countries as China, Japan, Turkey, and some others, is very
much- enlarged, and is regulated by treaties, and the municipal laws
of these countries. In the United States and Great Britain, statutes
have been passed conferring jurisdiction upon the diplomatic and
‘consular agents.’ This, however, pertains to municipal, and not
international law. -
SAME—APPOINTMENT.
88. Consuls are appointed as follows:
(a) A consul general or consul is always appointed
by a commission or patent, which is commu-
Ch. 6] , coNsULs. 117
nicated to the government where he is to re-
side. This government, upon its, receipt,
issues to the person named an exequatur or
commission authorizing him to perform the
duties of the office, and guaranties rights
possessed in virtue of it.
(b) A vice consul is usually appointed by patent,
but may be nominated by the consul to
- whom he is subordinated, and receive recog-
nition by the issuance of an exequatur.
(c) A consular agent is appointed and conﬁrmed
like vice consuls, except that in the United
States he does not receive an exequatur.
Consuls may be citizens of the appointing state, who accept the
ofﬁce solely with the view of representing their country where
appointed, or they may be citizens of such state in business in the
country where appointed, or they may be citizens of the country
where they act as consul.
The above is the mode usually followed in the appointment of
consuls, but different countries have different practices, though the
result in each case is substantially the same. An exequatur does not
issue as of course, and, for good cause, may be refused by the country
in which commissioned.
SAME—DISMISSAL.
89. A consul may be dismissed, and his exequatur re-
voked, for illegal or improper conduct, and may be .pun-
ished or sent out of the country, at the option of the of-
fended country.12
This revocation of an exequatur is seldom resorted to, but may be,
at. the option of the offended government, and'especially for political
offenses. It is conceded that, a. government may, without cause
given, revoke an exequatur, because, consuls not being representa-
12 Coppell v. Hall, 7 Wall. 542; 2 Op. Attys. Gen. 725; Pitt-Cobbett, Cas.
Int. Law, p. 119.
118 THE AGENTS or A STATE, IN INTERNATIoNAL RELATIoNS. b[Ch. 6
tives of their state, the country in which they reside can certainly
determine when the performance of the functions of the office upon
its territory shall cease. Mr. Bunch, the British consul at Charleston
at the beginning of the war in 1861, being instructed by his govern-
ment, in connection with the French government, to communicate
with the So-called Confederate States the desire of those governments
that the second, third, and fourth articles of the declaration of Paris
should be observed by those states, entered upon such communication
with the Confederate authorities. The government of ‘the United
States, for this, as well as for other reasons, revoked Mr. Bunch’s
exequatur. Great Britain sustained the action of the consul in this
case, and no good reason is apparent why he should not have com-_
municated with a de facto government in regard to the protection of
the commerce of his own country, and the recall being acquiesced in
by his own government shows that it recognized the right of recall
without satisfactory cause being stated to the government of the
consul.’-3
SAME—PRIVILEGES.
90. Consuls, not being diplomatic agents, are not enti-
tled to diplomatic immunities, but are subject to both the
civil and criminal jurisdiction of the country in which
they perform their functions. The official position accord-
ing to custom may be said to carry with it the following
privileges:
(a) Exemption from arrest for political reasons.
(b) Exemption from personal taxes, and from having
soldiers quartered in his house. .
(c) The right to attach the arms and ﬂag of his coun-
try upon his house. ‘
(d) And generally such privileges as may be neces-
sary to enable him to perform the duties of his '
oﬂice, which must be subordinated to his liabil-
ity to local jurisdiction.
The United States has, by the constitution, placed consuls under
the jurisdiction of the circuit and supreme courts; but a foreign con-
18 Whart. Dig. § 116; Hall, Int. Law, pp. 317, 318.
Ch. 6] coNsULs. ' - 119
sul, though’ not amenable to the jurisdiction of a state court, may
maintain a suit in any of such courts. It has been the practice of .
this country to accord all the privileges possible and consistent with
the constitution. The privileges accorded under the last general head-
ing consist in exemptions from the performance of such acts as will
prevent the consul from being present at his consulate for the per-
formance of his duties, or going wherever necessary for the same pur-
pose. They are, in consequence, usually exempt from jury duty, and
from service in the militia or national guard. The archives of the
consulate are inviolable, as well as other papers of the consulate. If
a consul is appointed charge d’affaires, he becomes entitled to diplo-
matic immunities, but solely by virtue of his oﬁice as such agent, and
not as a consul. When a consul is duly accredited to a particular
locality, changes in the government do not affect his position as such
agent, and do not require a new exequatur. This was illustrated dur-
ing the Civil War in‘ this country, when consuls in parts of the
- Confederate States continued to perform the duties of their ofﬁce.
The consulate during actual hostilities is usually designated by the
raising of the ﬂag of the country of the consul, and the combatants
are bound to protect it, in so far as possible under the circumstances.
This is based ‘upon usage, and is a courtesy a failure to observe which
is justiﬁed only by military necessity, or when the consulate is used
as a place of refuge for the enemy.“
14 General subject of privileges of consuls, etc., vide 1 Halleck, Int. Law,
pp. 313-324, and note 1, pp. 316—318, which see for extracts from consular
regulations of the United States for 1870; Hall, Int. Law, pp. 318-322; 1
Whart. Dig. §§ 120-121; Bluntschli, § 272; Calvo, Int. Law, § 1395 et seq.
120 ' ., INTERVENTION. [0b. 7
CHAPTER VII.
INTERVENTION.
IN GENERAL.
91. Intervention consists in the interference by a state
or states in the relations of other states without the con-
sent of either or all of them, or in the interference in the
domestic affairs of another state, irrespective of the will
of the latter, for the purpose of either maintaining or al-
' tering the actual condition of things. It differs from
mediation and arbitration in that it implies the actual or 1
threatened use of force}-
Intervention is necessarily an attempt to limit the freedom of
action of the state subjected to it, and, from the standpoint of the
state upon which it is imposed, it is a hostile act, which, not being
consented to, is an act of war. When this takes place within
a single state, it is in the interest of a party of the state, and may
be a paciﬁc measure in the interest of the state as such. - As it is
a fundamental principle of international law that each state is
bound to respect the independence of every other state, and‘ inter-
ference in the affairs of a state is a direct attack upon this funda-
mental right, in order to justify such action it is necessary to base
" it upon some right which takes priority over the aforesaid right of
independence. Naturally, the most satisfactory ground upon which
such justiﬁcation can be placed is that .Of self-preservation.
Self-Preservation.
When a government is not able to carry out, or will not carry out,
its international obligations, and, as a result of this condition, the
welfare of a neighboring state is threatened, either by actual at-
tacks of the subjects or by stirring up revolutions or by threatening
the neighboring state, the latter may take the necessary steps to
preserve its safety, and in such a case may resort to war, or Such
1 Hall, Int. Law, pp. 281-283; Whart. Dig. § 45; Greasy, Int. Law, p. 278 et
seq.; Wools. Int. Law, § 42 et seq.; Bluntschli, §§ 474-480.
Ch. 7] _ IN GENERAL. 121
\.
measures short of war as will insure the same result. Upon this
right of self-preservation was based the action of the United States
in regard to Amelia Island, which was situated at the mouth of the
St. Mary’s river, and at the time in Spanish territory. It was
seized by a band of buccaneers under a man named McGrego-r, who,
in the name of the insurgent colonies, Buenos Ayres and Venezuela,
preyed indiscriminately upon the commerce of the United States
and Spain. The Spanish government not being able or willing to
drive them oﬁ, and the nuisance being one requiring immediate
action, President Monroe sent a vessel of war to the island to drive
them out and destroy their vessels and works.2 A distinction
must be drawn between ‘the acts of a state which result in the con-
ditions above stated as authorizing interference by the injured
state, and the acts resulting in injury to a state on account of the
particular form of government‘ or state life of another. Although
this may .be the direct cause of injury to the institutions of its
neighbor, yet the latter has no right to demand that it be changed,
because each state has the right to live its own life in its own
way. It pertains to each state to cause its own constitution to be
respected and public order to be maintained, and international law
is not‘ concerned with these matters. The overthrowing of a gov-
ernment, the dethroning of a prince, the elevating to power of an
usurper, and the depriving the people of certain constitutional
rights, pertain only to the internal affairs of the state aﬁected, and
do not concern the relations of states. '
Against Illegal Acts, Immoral Acts, etc. _
In regard to illegalacts the most conspicuous example is perhaps
that of the illegal interference in the affairs of another state. In such
a case a third state may be authorized to interfere for the purpose
‘of restoring to the state whose independence is aifected its freedom
of action. This right is based upon the ground that a state has
authority to oppose acts contrary to law, and may even use force,
‘ provided the violation of law is of a suﬁiciently serious nature.
Under the head of immoral acts should be classed religious perse-
cutions, massacres, grievous oppressions of the subjects of a state,
proceedings repugnant to humanity, etc. In all such cases there is
2 Whart. Dig. § 5021.
122 _ l INTERvENTIoN. _ [0b. 7
no legal justiﬁcation for interference, and the moral grounds ad-
vanced in support of such interference‘ are not altogether satisfac-
tory. It has been stated that the acts of oppression or persecution
must be so serious in character and so great in degree as to incur
the condemnation of the civilized world, and the interference must
be participated in or sanctioned by all the states of Christendom.
While, however, it is settled 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, intervention to put down a popular movement or uprising of a
subject race is wholly forbidden, but intervention for the purpose of
checking gross tyranny or of helping the efforts of a peopleto free
itself is very commonly regarded without disfavor. The above state-
ment is correct, and yet the safest and best rule is that interference
in the affairs of another state should not be regarded as a right,
except in cases where the security of the interfering state or its
immediate interests are compromised, or upon the broad ground of
self-preservation. ' '
Under a Treaty of Guaranty/.3
If a state cannot legally interfere in the internal affairs of another
State, no treaty stipulation can make this act lawful. The guar-
anty of a protecting state, and the constitutional guaranty 'of a fed-
eral State to maintain a certain form of government in the protected
or individual states of the union, are perfectly valid and legal; but
the states to whom these guaranties run are not persons in inter-
national law, and hence the cases are not applicable. Such guar-
anties are contained in the constitution of the United States, the
Germanic confederation, and in many cases of protected states; but
the guaranties contemplated are those that seek to prevent the in-
terference of an equal sovereign state in the affairs of another
sovereign state, which cannot be justiﬁed upon any satisfactory
grounds. I
In this connection it is well to consider the claim made by some
authorities 4 that a foreign state has under certain circumstances
8 Hall, Int. Law, § 93; Vattel, Int. Law, bk. 2, c. 12, §§ 196, 197; 2 Phillim.
Int. Law, §56; 1 Halleck, Int. Law, p. 85. .
4Bluntschli, §§ 476, 477; Vattel, Int. Law, bk. "2, c. 4, § 56; 1 Halleck,
Int. Law, p. 87; 2 Phillim. Int. Law, § 56 et seq.
Ch. 7]" _ IN GENERAL. 123
the right to interfere in the affairs of a state involved in a civil
war, as, for instance, at the invitation of either party to the conﬂict.
If this interference is accorded at the instance of the party in
charge of the affairs of the state, it is an indication that the previ-
ously established government is not likely to be able ,to succeed
against the insurgents, and the chances of the latter becoming the
legal representatives of the state are clearly good. On the other
hand, if the interference is accorded at the instance of the insur~
gents, the independence of the existing government is violated. It
is difficult to comprehend upon what grounds interference can be
justiﬁed in either case, as the intervening state assumes to pass
upon the merits of a case involving solely the internal affairs of a
state which is outside of the domain of international law. Inter-
vention in the internal affairs of a state are greater infringements
of their independence than interference with their external aﬁairs,
and consequently require more weighty reasons to justify them.
Balance of Power.5
The maintaining of the balance of power as a right of interference
cannot be said at the present day to receive the sanction of jurists
or authorities upon international law. The meaning of the bal-
ance of power is that any European state can be restrained from
making acquisitions or planning to make acquisitions which are
deemed to be dangerous to the independence or national existence
of its neighbors. It is immaterial as to the justness of the means
employed provided the ends sought are purely political. The de'
velopment of the internal resources of the country, acquisitions by
European states outside of Europe, particularly of colonies, the de-
velopment of the maritime power of a country, and the acquisitions
made by countries outside of Europe, have not been considered as
aﬁectin'g this balance of power. In regard to the ﬁrst named the
reason is that there is no sudden development in wealth or popu-
lation, such as to excite alarm. In regard to the acquisition of
colonies the political balance is aﬁected only in an indirect manner,
and heretofore these have been considered rather as an element of
weakness than strength, as each adds one more vulnerable point of
attack for the acquiring country. The acquisition of power at sea
5 Whart. Dig. § 45; Lawrence, Essay, No. 5; Hall, Int. Law, § 95.
124 INTERVENTION. [0b. 7
does not and cannot so directly affect the political relations of Eu-
rope as the acquisition of a Similar land force would. In regard to
the actions of outside states, as these cannot control or materially
inﬂuence European aﬁairs, they have not at any time been consid-
ered as threatening their political relations. This balance of power
is in reality a measure of self-protection adopted by a body of
states that are situated so closely to each other that any one is
liable to invasion and attack from each of the others. The English
authorities maintain that more cogent reasons exist for the exercise
of the right of interference by a body of states than can be ad-
vanced for an individual state, because there is a likelihood that
powers with divergent individual interests, acting in common, will
prefer the general good to the selﬁsh objects of a particular state,
or that there is good reason to believe that intervention under the
sanction of the body of states, even on grounds forbidden to the
individual state, may be useful or beneﬁcent, or, more generally
speaking, that the results accomplished are more apt to justify com-
bined than individual action. There is no more legal ground for
the action of a body of states than exists in the case of individual
states under the same state of facts, and the considerations ex
pressed in support of the foregoing theory possess value upon purely
moral grounds, if any.
I
Ch. 8] NATIONALITY DEFINED. 125
CHAPTER VIII.
NATIONALITY.
92. Deﬁned.
93. Citizenship.
94. Indelible Allegiance.
95. Expatriation.
96. ‘Naturalization.
97. Effect of Incomplete Naturalization—As to New State.
98. As to Other States.
99. Status of Indians in the United States.
NATIONALITY DEFINED.
92. Nationality is that condition or state of a person or
thing by virtue of which he or it forms an integral part
of a particular nation. As applied to an individual it may
be said to be the bond by which he is joined to the polit-
ical community. It comprises the right which an individ-
ual possesses to the enjoyment of the civil and political
privileges pertaining to the community, as well as the cor-
responding obligation to fulﬁll the duties imposed by the
community.1
The question of the nationality of a given person is primarily a
subject for municipal law. Each independent state may determine
who within its borders are subjects, and as previously determined
can assume responsibility for the acts of persons which aﬁect other
states and their subjects. International law is therefore directly
concerned with the nationality of persons, when the question of
aﬁording protection to subjects in foreign countries is considered.
It then becomes necessary to determine what the nationality of the
parties affected is, and certain rules must govern this decision. Not-
1 Hall, Int. Law, 220-232; Calvo, Int. Law, § 539 et seq.; Walk. Int. Law,
pp. 204—218; Bluntschli, §§ 364-374; 1 Halleck, Int. Law, 0. 12; Whart. Dig.
§§ 173—174a; Gallaudet, Int. Law, pp. 138-147; Snow, Cas. 213-219; Pitt-
Cobbett, Cas. Int. Law, pp. 87-98.
126 NATIoNALITY. [011. 8
with-standing the fact that a state cannot impose its nationality or
citizenship upon an individual who is clearly the subject of another
state, numerous cases arise in which the question of individual na-
, tionality is doubtful, and the rules of the different states for de-
termining this nationality in disputed cases are not always in accord.
In regard to all persons born in the territory of a state, of parents
who are members of the state community, and foundlings, there can
be no doubt, and no diﬁerence of opinion can exist as to their
nationality, upon any of the theories for the determination thereof,
but a large number of persons afford ample Scope for difference of
opinion in determining their status. Some such are the illegitimate
children born of a foreign mother, foreign women who have married
subjects of a state, children born of the subjects of one state within
the territory of another state, persons who lose their nationality
by emigration, citizens of one state who become naturalized in an-
other, and the children of the two last-mentioned classes, especially
before the loss of nationality or naturalization is complete. Na-
tionality of birth or origin has been made by some states to depend
upon the place of birth, by others to depend upon the nationality of
the parents, and in some countries both of these elements exist, one
or the other predominating. By the common law of England, every
person born within the dominions of the Crown, no matter whether
of English or of foreign parents, and, in the latter case, whether the
parents were Settled, or merely temporarily sojourning in the coun-
try, was an English sulbject, save only the children of foreign am-
bassadors (who were excepted because their fathers carried their
own nationality with them), or a child born to a foreigner during
hostile occupation of any part of the territories of England. No
effect seems to have been given to descent as a source of nationality.
The law of England as to the eﬁect of the place of birth in the mat-
ter of nationality became the law of America as part of the law of
the mother country, which the original settlers carried with them.
Anterior to the Revolution a child born on French soil was a French-
man, though born of foreign parents, as also was a child born of
French parents out of French territory. This was changed by the
Code Napoleon, which introduced the principle that .a child should
follow the nationality of the parents. This principle has been
adopted by most civilized states, but some of them have modiﬁed it
M Ch. 8] CITIZENS HIP. 127
by giving to the child the power of choice. The effects of the ancient
rule have been obviated by other countries in various ways.
CITIZENSHIP.
93. Citizenship and nationality are practically synony-
mous, and certain rules are adopted in each country for
determining the status of persons who are or claim to be
citizens. The following rules may be given:
(a) The citizenship of a person is determined by his
nativity, or by naturalization in accordance with
municipal law.
(b) The citizenship of a female, in case of doubt, is that
of her husband, or, if unmarried, is determined by
municipal law.
P (c) Legitimate children in general acquire the national-
ity of their father, whether born in his country
of nativity or not.
((1) Illegitimate children, in the absence of recognition
by the father, usually follow the citizenship of the
mother.
(e) Foundlings usually take their citizenship from the
state upon which they are found, provided their
parents remain unknown.
Citizenship is determined in the United States by the fourteenth
amendment to the constitution, which provides that all persons born‘
or naturalized in the United States, and subject to their jurisdiction,
shall be deemed at once citizens of the United States and of the state
in which they reside, and no state shall make or enforce any law
abridging the privileges or immunities of such citizens.
Married Women. ‘ \
The general rule in regard to married women is not followed in
the United States. In case a woman marries a foreigner, she retains
her nationality, but in case a foreign woman marries an American,
she becomes a citizen of his country. In most countries the na-
tionality of a married woman is that of her husband, and in France
128 NATIONALITY. [Ch. 8
it is held that where a woman marries a Frenchman, though thelat-
ter in so marrying commits bigamy, she nevertheless becomes
French by the marriage.
Children.
In regard to children some countries, as previously stated, permit
those born abroad to select a certain time after attaining their ma-
jority what country they will regard as their place of citizenship.
In regard to illegitimate children the general rule seems to be de-
parted from in England, where it is held that the illegitimate child
of an Englishwoman born abroad takes the nationality of its place
of birth. In the United States children born abroad, of citizens
who continue to live abroad, are not citizens unless they elect to be-
come such upon coming of age. It has been held that the child of
Chinese parents born in the United States is a citizen,2 but in the
case of a child born of alien parents in the United States, but who
had never lived in the country, it was held that he could not elect,
upon attaining his majority, to be a citizen of the United States,
although his parents had since become naturalized.3 In order for
Such a person to become a citizen he must become naturalized.
Persons Destitate of Nationalitg—Heimathlosen.
No one should be without nationality, and persons who are unable
to furnish proof of foreign nationality should acquire it from the
state in which they have their domicile, or where they have made a
prolonged soj o-urn. Heimathlosen, or persons whose nationality can-
not be determined, have been a cause of embarrassment in certain
countries, especially in Germany and Switzerland. This has been
settled by convention between the Swiss cantons and between the
German states,-—that all such should be considered to be subjects‘
of the state within which they are living, provided they have re-
mained there for ﬁve years after having attained their. majority, or
have stayed there six weeks after marriage, or, ﬁnally, have married
there. This is the position in which subjects ofsuch- countries as
2 Ex parte Chin King, 35 Fed. 354. The status of Chinese in the United
States is difficult to determine. Compare treaty of immigration with China
in 1882 (Treaties and Conventions of United States, etc., p. 182), with the acts
of congress of 1884 and Geary act of 1892.
8 Hausding’s Case, Snow, Cas. 222; Mr. Frelinghuysen to Mr. Kasson, For. I
Rel. U. s. 1885; also, Whart. Dig. § 183. i \
Ch. 8] INDELIBLE ALLEGIANCE.‘ 129
Austria ﬁnd themselves in case they emigrate without permission of
the state, it being the law that by so doing they lose their national-
ityu“
INDELIBLE ALLEGIANCE.
94. By indelible allegiance is meant the rule once adopt-
ed that no citizen of a state was able under any circum-
stances to change his nationality from that of his nativity, ’
or of which he was a subject.
This doctrine of perpetual allegiance was one of the settled princi-
ples of the common law of England which was transmitted to and for
some time formed the practice of the United States. It was stated as
follows by England: “No British subject can, by such a form of
renunciation as that which is prescribed in the American law of
naturalization, divest himself of his allegiance to his sovereign. Such
a declaration of renunciation made by any of the king’s subjects
would, instead of operating as a protection to them, be considered an
act highly criminal on their part.” In the case of Aeneas Macdonald,
who was tried for high treason, for having borne arms in the Rebel-
lion of 1745, it appeared that the prisoner had been born in England,
brought up from his early infancy in France, had in his riper years
been employed in France, and held a commission from the French
king. The English court held that a person taking a commission
from a foreign prince, and committing high treason, may be punished
for such treason, notwithstanding his foreign commission; that it was
not in the power of any private person to shake oﬁ his allegiance and
transfer it to a foreign prince, nor was it in the power of a foreign
prince, by naturalizing or employing a subject of Great Britain, to
dissolve the bond of allegiance between the subject and the crown.
Allegiance is no longer regarded as indelible, whether arising from
birth or from subsequent acquisition. It has been shown that both
the Romans and Greeks recognized the right of a citizen to shake off
allegiance due to one country, and take up the same in another.5
4 Hall, Int. Law, p. 224; Bluntschli, § 369.
5 Calvo, Int. Law, § 577; Field, Int. Code, pp. 136, 13"’; Cockb. Nat. pp.
6—14, and for McDonald’s Case, Id. p. 64, note. Also, Snow, Gas. 214. Vide,
also, Case of Williams, Whart. State Tr. 652; 2 Kent, Comm. p. 49.
INTERNAT.LAw——9_
130 I NATIONALITY. [.Ch. 8
EXPA'I'RIATION.
95. Expatriation is the act of abandoning the nationality
of one community with intention of acquiring the corre-
sponding status in another.
The right of expatriation, as stated by the United States, is as fol-
lows: It is the right of every human being, who is neither convicted
nor accused of crime, to renounce his home and native allegiance
and seek anew home, and to transfer his allegiance to any other
nation that he may choose; and thathaving made and perfected that
choice in good faith, and still adhering to it in good faith, he shall be
entitled from his new sovereign to the same protection under the
law of nations that that sovereign lawfully extends to his native sub-
jects or citizens. In 1868 congress passed an act: “Whereas, 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 whereas, in the recognition of this principle
this government has freely received emigrants from all nations, and
invested them with the rights of citizenship; and whereas, it is
claimed that such American citizens, with their descendants, are sub-
jects of foreign, states, owing allegiance to the governments thereof;
and whereas, it is necessary to the maintenance of public peace that
this claim of foreign allegiance should be promptly and ﬁnally dis-
avowed: Therefore any declaration, instruction, opinion, order, or
decision of any officer of the United States which denies, restricts,
impairs,or questions the right of expatriation, is declared inconsistent
with the fundamental principles of the Republic.” In the same year
‘the United States executed treaties with the North German Con-
federation, Bavaria, Baden, Wurtemberg, Belgium, in the following
year with Hesse, and in 187 0 with Austria and England, recognizing
.the right of expatriation, and in 187 0 England passed an act which
declared that “any British subject who has, at any time before, or
may at any time after,'the passing of this act, when in any foreign
state, and not under any disability, voluntarily become naturalized in
such state, shall from and after the time of his having become so
naturalized in such foreign state, be deemed to have ceased to be a
British subject and be regarded as an alien.” Provision is made in
Ch. 8] \ NATURALIZATION. 131
the same act for persons who have become naturalized in Great
Britain to divest themselves of their acquired nationality and assume
that of their nativity, and for persons who at the time of their birth
are subjects of aiforeign state to elect allegiance to such foreign
state when they have arrived at maturity. Notwithstanding the law
declaring the inherent right of expatriation by congress, the question
is still undetermined as to what acts or formalities are necessary to
accomplish this fact.6 The question of the right of an individual to
change his nationality is one purely of municipal law, as nationality
is conferred by a state by virtue of its sovereignty within its juris-
diction. International law, in the absence of a declaration of this
principle by the public law of all the states, or of a uniform custom of
all the states, must accord to each state the privilege of determining
the question of the nationality of persons according to its own views,
which is best regulated by treaties. The practice of individual states
has not been uniform, and there is no uniformity in that of the body
of states. '
NATURALIZATION.
96. Naturalization is the act or proceeding by which a
foreigner becomes a citizen of a state, and becomes en-
titled to the same rights and privileges as if born in the
state.
Every independent state has a right to confer its citizenship
upon foreigners, but this right should not be so exercised as to do
an injustice to the state of nativity, or to cause the naturalizing
state to become a sort of accomplice of the person naturalized in the
avoidance of obligations due to his native state. This can be done
by making naturalization so easy of accomplishment as to induce
persons who have no desire to‘ change their nationality except to
avoid some obligation to their mother country, to take advantage of
the new nationality. It may be conceded that the above right of
naturalization is inherent in an independent state, but does a person
upon whom this right is exercised cease to be a subject of the state
6 Mr. Seward to Mr. Johnson, Whart. Dig. § 171. Vide, also, Treaties and
Conventions of United States, etc., 1776-1887; Rev. St. U. S. 1878, § 1999.
Also authorities cited in note 1. e
132 NATIONALITY. [Ch. 8
from which he emigrated? If this is' answered in the atﬁrmative,
then every individual of a state, by naturalization, can cast off all
obligations pertaining to his status of citizenship in his state of
nativity without the consent of the latter. This is not in accord
with the practice of states, practically all of whom impose certain
conditions upon the recognition of a change of nationality by
naturalization. If it is competent for a state to impose conditions
upon its recognition of the new nationality, then no subject can of
his own volition, and without the consent of his state of citizens
Ship, cast off his obligations as such subject. Citizenship acquired
by naturalization is certainly valid as to all other states except that
of which the emigrant was a subject, and any conditions imposed
bythis latter state can have no extraterritorial effect. An interest-
ing case illustrating the rights of a naturalized citizen arose in 1883.
Mr. Wagner was born in Russia in 1852, and according to Russian
law became subject to military duty in 1874. In 1869, while still
a. minor, and ﬁve years before he became liable to this military
duty, he emigrated to the United States and became a naturalized
citizen. Upon his return he was accused of the technical offense,
“evasion of military duty.” In the diplomatic correspondence upon
this subject the United States maintained that “no nation should
assert an absolute claim over one of its subjects under circumstan-
ces like these, and it is thought improbable‘ that Russia will persist
in such a claim, even if made. * * * It is tantamount to assert-
ing a right to punish any male Russian who, having quitted' Russian
territory and become a citizen of another state, may afterwards ,
return to Russia.”-
EFFECT OF INCOMPLETE NATURALIZATION—AS TO NEW
STATE.
97. The effect of a declaration to become a citizen of a
country, certainly if accompanied with the exercise of'
privileges pertaining to citizenship, carries with it the
obligations pertaining- to the status.
This question arose in the United States during the Civil War.
In 1863 an act was passed by congress, rendering persons who had
made the formal declaration to become citizens subject to military
Ch. 8] EFFECT’ or INCOMPLETE NATUR-ALIzATIoN. 133
service, but‘ this act extended the privilege of renouncing their new
allegiance provided they left the country within sixty-ﬁve days after
the passage of the act. There was certainly no ground for com-
plaint in such case, since all persons who had made the formal dec-
laration, and had participated in the privileges of citizenship, should
expect to bear some of the burdens pertaining to their new status.
No formal objection was made on the part of the foreign states
affected by the act.
SAME—AS TO OTHER STATES.
98. The right of a person who has not completed his
naturalization to claim the protection of his new alle-
giance when in foreign states has not been determined.
I I In so’ far as all states, except the state of origin, are concerned, it
would seem that the state of declared citizenship ‘has a better right
to extend privileges and to impose the correlative duties than any
of them. The case that best illustrates this question was that of
Martin Koszta, a Hungarian subject, who, after taking part in the
rebellion of 1848-49, ﬂed to Turkey. Here he was imprisoned by the
Turkish government at the instance of Austria, but was afterwards
released upon the condition that he leave the country. He chose
' the United States as the place of his exile, and duly declared his
intention of becoming naturalized. The conditions of naturalization
in the United States are ﬁve years’ residence, together with a formal
declaration of intention, made at least two years previous to the
completion of the required term of residence. Koszta made the
preliminary declaration, but before the ﬁve years had expired he re-
turned to Smyrna, having obtained from the United States consul
a traveling pass, stating that he was entitled to United States pro-
tection. While at Smyrna he was seized by persons in the pay of
Austria, taken by them to sea, thrown overboard, and picked up by
an Austrian Man-of-war. The American consul demanded his re-
lease, and a Man-of-war was sent to enforce this demand. The mat-
ter was compromised through the mediation of the French consul, to
whom Koszta was turned over, and he was ﬁnally sent back to the
United States, although Austria reserved the right to proceed against
him if he returned to Turkey. In reply to the formal remonstrance
134 ‘ NATIONALITY. [0b. 8
of Austria, protesting against the claim of the United States to
afford protection to Kos'zta, and calling for a disavowal of the con-
duct of the United States agents, and a grant of reparation for the
insult offered to the Austrian ﬂag, Mr. Marcy replied that every
citizen or subject possessed the right, having faithfully performed
the past and present duties resulting from his relation to the‘ sov-
ereign power, to release himself at any time from the obligation of
allegiance, freely quit the land of his birth and adoption, seek
through all countries a home, or select anywhere that which offers
him the fairest prospect of happiness for himself and his posterity;
(2) that Koszta was not an Austrian subject, as, by a decree of the
Emperor of Austria, Austrian subjects leaving the dominions of
the Emperor without permission of the magistrate, and a release of
Austrian citizenship, and with an intention never to return, become
‘unlawful emigrants,’ and lose all their civil and political rights at
home; (3) that, although Koszta had not been naturalized and be-
come a citizen of the United States, yet, being domiciled in this
country, he was entitled to be treated in all respects as a citizen of
the United States. The question as to whether the incomplete
naturalization of Koszta entitled him to the protection of the United
States was left unsettled, although it can scarcely be denied that
Austria had no right to seize him upon Turkish soil. It was not
only the right, but the duty, of Turkey to demand reparation from
Austria. The use of force by the United States under the circum-
stances cannot be conceded as a right, certainly not in Turkish wa-
ters. Mr. Woolsey thinks that on the high seas “Austria could not
have complained, if the. evils of a sudden wrong on her part were in
that way sought to be prevented.” In regard to the effect of the
passport givento Koszta, and which it was claimed conferred upon
him the right of protection by the United States, there is no valid
ground for such a contention, as it appears that this was given in
contravention of law, and possessed no validity for any purpose.7
7 Koszta: For discussion of this case, see I—Iall, Int. Law, pp. 237-240;
Pitt-Gobbett, Gas. Int. Law, pp. 87—90; Snow, Gas. pp. 226-228; 2 Whart.
Dig. § 175; 3 Wheat. Int. Law, L, 193; 1 Halleck, 91, 92, 357; Davis, Int. Law,
103-106.
Wools. Int. Law, pp. 502-504, says:
“1. Granting that the man was an Austrian subject, could he be legally
Ch. 8] EFFECT or INCOMPLETE NATURALIZATION. 135
Another case was that of Simon Tousig, a native of Austria, who had
acquired a domicile in the United States, but had not become
naturalized when he returned to Austria provided with an American '
passport and was arrested on the charge of offenses committed be-
fore leaving Austria. In this case Mr. Marcy held that a foreigner
who has declared his intention to become a citizen of the United
States is not entitled to their protection if he returns to his native
country. This case was distinguished from that of Koszta because,
“having once been subject to the municipal laws of Austria, and
while under her jurisdiction violated these laws, withdrawal from
that jurisdiction and acquiring a diﬁerent national character would
not exempt him from their operation whenever he again chose to
place himself under them. Every nation, whenever its laws are
violated by any one owing'obedience to them, whether he be a citizen
seized in Turkey? His crime had been a political one. The Turks had,
refused, with the approbation of the ambassadors of the most important
Christian powers, to deliver up the Hungarian fugitives, on the ground of the
political nature of their offense. It was said that the exterritorial consular
jurisdiction mentioned below (section 100) authorized his arrest. The reply
of Mr. Marcy to this is that such jurisdiction was intended for a different
set of cases, and such is probably the fact. The Austrian ofﬁcials (if this
be so), in seizing him, committed an oﬁense against the sovereignty of
Turkey, and so, an offense against the law of nations.
“2. But was he an. Austrian subject? Austrian nationality ceases, ac—
cording to what is said in section 70, on the authority of M. Foelix, when
a subject emigrates with the consent of the government. He had more than
the consent of his government to the abandonment of his country. He was
forced into exile. He had, then, no domicile, unless the United States gave
him one, and since exile cut off all relations to citizenship, the only power
that could protect him was that in whose territory he resided. This it
was bound to do. But to this it might be replied that he had agreed in
writing never to return to Turkey, and that the Austrian claim upon him
would revive on his failing to fulﬁll this condition. It is indeed questioned
by Mr. Marcy, whether he engaged never to return; and it might perhaps be
said, that, if such an engagement existed, it related only to return for political
purposes. But to this Austria might reply, that she could not know what
his purposes were, and that the promise must be absolute, in order to
prevent his doing political mischief in the neighborhood of Hungary. This,
however, is a point upon which our diplomatist preserves silence.
“3. What were his relations to the United States? Not those of a citizen,
but of a domiciled stranger. His oath, declaring his purpose to become
136 NATIONALITY. [0b. 8
or stranger, has a right to inﬂict penalties incurred upon the trans-
gressor, if found within its jurisdiction. The case is not altered by
the character of the laws, unless they are in derogation of the well-
established international code. No nation has a right to supervise
the municipal code of another nation, or claim that its citizens or
subjects shall be exempted from the operation of such code, if they
have voluntarily placed themselves under it. The character of the
municipal laws of one country does not furnish a just ground for
other states to interfere with the execution of these laws, even upon
their own citizens, when they have gone into that country and
subjected themselves to its jurisdiction. If this country can right-
fully claim no such exemption for its native-born or naturalized
citizens, surely it cannot claim it for those who have at most but
inchoate rights of citizens.” 8
a citizen, and his long stay here, put this out of the question, and his
temporary absence could not shake this character off. Moreover, he had
a passport, certifying to his American nationality. He would therefore be
entitled, by the law of nations, to the protection of the Turkish authorities
against his Austrian captors. Had he been even a fugitive prisoner of
war, he could not lawfully have been seized on shore, unless treaty had so
provided. He would equally be entitled to all that protection which ofﬁcials
of the United States were authorized to extend to him within Turkish
territory. -
“4. Would it have been in accordance with international law for the
captain of the frigate to use force in protecting him within the port of
Smyrna? Active and aggressive force certainly not. As things were, the
demonstration of force saved the use of it. But to complain of such a‘
force would have fallen to the duty of Turkey, as it would have taken
place within her waters. As for force, absolutely considered, for instance,
on the high seas, Austria could not have complained if the evils of a
sudden wrong on her part were in that way sought to be prevented.
“At the bottom. this Was a case of collision between original and trans-
ferred allegiance, the latter in its incipiency, in which the Obligation to
protect the person, within the limits of the law of nations, lay on the
United States. How Austria could have dealt with him within her own
territory is another question; and it must be admitted that his mere declara-
tion to become a citizen of the United States did not affect his nationality.”
8 Case of Simon Tous-ig (1854) Wheat. Int. Law, L, 929, same case in
Snow’s Cas. 228, and Pitt-Cobbett, Cas. Int. Law, p. 90. Vide, also, Hackett’s
Case, 1 Halleck, Int. Law, p. 375; Case of Lucien Alibert, Pitt-Cobbett, Cas.
Int. Law, p. 96.
Ch. 8] STATUS or INDIANS IN THE UNITED STATES. 137
STATUS OF INDIANS IN THE UNITED STATES.
99. The status of the Indian tribes in the United States
is not that of foreign nations.
Previous to 1871 the status of the American Indian was rather
peculiar, in so far that he was neither an alien nor a citizen, and
yet the government negotiated treaties with the diﬁerent tribes in
an analogous manner to treaties with foreign nations. In Chero-
kee Nation v. State of Georgia, Chief Justice Marshall said: “Indian
tribes within the United States do not constitute foreign nations.
They are regarded as in a state of pupilage, and may more correctly
be denominated domestic dependent nations.” Again, they are held
to be capable of maintaining the relations of peace and war, with
theory of governing themselves, under their (United States) pro-
tection, and of making treaties. But not treated as foreign nations,
in the ordinary sense.9 Again that the Cherokee Nation is not a for-
eign nation, but in its semicivilized state bears a close analogy to a
provisional government of a territorial character. In 1871 a statute
was passed providing “that no Indian nation or tribe, within the
territory of the United States, shall be acknowledged or recognized
as an independent nation, tribe, or power, with whom the United
States may contract by treaty; but no obligation of any treaty law-
fully made and ratiﬁed with any such Indian nation or tribe prior to
March third, 1871, shall be here invalidated.” An Indian who has
voluntarily separated himself from a tribe. recognized as such by
the government of the United States, and who has taken up his
residence among the white citizens of a state, without being natural
ized, taxed, or recognized as a citizen, either by the United States or
a state, is not a citizen of the United States, under the fourteenth
amendment to the constitution.10 In 1885 (March 3d) an act was
passed by congress making Indians subject to the jurisdiction of the
United States, and in a case of murder committed on an Indian
reservation within the state of California by one Indian upon an-
other, the supreme court held that the circuit court of the United
States for the district of California had jurisdiction to try the case,
9 Cherokee Nation v. Georgia, 5 Pet. 1.
10 Elk v. Wilkins, 112 U. S. 94, 5 Sup. Ct. 41.
138 ' NATIONALITY. ' [0b. 8v .
and that the act referred to was valid in both its branches.11 It
had previously been held that the only method by which an Indian
could become a citizen of the United States was by naturalization,
-in the same manner as any foreigner. The opinion has been ex-
pressed that this act of 1885 converts or should convert Indians into
citizens of the United States by birth. They are very properly sub-
ject to the jurisdiction of the United States, but it is not believed
that they are or should be considered as citizens, and especially so .
long as they maintain their tribal relations. ‘ '
11 Ex parte Grow Dog, 109 U. S. 556, 3 Sup. Ct. 396; 2 Whart. Dig. § 208;
U. S. v. Kagama, 118 U. S. 375, 6 Sup. Ct. 1109.
Ch. 9] TREATIES DEFINED. 139
CHAPTER IX.
TREATIE S.
100. Treaties Deﬁned.
101. Essentials of Valid Treaty.
102. Form of the Contract.
103. Ratiﬁcation.
104. Rules for Interpretation of Treaties.
105. Conﬂicting Provisions of the Same Treaty or of Different Treaties.
106. Treaties of Guaranty.
107. When Treaty Becomes Operative.
108-109. Extinction of Treaties.
110. Voidable Treaties.
111. Renewal of Treaties.
112. Most-Favored Nation Clause.
TREATIES DEFINED.
100. Treaties are agreements made and entered into by
one independent state with another, or others, in conform-
ity to law, by which it places itself under an obligation.
The following agreements are not considered treaties:
(a) Agreements entered into by a state with private
individuals.
(b) Agreements concluded between a state and the
church upon religious or political matters, and
especially concordats of different states with the
pope.
(c) Agreements concluded by sovereigns or sovereign
dynasties, whether among themselves or with
foreign states, relative to their personal or dy-
nastic pretensions to the government of a coun-
try.
The three classes of agreements mentioned above are all of such
a nature as to form no part of public international law, as they are
either made between a state and private individuals or by agents
of the state in their individual character.1
1 Hall, Int. Law, p. 323, note 1; Bluntschli, § 443.
140 TREATIES. [Ch. 9
ESSENTIALS OF VALID TREATY.
101. The essentials of a valid treaty or contract between
two or more independent states are:
(a) Capacity of the parties to contract.
(b) Duly-empowered agents to act on behalf of the
states.
(0) Freedom of consent.
((1) The object of the contract must be in conformity
to law.2
Every independent state is capable of entering into treaties with
another state or states, but the fundamental law of a state may
impose certain restrictions upon the method of entering into such
agreements, which must be taken into consideration by the parties
to the contract. In the United States and other confederations the
executive or treaty-making power cannot ﬁnally conclude treaties
without the consent of the legislative bodies. The latter have to
concur, and up to the time that this ﬁnal consent of the concurring
body has been obtained the other parties to the contract can with-
draw their assent, unless this right has been waived.
Powers of the Agents of the State.
In every state certain agents can, under given conditions, bind
their state by their contracts. If, however, these agents exceed
their powers, their state is not bound. But where their acts are
not ratiﬁed, and their state has received some material advantage
as a result of the agreement entered into by them, or where the
other state has performed acts in pursuance of the agreement, it is
the duty of the state receiving the beneﬁts, or the action of whose
\ agent caused the performance of the acts mentioned, to either make
proper compensation or restore the former status as far as practica-
ble. Of course, if the agent has clearly exceeded his powers in such
a manner that this fact should have been known to the other party,
there is no obligation upon the agent’s state.
2 Wools. Int. Law, §§ 101-105; Wheat. Int. Law, I), §§ 252-262; Bluntschli,
§§ 402-424; Hall, Int. Law, pp. 323-327; 2 Phillim. c. 6; Calvo, Int. Law,
§ 1567 et seq.; Mann. Int. Law, pp. 128, 129.
Ch. 9] ESSENTIALS or‘ VALID TREATY. 141
' Freedom of Consent.
There cannot be the same strictness in regard to the freedom
of consent in the treaties of states as in the contracts of individuals,
because of the difference in the mode of redress of wrongs. In inter-
national law this consists mainly in the use of force, which, if a
proper means of redress, cannot be made to vitiate a contract re-
sulting from its use. The assumption that consent is freely
given by a state in many cases is a ﬁction. A state can enter
into a perfectly valid contract which has been forced upon it, as a
result of a war for instance, whatever be the cost to it, or however
disadvantageous its terms may be, provided it does not part with its _
independence. The parting with independence as a result of con-
straint no state can be supposed to be willing to consent to, and,
when this results, the contract is assumed to be vitiated by the
constraint. This assumption of consent to a contract imposed by
a successful state at the conclusion of a war is said to be in the ‘in-
terest of peace, and is allowed for the further reason that the
successful state should be compensated for past wrongs. Again,
unless such contracts are declared valid, wars would all end either
~in the complete subjugation of one of the parties or the utter ex-
haustion of both. In case constraint be imposed upon the sover-
eign of a state, or upon a commander, or upon an agent authorized
to negotiate a treaty, the state which they represent is in no man-
ner bound by their acts, and all such contracts are absolutely void.
Fraud through which the consent of a state agent is obtained also
vitiates the contract resulting therefrom.
The Object of the Contract to Conform to Law.
A treaty which does not conform to international law and es-
tablished usages is void, or at least voidable. For instance, a
treaty which has as an object the domination of the entire world
by a single power; the subjugation or partition of a state, unless the
' existence of the latter is a menace to the general security; the exer-
cise of proprietary rights over the open sea; a treaty which conflicts
with previously acquired rights of other states, certainly in so far as
these rights of the states affected are concerned; a treaty which
imposes conditions incompatible with the existence or development
of a state; a treaty contrary to the recognized rights of humanity,
such as those that establish or protect the slave trade, or that
142 TREATIES. [Uh 9
deny rights to foreigners—would be considered as void at the pres-
‘ 'ent time.
FORM OF THE CONTRACT.
102. Treaties can be executed in any form that will
serve to express the intention of the contracting parties.3
Treaties are, as a rule, reduced to writing; but a treaty may be
concluded verbally, and in time of war certain signs, having a well-
understood meaning, are suﬂicient to conclude a contract. A sig-
nal, such as the exhibition of a white ﬂag, for instance, establishes a
truce between hostile armies. Formal agreements, which are
called either treaties or conventions, after being reduced to writing,
are signed either by the parties themselves or their duly-authorized
agents. The difference between treaties and conventions is more
in name than in fact. The former term is usually applied to the
larger political or commercial contracts, while the latter is applied
to those having a speciﬁc object, such as postal contracts.
RATIFICATION. .
103. Ratiﬁcation is the act by which the sovereign power
approves and conﬁrms that which has been agreed upon
and stipulated in its name by its diplomatic agent, armed
with full powers for that purpose. It may be either tacit
or express.4
A tacit ratiﬁcation may occur when a state wholly or in part car- '
ries out an agreement that has not been expressly ratiﬁed, or which
was in excess of special powers of the agent, or when an agreement
has been made by agents which, in conformity with custom, does
not require express ratiﬁcation, and it is not repudiated by the state
when made known to it.
It can be safely stated that all treaties are to be ratiﬁed before
becoming effective. If a treaty is concluded either by a sovereign or
8 Hall, Int. Law, pp. 327-329; Wheat. Int. Law, D, § 253; Bluntschli, §§
417, 418.
4 Bluntschli, §§ 419-424; Hall, Int. Law, pp. 329-334; 1 Halleck, Int.
Law, pp. 229-234.
Ch. 9] RATIFICATION. 143
person exercising the sole treaty-making power of the state in person,
or if it is made by virtue of a power incidental to an’ ofﬁcial station,
and within the limits of this power, ratiﬁcation is probably unneces-
sary. It is now and for the past century has been regarded as
established, that all treaties concluded by plenipotentiaries must be
ratiﬁed by the sovereign power, however full the powers of the repre- ‘
sentative of the state may be.
' A state can refuse to ratify. Mr. Bluntschli says that “the refusal,
even without cause, to ratify a treaty, can, under certain circum-
‘ stances, be regarded as contrary to propriety, affecting very gravely
the credit of the state, and jeopardizing the relations of friendship
existing between the contracting parties; but this refusal should
never be considered as a violation of law, even when the person
charged with the negotiations has acted within the limits of his pow-
ers, and has executed the treaty in conformity with the instructions
that he has received.” It is unquestionably true that a state should
not without good cause refuse to ratify a treaty, but this is based
upon moral, more than upon legal, considerations. The true reason
for the practice requiring express ratiﬁcation seems to rest upon
the ground that a state should not be bound by the acts of an agent
without an opportunity for consideration of the proposed agreements.
Certainly'in all countries like the United States, where all treaties
must receive the consent of the senate or a similar body, there can be
no question in regard to the necessity for express ratiﬁcation; and
parties contracting with such states must take notice of the municipal
laws in this respect, however full may be the powers ostensibly con-
ferred upon the agent negotiating the contract. Ratiﬁcation is in
some instances reserved in the proposed treaty as a right, or this
right may be, and often is, reserved in the full powers conferred;
but, as a state has inherently such right, there is no absolute necessity
for such practice. Ratiﬁcation is complete when. the instruments of
ratiﬁcation duly executed have~ been exchanged by the parties to the
contract. Certain stipulations in an agreement, which are under-
stood .to be at once eﬁective, must be carried out, because the general
- rule is that, when treaties are ratiﬁed, they date back to the date of
the ﬁnal signing of the protocol by the agents, and a neglect to carry
out such provisions can properly be considered as an infraction of
the treaty immediately upon its ratiﬁcation. The practice of having.
144 TREATIES. [Ch. 9
\
treaties date back to the time of the signature of‘ the deﬁnite protocol
is based upon the fact that at that time the contract was actually com-
pleted, and the ratiﬁcation some time later simply removes all obsta-
cles to its immediate operation.
Strictly speaking, in the instrument of ratiﬁcation should be incor-
porated the complete text of the treaty entered into by the parties.
But the practice is to copy the preamble, the ﬁrst and last article of
the treaty, with the date of signature, and the namesof the pleni-
potentiaries, which, being agreed upon by the contracting parties,
is sufficient, because the contract is itself a statement of the agree-
ment entered into. A conditional ratiﬁcation is not valid unless
consented to by the contracting parties, because, when a condition is
imposed, a new contract, or different one from that signed by the
plenipotentiaries, is suggested, and a state to which such conditional
ratiﬁcation is submitted is authorized to decline to ratify it.
INTERPRETATION OF TREATIES.
104. Treaties should be construed according to equitable
rules, and, when there is no ambiguity in the words, the
‘meaning being evident, and leading to no results contrary
to reason, the meaning should not be rendered doubtful
. by attempting to destroy the practical sense by plausible
arguments or conjectures. The spirit, rather than the let-
ter, should be determined, the object being to determine
the common intention of the contracting parties. The fol-
lowing rules have been generally accepted for interpreta-
tion:5
(a) When the language of a treaty, taken in the or-‘
dinary meaning of the words, yields a plain and
5 Hall, Int. Law, pp. 334-340; Clayton Bulwer Treaty, 1850; Treaties and
Conventions of United States, p. 440. Vide discussion of, in Whart. Dig. §
150f.
Wools. Int. Law, § 113:
“1. The ordinary usus loquendiobtains, unless it involves an absurdity.
When words of art are used, the special meaning which they have in the
given art is'to determine their sense.
“2. If two meanings are admissible, that is to be preferred which is least
Ch. 9] , INTERPRETATION OF TREATIEs. 145
reasonable sense, it must be taken in that sense.
This is to be taken subject to the qualiﬁcation
' that this sense does not lead to an absurdity, and
that the words used have not an accepted sense
' when. used in treaties, differing from their ordi-
nary sense, and that accepting the ordinary sense
does not cause it to conﬂict with a fundamental
principle of law.
fb) Words which have a double or uncertain meaning
should be taken in their ordinary acceptation in
preference to a technical sense; words having
a technical meaning in the arts and sciences be-
ing construed according to their technical sense.
A word may be used in the treaty several times
without requiring the same meaning to be ‘at-
tached each time, the sense corresponding with
\ the end sought to be attained in each case.
(c) If the words fail to give a plain and reasonable
sense, then recourse must be had to the general
to the'advantage of the party for whose beneﬁt a clause is inserted; for in
securing a beneﬁt he ought to express himself clearly. The sense which the
accepter of conditions attaches to them ought rather to be followed than
that of the offerer.
“3. An ‘interpretation is to be rejected, which involves an absurdity, or
renders the transaction of no effect, or makes its’parts inconsistent.
“4. Obscure expressions are explained by others more clear in the same-
document. To discover the meaning, the connection and the reasons for an act;
must be considered.
“5. Odious clauses, such as involve cruelty or hard conditions for one-
party, are to be understood strictly, so that their operations shall be brought
within the narrowest limits; while clauses which favor justice, equity, and.
humanity are to be interpreted broadly. -
“Sometimes clauses in the same treaty or treaties between the same par-
tis are repugnant. Some of the rules here applicable are:
“1. That earlierlclauses are to be explained by later ones, which were add-
ed, it is reasonable to suppose, for the sake of explanation, or which at least
express the last mind of the parties. So also later treaties explain or abro-
gate older ones. '
“2. Special clauses have the preference over general, and, for the most
part, prohibitory over permissive.”
INTERNAT.LAw-10
146 TREATIES. [0b. 9
sense and spirit of the treaty, or the context of
the uncertain or ambiguous parts, or by taking
a reasonable, rather than the literal sense of the
words. The provisions of the treaty as a whole
should be harmonious. ‘
(d) In case a clause in a treaty between two countries
has a different meaning in the two countries, it
is to be interpreted according to the use of the
language in the country in which it is to be
operative.
(e) Every right and obligation attendant upon some-
thing clearly conferred by agreement, including
- a right to whatever may be necessary to the en-
joyment of things granted by it, is understood
to be tacitly given or imposed by the gift or im-
position of that upon which it is attendant.
The ﬁfth rule (e) should be considered in connection with the fact
that, unless the intention to grant is clearly expressed, a state is not
supposed to contract itself out of fundamental rights; and, to have
this effect, a treaty must confer such a right in such positive terms
"that they cannot be misconstrued. In the interpretation of treaties
‘it is not, as a rule, proper to select a certain clause, and consider it as
a separate part of the whole, thereby destroying its relation with the
other provisions; and this is particularly true if the sense is thereby
rendered inconsistent with the other provisions. Recourse can be
had to usage in order to supply a lack of clearness, and sometimes to
the municipal laws of a particular ‘country and other treaties executed
by it with other countries upon the same subject. ‘
CONFLIOTING PROVISIONS OF THE SAME TREATY OR OF
DIFFERENT TREATIES.
105. Where there are conﬂicting provisions, either in the
same treaty, or in different treaties, the following rules
have been accepted as applicable in such cases:
(a) Prohibitive and imperative provisions take preced-
ence of permissive.
Ch. 9] CONFLICTING PROVISIONS. 147
(b) A special permission takes precedence of a provi-
sion generally imperative.
(c) When. provisions are prohibitive and conﬂict, and
there is a penalty attached to one and not the
other, the former takes precedence; or, in case of
a more severe penalty attaching to one than the
other, the one having the more severe penalty
takes precedence. The one stated with most de-
cision rules in case there is no penalty attached
to either.
((1) When the stipulations are of such a nature that
no priority can be assigned, then that which is
the more important must be observed by the
party under obligation, the party to whom the
obligation runs having the right to choose.
(c) When two treaties between the same states are in
conﬂict, the one of the later date is supposed to
be substituted for the other, and in consequence,
takes precedence. .
(f) When two treaties made with different states at
different times are in conﬂict, the one ﬁrst made
governs. This because an agreement with an-
other state cannot be made to supersede that of
an earlier date with a third state without the con-
sent of the latter.
There is an apparent exception to the ﬁfth rule (e) in the case
of two treaties made by different authorities of the same state upon
different. dates. In such case, if the later agreement was made
'by the inferior authority, the earlier one will govern. This is illus-
trated in the case of the surrender of Piacenza in 1800. This place,
with its garrison, was surrendered 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 3 in the afternoon, and at 8 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
148 . TREATIES. [Ch. 9
garrison. It was claimed, and at once admitted, that the latter
convention ought to be carried out to the exclusion of the former.6
The other rules do not seem to require anyexamples or explanation
to make their application easy.’
TREATIES OF GUARANTY.
106. Treaties of guaranty are agreements through which
one or more 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 stipula-
tions of the latter from infraction.8
(a) They are mutual when one party, for a considera-
tion to the advantage of itself, makes an assur-
ance to the advantage of the other.
(b) They may be undertaken by one or more parties
for the beneﬁt of a third.
(c) They may be an assurance for the beneﬁt of all the
contracting parties in the observance of a special
arrangement.
An example of the ﬁrst class is aﬁorded by the treaty of Tilsit
between France and Russia, by which they mutually guarantied
the integrity of their respective possessions. An illustration of the
second is shown in the treaty of 1856, by which England, Austria,
and France guarantied jointly and severally the independence and
integrity of the Ottoman empire. And the third class is exempli-A
ﬁed in the treaties of 1831 and 1839, by which the independence of
Belgium was assured by the contracting parties. A guaranty
requires of the party making it to give aid when called upon to the
6 Hall, Int. Law, 341.
'1 I-Iall, Int. Law, pp. 340-342; Bluntschli, § 414; Calvo, Int. Law, §§ 1655--
1659; Wools. Int. Law, pp. 173, 174; Davis. Int. Law, pp. 181, 182; Wheat.
Int. Law, D, § 287 ; 2 Phillim. pp. 94-125.
8 Wools. Int. Law, § 109, says that treaties of guaranty, as respects their
form, are to be classed as treaties, but as respects their object, as a means of‘
securing the observance of treaties. He says that an engagement to secure
the observance of all rights is not a treaty of guaranty, but rather a league _
or treaty of alliance.
Ch. 9] WHEN TREATY BECOMES OPERATIVE. ' 149
extent to which he has stipulated in a case to which in his judg-
ment the guaranty relates. If the party to whom the guaranty runs
declines the assistance of the guarantor, then the obligation ceases.
If the parties to the contract alter it, or add to it, so as to materially
change the original contract, the guarantor is not bound, cer-
tainly as to the new, matter, and probably not to the entire original
agreement. There is also a distinction to be drawn between a
several, a joint and several, and a joint or collective obligation of
guaranty. In the case of the ﬁrst two, the parties can act inde-
pendently, if called upon; but in the case of a collective obligation it is
unsettled as to whether one of the parties should act without con-
sulting all the others, and securing their concurrence.9
WHEN TREATY BECOMES OPERATIVE.
107. A treaty becomes operative as between the parties '
from the time it is signed, and not from the time of rati-
ﬁcation.
In so far as concerns the individual rights of parties interested, a
treaty does not operate until there has been an interchange of rati-
ﬁcations, although this ratiﬁcation, in so far as the relations of the
contracting parties is concerned, is retroactive, and relates back to
the date of signing the treaty itself. In the United States, since its
organization, there has been a question in regard to that class of
treaties which require an appropriation from congress to carry their
provisions into effect. Some authorities have maintained that it is
the duty of congress to appropriate the necessary amounts of money
to carry out the provisions of a treaty negotiated by the executive
and concurred in by two-thirds of the senate, as required by the con-
stitution; and that, when a treaty has been thus negotiated and
ratiﬁed, and this fact has been duly proclaimed, the United States is
bound. On the other hand, it is held that Congress has the right to
examine certainly those provisions of the treaty which require its
action, in order to determine whether, in their discretion, action
shall be taken in accordance with its terms. If a treaty, ratiﬁed by the
9 For discussion of the different classes of treaties of guaranty, vide Hall,
Int. Law, pp. 343-346; Bluntschli, §§ 431-440; Wools. Int. Law, pp. 166, 170.
150 TRE'ATIES. [0b. 9
treaty-making power, is not ratiﬁed by the necessary action of con-
gress, the question arises whether there is a breach of the contract.
Gan its execution be demanded, and resort be had to force to compel
its execution? There is no question but that all of the powers of the
different branches of the government are derived from the constitu-
tion of the state; that in the ‘framing of this instrument it was in-
tended that certain powers expressly conferred upon the legislative
branch should be exercised solely in the manner prescribed; and that
in the performance of the acts necessary to give validity to a treaty
negotiated by the other powers this legislative power is permitted
to exercise a discretion. It must also be apparent that other na~
tions, in negotiating with a nation whose fundamental law requires '
the action of some designated body of the government, are bound
to take notice of such provision-s. It is true that the executive power
is bound to use its utmost endeavors to see that the necessary ac- I
tion is taken by the other branch of the government, but the nation
as a whole cannot be bound by this agreement, unless their repre-
sentatives have consented to its terms in accordance with the pro-
visions of the fundamental law of the state.‘ One of the most noted
cases of this nature arose in 1831 between France and the United
States. The contract between the two governments contemplated
a large amount of money to be paid by the former to the latter as an
indemnity. In order to make this stipulated payment of an indem-
nity, it was obligatory that the chamber of deputies make the neces-
sary appropriation, which they at ﬁrst refused to do, but some time
afterwards the necessary funds were appropriated, and the matter
adjusted. Another treaty which required an appropriation from
congress of the United States in order to carry its provisions into
effect was that with Russia in'1867. In the ﬁrst bill that was passed
by the lower house of congress in this case was a clause: “And where-
as, the subjects embraced in the stipulations of said treaty are‘among
the subjects which by the constitution of the United States are sub-
mitted to the power of Congress, and over which Congress has juris-
diction; and it being for such reason necessary that the consent of
Congress shall be given to the said treaty before the same shall have
full force and effect, having taken into consideration the said treaty,
and approving of the stipulations therein, to the end that the same
-may be carried into effect, therefore: Section 1. Be it enacted vby
. Ch. 9] ' EXTINCTION 0F TREATIES. 151
l the Senate and House of Representatives of the United States of
America in Congress assembled, that the assent of congress is
' hereby given to the stipulations of said treaty.” _ The senate main-
tained that the house was absolutely bound to carry out the stipula-
tions of the treaty which was duly ratiﬁed by the senate, but the mat-
ter was compromised by the substitution of the following clause in
the preamble: “And whereas, said stipulations cannot be carried
into full force and effect except by legislation to which the consent
of both houses of congress is necessary,” etc. There is still a con-
ﬂict of opinion in regard to this question.10
EXTINCTION OF TREATIES.
108. Treaties are extinguished when the end for which
they have been executed has been accomplished, or when
they become void through circumstances, and they may
be broken and renounced before their expiration. The
latter implies violence.11
109. They become void—-
(a) When comprising no permanent agreements,
and every obligation contained therein has
been completely carried out.
(b) By mutual agreement of the contracting par-
ties, which can be accomplished by express
declaration, or by a new treaty inconsistent
with a previous one; provided a third state
interested is not opposed to it.
(o) By expiration of the term for which the con-
tracting parties agreed.
(d) When made to depend upon a condition, and
this condition ceases to exist.
(e) By express renunciation of one of the parties
interested.
1° Whart. Dig. §§ 131, 131a; Wheat. Int. Law, D, § 266, and note 139; 1
Halleck, Int. Law, 231-234.
11 Bluntschli, §§ 456-461; Whart. Dig. 137a; Greasy, Int. Law, pp. 40-13;
1 Halleck, Int. Law, pp. 242, 243, 268; Hall Int. Law, pp. 348, 3-19; Davis,
Int. Law, pp. 179, 180; Calvo, Int. Law, § 1662 et seq.
152 TREATIES. [Ch 9
(f) By the complete destruction of the thing which
forms the object of the treaty.
(g) vWhen its execution becomes impossible.
(h) By a declaration of war, which either suspends
or entirely destroys its eﬁect.
~(i) By incompatibility with the general obliga-
tions of states.
The objects of a treaty are satisﬁed if, having been concluded for a
deﬁnite time, the period determined upon has elapsed, or in case the
provisions agreed upon have been accomplished, such as the payment
of an agreed amount of money. When some of the stipulations of a
treaty imply perpetuity, even though the act mentioned to be per-
formed has been accomplished according to the letter of the agree
ment,-as, for instance, in the recognition of a new state,—the act of
recognition is complete when accorded; but the state of things con-
templated implies permanency, and a state is not authorized to dis-
regard the obligation imposed. If, however, one of the contracting
parties loses its existence, or its interior constitution undergoes a
change of such a nature as to render the treaty inapplicable to the
new state of things, the contract expires. In the case of treaties of
commerce, alliance, navigation, etc., which relate exclusively to rela-
tions ofpeace, they become extinguished upon the breaking out of.
hostilities, and even when war has not been declared, as occurred in
the case of the relations between the United States and France in
1798 and 1799, when the two countries were regarded as being in a
state of hostility, whereby existing treaties were regarded as broken,
without actual war existing. In regard to treaties which. are of a
permanent nature, such as treaties of boundary, etc., they are consid—
ered as suspended during hostilities, and revive upon the restoration
of peace. Again, other treaties made in contemplation of war are
not altered upon the breaking out of hostilities, and can be annulled
only by the method prescribed in the treaties themselves, or by a
new treaty.
Ch. 9] - VOIDABLE TREATIEs. 153
VOIDABLE TREATIES.
110. A treaty is voidable under the following circum-
stances:
(a) When it threatens the existence, or is incompatible
with the independence, of a state.
(b) When one of the parties did not retain its freedom
of will, in entering into the agreement, with re-
gard to the subject-matter.
(0) Where the consent has been obtained by force or
fraud.
(d) When a state did not possess the capacity to con-
tract.
(e) When there is a breach by one of the parties. But
the effect, when there is a breach of one or more
clauses only, depends upon ‘the circumstances of
each case.
The principle to be applied to determine whether a treaty is voida-
ble or not is thus stated by Mr. Hall: “Neither party to a contract
can make its binding effect dependent at his will upon conditions
~ other than those contemplated at the moment when the contract was
entered into; and, on the other hand, a contract ceases to be binding
so soon as anything which formed an implied condition of its
obligatory force at the time of its conclusion is essentially altered.”
The fact that when one party to a treaty breaks it the other party is
released from his obligations thereunder is admitted by all author-
ities, but when the breach of a single stipulation is considered, or
any breach short of the entire contract, there is confusion in expres-
sions of the authorities as to the result. If an authority considers
the contract as an indivisible whole, then a breach of any of the
stipulations, whether important or not, releases the other party from
the obligations. Others make a distinction in the articles, and
regard a breach of the more important ones only as justifying a
release of the other party. In case the breach is of an article or
stipulation which is material to the object of the treaty, then it is
sufﬁcient to liberate the other party. After Russia had declared that
she would consider the treaty of Paris no longer obligatory, at a con-
154 I TREATIES. ‘ ' [0b. 9
ference of the signatory powers of this treaty it was declared that it
is an essential principle of the law ofnations that no power can
liberate itself from engagements of a treaty, nor modify any of the
stipulations thereof, unless with the consent of the contracting pow-
ers by means of an amicable arrangement.12
RENEWAL OF TREATIES.
111. Treaties can be renewed and become obligatory by
agreement of the parties, either tacit or express.
A treaty renewed tacitly must be renewed in such a manner as to
show the intention of the parties beyond mistake, and from the
nature of such agreements it would be difficult to show such consent
beyond mistake in the majority of cases. After suspension of hostil-
ities it is usual to renew expressly the treaties that were in force
previous vto the beginning of the war. Unless treaties are expressly
or tacitly renewed, they expire at the end of the term for which they
were contracted.13
MOST-FAVORED NATION CLAUSE.
112. This is a clause inserted in many treaties of a com-
mercial nature, and literary and art conventions. The ef-
fect is to confer upon the parties advantages which they ~
have already, or may in future confer upon a third power.
This agreement varies with its terms, and may be a gratuitous con-
ferring of the contemplated privileges, or it may be conditional, or
depend upon like concessions on the part of the other nation. Reci-
procity is at the base of this sort of agreement, and yet it does not
follow that theconcessions stipulated for are equivalent. A covenant
to give privileges granted tothe “most-favored nation” only refers to
gratuitous privileges,‘ and does not cover privileges granted on the
condition of a reciprocal advantage.“
12 Bluntschli, §§ 415, 460; Hall, Int. Law, pp. 349-351.
13 Calvo, Int. Law, § 1669.
14 Whart. Dig. § 134.
ChclO] ARBITRATION. ‘ 155
CHAPTER X.
AMICABLE SETTLEMENT or‘ DISPUTES. '
113. Mediation.
114. Arbitration.
115. Disregard of Award.
116. Measures of Restraint Short of War.
117. Retorsion.
118. Reprisals.
119. Embargo.
120. Paciﬁc Blockade.
MEDIATION.
113. Mediation takes place when one friendly state offers
its good offices in the adjustment and settlement of inter-
national questions vpending between two or more other
countries.
This can occur at the suggestion of the state which is to act, or-
it may be brought about by a previous arrangement between the
interested states, in which latter case it would be an act of bad
faith to decline the services of the party agreed upon. In any
event, the suggestions of the mediator are not binding upon the
parties to the dispute, and in this is found the essential difference
between mediation and arbitration.
‘
ARBITRA TION.
' 114. Arbitration is a mode of settling disputes between
two or more states through third or disinterested parties,
either in the person of the rulers of one or more states,
or private individuals. \
Qrdinarily it is customary to determine by a treaty, or equivalent
agreement, the scope and conditions of the submission to arbitra-
tion; and when this is done the rules of procedure are ﬁxed for the
arbitrators, or they form rules for their own guidance. The prac-
156 AMICABLE SETTLEMENT OF DISPUTES. [Ch 10
tice in submitting matters to arbitration ‘is either to present the
questions to the sovereign of a disinterested state, or for each to
select so many members of the convention, and leave the selection
of an odd member to a disinterested sovereign, or to the members
selected by the parties; or the number may be left even, although
this is objectionable, because in case of an equal division of votes
the arbitration falls to the ground. The arbitral committee acts as
an independent and quasi judicial body, hearing both parties, and
the testimony of each, and, after arriving at a conclusion, submits
the same, or, in case of failure to arrive at a deﬁnite conclusion,
they can submit equitable propositions to the parties for the set--
tlement of the dispute. The decision is reached by vote, and the
majority decides for the whole. When the sovereign of a country
is the sole arbiter, it is not presumed that he acts in person, but that
he Submits the matter to one or more persons selected by him,
and their decision is rendered in his name. In case private individ-
uals are named as arbitrators, they have no-t the right of delegating
their powers.
SAME—-DISREGARD OF AWARD.
115. An arbitral decision or award can be diregarded—
(a) When the tribunal has clearly exceeded its
powers.
(b) When it is guilty of an open denial of justice.
(0) When the award has been obtained through
fraud or corruption.
(d) When the terms of the award are equivocal.l
In Calvo’s International Law, § 1706 et Seq, will be found a his-
tory of arbitration, and he has collected the principal differences
1 Bluntschli, § 495: “The decision of an arbitral tribunal can be con-
sidered as void (a) in the measure in which the tribunal has exceeded its
powers; (b) in case of disloyalty and denial of justice on the part of the
arbitrators; (c) if the arbitrators have refused to hear the parties or violated
some other fundamental principle of the procedure; ((1) if the arbitral deci-
sion is contrary to international law. But the decision of the arbitrators
cannot be attacked under the pretext that it is erroneous or contrary to eq-
uity, Save for errors of calculation.”
’ Ch. 10] MEAsUREs OF REsTRAINT sHoRT OF WAR. 157
a which have been submitted to arbitration during an extensive
period, commencing in the middle ages. ‘ The history of arbitration
during the past century is sufficient to convince any one of the de-
sirability of resorting to this in preference to the horrors of war.
In case of the death of an arbitrator without provision for the ap-
pointment of a successor, the arbitration fails.
MEASURES OF RESTRAIN T SHORT OF WAR.
116. The methods, short of war, usually resorted to for
securing redress, are——
(a) Retorsion,
(b) Reprisal,
(c) Embargo, and
(01) Paciﬁc blockade.
SAME—RETORSION.
117. Retorsion consists in certain acts by one state di-
rected generally to the subjects of another state, to in-
duce the latter state to cease a discrimination against the
subjects of the former.
The discriminating state makes its discrimination in virtue of
strict legal right, but the eifect of its acts is to do injustice to the
subjects of the state which resorts to retorsion. Retorsion is usually
effected by means of acts on the part of the offended state of the
same or analogous nature to that complained of, and is not resorted
to for the purpose of avenging an injustice, but rather for the pur-
pose of securing equitable treatment of its subjects. Retorsion is
usually applied to those rights the violation or withholding of
which would not afford a cause of war. For instance, in case one
state withholds from the subjects of another rights which it ac-
cords to foreigners of other states, or if it imposes a tax prejudicial
to the subjects of a state, this latter may resort to a similar course
of conduct.2
2 Wools. Int. Law, p. 181; Pitt-Cobbett, Cas. Int. Law, p. 142; Hall, Int.
Law, p. 364; Calvo, Int. Law, § 1807; Whart. Dig. § 318; Bluntschli, § 505;
158 AMICABLE SETTLEMENT or DISPUTES. [011.10
SAME— -REPRISALS .
118. Reprisals consist in the adoption of measures of
retaliation, such as the seizure, and, in certain cases, the
conﬁscation, of the property of the offending stateand its
subjects, acts of violence towards the subjects of this state,
and in the suspension of the operation of treaties.
Reprisals are resorted to, as a rule, because a state has been in-
jured, and cannot secure redress by ordinary or amicable means,
and the injury, not being acquiesced in, is still not of sufficient mag-
nitude to be a cause for war. It is true that acts of r-eprisal are, as
a rule, acts of war, except that there is a lack of intention to make
them such. The distinction between reprisal and retorsion is, in
general, that the latter is conﬁned to acts injurious to the offending
state, but of a similar nature to the one complained of, while rep-ris-
als are not so limited, and are undertaken on account of an injury
or on account of a refusal or delay of justice,-property being
seized and held until the offending nation responds to the just de-
mands of the injured state. Reprisals are regarded and justiﬁed
upon the ground that they are undertaken as an alternative for the
graver effects of war, and all remedies short of war can, as a
rule, be resorted to by an injured state, depending upon the degree
or nature of the offense.3 The seizing of private property of
individuals of the state should not be resorted to, if another ef-
1 Halleck, Int. Law, p. 422; Wheat. Int. Law, D, § 290; 3 Phillim. § 7; Walk.
Int. Law, pp. 154, 155; Greasy, Int. Law, pp. 400, 401; Mann. Int. Law, 142,
143; Davis, Int. Law, p. 194.
8 Bluntschli, § 500: “The acts of reprisals authorized without declaring
war are (a) the seizing of goods belonging to the offending state, situated up-
on the territory of the offended state, or according to circumstances, dis-
posing of the same; (b) the seizing of private property of the subjects of the
offending state situated upon its territory, provided this state, in violation
of international law, has seized private property, upon its territory, of citi-
zens of the other state; (0) the suspension of means of communication be-
tween the two countries as by post, telegraph, railroad, etc.; (d) the sending
back or expulsion of the subjects of the foreign state; (e) arresting as hos-
tages persons who represent or are subjects of the foreign state; (f) imprison-
ment of oflicials or even of citizens of the offending state, provided the latter
Ch. 10] MEASURES or RESTRAINT sHoE'I or WAR. 159
fective means of accomplishing the same purpose can be found,
yet such course is still recognized as legitimate.‘ Reprisals
are classiﬁed into general and special; the former being applied to
cases where the state itself attempts to secure justice, and the lat-
ter to the authorized acts of individuals to right injuries suffered
by them. The latter, or reprisals in which letters of marque are
granted to individuals who have suffered wrongs from the o-ﬁ‘end-
ing state, are no longer made.5 General reprisals, or those made by
the state through its authorized agents, are now the only ones recog-
nized. Reprisal was recommended to the Congress of the United
States against France, in 1834, by President Jackson, who said: “It
is a well-settled principle of international law that where one nation
owed another a liquidated debt, which it refused or neglected to
pay, the aggrieved party might seize the property belonging to the
other state, or its subjects, sufﬁcient to pay the debt, without giving
just cause of war.” 6
has previously seized unjustly citizens of the injured state; (g) declining to
execute treaties, or denunciation of existing ones; (11) the withdrawing of
privileges or rights granted to subjects of the offending state.”
4 Wools. Int. Law, 1). 182.
5 Bluntschli, § 501: “Civilized nations stigmatize to-day as contrary to the
laws of humanity (a) cruelties against subjects of the offending state; (b)
the granting to private individuals the right to attack citizens of the offend-
ing state, to kill them, to destroy or take their goods from them” [granting
letters of marque or reprisal].
6 Whart. Dig. § 318; Pitt—Cobbett, Cas. Int. Law, p. 143; Hall, Int. Law,
pp. 364-368; Silesian Loan, Pitt-Cobbett, Cas. Int. Law, 95-99; Snow, Cas.
p. 243. In this case the King of Prussia, by way of reprisal, conﬁscated cer-
tain funds which had been lent by English subjects on the security of the
revenues of Silesia, and which he had bound himself to repay by the treaties
of Breslau, Berlin, and Dresden. The act complained of was the capture
and condemnation by England (at the time engaged in war with France and
Spain) of certain Prussian vessels. Prussia contended (1) that the arrest of
the ships was contrary to the Law of Nature and of Nations, under which the
only privilege accruing to England was to permit her war ships to ascertain
that there was no contraband on neutral vessels sailing for Spain or France;
(2) that the British authorities had acted illegally in capturing Prussian
vessels returning laden from France, and in taking them into English ports,
and requiring proof that the goods on board belonged to Prussian subjects;
(3) that the capture of thirty-three other neutral vessels with Prussian goods on
160 AMIOARLE SETTLEMENT OF DISPUTES. [0b. 10
SAME—EMBARGO.
119. Embargo is a special form of reprisal, and consists
in the sequestration of the public or private property of
another state. It is especially applied to the merchant
vessels carrying its ﬂag, or in its ports.
What is known as “civil embargo” is usually applied to subjects of
" the State laying the embargo, and is adopted as a measure of public ‘ _
welfare or safety, and consists in the arrest or detention of vessels
belonging to the nation found in its waters. This was resorted to by
the United States in 1807, when all vessels in port, except those
board was illegal; (4) that the goods conﬁscated were not contraband, according
to the declaration of two English ministers; (5) that the English courts had
in these circumstances no jurisdiction over neutral property; (6) that the
King of Prussia was entitled to use the funds in his hands in order to in—~
demnify his own subjects, even though the funds were hypothecated to
I British subjects. The matter was submitted by England to a commission,
who, in their opinion, laid down the following as the recognized principles
of international law: (1) That, when two powers are at war, each power
had the right of capturing the vessels and effects of the other met with on
the high seas, although the property ascertained to belong to neutrals could
not be made prize, so long as they preserved their neutrality. Hence it fol-
lowed (2) that enemy goods on neutral vessels were liable to seizure; and (3)
that neutral goods on enemy ships should be restored. (4) Further, contra-
band, though belonging to neutrals, was good prize. (5) Before appropria-
tion there must be condemnation. (6) The only tribunal competent to con-
demn was the court of the captor. (7) All proofs in the matter should, in
the ﬁrst instance, be taken from the vessel seized. (8) Finally, the law of
nations permitted reprisals in two cases only: (a) In case of a violent
wrong ‘directed and supported by the Sovereign authority; and (b) in the
case of a denial of justice by all the tribunals and the sovereign himself in
matters admitting of no doubt. This matter was ﬁnally adjusted by the
treaty of Westminster in 1756, in which Prussia agreed to pay the debt, and,
England paid Prussia £20,000 in discharge of all claims. The principles laid
down by the English commission in regard to neutral trade, although cor-
rect at that time, were changed by the treaty of Paris in 1856. The conten-
tion by England that private debts should not under such circumstances be
conﬁscated was received with public approval at that time, and is generally
accepted as correct to-day.
Ch. 10] MEASURES or REsTRAINT SHORT or WAR. 161
which had a’ public commission, and those that were already laden,
or should sail in ballast, were detained as a protection from capture
by belligerent powers. Hostile embargo consists of the seizure of
the vessels or goods of an offending nation in the ports or waters
of the o‘ﬁended nation, and is adopted as a measure for obtaining re
dress, or in anticipation of war. It was held in the case of The
‘Boedes Lust 7 that if this embargo be followed by war the things
seized are conﬁscated, since the war is retroactive, and relates back
to the time of the seizure. In case this act of seizure is followed by
peace, then the vessel should be restored, and compensation made
for the detention. “Although such a measure might bring an ad-
versary to terms, and prevent war, yet its resemblance to robbery, oc-
curring, as it does, in the midst of peace, and its contrariety to the
rules according to which the private property even of the enemies
is treated, ought to make it disgraceful, and drive it into disuse.” 8
SAME—PACIFIC BLOCKADE.
120. This species of reprisal consists in the establish- I
ment of a blockade without destroying paciﬁc relations
between the countries affected.
This measure of enforcing demands by one or more nations was
‘ﬁrst resorted to in 1827, when France, Great Britain, and Russia
blockaded all the coasts of Greece where Turkish armies were en-
, camped. The three powers maintained that this was a paciﬁc meas-
ure, but it resulted in the battle of Navarino, and the destruction- of
the Turkish navy. In 1831 France blockaded the Tagus. In 1833
France and England blockaded the ports of Holland to compel as- ‘
sent to the recognition of Belgium. In 1838 France blockaded the
ports of Mexico, and during this blockade the vessels of third powers
' were conﬁscated. In 1850 Great Britain blockaded the ports of
'1 The Boedes Lust, 5 C. Rob. Adm. 233; also, in Snow, Cas. p. 249, and note;
Pitt-Cobbett, Cas. Int. Law, pp. 141, 142.
8 Wools. Int. Law, p. 180; 1 Kent, Comm. 61; Hall, Int. Law, 373; Wheat.
Int. Law, D, § 293, note 152; 1 Halleck, Int. Law, pp. 435, 436; 3 Phillim. ‘Int.
Law, §§ 24-48.
IN'l‘ERNAT.LAW—11
162 AMICABLE SETTLEMENT or DISPUTES. [0b. 10
Greece for certain alleged injuries by Greek soldiers inﬂicted upon
officers of the British ship Fantome, and to compel the payment of
certain other indemnities. In this blockade Greek vessels only were
seized and sequestrated, and even these were allowed to enter with
cargoes bona ﬁde the property of foreigners, and to issue from port,
if chartered before notice of the blockade was given, for conveyance
of cargoes wholly or in part belonging to foreigners.9 This prec-
edent was followed in 1886, when the same country was blockaded
by England. In the blockade of Formosa, in 1884, by France, and
in many of the earlier so-called “paciﬁc blockades,” the practice was
'to make no distinction as to the vessels of third powers. When
this paciﬁc blockade is permitted to extend to and affect neutral ves-
sels, there can be found nothing in international law or the practice
of nations to justify it. Blockade is justiﬁed only as a war measure,
at which time the rights of belligerents are conceived to preponder-
ate to such an extent over those of neutral individuals that nations
acquiesce in its enforcement. This question of paciﬁc blockade was
much discussed at the commencement of the Civil War, in 1861, in
this country, when the order establishing blockade of the ports of the
'Confederate States was promulgated, but the other nations issued
proclamations of neutrality. In conclusion it may be said that if
'by this paciﬁc blockade is meant that, its effects shall extend to and
:affect third or neutral powers, then clearly no such reprisal is au-
thorized, as no nation has a right to demand that the privileges at-
tendant upon a blockade can be conceded to it under circumstances
which are acknowledged by it to be neither serious nor dangerous '
enough to render recourse to war necessary. The inconveniences
and losses resulting ‘to third powers are too great to justify ac-
quiescence in such conditions. If, on the other hand, the blockade
is to be felt only by the blockaded and blockading countries, no rea-
‘.SOIl is apparent why it should not'properly be resorted to. Such a
reprisal, under such restrictions, is certainly a mild measure for en-
9 Case of Don Paciﬁco, Ann. Reg. 1850, p. 281, s. c. reported in Pitt-Cob-
"bett, Cas. Int. Law (2d Ed.) pp. 148, 149, and in Snow, Gas. p. 246. For list of
cases in which paciﬁc blockade has been resorted to, vide Whart. Dig. § 364;
Hall, Int. Law, pp. 369-372; Calvo, Int. Law, §§ 1832-1859.
Ch. 10] MEASURES OF RESTRAINT SHORT OF WAR. 163
forcing demands, even upon the country affected, and so much so
that it has been stated that a blockade binding 'merely the blockaded
and blockading countries would be illusory.“
10 In 1887 the majority of the Institut de Droit International adopted the
following declaration upon the subject of paciﬁc blockade: “L’établisse-
ment d’un blocus en dehors de l’état de guerre ne doit être considéré comme
permis par le droit des gens que sous les conditions suivantes: (1) Les na-
vires de pavillon étranger peuvent entrer librement malgré le blocus. (2)
Le blocus paciﬁque doit être déclaré et notiﬁé oﬁiciellement, et maintenu par
une force suffisante. (3) Les navires de la puissance bloquée qui ne re—
spectent pas un pareil blocus peuvent être séquestrés. Le blocus ayant
cessé, ils doivent être restitués avec leurs cargaisons à. leurs propriétaires,
mais sans dédommagement à, aucun titre.”
*

' PART II.
WAR.

INTERNA'LLAW (165)*
Ch. 11] WAR DEFINED. 167
CHAPTER XI.
INTERNATIONAL RELATIONS IN WAR.
121. Deﬁnition of War.
122~124. Kinds of War.
125. Causes of War.
126. Object of War.
127. Object not Limited to Cause for which Commenced.
128. Declaration of War.
129. Date of Commencement of War.
WAR DEFINED.
121. War is that relation of hostility which replaces the
peaceable relations existing between one or more nations,
or between political parties of the same nation, and which
has for its object to obtain by regulated violence that
which could not be acquired by peaceable or amicable
means.1
1 Some of the other deﬁnitions are:
Bluntschli, § 510: “La guerre est l’ensemble des actes par lesquels un
état ou un peuple fait respecter ses (lroits, en luttant par les armes contre
un autre état ou un autre peuple.”
§ 511: “La guerre est, en regle genérale une lutte armée entre divers:
etats, a l’occasion d’une question de droit public.”
Wools. Int. Law, § 115: “War may be deﬁned to be an interruption of
a state of peace for the purpose of attempting to procure good or prevent
evil by force; and a just war is an attempt to obtain justice or prevent
injustice by force, or, in other Words to bring back an injuring party to
a right state of mind and conduct by the inﬂiction of deserved evil.”
Field, Int. Code, p. 467: “War means a hostile contest with arms be—
tween two or more states, or communities claiming sovereign rights.”
3 Phillim. Int. Law, § 49: “War is the exercise of the international right
of action, to which, from the nature of the thing and the absence of any
common superior tribunal, nations are compelled to have recourse, in order
to assert and vindicate their rights.”
Count Von Moltke, in a letter to Mr. Bluntschli, says: “Perpetual peace
is a dream, and it is not even a beautiful dream. War is an element of the
order of things established by God. The most noble virtues of man are
developed by it,—courage. disinterestedness, devotion to duty, and sclf~
168 INTERNATIONAL RELATIONS IN WAR. [0b. 11
It has been previously stated and discussed that international
law has no tribunal for the adjustment of disputes that may arise,
and states, in consequence, are compelled to exact redress for them-
selves by force. War is therefore a recognized means of carrying
out or enforcing the demands of a state.
KINDS OF WAR.
122. Wars are divided by military authorities into the
two general classes, namely, offensive and defensive, and
in one or the other of these classes all wars properly
belong.
123. Historians class wars by epochs, into ancient wars,
wars of the middle ages, and modern wars, and accord-
ing to their special object, into religious wars, wars of
insurrection, wars of revolution, wars of conquest, wars of
independence, wars of opinion, national wars, civil wars,
etc. This classiﬁcation, and the further classiﬁcation into
European, American, German, Crimean, Italian, etc., pos-
sess but little if any importance in international law.
124. Publicists classify wars into offensive, defensive,
and auxiliary; into public, private, and mixed wars; and
into perfect and imperfect, legal and illegal.
The classiﬁcation into offensive and defensive has a different sig~
niﬁcation according to the standpoint from which war is discussed.
In a military sense, the party who carries on the war within the ter-
ritory of another is waging an offensive war, and the other party a
defensive war, but, when considered in ‘connection with the purpose
sacriﬁce. Soldiers give up their lives by it. Without war, the world would
stagnate, and would perish in hideous materialism.”
Ruskin, Precious Thoughts, 38: “War is productive of more good than evil.
Nations have always reached their highest virtue In times of battle. No
nation ever yet enjoyed a protracted peace without receiving ineradicable
seeds of future decline.”
Vide 4 Calvo, Int. Law, p. 16, where will be found collected other deﬁni-
tions of war. '
Ch. 11] KINDS or WAR. 169
of the war, the offensive may be taken for the purpose of defending
against some proposed wrong. In the latter sense the party who is
the aggressor is considered by some authorities as waging an oﬁensive
war. Properly this term should be applied to the party who wages
war in the territory of the other. There is seldom to be found a
belligerent who is willing to admit that he is the aggressor or pro
voker of a war, and the distinction between the two classes of wars
is of little practical international value.
Auxiliary Wars.
An auxiliary War is one undertaken by one or more nations in
support of the cause of one of the belligerents. This may occur
from previous agreement, evidenced by treaty or similar contract,
and the duties are regulated by the agreements.
Public Wars.
A public war is one which has received the complete sanction
of the sovereign power of the state, and is carried on with its com—
plete approval. Such a war entitles both belligerents to all rights
of war against each other, and this without regard to the justness
of the cause of either belligerent Everything that‘ is permitted by
the laws of war to either of the belligerents is likewise permitted to
the other.
Private Wars. ,
A private war is one carried on by individuals or by fractions of a
nation without the authority or sanction of the state or states of
which they are subjects. Certainly, if the parties to such a war are
members of the same state, international law has nothing to do
with such a contest, but in case the parties be of diﬁerent states it
may be concerned; but each case must be considered as it arises.
Such wars as the latter are not met with under the present organi-
zations of societies.
Mixed Wars.
When a war is waged by different members of the same society
or state, in which one of the parties represents the established gov-
ernment, we have what is understood as a mixed war, because, in so
far as the party representing the government or sovereign power is
concerned, there is a public war, while the other party is considered
as waging a private war. But the terms “insurrection” or “rebel-
170 INTERNATIONAL RELATIONS IN WAR. [0b. 11
lion,” etc, will quite frequently designate more accurately such a
war.
Perfect and Lupe/feet Wars.
A perfect war is one in which the whole state is placed in the legal
attitude of a belligerent towards another state, so that every member
of the one nation is authorized to commit hostilities against every
member of the other, in every place, and under every circumstance,
permitted by the general laws of war, and subject only to the limita-
tions and exceptions prescribed by such laws. An imperfect war is
limited as to places, persons, and things. An example of such lat-
ter war will be found in the hostilities authorized by the United
States in their war with France in 1798.
Legal and Illegal Wars.
The distinction made by Vattel between these two kinds of war
seems to be that all wars are classed by him as either legitimate
and formal, or illegitimate and informal, or predatory expeditions.
“In order to distinguish the grounds of this distinction, it is neces-
sary to recollect the nature and object of the lawful war. It is
only as the last remedy against obstinate injustice that the law of
nature allows of war. Hence arise the rights which it gives;
* i" * hence, likewise, the rules to be observed in it. Since it
is equally possible that either of the parties may have right on his
side, and since, by the law of nations, that point is not to be de-
cided by others, the condition of the two enemies is the same, while
the war lasts. Thus, when a nation or sovereign has declared war
against another sovereign on account of a difference between them,
their war is what is called among nations a lawful and formal war;
and its effects are, by the voluntary law of nations, the same on both
sides, independently of the justice of the cause. Nothing of this
kind is the case in an informal and illegitimate war, which is more
properly called depredation. Undertaken without any right, with-
out even an apparent cause, it can be productive of no lawful effect,
nor give any right to the author of it. A nation attacked by such
sort of enemies is not under any obligation to observe towards them
the rules prescribed in formal warfare. She may treat them as
robbers.” 2
2 Vattel, Int. Law, bk. 3, c. 4, § 68.
Ch. 1]] CAUSES or WAR. 171
Civil Wars.
In a civil war, which may be deﬁned to be a war between mem-
bers of the same state, the parties to the conﬂict enjoy the rights
and privileges pertaining to belligerents, both as to each other and
as to third or neutral powers. These wars are not to be con-
founded with rebellions, wherein the rebels are treated as having
violated the internal laws of the country, and are regarded and pun-
ished as criminals. Many examples are found in which such per-
sons are treated and punished as traitors and rebels, and this, too,
while other or neutral states have accorded to such parties recogni-
tion as belligerents. In distinguishing between conﬂicts between such
parties, it is necessary to take into consideration the time, place,
extent, and duration of the insurrection, the gravity and complica-
tion of the matters at issue, the principles of right in the proclama-
tion made by the party who ﬁrst resorts to arms, and the attitude of
neutral states. Recognition by third states has been previously
discussed, and in such cases each must be considered separately.3
CAUSES OF WAR.
125. A just cause of war arises when injuries are re-
ceived or threatened either by a serious breach of inter-
national rights, or in the breach of obligations contracted.‘
International jurists mention certain rules as guides to determine
when a war is just, and among them are the following: (1) To
secure that which belongs to or is due to a nation; (2) to provide for
3 For deﬁnition of other classes of war mentioned, with full discussion of
each, vide 1 Halleck, lnt. Law, c. 16; Calvo, lnt. Law, Q§ 1866-1881, in-
elusive.
4 1 I-lalleck, Int. Law, 410: “The justifiable causes of war are injuries re
ceived or threatened." Bluntschli, §§ 515-517: “\Var is just when inter-
national law authorizes recourse to arms; unjust when it is contrary to
the principles of this law. Grave violations of the rights of a state, violent
dispossessions, ﬁnally attempts directed towards the bases upon which re-
pose order and human rights, are regarded as legitimate causes of war for the
state who is the victim of or who is seriously menaced by them. It is
necessary to consider as legitimate causes of war, not only attacks upon
historic and acquired rights. but also obstacles unjustly interposed to the
formation and development of new rights.” Calvo, Int. Law, §§ 1884-1897;
3 Phillim. Int. Law, 0. 4; Wools. Int. Law, 177.
172 INTERNATIONAL RELATIONS IN WAR. [Ch. 11
the future Safety of a nation by obtaining reparation for injuries done
to it; (3) to protect itself and property from a threatened injury.
Another author says that war is just when international law author-
izes recourse to arms, and unjust when it is contrary to the princi-
ples of this law. A serious menace to a State, a grave violation of
‘its rights, a violent dispossession, a threatened overthrow of estab-
lished order, or the rights of humanity, are regarded as ‘just causes of
war. In consideration of the nature of the causes of war, it will be
found quite impracticable to determine in a given case whether it is
just or unjust, because in the large majority of the disputes that arise
between states the grounds of the quarrel are of such a complex
nature that it cannot be determined with accuracy. It must also be
borne in mind that in the disputes between nations force or war is
the ﬁnal arbiter and no other tribunal can determine the rights of
either nation when it is decided to resort to war. '
OBJECT OF WAR.
126. It is assumed that peace is the normal relation of
Christian states, and war, being the exceptional state, is
waged between nations, by authorized persons, for the re-
dress of injuries, and should not be for conquest or plun-
der, and should be carried on with the smallest amount of
injury consistent with the object aimed at and with the
necessities of war.
The right to resort to war has received universal consent, from long
usage, and is regulated by a code of rules as well established as the
rules governing the paciﬁc relations of states. “The great principle
upon which these rules are framed is that of, on the one hand, com-
pelling the enemy to do justice as speedily as possible, and, on the
other hand, of abstaining from the infliction of all injuries both upon
the subjects of the enemy, and upon the government and subjects of
third powers, which do not, certainly and clearly, tend to the ac-
complishme'nt of this object.” Wantonness, either in the devastation
of the enemy’s territory, or in cruelty towards his Subjects, is unjusti—
ﬁable and illegal!’
5 Wools. Int. Law, § 131: “The rules which lie at the basis of a humane
system of War are (1) that peace is the normal state of Christian nations,
Ch. 11] ' DECLARATION or WAR. 173
OBJECT NOT LIMITED TO CAUSE FOR WHICH COMMENCED.
127. The cause for which a War is commenced is not the
limit of the objects or ends of the successful belligerent at
the close of hostilities.
The peculiar character of war as a means of enforcing demands,
although analogous in some respects to the enforcing of the demands
of individuals, renders the accomplishment of the exact object which
was stated as the object of the quarrel unsatisfactory. Victory car-
ries with it certain new rights. The expenses of carrying on a war
are extremely large, in money, men, and sacriﬁces in many other
ways. The War itself gives rise to changed conditions, so that to
limit the victorious state to the accomplishment of the exact purpose
named at the commencement of hostilities may not give a sufficient
guaranty that peace can be maintained in the future. ’
DECLARATION OF WAR.
128. As between enemies, it is not necessary to give no-
tice before entering upon active hostilities, although it is
customary for a state to issue a proclamation to its own
subjects, and a proclamation to neutrals.
The fact that the state of war causes great changes in the relations,
duties, ‘and rights of individuals of the states interested, and those
of neutral states as well, renders the determination of the question of
the duties of states in this regard very important. There is no uni-
formity in the practice of nations in this respect, so that, however
to which they are bound to seek to return from the temporary and ex-
ceptional interruptions of war; (‘2) that redress of injuries, and not conquest
or plunder, is the lawful motive in war, and that no rule of morality or
justice can be sacriﬁced in the mode of warfare; (3) that war is waged
between governments by persons whom they authorize, and is not waged
against the passive inhabitants of a country; (4) that the smallest amount
of injury consistent with self-defense and the sad necessity of war is to
be inﬂicted; (5) that the duties implied in the improved usages of war,
so far as they are not of positive obligation, are reciprocal, like very many
rules of intercourse between states, so as not to be binding on one belliger-
ent as-long as they are violated by the other.” ‘
A
l
.17 4 INTERNATIONAL RELATIONS IN WAR. [0b. 11
"important it may be for the interests of all concerned to know that
.a state of war exists, the practice shows that states do not regard
themselves under obligation, further than stated above. The United
:States began the war with England in 1812 without declaration or no-
tice of any kind. The war with Mexico in 1846 began in the same man-
ner. France commenced hostilities by instituting a blockade of the
coasts of Mexico in 1838 without any notice. The hostilities carried
on between France and China in 1884 commenced without declaration '
or notice, but France in this case steadily refused to admit the
existence of a state of war. The Crimean war in 1853 was com-
menced with every formality, as did also the war of 187 0 between
Germany and France. The Russo-Turkish war of 1877 was formally
‘begun by handing to the Turkish charge d’aﬁaires at St. Petersburg
a formal dispatch. Turkish territory had been invaded some time
previous to this, however. So, also, it is found that the authorities
upon international law are not in accord upon this subject. Mr.
Bluntschli says that “the state which commences an oﬁensive war is
bound, before having recourse to arms, and after having exhausted
all paciﬁc means, to proclaim its intention to make war before
commencing hostilities, but that in case of a defensive war it is not
necessary that there should be a previous declaration of war bythe
state which is on the defensive, when the attack of the enemy
has already begun. To repel the attack of an enemy is always
permissible.” ° The great difﬁculty with regard to this doctrine
is that it is practically impossible to determine what is and what
is not an oﬁensive war, or which state is the oﬁender. It has
been frequently determined judicially that, in order to legalize hos-
tilities, no declaration or notice of any kind to the enemy is neces-
sary. In the case of The Teutonia it was held that war may exist
.de facto without a declaration, ‘but there must be in that case an
actual commencement of hostilities.7 Again, in the Prize Cases,
it was held that a civil war was never solemnly declared.8
e Bluntschli, §§ 521, 524.
'1 The Teutonia, L. R. 4 P. C. 171. 4
8 Prize Cases, 2 Black, 665; The Eliza Ann, 1 Dod. 244; The Nayade, 4
0. Rob. Adm. 253.
Ch. 11] DATE OF COMMENCEMENT or WAR. 115
DATE OF COMMENCEMENT OF WAR.
129. Wars commence upon the date of the proclamation
declaring the existence thereof by a belligerent, or, in the
absence of such declaration, then at the time of the ﬁrst
act of hostility. -
Previous to the seventeenth century, wars were always begun with
great formalities, which consisted in letters of deﬁance or heralds
sent directly to the enemy, and the authorities of that period
expressly state such notice to be necessary. During the century
named almost all of the wars were begun without notice of any kind, _
and the recent practice has been given. The individuals of the states
at war are affected from the time of the commencement of hostilities,
and, for the protection of their interests and that of neutrals, the
fact that a state of war has begun should, whenever possible, and at
as early a date as possible, be made known.9
9 For collection and discussion of the authorities upon this subject, see
Hall, Int. Law, pp. 375-382. Vide, also, Pitt-Cobbett, Cas. Int. Law, pp.
152-154; T'wiss, Law Nat. §§ 35-37; 3 Phillim. Int. Law, 0. 5; 1 Halleck, Int.
Law, pp. 474-480; Whart Dig. § 334.~ '
Calvo, Int. Law, § 1910 et seq.: “The head of the state must publish or
proclaim in his own country the declaration of war for the information and
guidance of his subjects, to ﬁx the date when they must begin to exercise
the individual rights which the state of war confers upon a belligerent
power in its relations with the enemy, and to communicate to them the
orders which he should give them in regard to the state of war.”
Wools. Int. Law, § 122: “But, if a declaration of war is no longer neces-
sary, a state which enters into a war is still bound (1) to indicate in some
way, to the party with whom it has a ditﬁculty, its altered feelings and
relations. This is done by sending away its ambassador, by a state of non-
intercourse, and the like. (2) It is necessary and usual that its own people
should have information of the new state of things; otherwise their persons
and property may be exposed to peril. (3) Neutrals have a right to know
that a state of war exists, and that early enough to adjust their commer-
cial transactions to the altered state of things; otherwise a great wrong
may be done them. Such notice is given in manifestoes.”
176 _ EFFECTS OF WAR—AS TO PERSONS. [(311.12
l
CHAPTER XII.
EFFECTS OF WAR—AS T0 PERSONS.
130. .Who are Enemies.
131. Effect upon the Relations of Enemies.
132. Who are Noncombatants.
133. Who are Combatants.
134. Maritime War.
135. Privateers.
136. Volunteer Navy.
137. Prisoners of War.
138-142. Treatment of Prisoners of War.
143. Exchange of Prisoners of War.
144. Ransom.
145. Parole.
WHO ARE ENEMIES. .
130. When one nation is at war with another nation,
all the citizens or subjects of the one are deemed in hos-
tility to the citizens or subjects of the other; they are
personally at war with each other.
The above is what is known as the old and strict rule, and has the
support of the writers and jurists of England and the United States,
and has been judicially pronounced to be the rule of international
law by the United States supreme court.1 It is based upon the
1 White v. Burnley, 20 How. 249. Vide, also, Mann. Int. Law, p. 166; 3
Phillim. § 69; 2 Halleck, Int.‘ Law, 52, 53; Grotius. De J ure Belli, bk. 3, c. 3, § 9;
Vattel, Int. Law, bk. 3, c. 5, §§ 70, 72; Twiss, Law Nat. § 43; Bynkershoek,
Laws of War, c. 1. Kent, (30mm. p. 55: “When war is declared, it is
not merely a war between this and the adverse government in their political
characters. Every man is, in judgment of law, a party to the acts of his ~
own government, and a war between the governments of two nations is a war
between allthe individuals of the one, and all the individuals of which the
other is composed. * * * This is the theory in all governments; and the
best writers on the law of nations concur in the doctrine that, when the sov-
ereign of a state declares war against another sovereign, it implies that the
whole nation declares war, and that all the subjects of the one are enemies
to all the subjects of the other.”
Ch. 12] WHO ARE ENEMIES. 177
supposition that international law is concerned with the relations
of states only, but the individuals of the state belong to the state,
and have neither personal nor property rights except as members of
their state. Being thus completely bound up with their state for
both good and evil, when there is a state of war they become the
enemy of the state which is at War with their own, and with every
member of the same. There was another theory, ﬁrst pronounced
by Portalis in 1801, which maintains 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.” This
doctrine has been accepted by the majority of the continental writers,
but is not accepted by the other nations of the world. In addition
to the decisions referred to above, the United States has declared ad-
herence to the older ‘doctrine, in orders promulgated for the “govern-
ment of armies of the United States in the ﬁeld,” by Dr. Francis Lie-
ber (articles 20 and 21): 2 “Public war is a state of armed hostility be-
tween sovereign nations or governments. It is a law and requisite of‘
civilized existence that men live in political, continuous societies,
forming organized units, called states or nations, whose constituents-
bear, enjoy, and suffer, advance and retrograde together, in peace-
and war. The citizen or native of a hostile country is thus an enemy,
as one of the constituents of the hostile state or nation, and as such
is subjected to the hardships of the war.” It has been stated with
good reason that “if the individuals are not enemies as men, if they
are not even so as subjects of the state, if they are so as soldiers only,
or at most as ofﬁcials and taxpayers, an enemy can have no right
to interfere with the civil organization 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 de-
range 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 favorably than in time of peace.” 3 All
of these things have been done in practically all of the modern wars-
Furthermore, it is true that the practice of nations has improved
2Append. p. 343.
3 Hall, lint. Law, pp. 76, 77, and note.
INTERNAT.LAW—— 12
178 EFFECTS or WAR—As To PERSONS. [0b. 12
since the beginning of this century, or the time of the ﬁrst promul-
gation of this doctrine, but it does not follow that this is due to the
establishment of this principle. It is not in accord- with actual
practice, nor in accord with the doctrine as advanced by the leading
writers, but can be ascribed to the reaction from the wars at the
beginning of the century, to the inﬂuence of the long—continued peace,
and to the general advance in the humane feelings of nations.“=
EFFECT OF WAR UPON THE RELATIONS OF ENEMIES.
131. The outbreak of war has the effect of putting an
end to all nonhostile relations between belligerent states
and their citizens. The modern rule in regard to persons
of the enemy country in the territory of the other bellig-
erent permits them to remain in such country during
good behavior, and to carry on their business unmolested.
‘.1 For statement of contrary doctrine, vide Bluntschli, §§ 530, 531; Calvo, Int.
Law, § 2036. Mr. Hall says: “There are two reasons for which it is satis-
factory to be able to reject the doctrine of the separability of the individual
from the state. The ﬁrst is that the doctrine is a ﬁction. * * * 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 kindsv which is
brought to bear upon them individually that the state is compelled to
submit to a victor. To separate individuals theoretically in respect of a
number of interests, which are, nevertheless, recognized 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 vto 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. "‘ * * Still more objectionable is
its effect upon the legal position of the inhabitants of a militarily occupied
country. If they are not enemies, they have no right of resistance to an in‘
vader. The spontaneous rising of a population becomes a crime, and the
individual is a criminal who takes up arms without being formally enrolled
in the regular armed force of his state. The customs of war no doubt permit
that such persons shall, under certain circumstances, be shot, and there are
reasons for permitting-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.” Hall, Int. Law, pp. 72, 73.
Ch. 12] EFFECT OF WAR UPON THE RELATIONS OF ENEMIES. 179
- What is known as the modiﬁed rule started as far back as the
fourteenth century, and was ﬁrst applicable to merchants who were
permitted, upon the breaking out of war, a certain time within which
to remove theirgoods from the country. This practice was extended
‘by treaty to other persons, whose detention was not based upon
necessity for political or military reasons. England, by statute of
27 Edw. 111., c. 17, authorized foreigners to have a warning of forty
days within which to quit the realm with their goods. The United
States, by act of congress of July 6, 1798, authorized the president, in
the event of war, to regulate the question of subjects of a hostile
state remaining upon the territory of the United Statess" This usage,
permitting foreign enemies to remain upon the territory of the state
during good behavior, has not become an authoritative rule of law, al-
though a well-established practice, for, apart from treaty, the right
to expel them upon the outbreak of hostilities still exists. During the
Franco-Prussian war of 1870, the right was exercised by the French
government, which at the beginning of the war granted permission
'to subjects of the enemy to remain upon French territory so long as
their conduct gave no ground for complaint, but later in the same '
year a decree was issued ordering them to quit the country within
three days unless specially authorized to remain. The extreme rule,
which authorized a belligerent to detain as prisoners of war enemy
subjects found within his territory upon the outbreak of war, no
‘longer has the sanction of law. The latest exercise of this extreme
measure was in 1803, when Napoleon, upon the breaking out of
hostilities with England, caused the arrest and detention as prison-
-ers of all English subjects found in France. This was attempted
to be justiﬁed upon the ground that England had made some cap-
tures of French vessels, prior to the declaration of war, and was
‘undertaken as a measure of reprisal.6
5 1 Stat. 577.
6 For general discussion of subject, vide 1 Kent, Comm. p. 56; Vattel, Int.
‘Law, bk. 3, c. 4, § 63; 3_Halleck, Int. Law, pp. 483-485; Hall, Int. Law,
pp. 391-393; Twiss, Int. Law, pp. 86, 87; Calvo, Int. Law, §§ 1912-1914.
180 EFFECTS or WAR—As TO PERSONS. [Qh- 12
WHO ARE NONCOMBATAN‘I'S.
132. All those persons who pursue their ordinary paciﬁc
avocations, including old men, women, children, and.
others, who are exempt or are not organized or called
into the military service of their ‘state during hostilities
are classed as noncombatants. '
Practically all nations at the present time maintain a regular‘
army and navy, lbOth of which, during a war, are increased by vol-
unteers, militia, and new levies; every able-bodied man being avail-
able for active service with the military forces of his country.
Yet there is always a very large proportion of the inhabitants who
are left to pursue their ordinary avocations, and these enjoy cer~
tain immunities from violence. This immunity extends to protec-
tion from direct violence, but is not regarded as extending to a pro-
tection from death or injury indirectly resulting from an attack
upon the armed forces of their state. On the other hand, should an:
attack be made upon them when no reasonable necessity of war
warranted it, there would exist a reasonable cause of complaint
in that it would be a violation of the customs of war. Noncombat-
ants lose their character as such by laying aside their peaceful avoe
cations and engaging, either directly or indirectly, in hostile acts-
towards the enemy, whether through orders of their government,
or acting upon their own impulses.7
7 Hall, Int. Law, pp. 395, 396; 2 Halleck, Int. Law, pp. 2, 3; Vattel, Int. Law,
bk. 3, c. 11, § 10, and Id. c. 8, § 145. Wools. Int. Law, §§ 135, 136, says (sec--
tion 136): “Private persons remaining quiet, and taking no part in the con-
ﬂict, are to be unmolested; but, if the people of an invaded district take an
active part in the war, they forfeit their claim to protection. This marked-
line of separation between the soldier and the non-soldier is of extreme im--
'portance for the interests of humanity.”
Ch. 12] ‘ WHO ARE COMBATANTS. ‘ 181
WHO ARE COMBATANTS.
133. Lawful combatants8 comprise the following classes,
who take part directly or indirectly in the operations of
war:
(a) The permanent military establishment, including
the militia and reserves.
(b) National guard, landsturm, free corps, and other
bodies which fulﬁll the following conditions,
namely,
(1) Who are under the direction of a responsi-
ble chief. ‘
(2) Who have a uniform or distinguishing
mark, or badge recognizable at a distance,
, and worn by individuals composing such
corps.
(3) Who carry arms openly.
(c) The inhabitants of non-occupied territory, who, at
the approach of the enemy, take up arms openly
and spontaneously to resist an invader, espe-
cially if duly authorized.
The Permanent Military Establishment.
Hostilities on land are usually carried on by the use of the regular
army of the state, which, being permanently organized and under
the effective control of the state itself, offers sufficient guaranties of
the observance by it of the usages of war. In the case of an army
8 For general subject, vide Hall, Int. Law, pp. 514-525; Bluntschli, §§
569-573; 2 Halleck, Int. Law, pp. 1—9. Walk. Int. Law, pp. 270-271.’,
quotes the conference of Brussels, 1874, as follows: Article 9: “The laws,
- rights, and duties of war are applicable not only to the army, but likewise to
the militia and corps of volunteers complying with the following conditions:
(1) That they have at their head a person responsible for his subordinates;
(2) that they wear some settled distinctive badge, recognizable at a dis-
tance; (3) that they carry arms openly; and (4) that, in their operations,
they conform to the laws and customs of war. In- those countries, where
the militia form the whole or part of the army, they shall be included under
the denomination j‘army.’ ” Article 10: “The population of a nonoccupied
182 EFFECTS or WAR—As To PERsoNs. [0b. 12
of invasion, there can be but little question as to who among such
army are entitled to be regarded as lawful combatants, duly au-
thorized to commit acts of hostility and, if captured, receive the
treatment due to their status as prisoners of war. In such army
all persons connected with it are to be regarded as combatants, ex-
cept surgeons and some others who have by convention come to
be regarded as carrying on peaceful pursuits, and are accorded a
special treatment during war.‘ The regular army includes not
only the line, but also the members of the different staff depart
ments, others who actually accompany it and assist in its move-
ments, and all retainers to the camp.
National Guard, etc.
The conditions imposed for those of the above class are given in
the black-letter type, and are the requirements agreed upon by the
Brussels session of the Institute of International Law. Mr. Hall
says that “the evidences of intention to form part of the combatant
class that belligerents have been in the habit of exacting fall under
the heads of (1) the possession of an authorization given by the
sovereign; (2) the possession of a certain number of the external
characteristics of regular soldiers.” The reason for demanding
that combatants possess certain authority and certain marks, such
as a uniform, etc., is that the belligerent may know that he is con-
fronted with a lawful body of men to whom, in case of capture, he
is bound to accord the privileges of prisoners of war. The carrying
on of hostilities by guerrillas entails upon those taken prisoners
certain penalties that cannot be inﬂicted upon duly authorized
combatants. Mr. Wheaton says that the acts of hostility com-
mitted by those who are authorized by either the express or implied
command of the state are legalized. Such are the regularly com-
missioned military and naval forces of the nation, and all others
called out in its defense, or spontaneously defending themselves in
case of necessity, without any express authority for that purpose.
territory, who, at the approach of the enemy, of their own accord, take up
'arms to resist the invading troops, without having had time to organize
themselves in conformity with article 9, shall be considered as‘ belligerents,
if they respect the laws and customs of war.” Wools. Int. Law, § 134; Calvo,
‘Int. Law, § 2044 et seq.
Ch. 12] WHO ARE ooMBAThNTs. 183
Levies. .
The instructions for the government of the armies of the United
States in the ﬁeld distinctly establish the rule for this country as
follows: “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 authorized levy,
en masse to resist the invader, they are now treated as public
enemies, and, if captured, are prisoners of war. No belligerent has
the right to declare that he will treat every captured man in arms
' of a levy en masse as a brigand or bandit.” 1“ As the other codes
which have been prepared since the above was promulgated by this
country have contained similar provisions, and as practically all
civilized nations have given their assent to such provisions, it may
be assumed that in future such levies will be recognized by bellig-
erents. The German army in 1870 departed from the spirit of its
own’ institutions in this respect by declaring “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 organized corps, by an order emanating from
the legal authority and addressed to him personally,” and this not-
withstanding the fact that the French law, passed that year, pro-
- vided that “citizens who rise spontaneously, arm themselves in de-
fense of their country, and assume one of the distinctive signs of
the national guard, in order to guarantee recognition as military
corps, are considered as forming part of the national guard.” The
“Francs Tireurs” were a body of irregulars of France, acting with-
out any other distinguishing marks than a blue blouse, a badge,
and a cap, who operated without any military officer at their head.
The Germans refused to recognize them as legitimate belligerents
because they were not a part of the regular organized force of the
state, and because their distinguishing marks on their dress were
not sufficient, and were removable. They demanded that these
marks should be irre-movable at will and distinguishable. Since
the Brussels conference there can be little doubt that the require-
ments of Germany in the last war will be insisted upon. It would
seem to be sufficient, in the case of large bodies acting together,
10 Append.‘ p. 349.
184 EFFECTS or WAR—AS TO PERSONS. [Ch. 12
that they are under the command or direction of some military
chief or other responsible person. In the case of small bodies, they
should certainly have certain marks that will distinguish them as
combatants, and in both cases their operations should be carried on
according to the laws and usages of war.11
MARITIME WAR.
134. Hostilities at sea are usually carried on by means
of the regular navy of the state, by means of privateers,
and by the volunteer navy.
In the rules adopted at the session of the institute of international
law in 1880, in addition to the forces mentioned as being lawful
combatants, was mentioned “the crews of public armed ships, and
other vessels used for warlike purposes.” The employment of public
navies is of more recent date than that of the employment of private
armed vessels. The latter, during the Middle Ages, were the main,
and in many cases the only, reliance ofv many, especially the smaller,
European states. Enough has been said of the public vessels of the
state to give an idea of their employment.
PRIVATEERS.
135. A private armed vessel, owned and oﬁicered by
private persons, acting under a commission from the state,
is a privateer. ‘ ‘
The commissions issued to such a vessel are usually called letters of
marque. This kind of vessel corresponds to a company on land that
is raised and commanded by private individuals, and which acts
under rules from the supreme authority; such a company, acting
without authority, corresponding to a privateer without a commis-
sion. Privateers are commissioned more for the purpose of preying
upon the commerce of the enemy than for the purpose of attacking .
his public vessels. A private vessel, which levies war without a
commission from a belligerent, would suffer materially should it fall
into the hands of the enemy. The right to use privateers is still
11 Am. Inst. arts. 51, 52; Append. 349; Hall, Int. Law, pp. 519—523, and notes.
Ch. 12] PRIVATEERS. 185
recognized, and is not at all contrary to former usage, commissions
being granted to privateers owned by aliens, even. The policy of
the United States in regard to the employment of this extraordinary
mode of warfare has been an extremely vacillating one, being in-
ﬂuenced by the supposed necessities of the country at certain times.
The general tendency has been to discourage their employment. The
advantages, or reasons for the use of privateers that have been
advanced, are that it affords a source of livelihood for seamen, who
are thrown out‘ of employment as a result of a war, and that a nation
which maintains a small navy can thus readily and quickly call into
activity a temporary force with a comparatively small expense. The
objections to their use certainly outweigh the good that may result,
" for the motive of such vessels and their crew is plunder, and, when
the war is ended, there is turned loose upon society a band of edu-
cated robbers and plunderers. The crews of such vessels, from their
nature, are not subject to continued restraint, and the oﬁ’icers: of such
crews cannot be expected to maintain the same control over them as
the masters of commercial vessels even; and, ﬁnally, in the execu-
tion of belligerent rights against neutrals, the foregoing evils will be
brought into stronger contrast. “Privateering, under all the restric-
tions which have been adopted, is very liable to abuse. The object
is not fame or chivalric warfare, but plunder and proﬁt. The dis—
cipline of the crews is not apt to be of the highest order, and pri-
vateers are often guilty of enormous excesses, and become the
scourges of neutral commerce. Under the best regulations, the busi-
ness tends strongly to blunt the sense of private right, and to nourish
a lawless and ﬁerce spirit of rapacity.” 12 Certain restrictions have
been placed upon privateering, and pertain more to municipal than
international law. Some of these consist in forbidding them to cruise
in the rivers or within the sea line of a hostile state, and a certain
portion of the crew must be natives. Again, the issuing of commis-
sions only to subjects and requiring bonds from those to whom
letters of marque are issued, or the deposit of a certain sum of
money, to insure adherence to the letters of instructions. Again, -
certain treaties have been concluded which prohibit either of the
treaty-making powers during a state of peace from taking out let-
12 1 Kent, Comm. 97.
‘186 EFFECTS or WAR—AS To PERSONS. [0b. 12
ters of marque from a third power at war with the other. . Finally,
the treaty of Paris, which was executed by practically all of the
larger powers except the United States, Spain, and Mexico, provided
that “privateering is and remains abolished,” so that the employ-
ment of privateers is forbidden, except in the event of war with one
of the three powers named.
VOLUNTEER NAVY.
136. This was the designation given to certain vessels
that were ordered to be employed by the King of Prus-
sia by decree in 1870. ~ '
The owners of vessels were invited to ﬁt them out for attack upon
the French ships of war, for which service large premiums were
offered. The crews of these vessels were to be furnished by the
owners of the vessels, but were to be under naval discipline. The
ofﬁcers were to be in the same uniform as the regular naval ofﬁcers,
and furnished with temporary commissions. They were to form no
part of the regular navy, but were to sail under the ﬂag of the North
German navy. The French government protested against this volun-
teer navy as being a violation of the treaty of Paris, which abolished
privateers, but the English government found that there were sub-
stantial differences between the proposed vessels and those against
which the declaration of Paris was directed. The diﬁ'erences between
the two classes may have been substantial, but the objects to be at-
' tained by the employment of each were the same, and the objections
to the employment of privateers, which caused their abolishment,
exist to practically the same extent with regard to the volunteer navy
as proposed by Germany. Private gain being the main purpose in
each case, although the Germans professed to intend only destruction
of the public vessels of France, yet there can be but little doubt that
attacks would have been made upon private vessels as well. The
regulation of such vessels or their discipline by the state would
_ scarcely have been any more perfect than in the case of privateers.13
13 Vide, as to whole subject, Hall. Int. Law, pp. 525-529; Declaration of
Paris, Append. 371; Whart. Dig. §§ 383-385, page 475, says: “Under the general
term ‘privateers’ are enumerated the following: (1) Naval oﬂicers taking charge
of merchant vessels, and cruising under the direction of their sovereign in time ‘
Ch. 12] PRISONERS OF WAR. ' ' 187
I
PRISONERS or man.
137. All persons whom a belligerent may kill, and all
persons who may be separated from the mass of non-
combatants by their importance to the enemy’s state, or
by their usefulness to him in his war, on surrendering or
being captured, become prisoners of war.
The enemy is not restricted to persons whom he may legally kill
in making prisoners. Under the class of persons who may be of
special importance to his enemy may be classed such persons as the
sovereign, ministers, important ofﬁcers of the government, diplomatic
agents, and any others of special importance at a given time. Under
the head of persons of use to their government may be mentioned all
those pertaining to the auxiliary departments, together with con—
tractors and others present with the army on business connected with
it, together with levies en masse, and sailors on board of trading
vessels of the enemy. Count Bismarck, in the war of'187 0, objected
to the latter class being made prisoners of war, because the only
reason for seizing sailors on board of merchant vessels was to enable
the state making the seizure to ﬁt out privateers, and since their
‘ employment was abolished, the right to seize such sailors fell with it.
' He threatened, and actually did make use of, reprisals, and sent the
same number of Frenchmen of importance to Bremen as prisoners
as captains of merchantmen were held by France. The right of
France to take such men prisoners is undeniable, and was well
demonstrated by Comte de Chaudordy, who showed that the usage
of capturing sailors had been invariable, that such men are capable of
of war. (2) Oﬁicers of merchant vessels, subjects of a belligerent state, cruis-
ing under commission from their sovereign in time of war. (3) Volunteer
ofﬁcers of merchant vessels cruising against the enemy of their sovereign,
but without any commission of their sovereign. (4) Subjects of neutral
states, taking out for the purpose of preying on the commerce of one bel-
ligerent, commissions for this purpose from the other belligerent.”
For discussion, vide Whart. Comm. Am. Law, § 201, note‘; Wools. Int. Law,
§§ 127-129; Field, Int. Code, pp. 489, 490; 2 Halleck, Int. Law, pp. 9-20;
Twiss, Law Nat. c. 10; Mann. Int. Law, 156-158; Calvo, lnt. Law, § 2123
et seq. ‘ '
188 EFFECTS OF WAR—“AS TO PERSONS. [Ch. 12
being transformed at will into an instrument of war, and that in Ger-
many all such men were subject to conscription for the navy of the
state.“ '
TREATMENT OF PRISONERS OF WAR.
138. Prisoners of war are not criminals, and cannot be
maltreated or compelled to perform acts contrary to their
dignity. They may be subjected to such regulations, and
their conﬁnement be as rigorous, as their safe-keeping may
demand.
139. Prisoners of war are taken in the performance of a
legal act, and are prisoners of the capturing state. They
cannot be punished for their acts, unless guilty of some
crime in the capturing state before the commencement
of hostilities.
140. Prisoners of war are usually conﬁned in a fortress,
barrack, camp, or similar place, and are not imprisoned
in the full sense of the word unless such .course may be-
come necessary, as after an actual attempt to escape, or
in case good reason exists for belief that such attempt
will be made.
141. A. prisoner of war commits no offense in attempt-
.ing to escape; and cannot be punished if recaptured, al-
though he may be killed during his pursuit. An organ-
ized attempt to escape, or a plot against existing author-
ities, may be punished, even with death, in grave cases.
The right of punishment for the maintenance of discipline
exists.
142. Prisoners of war are fed and clothed at the expense
of the state capturing them, and may be required to per-
form work in accordance with their grade and social po-
sition, provided such work has ,no direct relation to the
war. They may also perform‘work for personal compen-
sation under regulations prescribed by the captors.
14 Am. Inst. arts. 48—50; Append. 348; Bluntschli, §§ 594-596; Hall, Int.
Law, 404, note; Davis, Int. Law, 233; Calvo, Int. Law, § 2133.
Ch. 12] EXCHANGE OF PRISONERS OF WAR. 189
The laws of war among the ancients, and among savage and bar-
barous nations at the present time, permit the killing or selling into
slavery of prisoners of war. The modern practice does not sanc-
tion any such extreme measures, but, on the contrary, it is held that
such prisoners shall not be treated with any greater harshness than
is required for their proper security. The belligerent, in taking
prisoners, has acquired so much of the enemy’s resources, and may,
during the continuance of the war, deprive him of such resources.15
EXCHANGE OF PRISONERS OF WAR.
143. Exchange consists in the simple release of a certain
number of prisoners by each government under a special
agreement, called a cartel.
No belligerent is compelled to enter into any such agreement, as
each has a perfect right to keep all prisoners of war until the close
of hostilities; so that, when such arrangements are made, it is
based purely upon mutual convenience. If entered into, the cartel
sets forth all of the terms of the agreement as to time, place, and
method to be pursued. These agreements are strictly construed,
and the basis of exchange is clearly set forth; strict equivalents
must be given, such as private for'private, rank for rank, and disa-
bility for disability. 'Ofﬁcers and noncommissioned oiﬁcers have a_
speciﬁed value in an agreed number of private soldiers, and, it may
beadded, that a disciplined soldier possesses more value than a re-
cruit, and a healthy man is worth more than an invalid. Neither
party to the agreement can properly turn over to the other prisoners
of less value than he receives. If, after all of the prisoners have
been exchanged upon the agreed basis, there is a surplus, credit may
be given or payment made for this surplus. Prisoners who have
been exchanged, like those who have escaped from conﬁnement, are
restored to their belligerent rights.16
15 Wools. Int. Law, § 134; Davis, Int. Law, pp. 234, 235; Hall, Int. Law,
§ 132; Bluntschli, §§ 600-611; Am. Inst. arts. 74-79; Append. p. 352; 2 Hal~
leck, Int. Law, p. 7 4; Greasy, Int. Law, pp. 454-463; The Antelope, 10 Wheat.
120; Calvo, Int. Law, §§ 2134, 2135.
16 Am. Inst. arts. 105-110; Append. p. 356; Hall, Int. Law, pp. 411, 413;
Davis, Int. Law, pp. 235,, 236; Vatt. Int. Law, bk. 3, c. 8, § 153.
190 EFFECTS OF WAR—was To PERSONS. [0b. 12
RANSOM.
144. Ransom, as applied to‘ prisoners of war, consisted
in the payment of an agreed compensation for their dis-
. charge from custody.
This method of securing the release of prisoners of war was quite
"common during the Middle Ages, but is now practically obsolete, al-
though, in the instructions for the government of the armies of the
United States in the ﬁeld provision is made as follows: “The sur-
plus number of prisoners of war remaining after an exchange has
taken place is sometimes released either for the payment of a stipu-
lated sum of money, or, in urgent cases, of provision, clothing, or\
other necessaries. Such arrangement, however, requires the sanc-
tion of ‘the highest authority.” 17 '
PAROLE.
145. Parole is a verbal agreement, entered into by an
individual of the enemy, by which he pledges his honor
that he will do or refrain from doing certain things in
consideration of certain privileges or advantages. \
This is a privilege usually accorded to ofﬁcers, and but seldom to
enlisted men. The effect is to render the parties giving it innocuous
to the belligerent, and the conditions imposed ‘generally refer to their
place of residence or to their refraining from further service in the
army of the ‘enemy until the end of the war or until exchanged.
This latter pledge of refraining from service in the army is construed
to refer to active service with the army in the ﬁeld, and does not
relate to certain other service, such as raising and drilling recruits
and constructing military works not within the actual theater of war.
The agreement contained in a parole not to serve for a speciﬁed
length of time in the army of his country would be binding only
during the continuance of the war, even though the agreed time is
longer. No prisoner can be compelled to give his parole, nor can
1? Am. Inst. art. 108; Append. p. 357.
Ch. 12] PAROLE. 191
he be paroled by the act of his enemy alone. The punishment for
breach of parole is death, if the prisoner again falls into the hands
of his enemy.18
18 Hall, Int. Law, § 133; Davis, Int. Law, pp. 236, 237. For whole subject
of prisoners of war, in addition to authorities cited, vide Brussels Confer-
ence; Append. p. 389; Code Recommended by Institute of International Law,
Append. 376; Wheat. Int. Law, D, §§ 342-344; 3 Phillim. Int. Law, 95, 96;
Mann. Int. Law, pp. 210-222; Twiss, Law Nat. p. 350; Bynk. pp. 20-23, 0. 3.
192 EFFECTS OF WAR—As TO PROPERTY. [Ch. 13
CHAPTER XIII.
EFFECTS 0E WAR—AS TO PROPERTY.
146. The Old Rule. .
147. Property Owned by the State—Movable Property.
148. Immovable Property.
149. Private Property in Enemy Territory—Immovable Property.
150. Movable Property—Contributions and Requisitions.
151. Foraging.
152. Booty.
153. Private Property within Enemy’s Jurisdiction.
154. Property of the Enemy Aﬂoat in Ports, etc.
155. Private Property not within the Territory of any State.
156. Rule as to Fishing Vessels.
157. What Constitutes a Valid Capture.
158. Disposition of Captured Property.
159. Ransom.
160. Loss of Captured Property.
THE OLD RULE.
146. The ancient rule of war, in regard to property,
authorized a belligerent to seize and appropriate property
of every kind, belonging to an enemy, or to an enemyas
subjects, in all places where war was permissible. This
rule has been abrogated or modiﬁed by usage as shown
in the following pages. ‘
PROPERTY OWNED BY THE STATE—MOVABLE PROPERTY.
147. As a general rule, the movable property of the
enemy state can be appropriated.
In considering the rules in regard to enemy property as modiﬁed
by usage, it is well to bear in mind that custom has, in general,
applied the principle that all property which is susceptible of use
by the belligerent seizing it for warlike purposes, or which can be
of similar use to his enemy, directly or indirectly, can be appro-
priated; but that property not possessing these characteristics is
Ch. 18] PROPERTY OWNED BY THE STATE. 193
not usually subject to appropriation. There is no question in re-
gard to the following classes of property: Munitions of war, vessels
of war, public vessels, state treasure consisting of moneys and
checks payable to bearer, and taxes, customs, etc. The latter must
be-applied to administrative expenses, or to the payment of debts
for which specially hypothecated, the overplus only being applied
by the belligerent to his own use. In regard to certain other mov-
able or personal property, such as checks requiring indorsement,
and contract debts in other forms, which may require payment to
be enforced judicially, or the seizure of which may not operate to
relieve the debtor making payment of his obligation, there is some
question as to the right of seizure. The seizure of certain property,
such as territory, carries with it the possession of certain incorpo-
real rights which are inherent in the thing seized. This is not true
in regard to the seizure of instruments representing a debt. The
seizure of the person to whom a debt belongs does not carry with it
the possession of the debt itself, nor does the seizure of the instru-
ment evidencing the debt carry with it the right to the debt itself,
since the instrument is merely the evidence of the right itself, or the
title deed of the obligee. When a belligerent has made a complete
conquest of the enemy country, and stands in the place of the con-
quered state, the conqueror, of course, occupies the position of the
conquered, and can enforce the rights belonging to the latter.1
SAME—IMMOVABLE PROPERTY.
148. Lands and buildings are not to be conﬁscated or
alienated.
The true reason for this rule seems to be that it is impossible
for the belligerent state making the seizure to give a good title to
the purchaser. Of course, the proﬁts accruing to the state owning
such property may be seized by the occupant, and the latter may
make use of the property for quartering troops or other purposes,
and may collect and appropriate the rents, lease or make other
contracts in regard to the same, which will be good during the oc-
cupation, but not afterwards. He cannot commit waste or destroy
1 Hall, Int. Law, pp. 417-419; 3 Phillim. Int. Law, pt. 12, c. 4.
IN'l‘l.R.\iAT.LAW—-13
194 EFFECTS OF WAR—AS TO PROPERTY. [0b. 18
the property, except in so faras his military operations render
it necessary to do so. The ultimate property passes to the con-
queror after the conquest is complete, the sovereignty of the coun-
try passing at the same time. The German government in the
Franco-German war of 1870 sold a large amount of timber which
was growing in the French forests. After the war was over, the
French government seized all of the timber thus! cut which had not
been removed. Upon application being made to the German gov-
ernment by the purchasers, they were informed that the matter
must be left to the French courts. The latter annulled the‘ sale on
account of waste, and as being in excess of necessity.
There are classes of property vested in the state which, accord—
ing to the rules of war, are not seized, nor the rents or proﬁts of the
.same appropriated. These consist of property permanently set
.aside for the maintenance of hospitals, educational institutions,
and scientiﬁc or artistic objects. The same is true in regard to
the seizure of state papers, legal or judicial documents or archives.
Works of art, libraries, scientiﬁc collections, and precious instru-
ments, such as astronomical telescopes, should be secured against all
avoidable injury, and none of them, under the instructions for ar-
mies of the United States, can be sold. The ,works of art which had
been seized by the French previous to the peace of 1815 during the
early years of this century were in that year restored to the coun-
tries to which they of right belonged. This action conﬁrms the
principle that all such collections are considered as exempt from
appropriation, although such collections, under the practice of-the
United States, as belong to a hostile state, can be seized and re-
moved for the beneﬁt of said nation, provided this can be ‘done
without injury. The ultimate ownership is to be determined by
the treaty of peace. Vessels engaged in exploration and scientiﬁc
discovery are also granted immunity from capture by mutual con-
sent, upon the ground that their labors are intended for the bene-
ﬁt of all mankind. One of the earliest and most noted examples
of this was when the French government in 1776 ordered all ves-
sels to treat Captain Cook as a neutral and friend.2
2 Am. Inst. arts. 34-36; Hall, Int. Law, pp. 419-422; Wools. Int. Law, §12-l;
Twiss, Law Nat. § 68; 2 Halleck, p. 97; Bluntschli, §§ 646, 648.
Ch. 13] PRIVATE PROPERTY IN ENEMY TERRIToRY. 195
PRIVATE PROPERTY IN' ENEMY TERRITORY—IMMOVABLE
PROPERTY.
149. Immovable private property—land and houses—
in enemy territory is exempt from appropriation.
The same reason for this exemption exists as in the case of similar
property belonging to the state, namely, the inability of the invad-
ing state to give an indefeasible title to the purchaser.
SAME—MOVABLE PROPERTY.
150. Movable or personal property is still subject to
seizure under regulations governing contributions and
requisitions.
(a) CONTRIBUTION S—Contributions consist in moneys
levied by the invader in excess of the taxes.
(b) REQUISITIONS—Requisitions consist in the en-
forced render of articles needed by the enemy
for consumption or temporary use.3
Plunder and pillage are now abolished, and the regulated seizure
of private property may be said to have taken the place of these
ancient seizures and subsequent conﬁscations. The distinction be
tween contributions and requisitions as drawn by de Garden is this:
3 The instructions of the Crown Prince of Germany in regard to requisitions
"is contained in the following regulations for occupied districts: “(4) The in—
habitants will have to supply all necessaries for the support of troops. Each
soldier will receive daily 750 grammes of bread, 500 grammes of‘ meat, 2‘50
grammes of lard, 30 grammes of coffee, 60 grammes of tobacco or 5 cigars, 1/2
litre of wine, or 1 litre of beer, or 1/10 0f brandy. The rations to be furnished
‘daily for each horse will be 6 kilogrammes of oats, 2 kilogrammes of hay, and
1% kilogrammes of straw. In case of inhabitants preferring an indemnity in
coin to one in kind, it will be ﬁxed at 'two francs each soldier daily. (5) All
commanders of detached troops will have the right to order a requisition of
provisions needful to the support of their troops. The requisition of other
articles deemed indispensable to the army can only be ordered by generals
and oﬁicers acting as such. In all cases nothing will be demanded of the
inhabitants except what is necessary for the support of the troops, and oﬁ‘i-
cial receipts will be given for everything supplied.”
196 EFFECTS OF WAR—AS To PROPERTY. [Ch._13
“The former is a substitute for pillage. ‘These constrained payments
of money should assure the preservation of every kind of property,
although contributions do not free the inhabitants from the requisi-
tions of the enemy, and they are bound to furnish. horses, carriages,
etc. By ‘requisitions’ one understands demands for speciﬁed ob-
jects made in the form of an invitation, but pursued with force, if
it becomes necessary to obtain them; this kind of services and the.
name given to them were invented by Washington in the American
war.” Calvo says: “Contribution consists of that which the in-
habitants of an occupied country are compelled to pay or give in
order to protect themselves from pillage; requisition is the demand
made by an authority to place at his disposal things, ,even per-
sons.” Requisitions consist in food, clothes, forage, wagons, horses,
lodging, labor, railroad material, boats, and other means of trans
port, all of which are levied under what is recognized as military
necessity. These may be made by the commander of any detached
portion of the army under a higher authority, which latter regu-
lates the articles to be requisitioned, while the commander in chief
can demand the supply of all articles subject to such demands. In
regard to contributions, only the commander in chief or the com»
mander of a detached corps can levy them. Receipts are usually
given, and serve the double purpose of advising a subsequent army
of the amount that has been previously taken, and to facilitate com-
pensation to the owners in case policy dictates such a course. This,
however, is not incumbent upon the state. Some authorities state
that articles can be requisitioned only by compensation of the in-
dividual owners, but the safer statement seems to be that this com-
pensation is to be arranged for in the terms of peace. In concluding
this portion of the subject, attention is directed to the fact that in
the Franco-German war of 1871 the right to levy both contributions-
and requisitions was exercised with greater severity than usual.‘it
Maritime Contributions and Requisitions.
In the determination of the right to levy contributions and requisi--
tions by a naval force it is necessary to'bear in mind the difference
4 Calvo, Int. Law, § 2235 et seq., who gives the opinions of the principal
authorities; Am. Inst. art. 38; Hall, Int. Law, pp. 423-430; Bluntschli, &
655; Amer. Ins. 54-60; Append. p.‘ 349.
Ch. 13] PRIVATE PRoPERTY IN ENEMY TERRITORY. 197
in the nature of an army and a naval force. In regard to the
former, the situation in general is that it is occupying the country
upon which demands are made, and is in a position to enforce these
demands during the occupation. If a naval force occupies a cor~
responding position with respect to the place upon which requisi-
tions are to be made, and the articles demanded are necessary, and
are delivered under conditions that indicate that the force was
practically in possession of the place during the time necessary to
complete the possession of the goods demanded, then there is no ap-
parent reason why such requisitions cannot be made and enforced
by ‘intimidation of different kinds, or even by bombardment under
certain conditions. In regard to contributions the situation is dif—
ferent, because the naval force is, as a rule, in such condition as not
to require these contributions on the ground of the necessity of
.maintaining the force in an efficient state, nor are they in a posi-
tion similar to that of an occupying army, which in forcing the
levy of a contribution can take hostages, seize the property, or other-
wise enforce the levy by means short of absolute violence. On the
contrary, such naval force will have to depend in general upon en-
forcing their demand by use of violence, such as destruction of the
place, which in all probability it does not dare enter, which it can—
not even hold temporarily, and from which it is unable to seize and
carry away the contributions demanded. The slaughter of non-
combatants or destruction of nonfortiﬁed places is not one of the
recognized modes of warfare, and is certainly not authorized for the
purpose of enforcing contributions. Contributions can be levied as
a right by a maritime force, but the conditions should be practically
the same as those under which a land force would levy them; and
these conditions imply the landing of a suﬁicient force to occupy the
place and to enforce the demands in the recognized manner. In
concluding it is well tobear in mind that when requisitions are made
by a maritime force the articles demanded should be such as may be
justly seized upon the grounds of necessity, and cannot consist of
articles ‘that are taken for the purpose of sale, since such a transac-
tion is scarcely distinguishable from a contribution.‘5
5 Hall, 1111:. Law, pp. 430-434.
198 EFFECTS OF WAR—As TO PROPERTY. [Ch. 13
FORAGING.
151. Foraging consists in the collection by the troops
themselves of food of all kinds for men and animals, and
the collection of wood, etc., for fuel, from the ﬁelds or
other places where it may be.
BOOTY
152. Booty consists of all property that is susceptible
of capture in war, and of such private property as may
be susceptible of military use. Strictly, it comprises all
articles that may be obtained by way of requisition.
This term is somewhat broader in its signiﬁcation than is generally
understood by private property on land, and in regard to property
falling under this designation which is not taken by way of requisi-
tion some authorities lay it down as a rule that when it has been in
possession of the captor for twenty-four hours the title vests in the
government of the captor. The practice in regard to the disposi-
tion of booty is different in different countries. In some countries
the property is sold, and the proceeds used in whole or in part as a
compensation to the captors. Great Britain, in certain cases, re-
wards such services. The rule in the United States seems to be
that the government appropriates all property captured by its armies
on land.6
PRIVATE PROPERTY WITHIN THE JURISDICTION OF THE
ENEMY.
153. When war breaks out between two states, the per-
sonal or movable property of citizens of either, found in
the territory of the other, on land, also debts due to citi-
zens of the enemy state, are-strictly conﬁscable; but mod-
ern usage has rendered this rule practically obsolete.
6 Hall, Int. Law, p. 435; Davis, Int. Law, p. 230; 2 Halleck, Int. Law, pp. 115—
119; Am. Inst. art. 45; Walker, Int. Law, p. 88; Vattel, Int. Law, bk. 3, c. 9,
§ 164; The Banda and Kirwee Booty, L. R. 1 Adm. & Ecc. 109, 35 Law J.
Adm. 17 ; ‘Same Case, Pitt-Cobbett, Gas. Int. Law, p. 195.
Ch. 13] PRIVATE PROPERTY WITHIN JURISDICTION or ENEMY. 199
In regard to debts due by a state to citizens of an enemy state
the rule is now well established that they are not conﬁscable, nor is
the interest due upon such debt sequestrated. This rule is now so
well established and acknowledged by all the authorities that, in
order to avoid such payments, the agreement must incorporate, as an
express reservation, the right to sequestrate; since, in the absence
of such reservation, a state is assumed to have contemplated pay-
ment notwithstanding the existence of war.7
The question of the effect of war upon property came up for con-
sideration in the United States as a result of the war with England
in 1812. In this case it appears that upon the outbreak of hostili-
ties some timber belonging to a British subject was found within
the territory of the United States, and, having been seized, was
condemned by the lower court. In deciding this case upon appeal
the supreme court reversed the decision of the lower court. In the
opinion of the court it was not questioned that a belligerent pos-
sessedw the right to seize and conﬁscate the property of an enemy
wherever found, and it was distinctly held that modern practice
or policy could not impair this right, although it might mitigate the
~ exercise of it. The court reversed the decision of the lower court
principally upon the ground that the effect of a declaration of war,
or of the existence of war, alone did not confer upon the courts
the‘power to conﬁscate enemy property without some expression of
the will of the state itself to that effect, although it was admitted
that the existence of war carried with it the right to effect such
conﬁscation. Judge Story, who delivered the opinion in the lower
court, in a dissenting opinion held that no legislative action was
necessary to warrant the court in conﬁscating the property in this
case, since, the timber in question having been seized by an officer
of the government, the existence of war was sufficient to enable
the court to put in effect the right.8 The custom of permitting the
subjects of foreign countries to take up their residence within the
territory of any‘state, and of remaining in such state during hos-
tilities, during good behavior, having become quite general, it would
seem to carry with it as a necessary consequence protection of their
7 Hall, Int. Law, pp. 435, 436; Wheat. Int. Law, § 300; Dana’s Note, 156; 1
Kent, Comm. p. 59;~1 Halleck, Int. vLaw, p. 488; Ware v. Hylton, 3 Dall. 199.
8 Brown v. U. S., .8 Cranch, 110.
200 EFFECTS oF WAR—As To PROPERTY. ' [Ch. 13
property within the jurisdiction of the state of residence. The
rule of exemption from conﬁscation is laid down positively by some
authorities, and the subject is largely regulated by treaties, but
these are not binding upon all civilized nations, and usage is not
sufficiently well established to make a rule of law upon the sub-
ject. It is safe to say that the modern European practice is opposed
to the conﬁscation of personal property, and, as it is generally rec-
ognized as unwise to-enforce the strict rule of law, it is believed that
the law will in time be declared to be in conformity with the later
practice.9
PROPERTY IN ENEMY’S PORTS OR WATERS.
154. Territorial waters being within the jurisdiction of
the state, property of the enemy found within such waters,
upon the outbreak of war, follows the rule and practice
as stated for property within the jurisdiction of the en-
emy. Property of an enemy coming into territorial waters
after the outbreak of hostilities is conﬁscable.
The course pursued by the belligerents in the Crimean War, and
also in the Franco-German War, designating a certain time in which
vessels then in port were authorized to depart from the territorial
waters of the enemy, and of permitting enemy ships which had
sailed for these ports after the declaration of war a certain time
in which to come into port and remain for the purpose of loading
their cargoes, indicates a tendency to depart from the strict rule of
law. In the ﬁrst-mentioned war, when France and England took
part in the war, they allowed six weeks for Russian vessels to leave
port; and allowed to Russian ships of commerce, not actually in
the ports of England or France at the time of the declaration of
9 For entire subject, vide, in addition to authoritles cited, Calvo, Int. Law,
§§ 1915-1925; Bynk. c. 7; ‘Wools. Int. Law, § 124; Twiss, Int. Law, pp. 100-
108; Vattel, Int. Law, bk. 3, c. 5, § 77; Pitt-CobbetthCas. Int. Law, pp. 154-
166; The Teutonia, L. R. 3 Adm. & Ecc. 394, L. R. 4 P. C. 171; Wolff v. Ox-
holm, 6 Maule & S. 92; Wheat. Int. Law, D, note 156; 2 Halleck, Int. Law,
c. 22, and pp. 491, 492, note; Johanna Emilie, Spinks’ Prize Cas. 14, cited
Snow, Cas. p. 270, note; 3 Phillim. Int. Law, p. 118 et seq.; Mann. Int. Law,
170, 171; Hall, Int. Law, § 144.
Ch. 13] PROPERTY NOT WITHIN ANY STATE. 201
war, or which left any ports of Russia destined to ports in those
countries previously to the declaration, to enter such ports, and
remain, for the loading of their cargoes, until the expiration of
six weeks from the declaration. Russia allowed French and Eng—
lish vessels six weeks to load and sail from ports in the Black Sea,
Baltic Sea, and Sea of Azof, and six weeks from the opening of navi-
gation to vessels in the White Sea There is a class of vessels which
is claimed to be exempted from capture, and some practice for this
exemption exists. It is claimed that vessels which are driven into
enemy ports by stress of weather or want of provisions should be
exempt from capture, on the ground that humanity and justice
demand that advantage should not be taken of the misfortune of
an enemy. This is simply a question of generosity, and contrary
to the rule of law.10 I
PRIVATE PROPERTY NOT WITHIN THE TERRITORY OF
ANY STATE. '
155. Private property not within the jurisdiction of any
state is subject to seizure and conﬁscation. Such property
found in the ports of the enemy follows the same rule.
The modiﬁcations in regard to property on land eﬁected by mod-
ern practice has ' not extended to property at sea, and it is safe
' to say that one of the principal reasons for adherence to the rec-
ognized rule of law is that England has at all times, and consistently,
declined to accept any modiﬁcation of the right to conﬁscate such
property. The practice of civilized nations has not departed in many
instances from the exercise of the right to make such captures.
The United States has consistently favored the exemption of mer-
chant vessels and their cargoes from capture, and has endeavored
to secure this exemption by convention, but has thus far only one
treaty (with Italy) to that eﬁect. Germany, after ﬁnding that France
had adhered to the rule of war in this regard, changed her pro-
posed practice after the ﬁrst year of the war, or in 1871. There
is no question but that the property subject to capture at sea oc-
cupies an entirely diﬁerent position from that of property on land.
10 Hall, Int. Law, pp. 441, 442; 2 Halleck, Int. Law, p. 152.
202 ' EFFECTS OF WAR—AS To PROPERTY. [Ch. 13
In regard to the latter the rule has been stated, and‘ while it is
true that, in the enforcing of requisitions of private property on land,
it is usual to limit the property taken to such as will be useful
to the captor for the purposes of war, yet in taking this property
the noncombatant population is deprived of material necessary for
the support of themselves or their animals. On the other hand,
in regard to the property taken at sea, the reasons urged in support
of the right are that only the material interests suffer, and no per-
sonal suffering is inﬂicted. Again, such property is shipped by the
owners with the intention and idea of deriving a proﬁt from the
enterprise. The risks of war are appreciated and understood, and
can be provided for by means of insurance. It is in the custody
of men trained and paid for the purpose; and the sea upon which 4
it is sent, is res omnium, the common ﬁeld of war as well as of
commerce. The objections, therefore, that exist to the capture of
private property on land do not apply to property at sea with pro-
portional force, yet the effect of captures at sea in deranging the
trade of the enemy is very much greater than the enforcing of req-
uisitions has ever been found to be. The eﬁect of this rule was
modiﬁed by the declaration of Paris, to the extent that “the neutral
ﬂag covers enemy’s goods, with the exception of contraband of
war.” 1'1
RULE AS TO FISHING VESSELS.
156. A custom of rather general value has exempted
vessels engaged in coast ﬁshing from capture, but this
practice cannot be stated to be so general as to have be-
come a rule of international law.
France has protected such ﬁshermen and their vessels very gen-
erally, and it is claimed that the United States, in their war with
Mexico, extended the same concessions to them. The most noted
departure from this custom was when England, in the year 1800,
seized a number of’ French vessels on the ground that they were ,
11 Hall, Int. Law, §§ 143, 146-148; Declaration of Paris, art. 2; 1 Kent,
Comm. p. 101 et seq; Twiss, Law Nat~ § 73; Mann. Int. Law, pp. 183, 184;
2 Halleck, Int. Law, c. 22, §§ 1—7, and notes; Vattel, Int. Law, bk. 3, c. 9,
§§ 160-162.
Ch. 13] ' .WHAT coNsTiruTEs A VALID CAPTURE. ' A 203
being used for warlike purposes by the French, but they were aft—
erwardsunmolested. The rule seems to be that so long as they
remain innocuous they are unmolested, and the reason for their
exemption is that this occupation is the sole means of living for
a very large portion of the inhabitants of certain countries, and
so long as they conﬁne themselves to their vocation they are harm-
less. This exemption is not extended to those engaged in deep-
sea ﬁshing.12
WHAT CONSTITUTES A VALID CAPTURE.
157 As between belligerents, the capture of a vessel is
complete when surrender has taken place, and hope of re-
covery has‘departed.
To constitute a capture at sea, the act of taking possession is
not absolutely necessary because the surrender of the master and
crew or vessel is complete when the ﬂag is lowered, and the con-
ditions may be such as to render actual taking of possession im-
practicable, and yet the continuance of hostilities under the circum-
stances may be uncalled for. There must, however, be some act
showing intention to make prize of the vessel, aside from the sur
render, which is not in itself sufﬁcient. The most eﬁective method
is to place aboard of the vessel a prize crew of sufﬁcient magni-
tude to prevent an attempt ‘at rescue. It has been held sufficient
to place a prize master aboard the vessel, but captures have been
effectual where no man was put on board of the vessel. It is suf—
ﬁcient if intention to seize and retain as a prize can be inferred
from the acts of the captor. The placing of one or two men on board
of such a vessel, even though they did not take possession of the
ship’s papers, or exercise control over the navigation thereof, was
12 Calvo, Int. Law, §2368; Hall, Int. Law, 449, 451. Bluntschli, § 667: “V es-
. sels destined for coast ﬁshing and belonging to citizens of an enemy state are
not subject to capture.” 2 Halleck, Int. Law, pp. 151, 152; Walker, Int. Law,
pp. 317-319. Wools. Int. Law, p. 303: “Hostile ships, with whatever goods on
board, have been uniformly regarded as prizes of war. But from the opera-
tions of war, one class of vessels, engaged in an eminently paciﬁc employ
ment, and of no great account in regard to national resources, has often been
exempted. We refer to vessels engaged in coast ﬁsheries.”
204 EFFECTS oF WAR—AS To PROPERTY. [Ch. 13
considered suﬁicient to retain possession as prize as against a sub-
sequent capture by a privateer or other vessel.13 The question of
the validity of capture is-of importance to others besides belligerents,
since others may acquire interests in the property seized, either
through a recapture, or through a transfer by the captor. As to
the latter, it is important for the transferee to know what inter-
ests he has acquired, which can certainly be no greater-than that
possessed by the transferrer. ‘
In regard to the time at which the captor acquires property in the
things captured, it may be said that the ancient practice was that
the captor acquired property in things seized by him when he had
brought them into his camp, fortress, port, or ﬂeet; and, if a vessel
was recaptured before being brought into such place of safety, it
was to be restored to the owner upon payment of salvage, but, if. rc-
captured after being brought into such place of safety, it belonged
to the recap'tors. Later the arbitrary rule was laid down that pos-
session for twenty—four hours was sufﬁcient to transfer title to the
property. This rule was published in an edict by France, in 1584,
and became a very general rule of practice for the greater number-
of civilized nations. There is at present no settled practice in re-
gard to the two rules, although the older rule seems to be the more
satisfactory and equitable.“ '
13 The Grotius, 9 Cranch, 370. ‘
14 Twiss, Int. Law, p. 332 et seq.; Hall, Int. Law, 452-456; Bynk, c. 4. Grotius,
De Jure Belli, bk. 3, c. 6. § 3: “(1) But 'in this question of war, it has been es-
tablished as a rule of nations, that he is understood to have captured a thing
who detains it in such a manner that the other has lost probable hope of re—
covering it, or so that the thing has escaped from its grasp, as Poponius says.
And in‘ movables, this is applied so that things are considered as captured
when they are brought within the boundaries, or z'ntm praesz'dz'a, under the
protection of the enemy.” Wools. Int. Law,‘ § 148, cites the 24-hour rule,
and also the ancient rule, and says: “Thus, there is no settled view or prin-
ciple as to the time when a title from capture begins. Perhaps no deﬁnite
rule can be laid down, any more than in answering the question when occu;
pation ends in ownership, which the laws of different states will determine
differently.” Pitt-Cobbett, Cas. Int. Law, pp. 207-211.
Ch. 13] .DISPOSITION OF CAPTURED PROPERTY. 205
DISPOSITION OF CAPTURED PROPERTY.
158. The property in an enemy’s vessel and cargo that
is captured vests in the state as soon as the seizure is ef-
fective, and can be disposed of in such manner as the
new owner may elect, either by sale, by destruction, or
by ransom. '
It is the modern custom to have all prizes sent into port for ad-
judication before disposition, the object being the protection of
neutrals by determining judicially whether the captured vessel and
cargo are entirely enemy property, and it is not customary to ran-
som or destroy such prizes unless the circumstances practically
make such a course necessary. It is also the modern practice for
the state to relinquish its interest in prizes that consist of vessels
belonging to private individuals to the captors, but the relinquish-
ment does not become effective until after adjudication by proper
tribunals. In regard to the destruction of enemy’s vessels made
prize, the practice of the United States during the War of the Rev-
olution, and also in the War of 1812, was to destroy all that were
captured, and instructions were issued directing this action in all
cases unless the prize should be very valuable, and near a friendly
port. This was done because of the difﬁculty in manning prizes,
- since every prize manned created a serious diminution of the force
of the capturing vessel. This course was strictly legal, and the
condition of the country demanded recourse to the exercise of the
right. It is true that such is not the general course pursued,
especially by England and France, but destruction of such vessels
was under certain conditions recognized as proper by the Institut
de Droit International at Turin in 1882.1‘5
15 “1. Lorsqu’il n’est pas possible de tenir le navire a ﬁot, a cause 'de son
mauvais etat, la mer etant houleuse.
“2. Lorsque le navire marche si mal qu’il ne peut pas suivre 1e navire de
guerre et‘pourrait facilement etre repris par l’ennemi.
“3. Lorsque l’approche d’une force ennemie supérieure fait craindre la
reprise du navire saisi.
“4. Lorsque 1e navire de guerre ne peut mettre sur le navire saisi un
206 EFFECTS OF WAR—AS To PROPERTY. [Ch. 13
RANSOM.
159. Ransom consists in the repurchase of property ac—
quired as prize by the original owner from the captor.
This is merely a voluntary act upon the part of the owner, and
the result of it is that he gains possession of his vessel, and the'crew
do not become prisoners of war. In such contracts in regard to
vessels the commander gives what is known as a “ransom bill,” by
which he agrees that the owner shall pay an agreed sum to the cap-
tor. This contract is made out in duplicate, one copy of which is re-
tained by the commander of the ransomed vessel, and serves as a safe
conduct, protecting the vessel from recapture by the belligerent or
his allies, provided he does not depart from the terms ofthe agree,
ment, either as to the port for which he is to sail, or they course to
be pursued, or in the time agreed upon for making the voyage.
This refers to a voluntary departure from the terms agreed upon,
and does not apply in case the vessel is driven from her course by
stress of weather. The captor retains the other copy of the ransom
bill, and in addition takes from the captured vessel a member of,
the crew—generally the mate—as a hostage for the payment of
the stipulated sum of money. Should the vessel of the captor, with ‘
the hostage and bill on board, be captured by the enemy, the ransom
bill is discharged. The ransom bill and hostage can be transmitted
to a place of safety, and the ransom is to be paid in such case, even
though the captor’s vessel be afterward captured, and it is some-
times incorporated in the bill that the ransom shall be paid notwith-
équipage sufﬁsant sans trop diminuer celui qui est nécessaire a sa propre
sﬂreté.
“5. Lorsque 1e port on i1 serait possible de' conduire 1e navire saisi est trop
éloigné.” Adopted by the Institut de droit International in 1882.
Vide Bluntschli, § 67.2; Wools. Int. Law, § 148.
“The laws of the United States do not admit of the sale within their juris—
diction, for any purpose of prize, goods taken by one belligerent from an-
other, and brought into their ports. This government does not take jurisdic-
tion at all upon the question of prize or no prize, but leaves that question ex-
. clusively to the cognizance of the tribunals of the respective belligerents.”
Mr. Clay, secretary of state, to Mr. Obregon, May 1, 1828, Whart. Dig. § 400.
Ch. 13] Loss OF CAPTURED PROPERTY. ‘ 207
standing “the hostage should come to die, or to desert, or that the
said privateer should perish, or be taken with the hostage on board.”
In certain countries the captor is authorized to sue directly upon the
bill, if the ransom is not paid. In England payment is compelled
by or through an action brought by the imprisoned hostage for his
freedom.16 The hostage is, like giving a bill of exchange by the
owner of the captured vessel, regarded as collateral security for the
payment of the debt, so that the escape or death of the hostage
does not discharge the debt. When the vessel and cargo are insuffi-
cient to discharge the ransom debt, the master is liable to personal
suit for the balance, including the expenses of the hostage; but,
should the master be insolvent, the hostage would be discharged
uponthe proceeds of sale, under a decree, being turned over to the
captor.17
LOSS OF OAPTURED PROPERTY.
160. Property acquired by seizure as booty or prize can
be lost in the following ways:
(a) Recapture.
(b) Abandonment.
(0) Escape in' the case of prize. -
(d) Rescue by the crew of the prize.
(e) Discharge.
The eﬁect of abandonment was considered by the supreme court
of the United States in the case of The Mary Ford. This vessel
was a British vessel captured by a French squadron,—-the two
countries being at the time at war,—-but, on account of necessity
was abandoned by the French, and directed by the commander of
the squadron to be burned. An American vessel—the George—-
found the Mary Ford in this abandoned condition, brought her into
port at Boston, and there libeled her for salvage. In the decree, after
16 Anthon v. Fisher, 2 Doug. 650, note; The Hoop, 1 0. Rob. Adm. 201.
17 On the whole subject, see Maisonnaire v. Keating, 2 Gall. 337, Fed. Gas.
No. 8,978; Wheat. Int. Law, D, note 199; Wools. Int. Law, §§ 150-152;
Walk. Int. Law, p. 280; Twiss, Law Nat. pp. 357-304; Calvo, Int. Law, _
§§ 2422-2429; Cornu v. Blackburne, 2 Doug. 640.
208 EFFECTS OF WAR—‘PAS To PROPERTY. ' [Ch-13
allowing to the crew of the George one-third of the proceeds of the '
sale as salvage, the court considered the question of ownership of
the remaining two-thirds of- the proceeds. The district court de-
creed that the residue, after paying costs therefrom, be paid into
court for the British owners, etc. This, on appeal to the circuit
court, was reversed, and it was decreed that the residue should be
paid into court for the French republic. On appeal to the supreme
court the decision was affirmed. The court expressed some doubt
as to whether the entire amount should not have been decreed to the
American crew as salvage. ‘There was no question as to the fact
that the British interest was shut out by the capture,‘ and did not
revive by the abandonment. The effect of abandonment by the
French was not squarely in issue before the supreme court. The
other methods of losing captured propertywill be more fully dis-
cussed in their ~proper headings in the chapter upon the subject of
postliminium.18
18 McDonough v. Danne'ry, 3 Dall. 188.
Ch. 14] POSTLIMINIUM DEFINED. 209
CHAPTER XIV.
POSTLIMINIUM.
161. Postliminium Deﬁned.
162. Limitations upon the Rights of Postliminium.
163. Acts in Excess of Legal Powers.
164. Effect of Expulsion of the Enemy by a Power not an Ally.
165. Recapture.
166. Salvage.
{167. Rescue by Neutrals.
POSTLIMINIUM DEFINED.
.161. The re-establishment of the original order of things
changed by the operations of war in the following re-
spects is called postliminium:1
(a) ‘When a state throws off a foreign yoke before con-
quest has been completely effected.
(b) When a state, or portion of it, is freed from foreign
domination by the action of an ally before con-
quest has been consolidated.
(c) When territory that has been occupied and a popu-
lation which has been controlled by an enemy
during the progress of the war is again possessed
and controlled by the original state.
(d) When property susceptible of appropriation is cap-
tured by the enemy during hostilities, and is re-
captured by the state to which it belongs, or its
individual owner belongs, or by an ally, before a
title ripens in the captor, enabling him to transfer
to a third person.
1 As to general doctrine of postliminium, vide Hall, Int. Law, pt. 3, c. 5; 2
Halleck, c. 35; Dana’s note to Wheat. Int. Law, note 169; Bluntschli, §§ 727-
741; Phillim. Int. Law, pt. 10, ‘c. 6; Vattel, Int. Law, bk. 3, c. 14; Davis,
Int. Law, pp. 266-268; Mann. Int. Law, pp. 190-195; Bynkershoek, Int. Law,
cc. 5, 15, 16; Calvo, Int. Law, §§ 3169-3186; Pitt-Cobbett, Gas. Int. Law,
pp. 225-227; ‘Wools. Int. Law, §§ 151-152. ‘
INTERNAT.LAW—-14
210 . ' POSTLIMINIUM. [0b. 14
This right of postliminium was derived from the jus postliminii
of the Roman law, which was a ﬁction by which persons and things,
in some cases, were restored to their original legal status imme-
diately upon being recaptured from the enemy, and coming under
the power of the nation to which they formerly belonged. There
is a distant analogy to this rule of Roman law in the above rule,
but when the true relation of the enemy to occupied territory, or
to the inhabitants of such territory, is recalled, it will be remem~'
bered that during the continuance of hostilities the appropriation
of the former and the exercise of control over the latter is incom-
plete and temporary, and again the relation of the original state
or owner is that its rights are momentarily suspended. When the
‘control of the enemy is removed the rights of the original owner
:revive, so that the eﬁect of the removal of the enemy is similar
to that of removing an intruder whose acts of temporary control are
not binding upon the. original, legitimate owner. The property
mentioned in class (1 above is analogous to the classes a, b, and 0,
but differs in this: that after certain conditions have been complied
with the property seized is completely transferred to the captor.
The doctrine of postliminium f‘amounts to the truistic statement that
property and sovereignty cannot be regarded as appropriated until
their appropriation has been completed in conformity with the rules
of international law.” 2 ' '
LIMITATIONS UPON THE RIGHTS OF POSTLIMINIUM.
162. The right of postliminium, arising when an enemy
abandons occupied territory, or is driven from it by forces
of the state or an ally, amounts to this: that the original
state of things is re-established, but the revival of the exer-
cise of these rights dates, as a rule, from the moment when
postliminium comes into operation.
The effect of this limitation in regard to occupied territory is that
certain acts done by an invader, constituting a very large class,
are within his legitimate competence to perform, and greater harm
2 Hall, Int. Law, pp. 486-488. For derivation of word, vide Wool-s. Int.
Law, p. 248, note. -
Ch. 14] ACTS IN EXCESS or LEGAL POWERS. 211
would result from their being wiped out than by the recognition
of their validity. Political acts of the invading government are,
of course, invalidated, but judicial and administrative acts, which
are not of a political nature, and which take effect during the ene
my’s control, and certain acts done under municipal law, remain
binding. Thus, criminals who have been punished under municipal
law, and are undergoing sentence, should not be released. Those
who are serving sentences for acts which are not punishable under
the municipal laws of the state, and who have only committed acts
which the invader has made punishable for the more secure ad-
ministration of himself, can and should be released. Persons who
have paid taxes under duress should have the payments recognized.
The distinction between administrative or judicial affairs, which,
on the one hand, are of importance only to private rights, and are
valid, and those, on the other hand, which aﬁect the constitution
of the country, or are essentially political, and consequently in-
valid, is sufﬁciently exact for all purposes. The current affairs must
be administered, and, as a rule, are not political in their nature;
and to upset the judgments of the courts of the invader would lead
to inextricable confusion and complications.3 '
ACTS IN EXCESS OF LEGAL POWERS.
163. Acts of the invading government in excess of its
legal powers are null and void, as against the legitimate
government.
The legitimate government is not bound to recognize the aliena-
tion ‘of the domain of the state, or to pay debts contracted by the
invading government on account of the invaded country. The in-
vading government which made such alienations or contracted such
debts, unquestionably, at the time of performance of the acts men-
tioned, contemplated actual conquest of the occupied territory, and
the validity of its acts would depend in each case upon the suc-
cess attained. Thus an alienation or debt which was recognized
in a treaty of peace would be binding upon the legitimate or re-
3Hall, Int. Law, pp. 488, 489; Bluntschli, § 731; Calvo, Int. Law, § 3180
et seq. ‘
21 2 _ POSTLIMINIUM. I [Ch. 1 4-
stored government; so, also, in case this territory is restored to
the latter government as a result of a war at a later period!‘
164. EXPULSION OF THE ENEMY BY A POWER NOT AN
ALLY.
The effect of the expulsion of an enemy by a power not an ally
of. the occupied territory has been discussed by the authorities,
with the result that there is a radical disagreement. Heﬁter says:
“In the case (and in the case only) in which the enemy forces have
been driven out by a foreign power alone, the ancient state of things
cannot be reestablished without the consent of the latter.” Mr.
liluntschli says: “VWien the enemy is expelled by a third power,
which is neither the sovereign nor the ally of the sovereign of the
liberated country, the re-establishment of the former government
and constitution will not be a necessary consequence of the expul-
sion. The liberating country acquires, on the contrary, the right
of taking part in the negotiations which determine the lot of the
delivered Country. It goes without saying that the liberator can-
not dispose of this country at will,’ and in a determined manner,
without taking into account the will of the inhabitants.” On the
other hand, Halleck says: “There are two cases to be considered—-
First, where the 'deliverance is effected by an ally; and, second,
where it is effected by a friendly power unallied. In either case
the state so delivered is entitled to the right of postliminy. * * *'
A denial of the right of postliminy in such a case (second) would
be contrary to the ‘law of nations, and a breach of public morality."
Mr. Hall, after citing the authorities holding the contrary doctrines
in regard to this case, says: “In all cases in which conquest has
unquestionably not been consolidated, and in which the territory
of a state is therefore only occupied, the state recovers its exist-r
ence, and all the rights attendant on it, as of course, so soon as it
is relieved from the presence of the invader. Where, on the other
hand, there is reasonable doubt as to whether a state is occupied or‘
conquered, the third state must be allowed to determine the point
for itself, and to act accordingly.” This was illustrated in the case-
of Genoa, which was a republic up to 1797, when it was occupied.
4 Bluntschli, §§ 732-735; Calvo, Int. Law, § 3181.
, Ch. 14] I " REoAPTURE. 213
by the French, and annexed to the French empire in 1805, during
all of which time England and France were at war with each other.
In 1814 the English, under Lord Bentick, with a small Anglo-Sicilian
force, landed, and succeeded in driving out the French. In the
treaty of that year this republic, instead of reverting to its original
status existing previous to 1797, became a part of Sardinia. Sir
James Mackintosh, in parliament, offered condemnatory resolutions
of this action, and wound up his discussion by the statement: “Genoa
ought to have been regarded by England as a friendly state, op-
pressed 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.” This seems to be
the view that has the most support.5 -
RE CAPTURE.
165. Recapture consists in the retaking of a vessel or
other property captured.
The laws of certain nations hold out inducements to their sub-
jects for the capture of vessels, and more especially vessels of war.
Commercial vessels, with their cargoes, being private property, and
possessing, as a rule, considerable value, when recaptured are thus
liberated by the subjects of the same state as the recaptors. That
these vessels and cargo should, under the circumstances, be returned
to the owners, is unquestioned, but those who have undergone the
risks attendant upon making the recapture have a right to be
rewarded for their trouble and risk. The title to the recaptured
property is therefore considered to vest in the government of the
recaptors, whose duty it is to see that‘ those who have undertaken _
the risk and trouble are compensated. The recaptured property
does not return unconditionally to the owner, but is subject to
the claim of the captors for compensation, which is known as sal-
vage.6
5 Heffter, §§ 184a, 188; Wools. Int. Law, p. 253, § 153; Bluntschli, § 729;
2 Halleck, pp. 520, 521; Hall, Int Law, pp. 490-493.
6 Hall, Int. Law, pp. 493-495; 2 Halleck, Int. Law, pp. 521-524; Bluntschli,
§ 740; The Ceylon, 1 Dod. 105; The Santa Cruz, 1 C. Rob. Adm. 50; The
I
214 POSTLIMINIUM. [Ch. 14
SALVAGE.
166. Salvage consists of the compensation made to those
who have saved a vessel or her cargo, or the lives of per-
sons belonging to her, from loss or destruction by ﬁre or
sea, or from capture by pirates or lawful enemies.
Salvage, in this connection, refers only to prize salvage, and this
may be claimed at all times when a vessel belonging to a subject
has been retaken from the possession of the enemy, who has made
an actual or constructive capture of the property, or, in other
words, if the property has been rescued from the hostile control,
and the owner is entitled to restitution. This restitution is made
dependent upon the payment of salvage. The rule of the United
States is to restore vessels, subject to the payment of salvage, pro-
vided there has been no condemnation by a court of prize. Great
Britain restores, subject to the payment of salvage, even though
there may have been a valid condemnation, except in the case of
a recaptured vessel which has been ﬁtted out as an armed vessel.
Tberule as above stated has been generally followed by the ma-
jority of the principal states, with certain modiﬁcations made by
each as conditions upon which restitution will be decreed. France
restores vessels recaptured by a vessel of war, but if recaptured by
a privateer, and held for 24 hours, they are left as prize. The
rate of salvage to be paid varies, in the different countries, from
one-twelfth to one-half of the value. In all cases‘ where the amount
is not ﬁxed by law, it rests with the court, in its discretion."
Carlotta, 5 0. Rob.‘ Adm. 54; Wools. Int. Law, § 151; Wheat. Int. Law, D,
§§ 360-382; Field, Int. Code, pp. 542, 572; 1 Kent, Comm. pp. 108, 109; Greasy,
Int. Law, p. 564. ' ' _
7 For brief statement of the laws of different natio-ns in regard to the
amount of salvage, vide 2 Halleck, Int. Law, pp. 528-531; I-Iall, Int. Law,
p. 495. Vide, also, Field Int. Code, 222-227; Twiss, Law Nat. §§ 174, 175;
Bynkers'hoek, Int. Law, pp. 39, 40; The Santa. Cruz, 1 C. Rob. Adm. 60; The
Adeline, 9 Cranch, 288; The Two Friends, 1 C. Rob“: Adm. 271.
Ch. 14] RESCUE BY NEUTRALS. 215
RESCUE BY NEUTRALS.
167. A neutral government is not required to restore a.
privatev vessel of one 01 its citizens, which has been res-
cued by her crew from her captors before condemnation.
This question arose in the case of The Emily St. Pierre, which
was a British ‘vessel captured by the United States blockading squad-
ron in the act of breaking the blockade of Charleston, S. (3., and
ordered to Philadelphia for adjudication, in charge of a prize crew-
The original crew regained possession of the vessel, returned her
to Liverpool, and delivered her up to her original owners. Upon.-
application for her restoration by Mr. Adams, Earl Russell refused
to grant the request, giving the following reasons: First, since the
rescue was ‘not a violation of any municipal law of England, and
as the vessel was not in the custody of the British government, that
government had no legal right to take her from the hands of her
owners, or to prosecute or proceed against the vessel or the own~
'ers for any violation of law; and, second, that in addition to the
technical objection the oﬁense was one solely against the laws of
war, made for the beneﬁt of captors, which the captors could assert
and vindicate only in their own tribunals. Admitting that rescue
‘was ground for condemnation, he contended that the decree could
only be made by the belligerent prize court. The same question
came up, with the two governments reversed, in 17 99, in the case of
The Experience, in which the United States declined to deliver up-
vthe vessel. It is clearly the duty of the captor to place an adequate-
force on board of the captured vessel, and if, upon mistake being
made as to the sufficiency of this force, or by misplaced conﬁdence,
he fails in that’ object, the omission is considered to be at his own
peril. A peculiar phase of the law in regard to prize arises in
case of a vessel (prize) abandoned by the original captors, and
afterwards brought in by neutral salvors to neutral ‘ports. The
neutral courts can decree salvage. but cannot restore the property
to the original owners, so that when the proceeds of her sale are
received the same, after deducting salvage, belongs to the original
captors, whose title the neutral court cannot impugn.8
8 The Emily St. Pierre, Snow Gas. '361—363; Whart. Dig. § 328; 3 Op. Attys“.
Gen. 377.
216 MILITARY OCCUPATION. [Ch. 15
CHAPTER XV.
MILITARY OCCUPATION.
168. Military Occupation Deﬁned.
169. Extent of the Rights of Military Occupation.
170. The Beginning of Occupation.
171. Constructive Occupation.
172. Rights Exercised over the Persons of the Occupied Territory.
173-174. Practice in Regard to Administrative Matters.
175. Duties of an Occupant.
176. When Occupation Ceases.
MILITARY OCCUPATION.
I
168. When a hostile army possesses a territory of the
enemy, to the extent that it exercises actual authority over
it, either through force or the acquiescence of the inhabit-
ants, this territory is said to be occupied. The extent of
occupied territory is determined by the limits over which
this authority is established and can be exercised.
The effect of occupation is to suspend the authority of the state
within the limits over which the authority of the hostile army ex—
tends, and to substitute for this authority the control of the invader.
The national government of the invaded country exercises no au-
thority over the inhabitants of the occupied territory, nor can it
enforce its orders. The authority of the invader is not the same
as that exercised formerly by the invaded government, since the
sovereignty does not pass from this government until conquest of
the country is complete. Occupation is quite different from con-
quest, the occupied territory remains a part of the state_to which
it belonged, and the inhabitants remain citizens of this state. Occu-
pation is now regarded as authorizing the performance of certain
acts, as incidents of war, which can be performed and are author-
ized upon the broad ground of military necessity. The occupied
territory SlllbllllllS temporarily to the power of the enemy, who es-
tablishes martial law, or an administration which supersedes the
regular government, enforced by military authority, and which per-
Ch. 15] MILITARY OCCUPATION. 217
forms only such acts as are sanctioned by the laws and usages
of war.
Theories in Regard to Occupation.
Under the ancient practice, possession of territory carried with
it the same rights as are attendant upon ownership and sovereignty,
and no distinction was made between occupation, or temporary pos-
session, and conquest. The mere occupation of territory implied
complete ownership, and with it certain incidents in regard to the
inhabitants, who could be and were required to take an oath of
allegiance or of ﬁdelity, and to render to the invader the same serv-
ices that the legitimate sovereign could exact of them. History
furnishes a number of examples in which active service was re-
quired of the inhabitants of invaded places, and of their being
compelled even to serve in the army of the invader. The invader,
also, in some instances, transferred the occupied territory before
the termination of hostilities to third powers. Vattel says that:
“Lands, towns, provinces, etc, become the property of the enemy -
who makes himself master of them; but it is only by the treaty of
peace, or the entire submission and extinction of the state to which
these towns and provinces belonged, that the acquisition is complet-
ed, and the property becomes stable and perfect,”—which is a dis-
tinct departure from the older doctrine.
The next step or theory in regard to occupation seems to have
been that, while the sovereignty of the invaded state was not en-
tirely replaced, yet for certain purposes the invader was supposed
to possess sovereignty, or to exercise a quasi sovereignty, which car-
ried with it a right to the obedience of the inhabitants of the in-
vaded territory, and the obligation not to disturb the permanent in-
stitutions of the country, or recruit his army from the population.
The idea that occupation carries with it a substitution of sovereignty
to the extent that the people of the occupied territory, even though
they have not changed their national character, owe a duty of obe-
dience to the invader, and not to their legitimate sovereign, was
prevalent up to within recent times. It was based upon the prin—
ciple that, their legitimate sovereign not having the power to pro-
tect them, they no longer owed to him the duty of allegiance, which
is impliedly transferred to the new sovereignty. The proclama-
tion of the governor general of Alsace in 1870 is the most recent
218 MILITARY OCCUPATION. [Ch. 15
illustration of this theory, and begins as follows: “The events of
war having resulted in the occupation of a part of French territory
by the German forces, these territories on account of this fact ﬁnd
themselves withdrawn from the imperial sovereignty, in lieu and in
place of which is established the authority of the German powers.”
Mr. Hall, after repudiating any implied contract on the part of the
invaded population to transfer allegiance, says: “The only under-
standing which can fairly be said to be recognized 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 authorized by law, on the condition that, and so long as,
they obey the commands which he imposes, under the guidance of
custom.” This is certainly in accord with the authorities and
jurists of the present day. At the present time military occupation
is regarded as simply a temporary holding by force, conferring in
itself no proprietary rights, but merely conveying a particular or
special administrative authority.1 .
EXTENT OF THE RIGHTS OF MILITARY OCCUPATION.
169. The military occupant has the right to exercise such
control over the occupied territory and its inhabitants as
may be required for his safety and the success of his opera-
tions. I
The invader, at once upon occupation, is invested with absolute
authority, assuming control over the legislative and executive de-
partments, both civil and judicial administration being replaced
1 Hall, Int. Law, pp. 462-467; 3 Calvo, Int. Law, pp. 212-235; Vatt. Int.
Law, bk. 3, c. 13, -§ 197 ; Bluntschli, §§ 539, 541; Wools. Int. Law, § 153;
Creasy, Int. Law, pp. 496-516; 2 Halleck, Int. Law, c. 33; Walk. Int. Law.
p. 347; Mann. Int. Law, p. 188; Whart. Dig. § 3.
U. S. v. Rice, 4 Wheat. 246: “By the conquest and military occupation of
a portion of the territory of the United States by a public enemy, that portion
is to be deemed a foreign country so far as respects our revenue laws.”
U. s. v. Hayward, 2 Gall. 485, Fed. Gas. No. 15,336: “By the conquest and’
military occupation of Castine by the British on September 1, 1814, that ter-
ritory passed under the temporary allegiance and sovereignty of the enemy.
The sovereignty of the United States over the territory was suspended dur-
ing such occupation, so that the laws of the United States could not be right-
Ch. 15] THE BEGINNING or OCCUPATION. 219
by military jurisdiction. It is his duty to exercise his authority
within the bounds established by military necessity, and to remem-
ber that his authority is temporary in character. He can permit
the maintenance of the civil and judicial administration, entirely
or in part, as it existed before occupation, with the understanding
that this administration is subordinate to the military authority.
It is forbidden, generally, to interfere with the exercise of religion,
unless in the extreme case of these ceremonies tending to cause
an outbreak. It is not considered lawful to vary or suspend laws
affecting property and private personal relations, or the moral or-
der of the community, or to suppress the expression of opinion, ex-
cept in so far as it may directly interfere with his plans or peace
negotiations.2 ‘
A
THE BEGINNING OF OCCUPATION.
1'70. De facto occupation begins at the moment local re-
sistance to the actual presence of the invading army has
ceased.
The above does not give the exact deﬁnition of time of commence-
ment of occupation, as actually practiced, but it states the rule that
is most favored by writers of authority. It assumes that occupa-
fully enforced there, or be obligatory upon the inhabitants who remained
and submitted to the conquerors. But, on the other hand, a territory con-
quered by an enemy is not to be considered as incorporated into the domin-
ions of that enemy, without a renunciation in a treaty of peace, or a long
and permanent possession. Until such incorporation, it is still entitled to
the full beneﬁt of the law of postliminy.”
2 Am. Inst. arts. 1-30 (Append. p. 339), is devoted to the rules governing the
armies of the United States in regard to the important subjects of martial law,
military jurisdiction, and military necessity. Article 1: “A place, district, or
country occupied‘ by an enemy stands, in consequence of the occupation, un-
der the martial law of the invading or occupying army, whether any procla-
mation declaring martial law or any public warning to the inhabitants has
been issued or not. Martial law is the immediate and direct effect and con—
sequence of occupation or conquest. The presence of a hostile army pro-
claims its martial law.”
For full discussion of the subjects of martial law and military government,
vide treatise by this title by W. E. Birkimer, of the United States army.
Vide, also, Hall, Int. Law, 469, 470; Bluntschli, §§ 539, 540; New Orleans
220 MILITARY OCCUPATION. [Ch. 15
tion, in order to be valid, must be effective, and that the true test of
its existence is the fact of exclusive possession, and that that por-
tion of a given territory is occupied which is within striking dis-
tance of the invading force which is sufficiently strong to quell a
prospective uprising, and that local resistance has,for the time
ceased. This places occupation on identically the same basis as
blockade. It gives to an invader no greater power than he actually
possesses. It requires him to prove his occupation by his ability to
repress an outbreak by means of a force of sufﬁcient strength for the
purpose. It avoids the abuses which are attendant upon occupa-
tion by means of ﬂying columns, or by means of a force entirely
inadequate for the enforcement of rights attendant upon his occupa-
tion.3
CONSTRUCTIVE OCCUPATION.
1'71. Constructive occupation implies a liberal interpre-
tation of the term territory, and that occupation is com-
plete within a district forming an administrative unit, so
soon as military resistance on the part of the organized
forces of the state ceases, and notice is posted, or given
in some other manner, at a given place.
This is the view of occupation that was practiced by the German
army in France in the war of 1870-71; also by Napoleon in the
wars of the early part of this century. Giving notice of occupation
by placard is very similar to what is termed a paper blockade.
The consequences in the case of occupation are far more serious
than in that of blockade, and far more weighty reasons exist for
discarding any such theory in regard to its enforcement. This
practice also assumes that occupation does not cease on account of
the absence of the invading force, and particularly if ﬂying columns
v. Steamship Co., 20 Wall. 258; The Venice, 2 Wall. 258. A limitation on
the right of the occupant in Jecker v. Montgomery, 13 How. 498: “Neither
the President of the United States, nor any inferior executive ofﬁcer, can es-
tablish a court of prize in territory occupied by American troops, competent
to take jurisdiction of a case of capture jure belli.”
8 Vide Brussels Conference, Append. p. 389; ‘Code Inst. Int. Law, art. 41;
Hall, Int. Law, 480-485; 2 Halleck, Int. Law, c. 33, §§ 1-3; Walk. Int. Law,
1). 344; Davis, Int. Law, pp. 250, 251.
Ch. 15] RIGHTS ovER THE PERSONS OF OCCUPIED TERRITORY. 221
can, in passing through, inﬂict punishments upon the inhabitants
for disobedience of orders subsequently issued, or for uprisings
against forces unable to resist them at the time. Nor does such
occupation cease on account of a temporary overthrow of the au-
thority of the invader, even though the original government has
been re-established. The practice, as indicated above, cannot be
defended upon any sufﬁcient grounds, for all the rights that are
acquired under occupation arise from the ability to enforce them
effectively. Just so soon as an adequate force is present, the rights
become operative, and cease to be operative with its withdrawal;
and again, the assumption that an invader, who has withdrawn his
forces from an occupied territory, possesses a stronger claim on
this territory than the original government,—assuming that the
latter does not have a force to occupy it,-which therefore occupies
the same status with regard to it, is erroneous, as the presumption
should be in favor of the authority of the latter. Mr. Hall very
properly says: “As a matter of fact, except in a few cases, which
stand aside from the common instances 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 theJempIoyment of inadequate forces, con-
stitute 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.” ’*
RIGHTS EXERCISED OVER THE PERSONS OF OCCUPIED
TERRITORY.
1'72. All laws implying or importing obedience to the
original sovereign are suspended. Certain acts not ordi-
narily punishable are rendered so. Summary punishment
is authorized for certain acts, and the death penalty is
awarded in certain cases, where the offense is such as to
authorize such punishment by the laws and usages of
war.
4 Greasy, Int. Law, p. 502; Wools. Int. Law, pp. 227-229.
222 MILITARY OCCUPATION. [Ch. 15
The reasons for suspension of rules requiring obedience to the
natural sovereign have been sufficiently discussed. The reasons
for rendering acts punishable which are not ordinarily so, and for
suspending to a certain extent the rights of personal liberty, are
that the personal security of the new authority demands it; and
as the inhabitants of the country are naturally hostile to the in-
vader, more extensive repressive measures become necessary in
order to compel obedience. Summary measures are rendered com-
pulsory under the changed conditions. The death penalty is au-
thorized to be imposed in cases of persons who give information
to the enemy, of those who serve as guides to the troops of their
own country, or of those who, serving as guides to the invader, in-
tentionally mislead him, and of those who destroy certain classes
of property, such as telegraphs, roads, canals, bridges, soldiers’ quar~
ters, etc.; also of “war rebels, who are deﬁned as persons within an
occupied territory who rise in arms against the occupying or con-
quering army, or against the authorities established by the same.
If captured, they may suffer death, whether they rise singly, or in
small or large bands, and whether called upon to do so by their
own, but expelled, government or not. They are not prisoners of
war, nor are they, if discovered and secured before their conspiracy
has matured to an actual uprising, or to armed violence.”* The
classes mentioned are, as stated, punished with the death penalty,
and, in addition, these and other acts are restrained by making
the inhabitants of occupied districts collectively responsible. These
are punished by ﬁnes, etc., or the burning of their houses, villages,
etc. These inhabitants are at times punished, although they may
not be in any manner responsible for the acts committed.5 Hos-
tages are sometimes taken in order to guaranty the maintenance
* Am. Inst. art. 85; Append. p. 353.
5 The military governor (German) of Lorraine, on account of the destruction
of a certain bridge, ordered the district in which located to pay a ﬁne of
10,000,000 francs, and that the village of Fontenoy be burned; and it was or-
dered by proclamation that a special contribution would be levied in those
districts where railways or telegraphs were destroyed, irrespective of whether
these communes were in any manner responsible. Hall, Int. Law, pp. 471-
475; 4 Calvo, Int. Law, § 2166 et seq., for full discussion of effect upon per-
sons in occupied territory. Creasy, Int. Law, p. 516.
The following proclamation of the Crown Prince upon entering France in
Ch. 15] RIGHTS OVER THE PERSONS OF OCCUPIED TERRITORY. 228
of order in occupied territory. This was resorted to by the Ger~
mans, during their occupation of France in 187 0, to an extent far
beyond the recognized usages of war, and their treatment has been
very justly condemned. These hostages were required by the Ger/
man authorities to be seized and placed upon the engines of trains
to insure against accidents, it being announced that, in case of such
accidents, their compatriots would be the ﬁrst to suﬁer. The pres-
ent treatment of hostages recognizes only the right to conﬁne them,
and certainly does not contemplate exercising any such power over
them as the foregoing indicates.“
August, 1870, gives a very correct and connected idea of the German con-
struction of their rights:
“1. Military jurisdiction is established by this decree. It will be ap-
plicable to the entire extent of territory occupied by German troops, to every
action tending to endanger the security of those troops, to causing them in-
jury, or lending assistance to the enemy. Military jurisdiction will be con~»
sidered as in force and proclaimed through all the extent of a canton as soon
as it is posted in any locality forming part of it
“2. All persons not forming part of the French army, and not establishing
their quality as soldiers by outward signs, and who (a) shall serve the
enemy as spies; (b) shall mislead the German troops when charged to act
as guides for them; (c) shall kill, wound, or rob persons belonging to the
German troops or forming part of their suite; (d) shall destroy bridges or
canals, damage telegraph lines or railways, render roads impassable, set ﬁre
to munitions and provisions of war or the quarters of troops; (e) shall take
up arms against the German troops,-—shall be punished with death. In each
case the ofﬁcer ordering the procedure will institute a council of war charged
to investigate the affair and pronounce judgment.
“3. The communes to which the culprits belong, as well as those Whose
territory may have been the place of the offense, will be ﬁned as a penalty
for each offense an amount equaling their annual taxes. The councils of
war can impose no other punishment than the death penalty. Their judge
ments will be executed immediately.”
Hall, Int. Law, pp. 472-475, note, which gives the practice of Napoleon also.
Walk. Int. Law, pp. 345~347.
6 Hall, Int. Law, 472; Calvo, Int. Law, §§ 2159, 2160; Bluntschli, § 600,
and notes.
224 MILITARY OCCUPATION. [Ch. 15
PRACTICE IN REGARD TO ADMINISTRATIVE MATTERS, ETC.
1'73. The occupation of territory authorizes taking and.
exercising complete control of the administration, but the
practice is to permit such native oﬂicials as may be deemed
desirable to perform their duties under supervision of the
military authorities, or officers appointed by the occupant.
1'74. The 'civil~ officers thus retained can be required to
take an oath of obedience or ﬁdelity to the new rulers
during the occupation, and for refusing to do so may be
expelled.
The employment of the native officials for minor oflicers is useful,
because of their knowledge of the laws, and their familiarity with
the existing methods renders the maintenance of order more easy
for the new rulers. The oath required of them should not imply
allegiance to the new sovereign, but that they will obey his orders,
and perform no acts which are prejudicial to his interests during
the occupation.7
DUTIES OF AN OCCUPANT.
175. The invader should, at as early a date as practicable,
inform the inhabitants of the extent of the’ occupied dis-
trict, and the extent of the powers, he exercises, should
take measures to secure public order and tranquillity,
should nullify or alter existing laws as little as practicable,
should not commit wanton damage, and should protect cer-
tain classes of public buildings, works of art, etc.
The obligations of the occupant arise from the fact that he has
suspended or replaced the ordinary system of rules by his own will,
and he owes it to society to establish order and deﬁne the limits
7 Am. Inst. art. 26 (Append. p. 343), authorizes the commanding generals to
cause the magistrates or civil ofﬁcers to take the oath of temporary allegiance,
or an oath of ﬁdelity to their own victorious government or rulers, and au-
thorizes expulsion of any one who declines to take it. For form and general
discussion of the nature of this oath, vide Hall, Int. Law, p. 476, note;
Bluntschli, § 551; Calvo, Int. Law, § 2186.
Ch. 15] _ WHEN OCCUPATION CEASES. ' 225
of his’ will without unnecessary delay. His government being nec-
essarily temporary, nothing of special beneﬁt can accrue by the
complete change of the established order of government. He owes
it to humanity to inﬂict no unnecessary injury upon persons, or
to destroy unnecessarily property that will not tend to assist him
to bring to a close more speedily the issues of the war. No special
obligations are imposed upon the inhabitants of the occupied dis-
trict by the fact of occupation.8
WHEN OCCUPATION CEASES.
176. Occupation ceases when the occupying army is dis-
possessed, either by the operations of the national or allied
army, or by local insurrection, and the public exercise of
I the legitimate sovereign authority is re-established, and,
ﬁnally, when the invading army is withdrawn, so as to be
unable to exercise actual control.
The difference between the two theories has been discussed, and
it is to be hoped that practice will in future conform to the prin-
ciple that occupation must be effective in order to be recognized.
But this does not imply that certain places may not be occupied
without having an army actually present, for, as suggested by Mr.
Hall, “it must be admitted that the country which is covered by
the front of an army, although much of it 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.” °
‘ 8 Code Inst. arts. 42.-60‘; Append. p. 382; Hall, Int. Law, § 160; Am. Inst.
arts. 1.4-6, 31-34; Append. pp. 340, 345.
9 Hall, Int. Law, pp. 481-485.
lNTERNAT.LAW——15
226 MEANS or CARRYING oN HOSTILITIES. , [Ch. 16
CHAPTER XVI.
MEANs OF CARRYING ON HOSTILITIES.
177. Instruments of War. -
178. Limitation upon Instruments Used—Use of Instruments Rendering
Death Inevitable.
179. , Devastation. _
180. Attack of Forts, Fortiﬁed and Other Places.
181. Employment of Deceit.
182. Spies.
183. Employment of Balloons.
INSTRUMENTS OF WAR.
177. Upon the general right to employ all and every
violence upon the enemy and his property that may be
necessary to reduce him to- terms, certain restrictions have
been placed, as follows: ‘
SAME—INSTRUMENTS RENDERING DEATH INEVITABLE.
1'78. The use of weapons which render death inevitable,
or inﬂict suﬂ‘ering distinctly disproportionate to the crip-
pling effect upon the enemy, is prohibited.
The implements of war that may be used in war against an enemy
are not limited to such as are generally used for the purpose of
killing, such as swords, ﬁrearms, cannon, etc., but also secret and
concealed means of destruction, such as pits, mines, etc., may be used.
The amount of destruction or suffering is’not material, provided the
result obtained is proportionate thereto. The test of the proper in-
struments of War is not in their capacity for inﬂicting death, but
rather in their capacity for causing aggravated or unnecessary suf-
fering. A copper or other bullet which inﬂicted a poisonous wound,
so also a barbed bayonet, a detachable lance head, or a small, ex-
plosive bullet, of seven-eighths of a pound or less, are considered
illegal.1
1 Bluntschli, §§ 557, 558, bis.; Wools. Int. Law, § 133; Code Inst. Int. Law,
§§ 8, 9; Append. p. 377; Hall, Int. Law, § 185.
‘Ch. 16] ATTACK or roars, FORTIFIED AND OTHER PLACES. 227
SAME—DEVASTATION.
179. Devastation is now regarded as permissible only
when it is a necessary incident to ordinary military ac-
tion, or when necessary’ to the preservation of. the force
committing it from destruction or surrender. In the latter
case, if the result is far-reaching and lasting in effect, the
necessity must be very patent and extreme.
As an instance of devastation in connection with ordinary military
operations may be mentioned the removal of houses or trees to
‘enable a better or more eﬁective attack or defense of a place, or
when a village is burned to cover the retreat of an army. The
destruction of Newark in 1813, and of the public buildings at Wash-
ington in 1814, are familiar examples of devastation in an enemy’s
country that have no justiﬁcation. Another example of a some-
what different nature was the laying waste of a large tract of coun-
try and destruction of their capital by the Russians in 1812, as a
result of which Napoleon’s army was compelled to retreat‘ from the
country, but this was accomplished by complete loss of their homes
by more than 200,000 people. This example is not likely to be re-
peated, and, if such destruction occurred in an enemy country,
would command and deserve the disapprobation of the entire world.2
ATTACK OF FORTS, FORTIFIED AND OTHER PLACES.
180. A distinction is made between forts or fortiﬁed
places and undefended towns, it being permissible to em-
ploy practically any means for assailing' the former that
may prove successful, while it is now considered unlaw-
;ful to bombard an open or undefended town.
It is believed that the practice in regard to the attack of unfor-
tiﬁed places which is recognized as conforming to modern usage,
.and is incorporated into the Oxford Code of the Institute, aifords
.a protection to the unfortiﬁed towns upon the seacoast of the United
2 2 Halleck, 1111:. Law, pp. 117-119; Vatt. Int. Law, bk. 3, c. 7, §142; Hall,
‘Int. Law, pp. 531-535.
228 MEANS oF CARRYING 0N HOSTILITIES. [Ch. 16
States. The excesses which were formerly permitted in the occupa-
' tion of towns have now passed away, certainly as to pillage, rape,
and murder. In the fortiﬁed places of today are to be found many
non-combatants, but the practice is to place the fortiﬁcations out-
side of the town far enough to be without the reach of siege guns,
whenever practicable. It is also customary to notify the inhab-
itants of a place which is to be attacked. This is not compulsory,
and in the Franco-German war no such notice was given. This
omission was the cause of remonstrance on the part of the foreign
diplomatic officers, who were informed by Bismarck that no necessity
existed for giving any such notice. Another practice which was
resorted to by the Germans in this same war consisted in the bom-
bardment of the houses of the town itself, in order to bring a
stronger pressure upon the commanding ofﬁcer, and induce him to
make an earlier surrender, thereby preventing the suﬁering of non-
combatant inhabitants. It is true that this method of attack is
sanctioned by usage, but it should be resorted to only in extreme-
cases, as it is a measure of extreme cruelty, and the results accom-
plished are not proportionate to the suffering imposed. The de-
fense of such places has caused much discussion, especially in regard.
to the duties of the‘ commanders of such besieged places to surren-
der. It seems now to be settled that the question of holding out
in such defense is left to the discretion of the commandant, who
is to be the sole judge, and cannot be punished for the exercise of‘
his discretion. In former times an ofﬁcer who held out as long
as possible in defense of such‘ places was liable to be punished
with death, but at the present time he can maintain the defense so
long as he deems that such course will be of material beneﬁt to his
own government. But when no such consideration exists, and all
hope of success has departed, it is his duty, on the grounds of
humanity, to surrender, and thus spare further sacriﬁce of life,
or, should he prefer, he may cut his way through the enemy’s lines,
if possible; but in all cases of surrender he is entitled to have him--
self and command considered and treated as prisoners of war.3
8 Bluntschli, §§ 552-554, ter.; Declaration of Brussels, art. 17; Hall, Int. Law,
p. 535; Code Inst. Int. Law, arts. 31-34; Append. p. 380; Vatt. Int. Law, bk. 3,.
c. 8, §§ 142, 143; Davis, Int. Law, pp. 219-222; Calvo, Int. Law, § 2067 et seq.
Bluntschli, supra, says: “The defender of a threatened place must call the in-
[Ch. 16 EMPLOYMENT OF DECEIT. 229
EMPLOYMENT OF DECEIT.
181. Deceit can, as a rule, be employed against an en-
emy, but it must be of such a nature as to involve no
perﬁdy or breach of good faith, and must not- contravene
treaty stipulations. '
The use of deception is permitted because so much employed for
the purpose of avoiding actual conﬂict, as, for example, to render
an attack unnecessary by inducing the enemy to surrender or come
to terms, or evacuate a place in his control, and again it is used for
the purpose of gaining an advantage before attack. It is not per-
missible to deceive by the use of acts or signs that have a recognized
meaning in the necessary intercourse between belligerents by the
usages of war; for instance, information cannot be obtained by
using a ﬂag of truce, nor can a building be properly protected by
marking it with a hospital ﬂag, unless it be in reality used as such,
nor can persons not covered by the provisions of the Geneva con-
vention make use of the prescribed cross for protection. Decep-
tion is permitted to the extent of using the enemy’s uniform or
flags or colors, but, before commencing actual hostilities, troops and
.habitants, attention to the dangers they run in remaining, and must make no op-
position to their leaving, unless military operations specially require it. When
the defender of a stronghold expels the inhabitants (non-combatants) in order
to be able longer to defend the place against the ‘enemy, this measure is excus-
able if it is demanded by military necessity. But the besiegers can, without
violating the laws of war, refuse to permit the expelled inhabitants to leave,
and in this case the commander is bound to permit them to re-enter the place.
The usage is that besiegers announce, when possible, their intention of bombard-
ing the place, in order ‘that the non-combatants, and specially the women and
children, can depart or contrive means for their safety. It may, however,
be necessary to surprise the enemy in. order to carry the position, and in such
case the non-announcement of the bombardment will not constitute a viola-
tion of the laws of war. Open towns, which oppose no resistance, can be occu~
pied; but it is forbidden to bombard them without necessity. \Vhen a town
is attached to fortiﬁed works, the bombardment, when necessary for mili-
tary reasons, must particularly be directed upon its defenses (including the
doors of the inclosing walls) and in their immediate vicinity. The interior
of the town and parts inhabited by the civil population must, on the con-
trary, be spared as much as possible.”
230 MEANS or CARRYING oN HOSTILITIES. [Ch. 16
vessels must put on their proper. uniform, or hoist their proper
colors. There seems to be a diﬁerence of opinion as to the rule in
regard to the use of such deception on the part of vessels. Some
authorities state that the affirming gun can be ﬁred only under the
national ﬂag, while others maintain that, such gun not being an
act of hostility, no good reason exists for not ﬁring it. under false
colors; and Mr. Hall goes further, in saying that no good reason
exists for denouncing the use of the ruse even during actual hostili-
ties, since the disguise is at that time useless for further serving the .
purpose ‘for which it was employed, but he admits the desirability
of enforcing the rule in regard to conﬂicts on land.‘
SPIES.
182. A spy is a person who penetrates secretly, or
in disguise, or under false pretenses, within the lines of
an enemy, for the purpose of obtaining information for
the army employing him.
Obtaining information through the employment of spies is consid-
ered as perfectly legitimate, although the spy, if caught by the
enemy, and found guilty by court-martial, is punishable with death
by hanging. The inﬂiction of so severe a punishment for this
oﬁense, except in the more dangerous cases, is now criticised as be-
ing out of all proportion to the oﬁense committed. It is necessary
that the element of disguise or concealment should enter, in order
to constitute the oﬂense; so that a person entering the enemy’s
lines in his proper uniform must be treated as a prisoner of war, if
captured. It is the duty of the enemy to maintain a suitable line
of outposts, to prevent individuals from passing them. The posi-
tion of a spy is peculiar, in that the duty is‘ not compulsory, and, if
undertaken by an individual of the army, it is with a full under-
standing of the consequences if caught, and the fact of authoriza-
tion by the government that employs him does not authorize retalia-
tion for his punishment by the enemy. In case an individual who
4Hall, Int. Law, pp. 535-537 ;' Bluntschli, § 565; 2 Halleck, Int. Law, pp.
24-30; Am. Inst. art. 101; Append. p. 356; Wools. Int. Law, § 133; Davis,
Int. Law, p. 241. ' ~
Ch. 16] EMPLOYMENT. OF BALLOONS. 231
has acted as a spy succeeds in returning to his command, and is
afterwards captured, he cannot be punished for an oﬁense as a spy
previous to his return.‘5 3
EMPLOYMENT OF BALLOONS.
183. Persons in balloons passing over territory occu-
pied by the enemy, possessing neither secrecy, disguise,
nor pretense, are not rated as spies.
The rule as stated by Mr. Bluntschli, is that: “Inasmuch as the army
of , occupation can exercise an effective power over the atmosphere
extending over the occupied territory to the distance of cannon
range, it has authority to prevent information through the use of
balloons. But the space above its cannon range is not subject to
the rules and penalties prescribed by the enemy. If, on the other
hand, the enemy’s army should capture a balloon, it is authorized
to use every measure of safety that is recognized as necessary,
whether it consists in seizing letters and dispatches, or in tempo-
rarily detaining the aeronauts and passengers, although they have
committed no offense against the laws of war.” The German army,
in their war with France, maintained that all persons who attempted
to pass the Prussian outposts without permission, whether by land
or by-water or by air, were legally transported to Prussia under
suspicion of being French spies.“
5 Hall, Int. Law, § 188; Bluntschli, §§ 628-636; Am. Inst. § 5; Append. p.
340; Halleck, Int. Law, pp. 30—34; Vatt. Int. Law, bk. 3, c. 10, § 179; Code
Inst. Int. Law, arts. 22-25; Append. p. 379. _
6 Bluntschli, §632 bis.; Hall, Int. Law, 538, 539.
232 ENEMY CHARACTER. [Ch.' 17
CHAPTER XVII.
ENEMY CHARACTER.
184. To Whom Attributed.
185. Domicile.
186. Change of Domicile.
187. House of Trade.
188. Enemy Character as to Property.
189. Transfer of Property in War, or in Anticipation of War.
190. Merchandise.
191. Vessels.
192. Transfers in Transitu.
193. Goods Consigned from Belligerent Ports by Belligerents to Neutrals,‘
and Vice Versa.
194. Effect of Occupation by the Enemy of Territory of other Belligerent.
TO WHOM ATTRIBUTED.
184. Enemy character is attributed, under certain cir-
cumstances, to others than citizens of the enemy state.
In certain cases a neutral may become an enemy by rendering ac-
tive and intentional assistance to the enemy. This may be done
directly by taking service in the enemy country, or, indirectly, by
establishing himself in that country without taking active service.
By contributing to the support of the enemy he renders himself lia-
ble to be treated, either as to his person or property, or both, as
an enemy. Thus, the subject of a belligerent, by establishing him-
self in the enemy country in this manner, even without loss of his
nationality, may render service to the enemy country in which he '
lives by contributing in the way of taxes to its support. His prop-
erty is thus a source of strength to the enemy, and it may certainly
be treated as hostile. Should the subject of an enemy country es-
tablish himself in a neutral‘ country, he naturally becomes more
tho-roughly identiﬁed with this latter country than with his own, and
would be regarded more as a neutral than an enemy. From the
foregoing it is apparent that the bare fact of nationality will not,
in all cases, be controlling in determining enemy character._ The
. Ch. 17] DoMIcILE. 233
test upon which most reliance is placed, in order to determine the
character of persons and property, is that of domicile.1
DOMICILE.
185. Domicile is deﬁned as a residence at a particular
place, accompanied with positive or presumptive proof of
intention to remain there for an unlimited time.
The domicile of a person is one of the controlling tests of his na-
tionality, and so important is it that, upon the question of domicile
alone, the Supreme Court of the United States condemned property
during the civil war.2 The conditions under which the domicile
of individuals is to be determined are so various that it is diﬁicult
to state any certain one that is conclusive. The intention of the
party is the one thing to be determined, but such intention must be
coupled with overt acts, since, taken alone, it is not conclusive even
when overtly expressed, and particularly in case this open decla-
ration is not followed by some act in pursuance thereof.3 The two
most important elements in determining what will create a reason-
able presumption that a person intends to acquire domicile at a
particular place are object and time,-the latter being by far the
more conclusive. If a person goes to a country with the purpose of
establishing a ﬁxed business, he acquires a domicile in that place
1 Pitt-Gobbett, Gas. Int. Law, pp. 183, 184; Hall, Int. Law, pp. 491-493.
2 Prize Cases, 2 Black, 635: “It was decided: First, that, if a place was in
the ﬁrm possession and under the control of the rebel enemies, it was for the
time, and in the technical sense of the prize law, enemy’s territory; second,
that the property of an enemy domiciled in that place at the time of capture
was liable to condemnation as enemy’s property, in the sense of the prize
courts; and, lastly, that although the owner was a citizen of the United
States, and had always resided in that place, which was held to be of right
a part of the United States, and of right a proper place of residence to consti-
tute citizenship of the United States, yet the property of such a person was
to be condemned without inquiring whether he was or was not, in his inten-
tions or acts, loyal or disloyal. No offer was made in these cases to prove
an attempt to change domicile, and to remove beyond the reach of the ene-
my’s control, before the capture.” Wheat. Int Law, D, note 160.
8 1 Halleck, Int. Law, p. 363; The Frances, 8 Granch, 335; ‘The President,
5 C. Rob. Adm. 277.
' 234 ENEMY oHARAcTER. [Ch. 17
as soon as he establishes himself, because the element of perma-
nence goes with such intention. If on the other hand his business
is of a temporary nature, an extended stay, beyond the time of the
accomplishment of his purpose, does not necessarily establish a
domicile, and will not do so unless his length of stay is sufﬁciently
extended to rebut the original presumption of a temporary stay. In
determining the effect of an extended residence, coupled with an
original purpose of temporary stay, the existence of war would cause
a close scrutiny of the attendant circumstances, and if the person
had remained during a large portion of the war, and contributed
to the expenses thereof by payment of taxes or other means, his
domicile would probably be held to be that of his residence, in spite
of his original special purpose. As stated, time is one of the con
trolling elements in determining domicile, but it is impossible to
state just what length of time will be determined to be sufficient to
ﬁx domicile. Should a merchant come into a country just before
war is declared for a purpose which clearly showed that his stay
was to be temporary, time should be permitted him in which to
close up his aﬁairs before an acquired nationality is attached to
him. The presumption of law in regard to residence in a foreign
country is that the party is there animo manendi, and this pro-
sumption is to be rebutted by evidence to the contrary. This may
be done in numerous ways, as by showing that his family resides,
and his own residence is with them, in some other country, and that
his stay was to be but temporary in the belligerent country, and
that his business was not of such a nature as to identify him with
this country sufﬁciently to cause him to acquire its nationality.4
4Upon the subject of domicile, vide Hall, Int. Law, pp. 493-501; Pitt-
Cobbett, Cas. Int. Law, p. 183. “This [domicile] may be a permanent domi—
cile accompanied by naturalization, or it may be a domicile involving merely
a civil status, the national character or political status of the party remain-
ing unaffected.” 1 Halleck, Int. Law, pp. 360-367; Wheat. Int. Law, D, pp.
403, 419; 3 Phillim. pp. 128, 603, et seq.; Bluntschli, § 367; Wools. Int. Law,
§§ 71—76, 183; The Harmony, 2 C. Rob. Adm. 322; Vatt. Int. Law, bk. 1, c. 19, §
218; Levi. Int. Law, 253, 254; Walker, Int. Law, 251 et seq.; Calvo, Int. Law,
§1936 et seq.; The Venus, 8 Cranch, 253; The Phoenix, 5 C. Rob. Adm. 20.
Davis, Int. Law, p. 116 et seq., draws a distinction between domicile, a domi-
ciled stranger,‘and a citizen, as follows: “Domicile may be deﬁned as the
place which an individual has freely chosen as the center of his domestic
Ch. 17] CHANGE OF noMIcILE. 235
CHANGE OF DOMICILE.
186. Domicile may be changed, even during the exist-
ence of war, by actual ‘removal to another country, or
by taking steps, bona ﬁde, to quit a country sine animo
revertendi.
It is one of the rules of domicile that it must be freely chosen, so
that, being acquired for private purposes of business or pleasure, the
individual should be permitted to change it at will. The change
after the commencement of hostilities will be scrutinized more care-
fully to determine the good faith of the change of residence, but
if this isnot impugned, all of the consequences of changed condi-
tion follow, and the party is entitled to have his character changed
from that of a belligerent to that of a neutral or friend.5 In the
case of The Venus, the facts showed that this vessel was owned by
citizens of the United States who had become domiciled or had re~
sided in Great Britain for some time, and were engaged in com-
merce there, that this vessel sailed from Great Britain before the
outbreak of hostilities between the two countries in 1812, and before
the owners had knowledge of the war, but was captured after the
outbreak of hostilities. The goods were condemned, although the
principle, that the right to change residence to the former domicile
by election was admitted, but, until that election he made, the
goods were subject to capture by the vessels of the country of domi-
cile.6
and jural relations, and a domiciled stranger is an alien who, for purposes
of residence or business, has selected a certain place as his durable abode,
with no present intention of removing therefrom. The citizen is a creature
of the municipal law of a state, with which other states ordinarily have no
concern. * * * Domicile is a fact, and, when the domicile of an individual
is drawn in question, is proved, like other facts, by evidence as to residence
or intention. Citizenship ‘results from birth, or the operation of law, and is
acquired by undergoing a legal process, the various steps of which are regu-
lated by the municipal law of the state. It is, moreover, a matter of legal
record; and, when the citizenship of an individual is questioned, it is estab—
lished by a duly authenticated certiﬁcate or origin or naturalization.”
5 Hall, Int. Law, 501. ' .
6 The Venus, 8 Cranch, 253; Hall, Int. Law, pp. 500, 501; Field, Int. Law,
p. 152 et seq; Walker, Int. Law, p. 253; Whart. Dig. § 352.
236 ENEMY CHARACTER. [Ch. 17
HOUSE OF TRADE.
187. A house of trade takes the national character of the
country in which it is situated, but this rule does not‘ apply
to a house of trade in a neutral country of which the own-
ers, or part of them, are domiciled in an enemy country.
Mr. Wheaton, after stating the rule substantially as above, in
commenting upon the rule of imputing enemy character to a house
of trade in a neutral country which is owned by a merchant resi-
dent in a belligerent country, said that it showed a want of reci-
procity and strong marks of partiality towards the interests of cap-
tors, but, as was clearly shown by Mr. Dana, there is no chance for
reciprocity in such case-s, since reciprocity implies two parties, who
make some equitable exchange or offset of rights or beneﬁts yielded
or enjoyed. The cases stated in the text are rather those of two
positions of a third party, each having an element of hostile con-
nection, presented conversely. “The question in each case is, whether
the element of hostile connection or control which it presents, is
sufﬁcient to warrant a belligerent in taking the property jure belli.”’
The above rule, in so far as it is applicable to persons who had been
in the habit of trading during peace in one of the belligerent coun-
tries while residing in a neutral country, would not be enforced at
once, or until a sufﬁcient time had been permitted such persons to
withdraw from such commerce, but, in case they continue to trans-
act business in such countries after the outbreak of hostilities, the
rule would in time be enforced. In the case of a person engaged
in business in two countries, one of which is neutral and the other
belligerent, he would be considered, in regard to a given transac-
tion, as either neutral or' belligerent, according to the origin of
this transaction. When a business is conducted in a belligerent
country through an agent, the owner being resident in a neutral
country, and carrying on an ordinary neutral trade, the character
of this trade is determined by the circumstances of each case. The
fact of having an agent in the belligerent country is not sufﬁcient
in itself to establish enemy character. Should special concessions
1 Wheat. Int. Law, D,"§ 335, and note 1c1.
Ch. 17] " ENEMY CHARACTER As To PROPERTY. 237
be made to the trade or business, as, for instance, the creation of
a monopoly, then enemy character would attach, notwithstanding
the non-residence of the owner. The rule of law in regard to con-
suls who are conducting a mercantile business is not, by this fact,
changed either in the United States or England, but is otherwise
in France.8
ENEMY CHARACTER AS TO PROPERTY.
188. Property, in addition to its assuming enemy charac-
ter by being attendant "upon its owner, may assume such
character by virtue of its origin, or by the use to which it
is applied. - "
Property is considered as hostile by its origin when it consists
of the produce of lands situated in a belligerent state, even though
the owner does not have his residence in this state. In the case of
Benson v. Boyle'the United States Supreme Court held that “wher-
ever the owner may reside, that land is hostile or friendly accord-
ing to the condition of the country in which it is placed. It is
no extravagant perversion of principle, nor is it a violent offense
to the course of human opinion, to say that the proprietor, so far
as respects his interest in this land, partakes of this character:
and-that the produce, while the owner remains unchanged, is sub-
ject to the same disabilities.” 9 Property which is not belligerent,
either by origin or by the national character of its owner, can be-
come such by being employed or used by a belligerent. Thus a
vessel owned by a neutral but manned by. a belligerent, employed
_ in a belligerent trade, or that accepted a belligerent license, or was
found ﬂying under belligerent colors, would be regarded as bel-
ligerent.10
BWheat. Int. Law, D, §§ 334, 335; Hall, lnt. Law, pp. 501, 502; Calvo,
Int Law, § 1965; The Anna Catharina, 4 G. Rob. Adm. 119; The J onge Klas—
sina, 5 0. Rob. Adm. 302; The Friendschaft, 4 VVhea-t. 105. For rule as to
consuls, vide The Indian Chief, 3 G. Rob. Adm. 12.
9 Bentzon v. Boyle, 9 Granch, 191; The Phoenix, 5 G. Rob. Adm. 20; Wheat.
Int. Law, §§ 336-339, Dana’s note, 162; Hall, Int. Law, pp. 502, 503.
10 The Vigilantia, 1 G. Rob. Adm. 13. '
238 ENEMY CHARACTER. [Ch. 17
TRANSFER OF PROPERTY IN WAR, OR IN ANTICIPATION
OF WAR.
189. Transfers of property during war, made with fraudu-
lent intent by a belligerent to a neutral, need not be recog-
nized by the other belligerent. '
It may be said that a neutral has the general right to carry
on trade with a belligerent during war, but this general right of a
trade is subject to the right‘ of the other belligerent to prevent
such trade as may be of direct beneﬁt to his enemy in the prosecu-
tion of the struggle, and the above rule may be said to be par-
ticularly applicable to such property as may be liable to capture‘
at sea, as this is the class of property with the transfer of which
fraud is most likely to be connected. The rules of war permit a bel-
ligerent to seize the property of his enemy, so that if the transfer
of property by a belligerent enemy to a neutral is attended with
fraud, the other belligerent is authorized to refuse recognition of it,11
SAME—MERCHANDISE.
190. Merchandise acquired by a neutral from a bellig-
erent, if purchased in good faith can be exported from
the belligerent country.
SAME—ITESSELS.
191. According to the English and American. practice,
sales ‘of vessels follow the same rule, but according to the
rule of France and some other states such sales are for-
bidden on the ground of fraud, unless made before knowl-
edge of the commencementof war can be imputed to the
purchaser.
In the two countries named the right to transfer vessels is ad-
mitted in principle, because of the right of neutrals to carry on
trade with belligerents, vessels being considered as legitimate ob-
11 Hall, Int. Law, pp. 504, 505.
Ch. 17] 'IRANsEERs IN TRANSITU. 239
jects of trade. The nature of such a transfer, when made in time
of war, is such that a belligerent can with good reason make a most
searching examination of all the circumstances connected therewith.
The temptation and opportunities for committing fraud in such
transfers being very great, they are not considered as valid unless
the title and interest of the vendor has passed absolutely. In case
there is any covenant, condition, or understanding of any kind that
the vendor retains an interest in the vessel or proﬁts, or any control
over it or a right of restitution at some future period, or a power
of revocation, the transfer would be invalidated.12
TRANSFERS IN TRAN SITU.
192. Transfers of property in transitu, during war or
in contemplation of war, are prima facie fraudulent and
void, but especially in case the transferee has not taken
actual possession. _
The above is the rule adopted by the English and American courts,
and while admitting that transfers of property can during peace be
made at any time or place, yet the rule is that enemy cargo, from
the time that it is shipped, remains susceptible of capture and con-
ﬁscation until it arrives at its destination. This rule that goods
shipped are not permitted to change their character during transit
is applied even if made during peace, if it is clear that the transfer
was made in contemplation of war, but in the latter case evidence
of intention is required, while in the former the mere fact of transfer
is considered as conclusive proof of intended fraud. A change in
the national character of the owner, during the voyage, is not per-
mitted to change the hostile character of property in i'ransitu, so
that if he was an enemy at the commencement of the voyage, though
122 Halleck, Int. Law, pp. 138-143; Hall, Int. Law, pp. 506, 507; Calvo,
Int. Law, §§ 2327, 2328; 3 Phillim. Int. Law, c. 86; The Soglasie, 2 Spinks,
101; The Bernon, 1 C. Rob. Adm. 102; The Sechs Geschwister, 4 C. Rob.
Adm. 100; Whart. Dig‘. § 393; Moodie V. The Alfred, 3 Dall. 307. It is not -
contrary to the neutrality laws of the United States to sell to a foreigner a
vessel built in this country, though suited to be a privateer, and having some
equipments calculated for war, but frequently (‘used by merchant ships. 7
Op. Attys. Gen. p. 538 (Cushing).
240 ENEMY CHARACTER. ' [Ch. 17
he become a subject of the capturing country during transit, the
property is considered good prize; the principle being that, as the
property was hostile, either actually or constructively, at the time
of seizure, it remained so notwithstanding the change in the national
character of the owner. The rights of the captor, having vested at
the time of seizure, are not changed by subsequent events.18
GOODS CONSIGNED BY BELLIGERENTS FROM BELLIGER-
ENT PORTS TO NEUTRALS, AND VICE VERSA.
193. Goods shipped during war, or in contemplation of
war, under contract, are delivered to the master of the
ship as the agent of, and from the time of such delivery
the property in them is vested in, the consignee.
This rule may be departed from in time of peace, but the opening
for fraud‘ caused the English and American courts to adhere to the
rule as above stated. “All such agreements (for changing rule of
shipment) are held to be constructively fraudulent, and if they could
operate, they would cover all belligerent property, while passing
between a belligerent and a neutral country, since the risk of capture
would be laid alternately on the consignor or the consignee, as the
neutral factor would happen to stand in the one or the other rela-
tion. The great principles of national law are held to require
that, in war, enemy’s property should not change its hostile char-
acter in transitu; that no secret liens, no futureelections, no pri-
vate contracts looking to future events, shall be able to cover pri-
vate property while sailing on the ocean. Captors disregard all
equitable liens on enemy’s property, and lay their hands on the
gross tangible property, and rely on the simple title in the name
and possession of the enemy. If they were to open the door to
equitable claims, there would be no end to discussion and imposition, ‘
and the simplicity and celerity of proceedings in prize courts would
be lost.” When the consignor is an enemy the natural tendency is to
13 Hall, Int. Law, pp. 505, 506; Pitt-Cobbett, Cas. Int. Law, pp. 91-93; The
Vrow Margaretha, 1 C. Rob. Adm. 336; The Jan Frederick, 5 C. Rob. Adm.
128; The Ann Green, 1 Gall. 274, Fed. Cas. No. 414; The Frances, 1 Gall.
445, Fed. Cas. No. 5,032; Id., 8 Cranch, 354, and cases cited. Contra, vide
Calvo, Int. Law, § 2321 et seq.
Ch. 17] GOODS CONSIGNED BY BELLIGERENTS. 241.
hide the true nature of the contract so that evidence is required to
show that the consignee is in reality the owner, and this latter must
accept the goods unconditionally. According to the French rule
the consignor is permitted to assume the risk by agreement.M
1-4 This rule is exempliﬁed in the case of the Danish vessel Les Trois
Freres, which was loaded with 535 barrels of oil, and billed to Ostende and
Amsterdam (which in June, 1793, were enemies of France), was captured on
the 3d of June, 1793, by the privateer Le Passe Partout, of Bordeaux, and,
on the 6th of July following, was brought to Bayonne. The 18th of
Brumaire, year 2, a verdict of the tribunal of commerce of that city, upon
the demurrer of the Genoese merchants, Messrs. Straforello & (30., who had.
claimed a part of the cargo, annulled the capture, and compelled the captors-
to pay the price of the goods, as valued in Ostende and Amsterdam, by ap—
plication of the right of presumption decreed by the law of the 9th of May,.
1793, although the captors had not asked the use of this privilege, which had
become very onerous, in consequence of the maximum price recently estab-
lished for all goods. This verdict once given, the documents relating to the
capture of the vessel (Les Trois Freres) were sent to the executive council,
according to the law of the 18th Brumaire, year 2; and the committee
of public safety, which substituted itself for this executive council, rendered
in this case the following decision: “Upon the report made to the committee
of public safety, by the commission of the navy and colonies, that on the 3d
of June, 1793, the privateer Le Passe Partout, of Bordeaux, seized and car-
ried to Bayonne the Danish vessel Les Trois Freres; that, the tribunal of
commerce at Bayonne having acted upon the validity of taking the vessel,
and having declared it to be neutral, the captain received his freight and the
indemnity adjudged by the same tribunal; that, the cargo being no longer
in question, the examination of the documents which concern it and the pro-
ceedings show that a part of it had been loaded by Genoese, friends of the
French republic, and on their own account and risk, that it is the property
' of the Genoese citizens, that consequently its seizure was illegal and void,
and that restitution of it must be made to its owners; that, the ownership
of these goods loaded by the Genoese for account of unknown parties, these-
goods are of right presumed to be enemy, from the moment that no contrary-
proofs canbe found to properly destroy this presumption; and that, as such,
they are rightfully seized and become subject to conﬁscation,—the committee
of public safety, pronouncing in accordance with its decree of the 4th Floreal,
holds: (1) The judgment of the tribunal of commerce of the 30th of August,
1793, rendered in favor of the Danish captain of the vessel Les Trois Freres,
and by which this vessel has been declared neutral property and released‘
with payment of its freight and an indemnity, is conﬁrmed. (2) The goods
freighted on board of the vessel Les Trois Freres on the account and risk of
the citizens Straforello and others are declared Genoese and neutral. (3)»
1N'rERNA'r.LAw—16
242 ENEMY CHARACTER. _ [Ch. 17
EFFECT OF OCCUPATION OF THE TERRITORY OF A. BEL-
LIGERENT BY HIS ENEMY.
194. Places belonging to a belligerent which are occu-
pied by the enemy are under practically the same restric-
tions as to trade as if in reality enemy country, and the
property of these places, or of domiciled persons there, is
conﬂscable to the same extent as enemy property.
This rule is considered necessary in order to exercise the requi-
site restraint upon the enemy, and losses through occupied terri-
tory have the same general effect upon the enemy as if they oc-
curred in connection with his own territory, since this occupied
territory is under his control. It is true that such territory is not
looked upon as a permanent acquisition by the enemy, but, so long
as he occupies and controls it, for all commercial and belligerent
purposes it is considered as part of the domain of the, conqueror.15
The goods belonging to Straforello and others shall be restored to them in
the quantities marked and qualities designated in the bills of lading; and,
in the case of the sale of these goods, the owners of the privateer Le Passe
Partout will reimburse their value in accordance with their market price at
the place of their destination at the time of seizure, with interest upon the
value of the articles returned, said interest in lieu of all indemnity for undue
detention. (4) Are declared enemy property, and as such adjudged by con-
ﬁscation to the owners and crew of the privateer Le Passe Par'tout, all the
remainder of the cargo of the Les Trois Fl'el'es, and which had been loaded
for the account of those to whom it belongs. (5) The goods of this cargo, if
they still exist in fact, that could be deemed as useful to the service of the
republic, will be bought on its account, and the value will be paid as soon
as delivered, to those to whom they belong, according to the terms of this
decree.” Snow, Gas. pp. 348, 349; Pistoye v. Duverdy, 1, 357.
Forsubject of shipment of goods during war, vide 1 Kent, Comm. p.87 ; Calvo,
Int. Law, §§ 2315-2320; Hall, Int. Law, pp. 506, 507; 2 Halleck, Int. Law,
p. 128 et seq.; The Packet De Bilboa, 2 0. Rob. Adm. 133; The San Jose
Indiano, 2 Gall. 268, Fed. Gas. No. 12,322; The Sally, 3 C. Rob. Adm. 179.
15 Wheat. Int. Law, D, note 162; U. S. v. Rice, 4 Wheat. 246; Fleming v.
Page, 9 How. 603; Cross v. Harrison, 16 How. 164; Hall, Int. Law, pp. 507-
509.
Ch. 18] ' COMMERCIA BELLI. 243
CHAPTER XVIII.
NON—HOSTILE RELATIONS.
195. Commercia Belli.
196. Flags of Truce.
197-198. Passports and Safe-Conducts.
199-200. Suspensions of Arms, Truces, and Armistices.
201. Commencement of a Truce or Armistice.
202. Conclusion of Truce or Armistice.
203. Cartels.
204. Cartel Ship.
205. Capitulations.
206. Safeguards.
207. Licenses to Trade.
COMMERCIA BELLI.
195. Under the technical term, “commercia belli,” is in-
cluded all those paciﬁc or non-hostile relations that are en-
tered into by belligerents during the progress of a war.
All relations between belligerent countries during the war are
suspended by the general rule, but it is necessary that certain re-
lations be established for the purpose of rendering the termination
of the war possible without total extinction of the contestants.
These relations may refer to the cessation of hostilities, to individ-
uals, to the whole or a part of the armed forces, or to the aban-
donment of the rights of hostility in certain particulars. These
relations, looking to the cessation of hostilities, are not only entered
into with certain formalities, but are based upon the one under-
standing of good faith. All of the authorities state that good faith
must be observed between enemies, and in entering into arrange-
ments imposing obligations, it is understood that, while each of
the belligerents is to receive the full beneﬁt of the rights conferred,
neither party will take any undue advantage of the relation es-
tablished to improve his own position in a manner not contem-
‘plated.1
1For enumeration and discussion of the commercial bellz', vide Hall, Int.
Law, pp. 540-556; 2 Halleck, Int. Law, c. 29; Calvo, Int. Law, §§ 2411-2452; -
244* NON-HOSTILE RELATIONS. ‘ [Ch. 18
FLAGS OF TRUCE.
196. Flags of truce are white ﬂags, used as signals 'to
indicate that a belligerent wishes to communicate with the
enemy. '
The persons bearing a ﬂag of truce are considered as inviolate,
and must not be ﬁred upon or injured or taken prisoners. A bel~~
ligerent is not under obligation to enter into negotiation with the
enemy, and consequently is not compelled to receive a ﬂag of truce.
They are usually employed during a cessation of active operations,
but may be sent during the progress of an engagement, at which time
a belligerent is not compelled to cease ﬁring, so that, if the bearer
of the ﬂag of truce is accidentally killed at this time, the belliger--
ent cannot be held responsible. The bearer of a ﬂag of truce has-
no right to penetrate the enemy’s lines, but can be stopped at the
outposts, and his communication sent from that point. Other con-
ditions can be imposed upon his reception, such as being blind--
folded, or any other precautions deemed necessary to prevent him.
from acquiring knowledge of service to his own army, including
his detention temporarily, and his abstention from communication
with any other person than those designated. His reception implies-
suspension of hostilities with respect to him so. long as he remains,
and also a safe return within his own lines. On the other hand,
he cannot make use of a ﬂag of truce to obtain information from.
the enemy, and while the bearer of such ﬂag is under no obligation
to keep from his chief any information that he properly obtains
during his stay within the enemy lines, the obtaining information
surreptitiously renders him liable to punishment as a spy. The
ﬂag of truce will not protect him, under such circumstances, from.
seizure and execution.2
Bluntschli, §§ 674-699; Wools. Int. Law, §§ 154-157; Lawrence, Hand--
book, pp. 106-108; Davis, Int. Law, pp. 237-240; Wheat. Int. Law, D, §§ 399-
410; Vattel, Int. Law, bk. 3, cc. 16, 1"; Am. Inst. arts. 5, 6, 8; Append. p. 340;;
Greasy, Int. Law, 468; 3 Phillim. c. 8; Grotius, De Jure Belli, bk. 3, c. 21.
2 2 Halleck, Int. Law, pp. 361-363, note, gives instructions of United States
navy department for government of United States navy in regard to use of'
ﬂags of truce. Am. Inst. arts. 112—118; Append. p. 357; Code Inst. arts. 26-
30. Append. p. 343.
Ch. 18'] SUSPENSIONS or ARMS, TRUCES, AND ARMISTICES. 245
PASSPORTS AND SAFE-CONDUCTS.
197. Passports are permissions to travel, without special
restrictions,~in territory belonging to a belligerent or un-
der his control, issued by the government to subjects of the
enemy.
198. Safe-conducts are similar permissions by which per-
sons to Whom they are granted may come to a particular
place for a deﬁnite purpose. These may be given by oﬁi-
cers Within the districts under their command.
The essential diﬁerence between passports and safe-conducts lies
in the fact that the former can only be given by the government
of the belligerent, while the latter may be given either by the gov-
ernment or the ofﬁcer in command within the district. Both may be
revoked at the pleasure of the grantor, or, in case of safeconducts,
if given by the oiﬁcer in command, may be revoked by a superior.
If the authority granted be exceeded in regard to time, place, or
route, unless from illness or some unavoidable cause, the holder is
.liable to have his privileges withdrawn, and if he has employed his
privileges for improper objects, he can be severely punished, accord-
ing to the nature of his oﬁense. Neither passports nor safe-con-
ducts are transferable.3
SUSPENSIONS OF ARMS, 'I‘RUCES, AND ARMISTICES.
199. The cessation of hostilities for a short period of time
at a particular place for a. temporary purpose is called a.
suspension of arms.
200. When the agreement to suspend hostilities is for an
extended period, or for a general purpose, extending to the
B 1 Kent, Comm. p. 163; Vattel, Int. Law, bk. 3, §§ 263-277; 3 Phillim. Int.
Law, §§ 959-102; 2 Halleck, Int. Law, 351; 1 Stat. 118; Hall, Int. Law, p. 542;
Bluntschli, §§ 675-678. In the statute above cited, the penalty for viola-
tion of a passport or safe-conduct is imprisonment for three years, and sol-
diers are to be tried by courts martial.
246 ‘ NoN-IIosTILE RELATIONS. ‘[Ch. 18-
whole or a considerable portion of the forces of the belliger-
ents, or has a political object, it is called a truce or an ar-
mistice.
The agreement for a cessation of hostilities, which would be
known as a suspension of arms, can be entered into by the imme-
diate commanders, and would be binding upon the forces under
their commands, and are usually made for a temporary purpose for
a short period, such as for the purpose of removing the wounded
or burying the dead after a battle. Truces or armistices, on the
other hand, are either partial or general; the former being applied
to particular localities or particular forces, such as the suspension
of hostilities between two hostile armies, or between a besieged
place and the troops surrounding it, while a general truce implies
that it extends to all of the hostile operations of the opposing forces‘?
The eﬁect of a truce is to suspend'all hostile operations of an ac-
tive nature, with the implied understanding that everything within
the space aﬁected shall remain as it was at the commencement of
the truce, and all acts tending to strengthen a belligerent during
the truce, which his enemy would be in a position to prevent were
it not for the truce, are prohibited. Under such a rule, a besieged
army or place cannot properly repair damages to the works that .
have been destroyed by the enemy, nor construct new works, if
they are within reach or control of the guns of the enemy, nor can
the besieging army construct 'new batteries or continue his ap-
proaches. But the besieged may construct new works in places
hidden from the enemy, or receive reinforcements, if through an
avenue not controlled by the invader, and the invader may also
receive reinforcements or material of war. In the case of a truce
between armies, neither party can take advantage of the suspension
vof hostilities to improve his position from a strategical standpoint,
nor withdraw his forces from striking distance or assume a more
advanced position. All acts that do not take eﬁect in the immedi-v
ate theater of the war are not denied to either party under a truce,
and especially if these operations could have been carried on ir-
42 Halleck, Int. Law, pp. 342-344; Hall, Int. Law, p. 543; Bluntschli, §§
687-689; Vattel, Int. Law, bk. 3, § 233; Calvo, Int. Law, §§ 2433-2435.
Ch. 18] 3 sUsPENsIoNs or ARMS, TRUcEs, AND ARMISTICES. 247
respective of the truce.5 The right of revictualing a besieged place
during a truce is one of much difficulty to determine. In case the
besieging army is in a position to prevent the introduction of sup-
plies into the beseiged place in the absence of the truce, the gen-
eral opinion seems to be that, in the absence of a stipulation to the
contrary, the introduction of such provisions is forbidden. This
would unquestionably be the construction of the law by a besieging
army under such circumstances. On the other hand, as famine is
one of the recognized means of reduction of a besieged place, and
as a truce implies the suspension of all active operations, and the
end of the truce is understood to ﬁnd the belligerents in practically
the same position that they found themselves at its commencement,
no good reason is apparent why the introduction of supplies to the
extent of the consumption during the length of the truce should
not equitably be authorized, especially if introduced under the su-
pervision of the besieging army.‘
5 Halleck, Int. Law, p. 345: “During the continuance of a general truce,
each party to it may, within his own territories, do whatever he would have
a right to do in time of peace, such as building or repairing fortiﬁcations,
constructing and ﬁtting out vessels, levying and disciplining troops, casting
cannon and manufacturing arms, and collecting provisions and munitions of
war. He may also move his armies from one part of his territory to another,
not occupied by the enemy, and call home or send abroad his vessels of war;
and in the theater of hostilities, and in the face of the enemy, he may do
whatever, under all the circumstances, would be deemed compatible with
good faith and the spirit of the agreement. In the case of a truce between
the governor of a fortress or fortiﬁed town and the general or admiral
investing it, either party is at liberty to do what he could have safely
done if hostilities had continued.” Vide, also, Bluntschli, §§ 691, 692; Calvo,
Int. Law, § 2438; Am. Inst. art. 143; Append. p. 361; Hall, Int. Law, pp. 543,
544; Walk. Int. Law, p. 370; Greasy, Int. Law, pp. 470-472; Vattel, Int. Law,
bk. 3, §§ 245-255. 1 .
6 Calvo, Int. Law, §§ 2440-2446; Walk. Int. Law, p. 371. The practice
of Bismarck in the Franco-German war was to refuse the introduction of
supplies even in limited quantities. Vide Calvo, Int. Law, §§ 2444, 2445, for
statement of cases. I
248 NON—HOSTILE RELATIoNs. [Ch. 18
COMMENCEMENT OF A TRUCE OR ARMISTICE.
201. The time of commencement of a truce or armistice
dates from the receipt of information of its existence at
the particular place.
When the truce or armistice is general, and extends over the
whole area, or a considerable-portion of it, the custom is to ﬁx
different dates for the different localities, so as to permit time for
receipt of the news at these places. A belligerent performing acts
of hostility in violation of a truce, or armistice, of the existence of
which he was ignorant, is not responsible, but he, may have to re-
store prisoners or property taken after the truce or armistice be-
came effective. One belligerent is not bound to take notice of infor-
mation in regard to a truce or armistice communicated to him by
his enemy until such information is conﬁrmed by advices from his
own higher authorities officially.7
CONCLUSION OF TRUCE OR ARMISTICE.
202. A truce or armistice is terminated either by notice,
or by expiration of the time agreed upon in its terms, or
by breach of its terms by one belligerent authorizing the
other party to further disregard it.
If a truce or armistice is made for an indeﬁnite time, it is ter-
minated by notice given by one party to the other. In case thetime
is ﬁxed, and no provision'is made for service of notice, the truce‘ ex-
pires upon expiration of the term. The violation of the terms of a
truce by one party, such as will release the other party from further
regarding or observing it, must consist of an act of the offending
state, or an act of its agent which is not disavowed. A similar act
on the partof individuals simply authorizes the punishment of the
offenders.8
'1 Halleck, Int. Law, p. 344; Hall, Int. Law, pp. 546-548; Vattel, Int. Law,
bk. 3, c. 17, § 239; Calvo, Int. Law, § 2446; Bluntschli, § 690; Am. Inst. art.
139; Append. 361. ‘
8 Calvo, Int. Law, §§ 2447-2449; Vattel, Int. Law, bk. 3, § 244; Bluntschli,
§§ 694-696; Halleck, Int. Law, p. 347.
Ch. 18] CARTEL SHIP. 249
CARTELS.
203. Cartels are conventions made between belligerents
for the purpose of regulating permitted intercourse, either
at the commencement of or during the progress of the war.
Under such an agreement is regulated the postal and telegraphic
communications, the exchange of‘prisoners, the method of reception
of ﬂags of truce, the treatment of the wounded and prisoners of war,
and all similar subjects. Such agreements are not regarded as
treaties, in contemplation of the constitution of the United States,
but cartels are of such force that the sovereign power cannot annul
them, and paroles of prisoners of war are regarded as sacred obli-
gations which the national faith is pledged to fulﬁll. Both belliger-
ents are bound faithfully to observe such contracts.9
CARTEL SHIP.
204. A cartel ship is a vessel employed or commissioned
,for the purpose of carrying by sea exchanged prisoners of
war.
These vessels are subject to certain rules, and are entitled to the
protection of both belligerents, in so far as relates to the particular
service in which they are employed. Such a ship usually sails
under a safe-conduct from a commissary of prisoners situated in the
enemy country, being protected from capture or molestation while
she has prisoners on board, while returning from the transportation
of such prisoners, and on her voyage for the purpose, although she
is not protected while passing from one port to another of her own
country for the purpose of being so employed. Such vessel must
not depart from the strict line of her employment by taking on
board merchandise, nor can she be prepared for carrying on hostili—
ties. ‘Her armament may consist of one gun, for the purpose of
salutes.10
QWheat. Int. Law, D, §§ 254, 344; 2 Halleck, Int. Law, pp. 354, 355; Hall,
Int. Law, p. 548; The Carolina, 6 0. Rob. Adm. 336; U. S. v. Wright, 2
Pitts. R. 440.
10 Bluntschli, § 680; Calvo, Int. Law, _§§ 2419-2421; 2 Halleck, Int. Law,
250 NON-HOSTILE RELATIoNs. [Ch. 18
CAPITULA'I‘IONS.
205. A capitulation is an agreement under which a body
of troops or a naval force surrenders upon conditions.
These compacts are varied, not only by the terms of the agree-
ments themselves, but also by the effects produced. In case the
‘compact is of a strictly military nature, the commanding oﬁ‘icer
present is authorized to enter into it, but if the effect is political
in its nature, or contemplates the independence of the country, it
must have the consent of the sovereign power, in the absence of spe-
cial powers conferred upon the ofﬁcer entering into the negotiations.
In case the commanding oﬁcer present entering into the compact is
unauthorized to complete or give effect to the agreement in all its
terms, it is his duty to notify the enemy of this fact, so that it may
be understood that there must be a ratiﬁcation by the proper au-
thority.11
pp. 355, 356; Hall, Int. Law, pp. 549, 550; The Daifjie, 3 0. Rob. Adm. 141;
The Venus, 4 C. Rob. Adm. 355; La Gloire, 5 C. Rob. Adm. 192.
11 Hall, Int. Law, pp. 550-553. Brussels’ Conference of 1874, art. 46: “The
conditions for capitulations shall be discussed by the contracting parties.
These conditions should not be contrary to military honor. When once
settled by convention, they should be scrupulously observed by both sides.”
2 Halleck, Int. Law, pp. 348, 349, note: “General Grant wrote to General
Lee that he proposed to receive the surrender of the Army of Northern
Virginia on the following terms, via: (1) That rolls of all ofﬁcers and men
were to be made in duplicate, one copy to be given to an officer of the
selection of the former, the other to be retained by whomsoever the latter
might appoint. (2) That the officers give their individualparoles not to
take arms against the government of the United States until properly ex—
changed, and each commander of a company or regiment to sign a like
parole for his men. The arms, artillery, and public property to be parked
and stacked, and turned over to the officers appointed by the former to
receive them. That this do not include the side-arms of the oiﬁcers, nor
their private horses or baggage. (3) That, this being done, each officer
and man shall be allowed to return to his home, and shall not be dis-
turbed by the United States authority so long as they observe their paroles
and the laws in force where they reside. These terms were accepted by
General Lee on the same day and the other armies were surrendered upon
substantially the same terms.”
Ch. 18] LICENSES TO TRADE. I 251
SAFE GUARDS.
206. Asafeguard is a protection granted either to persons
or property within the limits of the command, and con-
sists either in a written order or a guard of soldiers.
These are sometimes given to the persons whose property or per-
sons are to be protected, or they may be posted upon the property,
which usually consists of such as museums, libraries, public ofﬁces,
and properties of neutrals or friends. These are usually given as
' a protection from the soldiers of the army of the person furnishing
the safeguard, and violations of such instruments are'punished with
the greatest severity. The guards furnished are authorized to
resort to the severest measures to punish any violation of the
safety of their trust.12
LICENSES TO TRADE.
. 207. Licenses to trade are written permissions, granted
to subjects of either belligerent, to carry on trade with a
particular place or in speciﬁed articles.
Such licenses ‘are usually granted by the executive power of the
state,-by the Crown in England, and by the President of the United
States,—and are either general or special; the former being a per-
mission to all of the subjects of the enemy to carry on a particular
trade, or to trade in a designated locality, and the latter being a
permission granted to individuals authorizing them to carry on the
commerce designated in the license. The question of granting such
licenses is one of policy, and this is to be determined by the grantor.
It is an implied condition of all such licenses that, when applied for,
there must be no misrepresentation or concealment of material facts,
and this is true in some cases where no fraudulent intent accompa-
nies the actions of the applicant. These licenses are granted by
the belligerent government, or by a. commanding general in the
ﬁeld with the sanction of his government. A license granted by
the latter, if in excess of his powers; would not be good except as
12 2 Halleck, Int. Law,‘ pp. 353, 354; 11 Stat. 366; Calvo, Int. Law, §§ 2417,
2418; Hall, Int. Law, p. 553.
252 NoN-HosTILE RELATIONS. [Ch. 18
to the forces under his command. In the case of The Sea Lion
the United States Supreme Court held that the act of congress of
July 13, 1861, authorizing the President to license certain commer-
cial intercourse with the states in rebellion, did not contemplate the
exercise of that authority by subordinate ofﬁcers of the executive
department without the express order of the President. This was
a case in which a certain ﬁrm in New Orleans obtained a special
permit from an agent of the treasury department in New Orleans,
indorsed “Approved” by Admiral Farragut, in command of the
blockading force on that coast, to ship some cotton, which they
proceeded to do. The cotton was shipped from the port of Mobile
and was captured by the blockading squadron off the coast of Mobile,
taken to Key West, and there libeled as prize. The lower court
condemned the property, and this action was afﬁrmed by the Su-
preme Court.“
In construing a license to trade a reasonable construction is to be
placed upon it in view of all the circumstances attending a partic-
ular case, and the general conditions upon which licenses were
granted. One of the elements to be considered will be the persons
to whom the license is granted. The persons who use it must show
that it was granted in their behalf, or else that they are acting in
behalf of and as the agent of the grantee, or, in case the license
is by its terms made negotiable, the transferee will be protected,
although the general rule is that a license is not transferable. If a
license is granted to a particular person by name, he cannot, by
acting as agent for another, convert his personal privilege into a
subject of transfer or sale. The character of the ship in which the
goods are to be transported will also be considered, and if a ship
of a particular nation is to be employed, as, for instance, of some
neutral state, then the employment of a ship of the state granting
the license would authorize condemnation; but in case the license
covered one ship, and the goods were shipped in two vessels, with
no material variation in the goods themselves, this fact alone would
not eﬁect the condemnation of the goods or vessels; nor, again,
if the vessel of a particular neutral nation be speciﬁed, would the
employment of a vessel of another nation, also neutral. Another
thing for consideration would be the nature and quantity of the
18 The Sea Lion, 5 Wall. 630; Coppell v. Hall, 7 Wall. 542.
Ch. 18] LICENSES TO TRADE. 253
goods authorized to be shipped, and a material variation in either
the quality or quantity would authorize condemnation, but an imma-
terial variation, even in the kind of goods, would not entail condem-
nation, especially if the goods were innocuous in their nature.
Again, the course and route to be followed is to be considered,
and if there is a departure—as to the port of shipment or delivery,
or asto the general course to be pursued, or in stopping at a port
not designated, or in failure to stop at a designated port—from the
terms of the license, the neglect or omission to comply with its terms
will invalidate it. A deviation from the prescribed course will not
invalidate the license, if caused by stress of weather or unavoidable
accident. To touch at a port which is not interdicted for orders
is permissible, even though lying out of the direct course.
The time speciﬁed in the license will also be considered, and in
this element a distinction seems to be made between a designated
time for departure, as where a license authorizes the exportation
of certain goods on or before a certain day, and where the license
authorizes the importation of goods within a designated time. . In
the former case, a delay after the date named renders the license
absolutely void. On the other hand, the delays caused by the enemy,
stress of weather, and similar causes will be taken into considera-
tion, and the vessel condemned only in case of delay which is the
fault of the owner.M
14 As to general subject, vide Hall, Int Law, pp. 553-556; 2 Halleck, Int.
Law, 0. 30; Calvo, Int. Law, §§ 1969-2000; Wools. lnt. Law, § 155; Pitt-
Cobbett, Cas. Int. Law, pp. 173—180; Usparicha v. Noble, 13 East, 332.
As to persons entitled to make.use of license, vide Klingender v. Bond, 14
East, 484; The Jonge Klassina, 5 C. Rob. Adm. 297; 6 Op. Attys. Gen. p.
630; Warin v. Scott, 4 Taunt. 605; Robinson v. Morris, 5 Taunt. 725; Fen-
ton v. Pearson, 15 East, 419; Attorney General v. Wilson, 3 Price, 431.
As to the character of the vessel, vide 2 Halleck, Int. Law, p. 371‘.
Kensington v. Inglis, 8 East, 273; The Hoffnung, 2 C. Rob. Adm. 162.
As to character of goods and vessels, vide 2 Halleck, Int. Law, pp..
371, 372; The Bourse, 1 Edw. Adm. 370; G-rigg v. Scott, 4 Camp. 339; The
Vrow Cornelia, 1 Edw. Adm. 350; Keir v. Andrade, 6 Taunt. 498.
As to the route to be pursued, vide The Europa, 1 Edw. Adm. 342; The-
Minerva, Id. 375.
As to the time limited, vide Hall, Int. Law, p. 556; 2 Halleck, Int. Law,
pp. 378, 379; The Sarah Maria, 1 Edw. Adm. 361; Effurth v. Smith, 5 Taunt.
329; Williams v. Marshall, 6 Taunt. 390.
254
TERMINATION or WAR. [Ch. 19
208.
209.
210.
211.
212.
213.
214-216.
217.
218.
219.
220.
208.
CHAPTER xIx.
TERMINATION OF WAR.
Methods of Termination.
Under Treaty of Peace.
By a Simple Cessation of Hostilities.
Effect of a Proclamation of the Executive in a Civil War.
The General Effect of a Treaty of Peace.
The Principle of Uti Possidetis.
The Effect of a Treaty of Peace upon Acts Done Before the Com-
mencement of War.
Effect of a Treaty of Peace upon Acts Done During the War.‘
Effect of a Treaty of Peace upon Acts Done After the War.
Conquest.
Effects of Conquest.
METHODS OF TERMINATION.
War may be terminated1 in the following ways:
(a) By the conclusion of a treaty of peace.
(b) By a simple cessation of hostilities and re-
sumption of paciﬁc relations by the bel-
ligerents.
(c) In case of a civil war, by proclamation of
the supreme authority.
((1) By conquest.
UNDER A TREATY OF PEACE.
209. The rule in regard to treaties between states be-
coming binding only upon ratiﬁcation is so far departed
from, in regard to treaties of peace, that from the date
of signature, or from the date ﬁxed in the treaty itself,
they are-binding, and hostilities cease from that date.
The necessity for such a rule as the above is done away with, in
practice, by the fact that the general custom is to conclude an
1 As to whole subject of termination of war, vide Hall, Int. Law, pt.
3, c. 9; Calvo, Int. Law, § 3153 et seq.; Whart. Dig. §§ 356, 357; Walker,
Ch. 19] UNDER A TREATY OF PEACE. 255
armistice preliminary to signing a treaty of peace. The reason
for varying the rule in regard to treaties in the particular case
of a treaty of peace seems to be that no good reason exists for
causing further bloodshed or suﬁering by the inhabitants in the
theater of war. In case of ﬁxing the date for the cessation of
hostilities at some future date, or at different dates in different
localities, these dates have usually some reference to the time it
requires, in the ordinary course, for information to be communi-
cated to such places. In case the information of the conclusion
of the treaty of peace reaches a given point before the time desig-
nated for the same to become effective at that place, the question
arises as to whether the commanding officer is bound to regard the
same before the time named, or must he act at once upon the oﬂi-
cial information received, from the time of receipt of the same.
The latter rule seems to be the more satisfactory, and most uni-
versally accepted, but,’ if the information is not received officially
from his own superiors, the commander is not bound to accept it
as authentic. This was much discussed in the French courts of
‘prize in the case of The Swineherd. which was an English ship
captured by a French privateer in 1801, after receipt of information
of the cessation of hostilities, but before the time ﬁxed for their
cessation, in the Indian Seas, the date ﬁxed being ﬁve months from
the time of concluding the treaty of peace. The Swineherd was
captured under circumstances which clearly indicated that it was
acting in good faith in supposing that the treaty of peace had be-
come effective, since it offered no resistance, and had only enough
powder on board to use for purposes of signaling. The vessel, how-
ever, was libeled and condemned, which action was aiﬁrmed on
appeal to the council of prizes, upon the ground that the informa-
tion received by the French vessel was not sufficient, in so much
that it was not duly attested by French authority. Chancellor
Kent‘ says that “since constructive knowledge of the peace, after
the time limited in different parts of the world, renders the cap-
ture void, much more ought actual knowledge of the peace to pro-
Int. Law, pp. 371, 372; Wools. Int. Law, §§ 158-162; Vatt. Int. Law, bk. 4.
cc. 1-4; Phillim. Int. Law, pt. 12, c. 1; Wheat. Int. Law, D, §§ 537-550;
Bluntschli, §§ 700-726; 1 Kent, Comm. pp. 165-173; 1 Halleck, Int. Law, c. 9.
256 TERMINATION. oF WAR. [Ch. 19
duce that effect.” 2 Admitting the desirability of having a ﬁxed rule
for the guidance of officers conducting hostilities, and the danger
of acting upon information received which is not duly attested, and
the facts in the foregoing case of the condemnation of the Swine-
herd, it would seem to be equitable for the government to reimburse
the loss to the owners.3
BY A SIMPLE CESSATION OF HOSTILITIES.
210. The time of return to the normal or peace rela-
tions Cannot be determined with accuracy when there is
a simple cessation of hostilities by the belligerents.
From the nature of such relations as are established from a sim-
ple cessation of hostilities by two belligerents, it is apparent that
not only the subjects of the states aﬁected, but also all neutral
states, are in doubt as to the extent of their rights and their status.
An instance of this mode of terminating a war occurred in 1716,
i when Sweden and Poland were engaged in war, and simply ceased
hostilities. Another somewhat similar case was the wars that were
‘waged by Spain with her South American colonies, which hostilities
ceased some time before the independence of the different states
. was acknowledged; and, in the case of Chili, herindependence was
not recognized for about 25 years after'the cessation of active hos-
tilities. There must come a time, in such cases, when the normal
relation is restored, and the same relations established as in the
case of the cessation of hostilities by a treaty of peace. In regard
to the question which caused the war, it may be said that it re-
mains unsettled, and could be made a cause of war by either party
at a subsequent time.’ Not only is the uncertainty as to the settle-
ment of the dispute between the belligerents unfortunate, but the
relations of neutrals are thereby permitted to remain in an unwar-
ranted condition, causing confusion as to what acts are lawful or
unlawful.4
2 Kent, Comm. p. 172.
3Hall, Int. Law, p. 560; Pitt-Cobbett, Cas. Int. Law, p. 224; Halleck,
Int. Law, p. 261; U. S. v. Reynes, 9 How. 127; Hylton v. Brown, 1 Wash.
C. C. 312, Fed. Cas. No. 6,981; Wheat. Int. Law, D, § 547, note 252.
4 Hall, Int. Law, pp.564, 505; 3 Phillim. Int, Law, § 511.
Ch. 19] THE GENERAL EFFECT or A TREATY or PEACE. 257
' PROCLAMATION OF THE EXECUTIVE IN A CIVIL WAR.
211. In the case of a civil war, the termination‘ thereof -
is determined by some act of the political department.
This was held by the supreme court of the United States in the
case of The Protector, in which case it was necessary to determine
the exact time of the coi'nmencement and termination of the Civil
War, in order to ascertain whether the case was barred by the
statute of limitations, which did not run during the continuance
' of the war; and in this decision it was held that the war did not
commence or terminate in all of the states at the same time, but
that the time of commencement and termination in each state was
determined by the proclamations affecting it.5
THE GENERAL EFFECT OF A TREATY OF PEACE.
212. The general effect of a treaty of peace is to restore
the belligerents to their normal relations with regard to
each other, so that all acts which are permitted only dur-+
ing the war must cease.
The establishment of a state of peace implies that the belliger-
ents will resume all the rights and obligations which pertain to that"
status. The treaty of peace itself may confer upon one of the bel-
ligerents authority to perform certain acts for a limited time, suclr
as the occupation of certain districts, or the levying of contribu-
tions and requisitions for the support of troops in such districts,
under certain conditions and restrictions. In regard to prisoners of‘
war, all of whom are supposed to be released at once upon the con—
clusion of peace, this strict rule may be and is departed from by
imposing certain regulations for the purpose of guarding against
misconduct on their part. A state may incorporate certain other
agreements in the treaty of peace, by which a number of acts on.
the part of its belligerents will be authorized, without changing
the above rule.
6 The Protector, 12 Wall. 700; Brown v. Hiatts, 15 Wall. 177.
INTERNAT.LAW——17
\\
258 TERMINATION or WAR. ' [Ch. 19
THE PRINCIPLE OF UTI POSSIDETIS.
213. By the “principle of uti possidetis” is understood
that the absolute property, in territory and things attached
to it, which is under the control of either belligerent, and,
in the case of movables, those that are in actual legal pos-
session of such belligerent, vests in such belligerent upon
the conclusion of peace, in the absence of express stipula-
tions concerning the same, or in so far as express stipula-
tions do not extend.
If nothing be said about the conquered territory in the treaty
of peace, it remains with the conqueror, whose title cannot after-
wards be questioned. So that the title thus acquired to this ter-
ritory and things attached to it is just as binding as if transferred
by the treatjT expressly. In regard to movables which have not
been conﬁscated by the conqueror, the principle of postliminy oper~
ates to transfer them to the original owner. Strictly speaking, the
‘jus postliminii does not operate except during the continuance of
war, but the term is used to show that property returns by a sim-
ilar principle. Should the treaty of peace contain the stipulation
that, except in so far as otherwise expressly provided therein, all
things shall return to the same state as existed previous to the
commencement of the war, it would be construed to mean that all
property which had been appropriated or destroyed or damaged in
accordance with the rules of war would not be included in the oper-
ation of such va clause, unless special and speciﬁc provision be
made for such effect; and such general stipulation would refer only
to such immovable property as had been occupied by the enemy,
which would be returned in the condition in which it is found after
the war, as a result of legitimate acts of war'during occupation.6
6 Hall, Int. Law, pp. 558, 559; Wheat. Int. Law, D, § 545; 1 Halleck, Int.
Law, p. 260; 3 Phillim. § 511; Walk. Int. Law, p. 372; The Foltina, 1 Dod.
\
Ch. 19] EFFECT OF TREATY UPON ACTS DURING THE WAR. 259
THE EFFECT OF A TREATY OF PEACE UPON ACTS DONE
BEFORE COMMENCEMENT OF WAR.
214. A treaty of peace puts an end to all quarrels
which resulted in the war that has just been waged,‘
whether expressly mentioned or not.
215. It renders operative and binding certain treaties or
international agreements, the operation of which has
' been suspended by the war.
216. Private rights, the right of prosecution of which is
suspended by the war, are revived by the peace, even
though nothing be said upon the subject in the treaty.
The above statement as to the causes of complaint being buried
in oblivion, as a result of the peace, and that war cannot be re-
newed upon the same grounds, means that the belligerents have
made a new start, and established a new order of things, and that
the original acts complained of are to be considered as settled," but
new acts of the same kind as those complained of originally might
be a cause of war.7
EFFECT OF A TREATY OF PEACE UPON ACTS DONE DUR-
ING THE WAR.
217. The effect of a treaty of peace is—
(a) To settle ﬁnally all claims for acts committed
by either belligerent during the progress of
the war, in carrying on hostilities, irrespec-
tive of the rights of war,——whether these
claims arise on behalf of the state or its
subjects.
(b) To grant an amnesty to all individuals for
acts performed during the existence of hos-
tilities by them‘.
‘I Wools. Int. Law, § 161; Hall, Int. Law, pp.‘ 561, 562; 3 Phillim. Int. Law,
§524 et seq.; Calvo, Int. Law, §§ 3155-3159.
260 S TERMINATIoN oF WAR. . [Ch. 19
This grant of amnesty may be incorporated in the treaty itself,
in which case the provision inserted will show what acts have been
considered as being covered; but, irrespective of such provision,
the immunity extends to a large number of acts committed during
the war which have been done without authority of any kind, or
without sufﬁcient authority, and protects the individual from civil
or criminal process to which he would otherwise be exposed. This
amnesty does not extend to civil actions arising out of private con-
tracts, nor to criminal prosecutions for acts which are recognized
as crimes by the country to which the perpetrator belongs, and par-
ticularly if the criminal acts complained of have no direct connec—
tion with the war. Nor, unless specially incorporated in the treaty,
would treason against the state be included in a general amnesty,
as a result of peace.8
EFFECT OF A TREATY UPON ACTS DONE AFTER THE WAR.
218. Acts of hostility committed after the conclusion of
peace are null. '
This is true also in regard to acts of hostility committed after
the time ﬁxed for the cessation of hostilities, and even though done
in ignorance of the conclusion of the peace, and in good faith.
In regard to those acts which cannot be undone, the injury inﬂicted
should be met by giving compensation therefor. In the case of
The Mentor, the high court of admiralty held that: “Hostile acts
committed after the conclusion of peace are illegal, and the injured
party may sustain an action for damages against the wrongdoer.
But, if such ofﬁcer commits such act in ignorance of the ending
of the war, his own government should protect him.” 9
8Bluntschli, §§ 710-714; Hall, Int. Law, pp. 562, 563; 1 Halleck, Int.
Law, pp. 258, 259; The Molly, 1 Dod. 396.
9 Hall, Int. Law, pp. 563, 564; Bluntschli, § 709; Calvo, Int. Law, § 3155;
The Mentor, 1 C. Rob. Adm. 183.
Ch. 19] CONQUEST. I _. 261
CONQUES'I'.
219. Conquest consists in the appropriation of the prop-
erty in,_ and sovereignty over, the territory of a state.
This condition is complete when the conquering power
has become the permanent sovereign of the country.
This condition may be accomplished either—
'(a) By cession from the former sovereign.
(b) By the practical acquiescence of the sovereign or
the people of the territory in its subjection to
the conquering state. \-
(0) By the entire extinction of the political existence
of the conquered state.
In regard to when the completed conquest has been eﬁected, no
question can arise when the country has been ceded, or when, at
the conclusion of a peace, the principle of mi possidet-is is allowed
to operate, as the acts in each case are sufficient proof of the fact
of the complete conquest. Where the conquest has not such posi-
tive proof of being effected, the fact must be established in some
other manner that is equally as certain. This is accomplished by
the fact of actual possession, recognition by other states, and by
the lapse of time; no one of which is in itself suliicient, but if
the possession is practically undisputed for a considerable time, or
is of such a nature as to manifest on the part of the conqueror an
ability to hold, it is enough. The question of recognition by other
states is not conclusive, but when the number of states so recogniz-
ing is large, and their acts of recognition are unqualiﬁed in their
nature, a strong conﬁrmatory proof is afforded. The principal case
illustrating the question of conquest was that of the Elector o-f
Hesse Cassel, whose territory was conquered by the ﬁrst Napoleon
in 1806, and remained for about a year under his immediate con-
trol, after which time it was annexed to the new kingdom of West-
phalia, and formed a part of that kingdom till after the battle of
Leipzig, in 1813. The question was whether the debts owing to the
elector were validly discharged by a payment to Napoleon, and
receiving from him a quittance in full. The intention of Napoleon
262 TERMINATIoN or WAR. [Ch. 19 1
In
was to ‘effect a conquest. He treated the. country as having been
conquered, and the conquest was acknowledged by a number of
states as being deﬁnite. During the year the country was under
his direct control he conﬁscated the property of the elector, who
was at the time in the Prussian army, the seizure of which was based
upon the ‘ground that the owner was at the time in arms against the
legitimate sovereign of the state. One of the debtors of the elector
was a certain Count Hahn Hahn, who had borrowed money from
him on a mortgage, before his expulsion, and had obtained a release
from Napoleon by paying a portion of the debt. The Elector con-
tested the-validity of the discharge. The matter was ﬁnally re-‘
‘ ferred to one of the universities, and the conﬁscation was conﬁrmed.
The real question was held to be whether Napoleon had or had not
become the true creditor of the Hesse Cassel funds; that since, in
this case, Napoleon’s' rights and title were those of the conqueror,
which had been ratiﬁed by the public act of the state, or, in other
words, that he had effected a conquest, and had a right to conﬁs-
cate the property of an active enemy of the state, the fact that the
funds in this case were the private property of the Elector, and not
the public funds of the state, became of no importance. They held
that, even according to the letter of the Roman law, the restored
owner must take the property as he found it, and was entitled to
no compensation for damage which it might have suffered in the
interval; that it was impossible to consider the return of the Prince
as a continuation of his former government, since he had not been
constantly in arms against Napoleon, and at last successful, by
force of arms, in recovering his domains. 'He had been treated
by the peaces of Tilsit and Schoenbrunn as politically extinct, and
the King of Westphalia had been recognized by the continental
powers as Regent of Hesse Cassel. They remarked that the Elector’s
own tribunals of Hesse Cassel had pronounced that those subjects
of the King of Westphalia who had paid to him or his exchequer
their debts, and received due discharges, could not be legally called
upon to pay a second time; and they thought the principles of the-
decision, as well as the authorities which they had referred to, led
them to the judicial conclusion that all the debts, whether the whole
sum had been paid or not, for which discharges in full had been
Ch.'19] THE EFFECT or CONQUEST. 263
‘ given by Napoleon, were validly and effectually paid, and they there-
fore so far reversed the former sentences.“
THE EFFECT OF CONQUEST.
'220. When the conquest is completed the following
results follow:
(a) The retroactive effect of rendering valid acts of
the conqueror from the date of military occupa-
tion of the territory.
(b) The conquering state acquires property in. the con-
quered territory, and assumes the obligations at-
tendant upon the’ absorption of such territory.
(0) The conquering state acquires sovereignty over
the conquered territory, and the ‘inhabitants of
such territory at the time the conquest becomes
deﬁnite become subjects of,» and owe allegiance
to, the new sovereignty.
The question of the eﬁect of acts of the conqueror during occupa-
tion was considered in the case of the Elector of Hesse Cassel, in so
far as the alienation of the property was concerned. In the case
of Count Platen Hallemund, who was tried by the courts of Prussia
for treason, and sentenced to ﬁfteen years’ penal servitude, the facts
were that in 1866 the Hanoverian army capitulated, and the Count
was at the time the Prime Minister of Hanover, and continued in
attendance upon his Prince, taking up his abode in Vienna. He was
arraigned upon the charge of high treason committed after he ceased
to reside in Hanover. The Prussian courts have jurisdiction to try
subjects for high treason committed abroad. Objection was raised
to the jurisdiction of the court in this case, and the matter was
submitted to two German jurists, who gave it as their opinion that
the mere forcible conquest of a country did not, of itself, create the
relation of sovereign and subject between the conqueror and the
conquered; that in order to create such a relation there must be
an express or tacit submission to the new government, which was a
10 Hall, Int. Law, pp. 565-569; Snow, Gas. p. 381.
264 TERMINATION oF WAR. [Ch. 19
question for the inhabitants themselves, to whom the liberty of leav-
ing if they chose should be accorded. In case they did not depart,
but remained in the conquered territory, after the conquest, this
fact would constitute them subjects of the new sovereignty. In the
United States it has been determined that, when a conqueror has
obtained possession of the enemy’s country, he has the right to for-
bid the departure therefrom of the subjects or citizens of this terri-
tory, and to exercise sovereignty over them. The rule seems to be
that persons who are residents of the territory acquired by the con-
quest, and remain there, should be considered as becoming subjects
of the new sovereignty, and persons who are natives of this territory,
and are residents of another part of the state, from which the con-
quered territory is taken, should be considered as owing allegiance
to the sovereignty in which they reside.11
11 Vide Hall, Int. Law, pp. 570, 571; Pitt-Cobbett, Cas. Int. Law, pp.
227-232; Dana's note to Wheaton, No. 169; 2 Halleck, Int. Law, p. 484 et
seq.; Calvo, Int. Law, § 2457 et seq.; U. S. v. Repentigny, 5 Wall. 260;
Johnson v. McIntosh, 8 Wheat. 588; U. S. v. Moreno, 1 Wall. 400; Campbell
v. Hall, 1 Cowp. 208; American Ins. Co. v. Canter, 1 Pet. 542; Grotius, Int.
Law, bk. 3, c. 8; Vattei, Int. Law, bk. 3, c. 13.

PART III.

NEUTRALITY.
INTERNAT.LAW (((( )*
Ch. 20] NEUTRALITY DEFINED—"SKETCH on THE SUBJECT. 267
CHAPTER XX.
IN GENERAL OF NEUTRALITY.
221. Neutrality Deﬁned—Sketch of the Subject.
222. Permanent Neutrality.
223. Armed Neutrality.
224. Division of Subject.
NEUTRALITY DEFINED—SKETCH OF THE SUBJECT.
I 221. Neutrality consists in the non-participation by one
state in a war that is being carried on between two or more
other states.1 '
Some authorities make certain distinctions, in deﬁning neutrality,
0r divide‘ the subject into two or more species, which are described
by the qualifying terms, “natural,” “perfect,” “strict,” etc., to denote
the neutrality as above deﬁned, using the terms “imperfect,” “quali-
1- The deﬁnition of Calvo from which the above is taken is: “Dans l’accepta-
tion la plus large du mot, la neutralite est la non-participation a une lutte
engagée entre de-ux on‘ plusieurs autres nations.” Calvo, Int. Law, § 2493.
A neutral state is one which sustains-relations of amity to both the
belligerent parties, or negatively is a non hostz's. Wools. Int. Law, p. 268.
- Neutrality consists in not participating in a war being carried on be-
tween third parties, and in maintaining peace upon one’s own territory.
Neutral states are those that are not belligerent parties, and that take
part in the military operations neither in favor of one of the belligerents, nor
to the detriment of the other. “La neutralite consiste a ne point participer a
la guerre engagée entre des tiers, et a maintenir la paix sur son propre terri-
toire. Les états neutres sont ceux qui ne sont pas parties belligérantes et
qui ne prennent part aux operations militaires, ni en faveur de l’un des
belligerants, ni au detriment de l’autre.” Bluntschli, § 742.
Halleck and Wheaton translate the deﬁnition of Vattel._ 2 Halleck, Int.
Law, p. 173, ‘c. 24; Wheat. Int. Law, D, c. 3, pt. 4. For other deﬁnitions,
vide 5 Calvo, Int. Law, pp. 408-411. '
The relation of neutrality will be found to consist in two principal cir-
cumstances: (1) Entire abstinence from any participation in the war; (2) im-
partiality of conduct towards both belligerents. Kluber says, tersely and
happily: “A neutral state is neither judgelnor party.” 3 Phillim. c. 9, § 136.
l
268 IN GENERAL oF NEUTRALITY. [Ch. 20
ﬁed,” “conventional,” etc., to explain the relations of a state that
departs from its duty as a neutral by furnishing assistance to both
belligerents of the same nature and degree, such as authorizing each
to transport troops through its territory, or furnishing each with
a designated number of troops, or other similar acts that are of
questionable authority; the term “conventional” being quite gen
erally employed to deﬁne the relation of a state not a party to the
war, but which is under some obligation by an engagement made
previous to the outbreak of hostilities, by which it has agreed to
furnish one of the belligerents with a certain number of troops or
vessels. In all such cases the other belligerent is authorized to
decide for itself in what manner it will regard the questionable acts,
and is authorized to treat the state performing them as a neutral
or enemy, as it may deem best.2
Derivation of the Term “Neutrality”— Opinions of Earlier Publicists.3
The fact that neither the Greek nor Latin languages have any
words which clearly express the meaning of the words “neutra ”
and “neutrality” has been commented upon by most of the modern
writers on international law. This fact, together with the history
of the practice of nations up to the beginning of the eighteenth
century, shows that the law upon this subject is of decidedly mod-
ern growth. The Romans made use of the words, “amici,” “medii,”
“pacati,” “socii,” to convey what we understand in English by “neu-
trals”; and Grotius made use of the expression, “De his qui in bello
sunt medii,” as a title for his chapter upon the subject of their rights,
in which he said: “It is the duty of those who stand apart from a
War to do nothing which may strengthen the side Whose cause is
2 “One makes a distinction between absolute and partial or restrained
neutrality. A state can enter into a treaty to furnish advantages to one
of the belligerents, and execute the treaty without on that account taking
part in the war.” Bluntschli, § 746. Vide, also, 2 Halleck, Int. Law,
pp. 173-175; \V heat. Int. Law, D, §§ 412-427. Section 413: “There are two
species of neutrality recognized by international law. These are (1) natural
or perfect neutrality; and (2) imperfect, qualiﬁed, or conventional neutrality."
8 For more extended sketch of subject of neutrality, vide Hall, Int. Law,
pp. 576-594; 2 Halleck, Int. Law, p. 173 et seq., 0. 24; Creasy, Int. Law,
pp. 470-482; Wools. Int. Law, § 163 et seq.; Calvo, Int. Law, § 2494 et seq.;
Wheat. Int. Law, D, §§ 412—425; Walk. Int. Law, pp. 374-388; Gallaudet, Int.
Law, p. 260, c. 5.
Ch. 20] NEUTRAL-ITY DEFINED-SKETCH OF THE SUBJECT. 269
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 provisions to the respective armies,
and in not assisting persons besieged.” 4
Bynkershoek, in the eighteenth century, said: “I call those ‘non-
enemies’ who are of neither party in a war, and who owe nothing,
by virtue of alliance, to one side or the other. If they are under any
such obligations, they are not simply friends, but allies. * 3* *
If I am neutral, 1 cannot advantage one party, lest I injure .the other. I
* * * 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 prefer-
ence 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 favor the hostilities
of one ‘at the cost of a tacit renunciation of the friendship of the
other.” 5'
Following him, we ﬁnd that Vattel deﬁnes “neutrals” as “those
who, in time of war, do not take any part in the contest, but remain
common friends to both parties, without favoring'the arms of the
one to the prejudice of the other.” In explanation, he says that the
impartiality which a neutral nation ought to observe relates solely
to war, and include-s two articles, namely: “(1) To give no assistance
where there is no obligation to give it, nor voluntarily to furnish
troops, arms, ammunition, or anything in direct use in war. I do
not say to give ‘assistance equally,’ but ‘to give no assistance’; for
it would be absurd that a state should at one and the same time
assist two nations at war with each other, and, besides, it would be
impossible to do it with equality. The same things, the like num-
ber of troops, the like quantity of arms, of stores, etc., furnished un-
der different circumstances, are nolonger equivalent succors. (2)
In whatever does not relate to war, a neutral and impartial nation
must not refuse to one of the parties, on account of his present
4 Grotius, ‘De Jure Belli, bk. 3, c. 17.
5 Bynkershoek, Int. Law, p. 66, c. 9.
270 IN GENERAL OF NEUTRALITY. [Ch. 20
quarrel, what she grants to the other. This doesnot deprive her of
the liberty to make the advantage of the state still serve‘as her
rule of conduct in her negotiations, her friendly connections, and her
commerce. When this reason induces her to give preferences in
- things which are ever at the free disposal of the possessor, she only
makes use of her right, and is not chargeable with partiality. But
to refuse any of those things to one of the parties purely because
he is at war with the other, and because she wishes to favor the
latter, would be departing from the line of strict neutrality.” 6
Practice Down to the Eighteenth Century. .
Down to the beginning of the seventeenth century, the idea and
practice among nations was to regard, during war, every other na-
tion either as an ally or enemy. It is to be observed, also, that
during the seventeenth century the authorities, in speaking of the
obligations of neutrals, refer only to acts of the state itself towards
the belligerents, and are silent upon the subject of the obligations
of a neutral to watch over the acts of its subjects. During the
eighteenth century it was the constant practice of supposedly neu-
tral states to furnish bodies of troops to one or the other of the
belligerents. In some instances—notably, during the war of the
Austrian succession—the United Provinces sent ‘20,000 men to the
assistance of Maria Theresa, and afterwards furnished their entire
force. It was not until the latter part‘ of the eighteenth century
that this furnishing of troops by neutral states to a belligerent
gave rise to any protest, which action was ﬁrst taken by Sweden,
who claimed that the furnishing of limited assistance by Denmark
under a treaty with Russia, in view of the relations of amity exist-
ing between herself and Denmark, was not permissible, under the
law of nations. In regard to the levy of troops by belligerents on
their own account within neutral territory, it may be said that up
to the latter part of the eighteenth century it was constantly prac-
ticed, and until that time was not abandoned. The same is true
in regard to the equipment of cruisers under ‘letters of marque in a
neutral country, to be employed in the service of a belligerent.7
6 Vattel, Int. Law, bk. 3, c.‘ 7, § 104.
'1 Hall, Int. Law, pp. 586-589; Wools. Int. Law, p. 268.
Ch. 20] NEUTRALITY DEFINED—SKETCH OF THE sUBJEcT. 271
Practice in America during the War of Independence.
During the War of Independence of the American colonies, objec~
tion on the part of England to ﬁtting out cruisers for employment
in aid of the American armies by France was based upon the treaty
stipulations between England and France, rather than upon such
acts being contrary to ‘the principles of international law. On
June 5, 1793, Mr. Jefferson, in a note to Mr. Genet, stated, “The
granting of military commissions within the United States by any
other authority than their own is an infringement on their sov-
ereignty, and particularly so when granted to their own citizens to
lead them to commit acts contrary to the duties they owe their own
country.” This was addressed to this newly appointed French min-
ister, who, on landing at Charleston, granted commissions to Ameri-
_, can citizens, ﬁtted out privateers, and manned them with Ameri-
iicans to cruise against English commerce. In a subsequent com-
munication to Mr. Morris, the American minister at Paris, under
date of August 16, 1793, Mr. Jefferson used the following language:
“Mr. Genet assumes his right of arming in our ports, and of enlist-
_ ing our citizens, and that we have no right to restrain him or puﬁish
them. Examining this question under the law of nations, founded
on the general sense and usage of mankind, we have produced proofs,
from the most enlightened and approved writers on the subject, that
a neutral nation must, in all things relating to the war, observe an
exact impartiality towards the parties; that favors to one to the
prejudice of the other would import a fraudulent neutrality, of which
no nation would be the dupe; that no succor should be given to
either unless stipulated by treaty, in men, arms, or anything else
directly serving for war; that the right of raising troops being one
of the rights of sovereignty, and consequently appertaining exclu-
sively to the nation itself, no foreign power or person can levy men
within its territory without its consent, and he who does may be
rightfully and severely punished; that, if the United States have the
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 enlist-
ments. To these principles of the law of nations, Mr. Genet answers
by calling them ‘diplomatic subtilties,’ and ‘aphorisms of Vattel and
others.’ But something more than this is necessary to disprove
272- IN GENERAL oF NEUTRALITY. [Ch. 20
' ‘ \
them; and, till they are disproved, we hold it certain that the ‘law of
nations and the rules of neutrality forbid our permitting either party i
to arm in our ports.” This correspondence, and the situation of
the United States, resulted in the passage of a statute by the con-
gress of the United States for the purpose of carrying out the prin-
ciples announced, as constituting their policy at that time. No
better statement of this policy, and its relation to the usages of
nations on the subject of neutrality, can be found than in the words
of Mr. Hall. He says that: “The policy of the United States in
1793 constitutes an epoch in the development of the usages of neu-
trality. There can be no doubt that it was intended and believed
to give effect to the obligations then incumbent upon neutrals. But
it representedv by far the most advanced existing opinion as to what
those obligations were, and in some points it even went further than
authoritative international custom has, up to the present time, ad-
vanced. In the main, however, it is identical with the standard of
conduct'which is now adopted by the community of nations.” 8
Q PERMANENT NEUTRALITY.
222. A permanent neutrality arises from an agreement
establishing the perpetual neutrality of a state with respect
to a certain number of other states.
A state so situated has been stripped of its sovereignty, to the
extent that it is prohibited from waging war with the other states,
except for a breach of its neutrality. The geographical location of
certain countries renders such a condition not only desirable, but at .
the same time of very great importance to the state itself, as well
as to the other states affected. The examples of this class of neu-
trality of most prominence are Belgium and Switzerland, whose
territories are located between some of the more important Euro
pean powers, and the establishment of their permanent neutrality
plays a most important part in the maintenance of what is known
as the “balance of power” in Europe.9
8 Whart. Dig. § 395; Hall, Int. Law, p. 494; Creasy, Int. Law, pp. 572-574;
1 Stat. p.381. _ i
9 Wools. Int. Law, pp. 268, 269; Wheat. Int. Law, D, §§ 416-422, and Dana’s-
note, 202. '
Ch. 270] ARMED NEUTRALITY. I 273
ARMED NEUTRALITY.
223. By armed neutrality is understood the armed re-
sistance to infringement of neutral rights by belligerents.
This term is not a happy one to express the relation of the pow-
ers that proclaimed the principles that pertained to neutrals, and
which they proposed to defend with force of arms. An armed
neutrality is in fact an alliance of two or more powers for the
avowed object of protection of certain rights of neutrality, which
are announced by proclamation and agreed to by members of the
alliance. The ﬁrst armed neutrality, which occurred in 1870, was
for the purpose of protecting neutral property from the ~severe
methods ‘of Great Britain. The principles were announced by
Russia, and concurred in by Denmark, Sweden, the Dutch provinces,
Prussia, Austria, Portugal, Naples, France, and Spain, the two last
named being belligerents at the time; but England, the other
' belligerent, declined, stating that she stood by the law of nations
and her treaties. The principles contended for were that enemy
property, not contraband of war, on neutral ships, should be free;
that unjust usage of neutral ships should entail, not only reparation
for the loss, but satisfaction should be made to the neutral sov-
ereign; that a port is blockaded only when there is evident danger
attendant upon an attempt to run into it. The members of the
league agreed to act in concert, ‘and equip a ﬂeet for carrying into
eﬁect the principles enunciated. The second armed neutrality oc-
curred in 1800, between Russia, Sweden, Denmark, and Prussia,
the principal stipulation of which was to the effect that the declara-
tion of the ofﬁcer in charge of a convoy that no contraband goods
were on board the ships under his charge was sufficient to prevent
search.10
10 Calvo, Int. Law, §.2504; Wools. Int. Law, §§ 163, 189, 209.
INTERNAT.LAW—-18
274 IN GENERAL or NEUTRALITY. [Ch. 20
DIVISION OF SUBJECT.
224. Relations existing between neutrals and belliger-
ents at the present time are divided into and treated un-
der two headings, as follows: h
(a) The ﬁrst comprising all those rights and duties and
obligations existing between the belligerents and
neutral states, as such.
(b) The relations existing between the belligerent
states and neutral individuals.
The Relations between Belligerent and Neutral States.
The questions that arise under this head aﬁect these sovereign
states themselves as parties. \ Both of them have the same general
duties as in the normal or peace relations. The obligation imposed
upon the belligerent is to respect the sovereignty of the neutral,
whose territory is, of right, to remain inviolate during hostilities,
and whose municipal laws for the preservation of neutrality must
be respected by the belligerents. The obligation of the neutral ‘is
to aid neither directly nor indirectly either belligerent, and, to a
certain recognized extent, to prevent persons under its control from
performing acts of the same nature upon its territory. A breach
of the above mentioned obligations is a wrong which gives rise to a
corresponding remedy, which is international.
Relations between Belligerent States and Neutral Individuals.
In the case of belligerent states and neutral individuals, there
exist no mutual obligations between the parties, since the neutral
individual owes no duty to any sovereignty other than his own;
and, on the other hand, the belligerent owes no duty to the neutral
individual, except in so far as international usage has prescribed
the treatment of him for the commission of acts forbidden by the
belligerent, and which he is empowered to repress These repress-
ive measures are inﬂicted by the courts of the belligerent only.
The acts of individuals which the belligerent represses are, in the
main, of a commercial nature, and are not proceeded against upon
the theory that a wrong has been committed, but on the theory that
it is inconvenient to the belligerent to permit them. The object
of the individual is not injury to the belligerent, but rather for the
Ch. 20] DIVISION or sUBJEcT. 275
purpose of making gain, and his trade is one that, of strict right, a
neutral individual is privileged to carry on. Interference with
this neutral trade of the individual is permitted to the belligerent,
upon the theory that he is authorized to prevent acts which tend to
assist his enemy, and thereby diminish the effect of his stress upon
him. There is a.c1ass of acts of individuals which involve the
neutral state with duties to the belligerent. The more important
of this class involving state obligations is that it is bound to pre-
vent within its territory the illegal enlistment, or participation by
its subjects in hostile acts towards either belligerent; it must pre-
vent the issuing of commissions, the preparation of hostile expedi-
tions, the construction or outﬁtting of vessels of war, and prevent its .
territory from being used as a base of operations.11
11 For present neutrality policy of the United States, see Whart. Dig. § 405.
276 NEUTRALITY—BELLICERENT AND NEUTRAL sTATEs. [Ch. 21
CHAPTER XXI.
THE LAW OF NEUTRALITY BETWEEN BELLIGERENT AND NEU-
TRAL STATES.
225. Furnishing Troops to a Belligerent under Treaty.
226. Loans to Belligerents—By a Neutral State.
227. By Neutral Individuals.
228. Sales of Munitions of War, etc., by a Neutral State.
229. Levies of Troops within Neutral Territory by a Belligerent.
230. Use of Neutral Territory for Transit of Troops.
231. Commission of Hostilities in Neutral Territory.
232. Use of Neutral Territory as a Base of Operations.
2.33. Fitting Out Hostile Expeditions in Neutral Territory. .
234. Equipment of Vessels of War in Neutral Territory.
Effect of Neutral Territory upon Persons—Prisoners of War.
236. Right of Asylum to Belligerent Troops.
237. Right of Asylum to Naval Forces.
238. Eﬁect of Neutral Territory upon Property of Belligerent.
239. Duty of Neutral State in Regard to Injuries to Belligerents Committed
upon Its Territory.
240. Property Captured in Violation of Neutrality.
241. Captured Vessel Converted into Public Vessel of Belligerent.
FURNISHING TROOPS TO A BELLIGERENT UNDER A
TREATY.
225. No nation can, without violation of her strict neu-
trality obligation, furnish military assistance to an ally.
Mr. Bluntschli says: “When a state has bound itself by anterior
treaties,and when it could not foresee the outbreak of war, to furnish
troops to a state which has become one of the belligerents, the
presence of these troops upon the territory of the enemy, and their‘
participation in the war would not be considered as contrary to the
neutrality of the state which has furnished them, provided this
power manifests in an evident manner its intention of remaining
neutral, and that it observes strictly the conditions of the treaties-
concluded by it. The troops furnished to one of the belligerents by
virtue of treaties Will be regarded as enemy troops; but the state
Ch. 21] LOANS To BELmeEEENTs—BY NEUTRAL STATE. 277
which has furnished them, before the war could be foreseen, does
not become an enemy by the single fact of the rupture of peace.” 1
‘This View is supported by Wheaton, Kent, Manning, and in part by
Dr. Woolsey. The latter says that “if the assistance to be rendered
is to be triﬂing, and has no reference to a particular case, or a war
with a particular nation, it will probably be overlooked; otherwise
it will expose the nation furnishing the assistance to the hostility of
the other.” 2 It is difﬁcult, however, to understand how the amount
of assistance in this regard can operate to change the nature of the
act itself. Again, it is admitted that the furnishing of military
assistance, apart from a treaty agreement to do so, would be a
breach of neutrality. If this is true, then by what process can a
contract to do an unlawful act convert the act itself into a lawful
one? How can such a prior agreement change the eﬁect of this act
upon the other belligerent, who has not consented to it? In addition
it may be said that no such treaties have been made during the pres-
ent century. The last precedent for furnishing such assistance oc-
curred in 1788, when Denmark, as already related, furnished troops
to Russia.8
LOANS TO BELLIGERENTS—BY NEUTRAL STATE.
226. Loans of money made or guarantied by a neutral
state to a belligerent constitute a. violation of neutrality.
The reason for this is apparent, and the law upon this point is
well established by all the authorities. No distinction can be
drawn between the furnishing of money and the furnishing of
troops or other material assistance to a belligerent.
1 Bluntschli, § 759; 1 Kent, Comm. pp. 49, 116, 117; Wheat. Int. Law,
D, § 425. But Dana’s note 203 says: "The progress of modern times has
been towards insisting on entire and impartial neutrality. It is diﬁicult
to conceive now of a state being permitted to continue a condition of
limited and partial neutrality. A belligerent would be justiﬁed in treating
any state as an enemy throughout which rendered any aid to im enemy,
whether in pursuance of treaty obligations or not, or which gave or with-
held belligerent privileges unequally.”
2 Wools. Int. Law, p. 268.
8 Hall, Int. Law, § 215‘; Calvo, Int. Law, § 2631; 3 Phillim. 138.
278 NEUTRALITY—BELLIGERENT AND NEUTRAL STATES. [Ch. 21
SAME—BY NEUTRAL INDIVIDUAL.
227. On the other hand, loans of money by individuals
of a neutral state to a belligerent or its citizens are not
unlawful.
Money, being an article of commerce, should stand upon the same
footing as other articles of a similar nature. If captured by the
enemy of the belligerent for whom it is destined, it can be condemned
as contraband of war, and certainly it is no more noxious than mu-
nitions of war. Again, its nature is such that it would be impossible
for a neutral state to enforce a statute forbidding its being loaned
or sent to a belligerent, and for this reason it would be impracticable
to hold the neutral state responsible for the acts of its subjects in
regard to it. Unless the neutral state can regulate or prevent,
by reasonable diligence, the loaning of money, then there should be
no international responsibility. The practice of nations is in ac—
cord with the above views. During the Franco-German war of
1870—7 1, the French Morgan loan, and part of the North German
Confederation loan, were issued in England. In this same war
large sums of money were raised in the United States and sent to
both Germany and France, for the relief of sufferers in the hos—
pitals, without eliciting any protests as to violations of neutrality.
And in 1860 a revolt took place in Naples, which was, if not insti-
gated, at least materially aided, by the king of Sardinia. The lib-
eral English press took an active part in encouraging the insur-
gents. They also received from England important material aid.
Mr. Webster, in 1811-42, said that “as to advances and loans made
by individuals to the government of Texas or its citizens, the Mex-
ican 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 re-
strain.” 4'
4 Kennett v. Chambers, 14 How. 38: “A suit cannot be maintained on a
loan made expressly to effect a belligerent object.” In De Wutz v. Hen-
dricks, 9 Moore, 586, 2 Bing. 314, it was held that British courts of justice
will not take notice of or afford any assistance to persons who in Great
Britain make or undertake to make loans to a belligerent at war with
Ch. 21] SALES or MUNITIONS or WAR, ETc., BY A NEUTRAL. 279
SALES OF MUNITIONS OF WAR, ETC., BY A NEUTRAL
STATE.
228. In general, a neutral state cannot, without viola-
tion of neutrality, furnish one of the belligerents with
articles which he makes use of for carrying on hostilities.
Except in rare cases, as, for instance, when it desires to dispose
of vessels or munitions of war which it does not need, a state does
not engage in commerce, so that it will be difﬁcult to justify the
furnishing of a belligerent with such articles. This was illustrated
in 1825, when Sweden desired to reduce her navy, and offered to sell
six vessels to Spain which offer was refused. Three of these vessels
were afterwards sold to an English mercantile ﬁrm, who, it appears,
was acting as agent for Mexico, then at war with Spain. When
this fact was brought to the attention of Sweden by the Spanish
minister, the sale was revoked, although the sale was made by her
in good faith, and without knowledge of the ultimate destination
of the vessels, and the revocation resulted in some loss to her. In
1871, the United States sold some ordnance stores under an act of
congress of 1868 authorizing the sale of such “muskets and other
military stores” as were unsuitable for use. Under this provision
large sales were made without preference, except in regard to per-
sons who were suspected of being agents of France. Upon com-
plaint being made of these sales, the matter was made the subject
of investigation by a committee of the senate, whose report is as
follows: “Your committee, without hesitation, report that the sales
of arms and military stores during the ﬁscal year ending June 30,
1871, were not made under such circumstances as to violate the
obligations of our government as a neutral power; and this, to
recapitulate, for three reasons: (1) The Remingtons (the purchas-
ers) were not, in fact, agents of France during the time when sales
were made to them; (2) if they were such agents, such fact was
neither known nor suspected by our government at the time the
a nation at peace with Great Britain. Vide, also, Hall, Int. Law, § 216;
Whart. Dig. § 390; Calvo, Int. Law, §§ 2628, 2629. Contra, vide Bluntschli,
§ 768; 3 Phillim. 151; Pitt-Cobbett, Cas. Int. Law, pp. 246-250; Walk.
Int. Law, pp. 391, 448.
280 NEUTRALITY—BELLICERENT AND NEUTRAL sTATEs. [Ch. 21
sales were made; and (3) if they had been such agents. and if that
fact had been known to our government, or if, instead of sending
agents, Louis Napoleon or Frederick William had personally ap-
peared at the war department to purchase arms, it would have been
lawful for us to sell to either of them, in view of a national policy
adopted by us prior to the commencement of hostilities.” The ﬁrst
two reasons above are more accurate statements of the law than
the third, in regard to which it can be said that it is doubtful if
the act of congress of 1868 would in itself be sufﬁcient to establish
good faith, or the fact that the government was acting animo com-
mercandi, and not animo adjzwandi.‘5
LEVIES OF TROOPS WITHIN NEUTRAL TERRITORY BY A
BELLIGERENT.
229. A neutral state is bound to restrain the enlistment
of bodies of men within its territory by belligerents.
The enlistment of troops in the United States by a foreign govern-
ment is strictly forbidden, not only by our laws, but by international
law as well. It was at one time the cause of vigorous correspond-
ence between this country and Great Britain, and has caused the
recall of ministers of foreign countries who have connived at such
acts. The attorney general of the United States (Mr. Cushing)
stated that “the attempt by one government to enlist troops in the
territory of another without the latter’s consent is just cause of
war.” 6 It certainly constitutes a breach of sovereignty of the neu-
tral nation. While it is unquestionably the duty of a neutral na~
tion to prevent the enlistment of bodies of troops in its territory
by a belligerent, yet a state is not expected to take precautions
against microscopic errors, and certainly individuals of the, neutral
nation may abandon their own country, and take service with a for-
eign nation, without rendering their state liable for violation of
neutral obligations. “Nor is it a crime, under the neutrality law, to
leave this country [United States] with intent to enlist in foreign
EWhart. Dig. § 391; Rep. Senate Com. May 11, 1872; Hall, Int. Law,
pp. 599, 600; Pitt-Cobbett, Cas. Int. Law, pp. 243-245.
6 7 Op. Attys. Gen. 1). 367.
Ch. 21] UsE or NEUTRAL TERRITORY FoR TRANSIT or TROOPS. 281
military service, nor to transport persons out of the country, with
their own consent, who have an intention of so enlisting.” 1’ The
issuing of letters of marque is now very generally prohibited, and
the individuals engaged in such enterprises do not stand upon
the same footing as individuals who enlist in a foreign army, for the
reason that, they do not, by so doing, separate themselves from their
own state. The enlistment, by an armed vessel of a belligerent,
of men in a neutral port, is equally forbidden; but this prohibition
would scarcely apply to the case of a vessel of the belligerent whose
crew was reduced below the point which would be safe for her navi-
gation, provided only enough men were enlisted to enable her to
reach a port of her own country, and did not extend to enlistment
of enough men to render her capable of use as an engine of war.Sc
USE OF NEUTRAL TERRITORY FOR TRANSIT OF TROOPS.
230. Passage through neutral territory should be denied
to troops of a. belligerent.
The statement of the law upon this subject by Manning, who
quotes the opinions of Grotius, Vattel, and De Martens, is that “the
spiritqof treaties agrees with the dictates of reason, in the principle
that the passage of troops cannot be ‘claimed,’ unless under special
treaty, and cannot be ‘granted’ by a neutral, where there is no ante~
cedent treaty, unless an equality of privilege be allowed to both
belligerents.” The contrary opinion is held by the more modern
writers, who maintain that the granting of passage of troops for
the sole purpose of war is positively forbidden, since it is distinctly
an interference in the war, and the excuse offered, that it is afford-
ing an equal privilege to each belligerent, is not suﬂicient justiﬁca-
tion for the act. The practice for the past century has accorded
with the views of the modern authorities. In the Franco-German
war of 1870, the German government endeavored to induce the
Belgian government to permit the passage through Belgian territory
of wounded Prussians and French. This was referred to the
French government, who replied that it would consider such act
7 U. S. v. Kazinski, 2 Spr. 7, Fed. Gas. No. 15.508.
8 Whart. Dig. 3922; Bluntschli, §§ 760-762: Calvo, Int. Law, §§ 261942621.
282 NEUTRALITY—BELLIGERENT AND NEUTRAL STATES. [Ch. 21
as a violation of neutrality. The permission was refused, and the
Belgian government disarmed, and detained as prisoners, all sol-
diers of either army that were driven into their territory. The
latest precedent for the passage of hostile troops through neutral
territory occurred in 1815, when the allied armies passed through
the territory of Switzerland; but this was accorded practically
under duress, and the same government refused a similar permis-
sion in 187 0 to certain Alsatians.
The granting of permission in time of war for the passage of
troops for a speciﬁc purpose is different from granting the same
privilege during peace. This privilege may very properly be grant-
ed under certain circumstances such as to enable the grantee to
reach certain possessions more easily or promptly, if this is in itself
harmless. If such passage were provided for by treaty, and taken
advantage of customarily during peace, and a war should subse
quently break out, the passage of troops through this neutral terri-
tory during the war might not be construed as a violation of neutral-
ity. In such cases, each would be judged by its own circumstances.
If the injury to the other belligerent was apparent, resulting from
the grant of passage to an unusually large number of troops, the
act would certainly be a breach of neutrality.°
9Grotius, De Jure, lib. 3, c. 7, § 3; Vatt. Law Nat. liv. 3, c. 7, § 2;
DeMartens, liv. 8, c. 7, § 310; Kent, Comm. lect. 4; 3 Phillim. Int. Law,
§ 153. Wheat. Int. Law, D, § 427, says: “It [passage of troops] may be
granted or withheld, at the discretion of the neutral state; but its being
granted is no ground of complaint on the part of the other belligerent
power, provided the same privilege is granted to him, unless there be suf—
ﬁcient reasons for withholding it.” Dana’s note 205 says: “A special license
in a particular case to one belligerent would not be justiﬁed by an offer to
grant a special license in a like case to the other; for the exigency, the
means of using the license, and the advantages to be gained by it are
too varying to insure equality; and it can hardly be supposed that a neutral
will grant a general license of passage to both parties, at their option.”
In support of text, vide, also, Hall, Int. Law, pp. 602-604; Bluntschli, §
70; Heffter, § 147; Calvo, Int. Law, §§ 2646-2648. Both Calvo and Bluntschli
think that, under certain circumstances—as when a neutral state is bound
by a treaty previously made to grant such privilege to one of the belligerents,
-—the granting of such passage should not be regarded as a breach of
neutrality or granting of assistance to the other belligerent.
Ch. 21] USE OF NEUTRAL TERRITORY As A BASE OF OPERATIONS. 283
COMMISSION OF HOSTILITIES IN NEUTRAL TERRITORY.
231. The commission of hostilities in neutral territory
without the permission of the neutral sovereign is forbid-
den.
This subject was among the ﬁrst to be regulated, and the law
upon the subject is well settled. The judicial determinations of
this question have arisen, in the main, in regard to captures made
by belligerents in neutral waters. The capture of the ship of an
enemy in neutral waters is illegal, and the ship will be restored by
the prize court of the captor. This is the doctrine of the English,
American, and French courts; but, in order to have the beneﬁt of
the rule, the captured vessel must not violate neutral territory by
resistance, instead of asking the protection of the neutral. This
is certainly true if the captured ship ﬁrst commences hostilities.
Such captures in mutual waters are regarded as valid, as between
enemies, and the neutral sovereign alone can 'call their validity into
question.10
USE OF NEUTRAL TERRITORY AS A BASE OF OPERATIONS.
232. A neutral state cannot permit the use of its terri-
tory by a belligerent as a base of operations.
The acts that properly fall under this heading are all such as
endanger the peaceful relations that exist between the neutral state
and the injured belligerent. A neutral territory cannot be made
use of for the purpose of drawing supplies and reinforcements for
the army or navy of the belligerent. In regard to vessels of war
of the belligerent, certainly a neutral state should not permit them
to enter its ports, rivers, canals, etc., for anything but a peaceful
object, such as to make necessary repairs, procure provisions, coal,
etc., and should never permit them to enter for the purpose of pro-
curing provisions of war or reinforcements. The question of tak-
ing supplies of coal has been regulated by both England and Amer-
10 The Anna, 5 0. Rob. Adm. 373; The General Armstrong, 2 Whart. Dig.
604; The Anne, 3 Wheat. 435; The Lilla, 2 Sprague, 177, Fed. Gas. No. 8,318;
The Estrella, 4 Wheat. 298.
284 NEUTRALlTYhBELLIGERENT AND NEUTRAL STATES. [Ch. 21
ica, the restrictions consisting in the prohibition of taking more coal
than was absolutely necessary to take the vessel to the nearest port
of its own country, and not to be furnished with a second supply for
three months, or until such vessel had put into a port of its own
country.11 The principle which lies at the bottom of this regula-
tion is that a vessel should not be permitted to take in more sup-
plies than is absolutely necessary. If supplied beyond this point,
an injury is done to the other belligerent, in that it enables the
vessel to carry on hostilities otherwise impossible.12
FITTING OUT HOSTILE EXPEDITIONS IN NEUTRAL TER-
RITORY.
233. A neutral cannot permit the use of its territory
for the ﬁtting out or issuing of armed expeditions by a bel-
lig-erent.
In some cases it is difﬁcult to determine what is an expedition,
the ﬁtting out of which is unlawful. The men who compose an
expedition, although not armed, yet if militarily organized, and sent
out, as such organization, to some other point, where the arms
have been sent to meet them, would constitute an expedition, the
sending out of which would be in violation of neutrality. In 1870
a large number of Frenchmen embarked from the port of 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. These ves-
sels were also laden with a large number of riﬂes and a large num-
ber of cartridges, but the men were not ofﬁcered, or in any way
organized. Mr. Fish was of the opinion that the men not being in
an eﬂicient state, and the arms and ammunition being in themselves
subjects of legitimate commerce, there was no violation of neu-
trality. The men and arms were not susceptible, under the circum-
stances, while aboard ship, or immediately after their arrival in
France, of being so combined as to be capable of performing oﬁen-
sive operations. An interesting phase in regard to ﬁtting out an
expedition is presented when two or more independent acts are
performed in neutral territory, each of which is in itself innocent,
11 Hall, Int. Law, p. 607; Whart. Dig. § 398.
1'2 Bluntschli, § 773; Calvo, Int. Law, § 2749.
Ch. 21] FITTING OUT HOSTILE EXPEDITIONS. 285
but is intended by the person doing them to be combined and used
for offensive operations, the combination to take place outside of
the neutral state. Mr. Dana says: “No cases have arisen as to
the combination of material which, separated, cannotdo acts of
hostility, but, united, constitute a hostile instrumentality; for the
intent covers all cases, and furnishes the test. It must be imma-
terial where the combination is to take place, whether here or
elsewhere, if the acts done in our territory—whether acts of build-
ing, ﬁtting, arming, or of procuring materials for these acts—be
done as part of a plan by which a vessel is to be sent out with in—
tent that she shall be employed to cruise.” Mr. Hall, on the other
hand, says that “these acts can only, by their nature, be proved
when the persons guilty of them are no longer within neutral juris-
diction. They cannot, therefore, be prevented by the responsible
state; and, 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. * * * The true theory is that the
neutral sovereign has only to do with such overt actsas are perform ed
within his own territory, 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
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 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 eﬁect,
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 meet-
ing my enemy during that time, and I will organize my expedition
when I am so far off that the use of your territory is no longer the
condition of its being.’ ” 13 p
18 Wheat. Int. Law, D, note 215; Hall, Int. Law, 1). 611; 3 Whart. Dig.
§ 395a; U. S. v. Lumsden, 1 Bond, 5, Fed. Gas. No. 15,641. A mere prepara—
286 NEUTRALITY—BELLIGERENT AND NEUTRAL STATES. ‘[Ch. 21
EQUIPMENT OF VESSELS OF WAR IN NEUTRAL TER-v
RITORY.
234. Toconstruct and completely equip a vessel of war
in neutral territory, for the purpose of carrying on hos-
tilities against a particular power, is forbidden; but neu-
tral citizens may construct and arm a vessel and send
such armed vessel to a belligerent port for sale, provided
it be done as a bona ﬁde commercial transaction.
The terms “construction” and “complete equipment” are intended‘
to convey the idea of a vessel complete in every respect for carrying
on hostilities. As stated by Mr. Walker: “Let a vessel in every
way suitable for warlike use be built, ﬁtted, and armed in a neutral
dock yard. Let her be supplied with provisions in a neutral port,
and let her emerge therefrom manned by a ﬁghting crew, who
clearly set out their intention to carry on hostilities against a par- ‘
ticular power. As to the denomination of such proceeding, no
reasonable man can entertain a moment’s doubt.” It is diﬂicult to
state the number of elements which go to make up a forbidden expe-
dition that must be combined in order to create a violation of
neutrality. The mere. construction, and ﬁtting out in such a man-
ner as to be capable of being used by a belligerent for warlike pur—
poses, of a vessel of war, should be accompanied ordinarily by some
further act, in order to render it a violation of neutrality. Such
a vessel, standing alone, under these conditions, can be regarded
only as contraband of war, and subject to seizure under proper con-
ditions. It is‘ a proper object of commerce, and, until it receives
a crew and is commissioned, is properly so regarded.“ Mr. Justice
tion or plan of violation of neutrality, without overt acts, does not make
the party amenable under the neutrality act of 1818 (3 Stat. 447). If the
means provided were procured to be usedv on the occurrence of a future
contingent event, no liability is. incurred under the statute. If, also, the
intention is that the means provided shall only be used at a time and
under circumstances when they could be used without a violation of
law, no criminality attaches to the act.
14 In the case of The Meteor, 1 Am. Law Rev. 401, Fed. Gas. No. 9,498,
the vessel was built in the United States in 1865, during the war then
pending between Chili and Spain, and sold to the Chilian government with l
Ch. 21] EQUIPMENT or vEssEIs or WAR. I 287
, Storey says: “There is nothing in our laws, or in the law of na-
tions, that forbid our citizen-s 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, and which only ex-
poses the persons engaged in it to the penalty of conﬁscation.” In
fact, the practice of the United States, and the decisions of her
courts, conform to the rule that an American merchant may build
and arm and furnish a vessel with supplies, and offer her for sale
in her own market, provided he is not acting as the agent of a
belligerent, or in pursuance of some arrangements or understanding
with a belligerent that she will be employed for hostile purposes.
Further, such merchant may send out such a vessel for market in a
out armament, and then, it was alleged, commissioned, when in the United
States, as a Chilia-n privateer. She was libeled in New York, and seized
January 23,1866; and on the hearing before Judge Betts, it was main-
tained by the claimant to “be no oﬁense (under the act of 1818) to issue
a commission within the United States for a vessel ﬁtted out and equipped
to cruise or commit hostilities, and intended to cruise and commit hostili-
ties, so long as such vessel was not armed at the time, and was not in-
tended to be armed within the United States, although it could be shown
that a clear intent existed, on the part of the person issuing or delivering
the commission, that the vessel should receive her armament the moment
she should be beyond the jurisdiction of the United States.” Judge Betts
decided adversely, and condemned the vessel upon the grounds ‘that this
vessel was essentially a vessel of war, and not a merchant vessel; that
(relying on Dana’s note to Wheat. Int. Law, p. 215) the intent to employ
such vessel in hostile operations in favor of Chili and against Spain was
manifest, and only lacking an armament to be supplied just outside of United
States territorial waters. The case was not one of a bona ﬁde commercial nature.
This decision was reversed in the circuit court, upon the ground that, the
» negotiations between the owners and Chili having fallen through, an end
was put to that ground of complaint, which implied knowledge that the
vessel was to be used for active hostilities by Chili against Spain; that
the supplying the vessel with coal for a voyage to Panama was not in
pursuance of anagreem-ent or understanding with the agents of the Chilian
government; and that the evidence (coming from agents employed to
negotiate a sale. with Chili), being inﬂuenced by their disappointment and
chagrin at the failure of receiving a commission on the proposed sale to
Chili, was not suﬁicient to make out a case of the violation of our neu-
trality laws. Vide discussion of this case in North Am. Rev. Oct. 1866;
also, 3 Whart. Dig. pp. 563, 564; U. S. v. Quincy, 6 Pet. 445; The Gran Para,
7 Wheat. 471. _ a
288 NEUTRALITY—BELLIGERENT AND NEUTRAL STATES. [Ch. 21
belligerent port, provided she sails under the ﬂag and papers of her
own country, with a crew sufﬁcient only for navigating purposes,
with no right to resist search or seizure. The statute for prevent-
ing acts contrary to our neutrality was ﬁrst passed in 1794, and was
modiﬁed in 1818, upon request of Portugal, and upon complaints also
from Spain, ‘by the addition of measures looking to the more cer-
tain execution of its provisions.15 The construction of these stat-
utes by the courts has been to the effect that they were directed
against the animus belligemnd'i, rather than against the animus ven-
dendi. The practice of the United States has been in accord with her
municipal laws upon this subject, and it is understood to be the law
of nations in regard to this subject of vessels of war being ﬁtted out
in her territory. Great Britain has also what is termed her “For-
eign Enlistment Act,” which was ﬁrst passed in 1819, and which was
amended in 187 0, as a direct result of experience in the Civil War of
this country in 1861--65.16 It seems that France, Italy, Austria,
Spain, Portugal, Denmark, and the Netherlands have provided means,
either through their penal codes or otherwise, to prevent the equip-
ment of vessels of war. France, by means of her penal code, and
after the proclamation of neutrality in 1861, actually arrested some
vessels that were being constructed in her‘ports. The practice of
the United States, as stated, is to look at the intent of the party
constructing and equipping the vessel of war, and if this intent is to
ﬁt out a vessel to be sent to the belligerent port as contraband of
16 La Santissima Trinidad, 7 Wheat. 340; The Gran Para, 7 Wheat. 471;
U. s. v. Quincy, 6 Pet. 445. ‘
16 1 Stat. 381; Rev. St. § 5289.
Section 3: “If any person shall within any of the ports, harbors, bays,
rivers, or other waters ‘of the United States, ﬁt out and arm, or attempt
to ﬁt out and arm, or procure to be ﬁtted out and armed, or shall knowingly
be concerned in the furnishing, ﬁtting out or arming of any ship or vessel
with intent that such ship or vessel shall be employed in the service of
any foreign prince or state (or of any colony, district or people), to cruise
or commit hostilities upon the subjects, citizens, or property of another
foreign prince or state (or of any colony, district or people), with whom the
United States are at peace, or shall issue or deliver a commission within
the territory or jurisdiction of the United States for any ship or vessel
to the intent that she may be employed as aforesaid, shall be adjudged guilty
of a misdemeanor, and shall be ﬁned and imprisoned at the discretion of the
court in which the conviction shall be had. * * * ” (The remainder
Ch. 21] EQUIPMENT " OF vEssELs OF WAR. 289
war, and subject to capture, then itis the duty of the belligerent to
prevent it. If, on the other hand, it is the intent of the party to ﬁt
out a vessel to cruise, immediately or ultimately, upon friendly com-
merce, then it is the duty of our government to prevent it. Mr.
Hall, on the other hand, seems to think that, instead of planting the
doctrine upon the intent of the neutral trader or the belligerent
agent in the neutral country, that it should be made to rest upon the
nature of the vessel itself, and says that “jurists appear hardly to
have realized how unimportant is the advantage which is given to the
injured belligerent, in comparison with the grave evils of an indeﬁ-
nite increase in the number of international controversies.” It is:
true that experts can distinguish readily vessels that are intended
of the section designates the amount of ﬁne, term of imprisonment, and for-
feiture of the vessel and contents.)
Section 7 authorizes the President to employ the land and naval forces:
or militia to execute the law.
Section 10 provides for the giving of a bond in double the value of the
vessel and contents that she shall not be employed for hostile purposes.
Section 11 authorizes the collector of customs to detain vessels manifestly
‘built for warlike purposes.
British foreign enlistment acts of 1819 and 1870 (59 Geo. 111. c. 69; 33 8a.
34 Vict. c. 90):
Section 7: “If any person, within any part of the United Kingdom, or
in any part of His Majesty’s dominions beyond the seas, shall, without the-
leave and license of His Majesty for that purpose ﬁrst had and obtained as.
aforesaid, equip, furnish, ﬁt out, or arm, or attempt or endeavor to equip,
furnish, ﬁt out, or arm, or procure to be equipped, furnished, ﬁtted out, or-
armed, or shall knowingly aid, assist, or be concerned in the equipping,
furnishing, ﬁtting out, or arming of any ship or vessel, with intent or in.
order that such ship or vessel shall be employed in the service of any
foreign. prince, state, or potentate, or of any foreign colony, province, or~
part of any province or people; or if any person or persons exercising or‘
assuming to exercise any powers of government in or over any foreign state,.
colony, province, or part of any province or people, as a transport or store~
ship, or with intent to cruise or commit hostilities against any prince, state,.
or potentaite, or against the persons exercising or assuming to exercise the»
powers of government in any‘ colony, province, or part of any province-
or country, or against the inhabitants of any foreign colony, province, or-
part of any province or country, with whom His Majesty shall not then
be at war or shall, within the United Kingdom, or any of His Majesty’s
dominions, or in any settlement, colony, territory, island, or place belong-
ing or subject to His Majesty, issue or deliver any commission for a ship
INTERNAT.LAW— 19
290 NEUTRALITY—BELLIGERENT AND NEUTRAL STATES. [Ch. 21
primarily for warlike use, and a nation can easily prevent the def
parture of such vessels from its ports. It is also true that the in-
tent of the parties is difﬁcult to ascertain, but it is not clear why the
same diﬁiculty would not arise in regard to prescribing just what
vessels a belligerent should not permit to be constructed and ﬁtted
out, It is believed that the difficulties that arise in prevention of
the equipment of vessels on the part of members of a neutral state
who are anxious for gain would not be lessened.
This question arose most prominently after the Civil War in this
country, between England and the United States, in regard to cer- '
tain vessels that were ﬁtted out in British ports for the Confederate
States, and gave rise to what are generally known as the “Alabama
or vessel, to the intent that such ship or vessel shall be employed as afore-
said, every such person so offending shall be deemed guilty of a mis-
demeanor, and shall, upon conviction. thereof, upon any information or I
indictment, be punished by ﬁne and imprisonment, or either of them, at
the discretion of the court in which such offender shall be convicted.
1* * *” (The remainder of the section applies to the forfeiture of the vessel,
.authorizes proper oﬂicers to make the seizures, etc.)
The act of 1870 was passed in pursuance of the report of‘ a royal com-
mission appointed for that purpose.
Section 1 deﬁnes and punishes by ﬁne and imprisonment illegal enlistment.
Section 2 refers to military or naval expeditions. .
‘Section 3 prohibits the augmentation without license of the warlike force
of any ship, etc. I i , "
Section 5: “Any person, who, within Her Majesty’s dominions, and with-
out the license of Her Majesty, (1) builds, agrees to build or causes to be
built, (2) issues or delivers a commission to, (3) equips, or (4) dispatches,
or causes or allows to be dispatched, any ship with intent or knowledge
or having reasonable cause to believe that the same shall or will be em-
ployed in the military or naval service of any foreign state at war with
any state with which Her Majesty is at peace, is declared thereby ‘ to ‘
.offend against the law of Great Britain.” (An exception is made in the
case of a person who builds or equips a vessel in pursuance of a contract
made before the outbreak of war provided he complies with certain con-
ditions prescribed in the act.)
Section 23 empowers the secretary of state to seize and search and detain
a suspected ship until condemned or released by process of law.
Section 24 makes it the duty of the local authority to detain a suspected
ship, and communicate at once the fact of such detention to the proper
authority. -
For provisions of other states, vide Pitt-Cobbett, Cas. Int. Law, pp. 288—291.
Ch. 21] EQUIPMENT OF VESSELS OF WAR. v 291
Claims.” By the treaty of Washington it was agreed between and
by the two powers named that these claims, together with some
others should be submitted to arbitration; the method of selection
of the board of arbitrators, together with the other details for their
sittings, etc., being fully set forth in the treaty. Article 6 provided
that, in deciding the matters submitted to the arbitrators, they
should be governed by three rules, which were agreed upon by the
high contracting parties as rules to be taken as applicable to the
case, and by such principles of international law, not inconsistent
therewith, as the arbitrators should determine to be applicable to
the case. These rules were as follows: ‘
“A neutral government is bound:
“First. To use due diligence to prevent the ﬁtting out, arming,
or equipping, within its jurisdiction, of any vessel which it has rea-
sonable 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 dili-
gence to prevent the departure from its jurisdiction of any vessel
intended to cruise or carry on war as above; such vessel having
been specially adapted, in whole or in part, within such jurisdiction,
to warlike use.
“Secondly. Not to permit or suffer either belligerent to make use
of its ports or waters as the base of naval operations against the
other, or for the purpose of the renewal or augmentation of military
supplies or arms, or the recruitment of men. A .
“Thirdly. To exercise duel-diligence in its own ports, and waters,
and, as to all persons within its jurisdiction, to prevent any viola-
tion of the foregoing obligations and duties.
“Her Britannic Majesty has commanded her High Commissioners
and Plenipotentiaries to declare that Her Maj esty’s Government can-
not assent to the foregoing rules as a statement of principles of in—
ternational law which were in force at the time when the claims
mentioned in article 1 arose, but that Her Majesty’s Government, in
order to evince its desire of strengthening the friendly relations be—
tween the two countries, and of making satisfactory provision for
the future, agrees that, in deciding the questions between the two
countries arising out of these claims, the arbitrators shall assume
that Her Majesty’s Government had undertaken to act upon the prin-
ciples set forth in these rules. And the High contracting parties
292 _NEUTRALITY—BELLIGERENT AND NEUTRAL STATES. [Ch. 21
agree to observe these rules, as between themselves, in future, and
to bring them tothe knowledge of other maritime powers, and to
invite them to accede to them.” .
Article 7 provided that the tribunal should first determine, as to-
each vessel separately, as to whether Great Britain has, by any act
or omission, failed to fulﬁll any of the duties set forth in the fore
going three rules, or recognized by the principles of international law
not inconsistent with such rules, and shall certify such fact as to
each of said vessels. Provision was then made for awarding by the
tribunal of a sum in gross, to be paid in coin by Great Britain to
the United States. And for the appointment of a commission to
award the sums to be so paid in gross in case the tribunal failed to
make such award. _
The ﬁrst thing that the arbitrators found necessary to be done,
after meeting, was to determine what construction should be placed
upon the three rules agreed upon for their guidance, and also upon
certain international law points involved in their decision. The
decision was as follows:
“(1) Due diligence ought to be exercised by neutral governments-
in exact proportion to the risks to which either of the belligerents
may be exposed, from a failure to fulﬁll the obligations of neutrality
on their part.
“(2) The effects of a violation of neutrality, committed by means
of the construction, equipment, and armament of a vessel, are'not
done away with by any commission which the government of the-
belligerent power beneﬁted by the violation of neutrality may after-
wards have granted to that vessel; and the ultimate step, by which
the offense is completed, cannot be admissible as a ground for the
absolution of the offender, nor can the consummation of his fraud
become the means of establishing his innocence.
“(3) The principle of exterritoriality 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.”
The award of the tribunal was against Great Britain in regard
to three of the vessels. In the case of The Alabama, the award was
unanimous; in the case of The Florida, the vote stood four to one;
Ch. 21] EFFECT or NEU’lRAL TERRiToRY UPON PERSONS. 293
and, in regard to The Shenandoah, the vote was three to two. In
regard to the last named, the responsibility was for acts done after
her departure from Melbourne, on February 18, 1865. The amount
of the award was ﬁxed in gross at $15,500,000. to be paid in gold by
Great Britain to the United States.
In regard to the treaty of Washington, and the principles an-
nounced by the two contracting parties, it is to be noted that as
they did not agree upon the interpretation to be placed upon the ‘-
rules for the guidance of the tribunal, as neither party has carried
out the last clause in regard to calling the attention of other mari-
time powers to the rules agreed upon, or asked their adoption of
them, and in view of the attitude of England in regard to these rules
not being in accord with the recognized principles of international
law, it is questionable whether this treaty or the action of the board
- of arbitrators will be considered as introducing any change into
international law. On the other hand, there is no question but that
England did not exercise due diligence in regard to the, perform-
ance of her neutral obligations, whether due diligence be properly
deﬁned by the tribunal, or not, either as to the enforcement of her
foreign enlistment acts, or in regard to the hospitality or asylum
oﬂ’ered to the cruisers of the Confederate States. The passage of
the amendments to her foreign enlistment acts in 1870 certainly
shows that there was a realized necessity for more vigorous enforce-
ment of‘ her neutrality obligations.17 '
EFFECT OF NEUTRAL TERRITORY UPON PERSONS—PRIS-
ON ERS OF WAR.
-
235. Prisoners of war are released upon touching neu-
tral territory.
This release, however, does not extend to prisoners of war upon
board of a belligerent vessel of war within neutral waters; but
1'! Vide Hall, Int. Law, pp. 612-620; 2 Halleck, Int. Law, pp. 185-195; “Talker,
Int. Law, pp. 458-502; Davis, Int. Law, pp. 319-335; Dana's note to Wheat.
Int. Law, No. 215; Whart. Dig. §§ 156a, 396; Creasy, Int. Law, pp. 176-191;
Gallaudet, Int. Law, 268-273; Pitt-Cobbett, Cas. Int. Law, pp. ‘280-288;
Calvo, Int. Law, §§ 2561-2582; Bluntschli, §§ 763, 779 bis.; La Amistad
de Rues, 5 \Vheat. 385. - .
.294 NEUTRALITY—BELLIGERENT AND NEUTRAL sTATns. [Ch. 21
this is due to the fact of the peculiar doctrine which is held in re-
gard to such vessels, and is not in reality an‘ exception to the rule.
The same is true in regard to prisoners on board of privateers, and
alsov is, by some authorities, maintained as applicable to prizes,
to the extent that prisoners on board of them may be retained.
The principle upon which the rule rests is that a neutral becomes
identiﬁed with the act of conﬁnement, and thus commits an act
of hostility by permitting their continued conﬁnement upon his
territory.18
SAME—RIGHT OF ASYLUM TO BELLIG-ERENT TROOPS.
. 236. A neutral state has the right to permit‘ troops of
a belligerent to take refuge upon his territory, either as
a body or as individuals, but must not permit them to
again depart from his territory for the purpose of com-
mitting hostilities.
The practice in such cases is for the neutral to disarm such,mem~_
bers of a belligerent force as may take refuge within his territory,
and to intern them until the conclusion of the war. The most
satisfactory method of dealing with such troops would be to release
such fugitives under a convention between the neutral and belliger-
ent state by which the latter would agree not to again employ them
during the continuance of the war.19
SAME—RIGHT OF ASYLUM TO NAVAL FORCES.
‘237. The privilege of entrance by a belligerent vessel of
war into neutral waters does not depend upon stress by
the enemy, or stress of weather, but is generally accorded.
Taking refuge after a defeat does not cause such a vessel
to be disarmed, but she is subject to certain regulations
imposed by the neutral.
18 Hall, Int. Law, pp. 620, 621; Bluntschli, § 85;’ Vatt. Int. Law, bk. 3,
c. 7, § 132; The Twee Gebroeders, 3 C. Rob. Adm. 165; L’Invincible, 1
Wheat. 252. . _
19 Bluntschli, § 774.
Ch. 21] EFEEcT or NEUTRAL sovEREIcNTY UPoN PROPERTY. 295
The rule that has been adopted by most nations at the present
time is that vessels of war are to remain in neutral ports only for
twenty-four hours, unless a longer time is requisite to enable her to
have necessary repairs made, or to take on authorized supplies, in' '
which case she is to depart as soon after accomplishing the same as
practicable. Another rule in regard to such ships, when in neutral.
ports at the same time with vessels of war of the other belligerent,
is that an interval of twenty-four hours must elapse after the de-
parture of one before the departure of the other. This twenty-four-
hour rule was ﬁrst adopted in regard to privateers,--a public vessel
of war being subject to a promise on the part of its commander not
to engage in hostilities against another vessel issuing from a'neutral
port shortly before him,—the distinction being made because the
commanders of privateers were regarded as less responsible than
the commanders of the other class of vessels. The practice in
regard to privateers was afterwards extended to public vessels of
war. The right of entrance to privateers would now be very gen-
erally denied.20
EFFECT OF NEUTRAL SOVEREIG-NTY UPON ‘PROPERTY.
238. The usual practice of neutral nations is to prevent
belligerents from bringing prizes into their ports.
This rule has practically done away with much of the inconven-
ience resulting from the former practice of permitting prizes to be
brought into neutral ports by belligerents. The right of a neutral
state to permit or forbid a belligerent to bring property within its
territorial waters is undoubted. In the absence of an express prohi-
bition, on the other hand, a belligerent has the privilege of bringing
his prizes within neutral waters or harbors, and of keeping them'
there during the time of the proceedings for their condemnation by
the proper court. The neutral state also has a right to require evi-
dence that the belligerent bringing property into its waters has ac—
quired deﬁnite rights of property in the same.21
20 Whart. Dig. § 394; Hall. Int. Law, pp. 629-633; Bluntschli, §§ 774—
776, 845; Calvo, Int. Law, § 2668; Creasy, Int. Law, p. 584.
21‘7 Op. Attys. Gen. p. 122; Vatt. Int. Law, bk. 3, c. 7, § 132; Hall, Int.
Law, pp. 621, 622.
296 NEUTRALITY—BELLIGERENT AND NEUTRAL STATES. [Ch. 21
‘DUTY OF A NEUTRAL STATE IN REGARD TO INJURIES 'TO
A BELLIGERENT COMMITTED IN ITS TERRITORY.
239. Acts of a belligerent resulting in injury to his
enemy, which are committed within neutral jurisdiction,
should be taken cognizance of by the neutral, and repa-
ration be demanded, in the interest of the injured bellig-
erent, especially when such acts are in violation of the
sovereignty of the neutral.
This duty is incumbent upon the state, because, should it fail so
to act, there will be a violation of its duty of impartiality as a neu-
tral. The extent to which this duty of the neutral state, under such
circumstances, should be performed, is, in general, the same as in
the case of a violation of its own sovereignty resulting in injury to
itself. Generally speaking, it is the duty of the neutral state, under
such circumstances, to see that the original conditions are restored,
if possible; but, in case of inability to do this, such other reparation
as the circumstances admit of should be demanded. A case illus-
trating this occurred in 1864, when the United States war steamer
Wachusett, in pursuance of a plan matured by the United States
‘ ‘consul, towed the Confederate cruiser Florida from her moorings in
the harbor of Bahia into the open sea. Upon protest being made
1Joy the Brazilian government, the United States disavowed and
apologized for the action of her officials, dismissed the consul, and
tried the commander of the United States vessel by court-martial; it
being impossible to restore the vessel, which had in the meantime
been sunk. The United States further surrendered the crew of
the captured cruiser, and caused the ﬂag of the Brazilian empire to
be saluted at the point where the offense was committed.22 Should
a neutral state fail to prevent the acts in violation of its neutrality,
and resulting in injury to a belligerent, or fail to demand'repara-
tion, the injured belligerent may properly demand satisfaction for
this failure, upon the ground that the neglect of the neutral has
converted him into an active offender.23
22 Mr. Seward, secretary of state, Dec. 26, 1864.
28 Whart. Dig. 399, 400; La Amistad de Rues, 5 Wheat. 390; The
Marianna Flora, 11 Wheat. 42; Dana’s note to Wheat. Int. Law, No. 207.
#Ch. 21] PROPERTY CAPTURED IN VIOLATION OF NEUTRALITY. 297
PROPERTY CAPTURED IN VIOLATION OF NEUTRALITY.
240. Property captured in violation of neutrality will
be seized, and restored to its original owner, if it enter
the neutral’s jurisdiction.
Property which has been once carried infra praesidia of the cap-
tor’s country, and there regularly condemned in a competent court
of prize, presents a question, in regard to its seizure and restitution,
upon which the authorities are not agreed. Upon the principle
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,” a seizure by a neutral after such a
condemnation would be invalidated by such previous decision of the
court, and restitution impracticable. On the other hand, the sov—
ereign rights of a neutral nation should not be shut out by the deci-
sion of a foreign tribunal.“
. SAME—CAPTURED VESSEL CONVERTED INTO PUBLIC VES-
SEL OF BELLIGEREN T.
‘241. A vessel which, after capture, and before return to
the neutral port, has been regularly commissioned, enjoys
the same immunity as other public vessels of war of the
belligerent country.
The extent to which the neutral nation may proceed in such case
is to ascertain whether such vessel is in fact commissioned as a pub-
lic vessel, and when this fact is established further proceedings
must cease.25 ‘
24 La Estrella, 4 Wheat. 298; Talbot v. Janson, 3 Dell. 157. As to duty
of neutral sovereign to prosecute in such cases, vide La Santissima Trinidad,
7 Wheat. 341; The Twee Gebroeders, 3 C. Rob. Adm. 162; The Anne, 3
Wheat. 447; Blimtschli, § 786.
25 L’Invincible, 1 Wheat. 254.
298 _ ooNTRABAND. \- ~ [Ch. 22
CHAPTER‘ XXII.
OONTRABAND.
242. Contraband Deﬁned.
243. Arms and Munitions of War.
244. Articles for Manufacture of Same, and Equipments.
245-246. Penalty for Carrying Contraband.
247. Pre—emptio-n.
248. Time when Penalty Attaches.
249-250. The Carriage of Dispatches.
251. Carriage of Persons.
252. Penalty for Carrying Hostile Persons and Papers.
253. Carriage of Same in Ordinary Course of Business.
ooNTRABAND' DEFINED.
242. Contraband of war may be said ‘to consist of those
commodities which, on account of their immediate use in
the prosecution of hostilities, a neutral cannot transport to
either belligerent without risk of conﬁscation.1
1 Other deﬁnitions: _ _
“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.” .Hall, Int. Law, § 236.
“Contraband of war perhaps denoted at ﬁrst that of which a belligerent
publicly prohibited the exportation into his enemy’s country, and now those
kinds of goods which by the law of nations a neutral cannot send into either
of the countries at war without wrong to the other, or which by conventional
law the states making a treaty agree to put under this rubric.” Wools. Int.
Law, p. 319. ‘
“Contraband at ﬁrst ‘signiﬁed those articles the importation of which into
a country was publicly prohibited. It now denotes those articles which a
neutral cannot carry into the country of a belligerent without incurring‘the
risk of conﬁscation.” Pitt-Cobbett, Cas. Int. Law, p. 311. _
“Sont considérés comme contrebande de guerre, les objets transportés a
l’un des belligerents 'dans le but de faciliter les operations m-ilitaires, et dont
il pourra se servir pour faire la guerre.” Bluntschli, § 802.
“On designe en general sous la denomination de contrebande de guerre les
choses qui sont d’un usage particulier pour la guerre, pouvant servir directe-
ment 5. l’attaque ou a la defense, et dont, par consequent, 1e transport a
Ch. 22] ' coNTRARANn DEFINED. I 299
Two theories as to the derivation of this term, “contraband,” are
advanced, one of which is that it comes from the word “contraban-
num,” dating from the middle ages, when the church ban was laid
upon those who furnished arms to inﬁdels.2 Mr. Woolsey rejects
this idea. of its origin, and says “‘contmbann-u.m,’ in mediaeval Latin,
is ‘merces banno interdictae.’ ‘Bannus,’ or ‘bannum,’ represented by
our ‘ban,’ and the Italian ‘ba‘nd0," denoted originally an edict, a
proclamation, then an interdict. The sovereign of the country made
goods contra-band by an edict prohibiting their importation or expor-
tation. Such prohibitions are found in Roman law.”3 The authori-
ties and usage leave uncertain what is contraband, and the articles
of contraband are varied with the situation of the nations whose in-
terests are affected by their position as a maritime power. The
classiﬁcation of articles made by Grotius is still resorted to, in the
main, and certainly by Great Britain and'the United States. He
says: “We must make a distinction as to the things supplied. For
there are some articles of supply which are useful 'in war only, as
arms; others which are of no use in war, but are only luxuries;
others which are useful both in war and out of war, as money, pro-
visions, ships, and their furniture. In matters of the ﬁrst kind,
that is true which Amalasuintha said to Justinian,-—that they are
of the party of the enemy who supply him with what is necessary in
war. The second class of objects is not a matter of complaint. In
the third class, objects of ambiguous use (ancipitis usus), the state
of the war is to be considered.” 4
l’un des belligerants par les neutres est considéré comme un acte illicite.”
Calvo, Int. Law, § 2708.
2 Bluntschli, § 801, note 1.
8 Wools. Int. Law, §193. V ide, also, Calvo, Int. Law, § 2708.
4 Grotius, bk. 3, c. 1, § 5; The Peterhoff, 5 Wall. 58. The court observes
that the classiﬁcation of contraband best supported by British and American de-
cisions might be said to divide all merchandise into three classes: Of these,
the ﬁrst consisted of articles manufactured and primarily used for military
purposes in time of war; the second, of articles which might be and were
used for the purposes of peace and war, according to circumstances; and
the third, of articles exclusively used for peaceful purposes. The ﬁrst always
contraband; those of the second class were contraband if actually destined
to themilitary or naval use of the belligerent; articles of the third class not
contraband at all, except subject to conﬁscation for violation of blockade.
300 CONTRABAND. [Ch. 22
The question of contraband relates to articles that are exported
by a neutral to one of the belligerent countries. Articles that re—
main in the neutral country, whatever their nature, are not contra-
band; and no article becomes so until the act of exportation com?
mences, at which time a violation of neutrality commences. The
exporting of articles does not in itself make them contraband, pro-
vided they are bound for another neutral port, and are bona ﬁde a
commercial transaction with the neutral. The general view taken
of this subject is that, so long as the neutral remains passive, he is’
at liberty to furnish either belligerent with any and all articles that
he may wish in his own market. The criticism of this doctrine is
that, if it is wrong for a neutral to export contraband to a belligerent
port, then it is wrong for him to supply such belligerent in his own
market, since the furnishing of the articles is rendering assistance
to an enemy, whatever the location of the market. In consequence,
it is recommended that all articles that are free from taint be freely
furnished to either belligerent, and all articles which become contra-
band under the present law should be absolutely prohibited by the
neutral. This is a departure from the doctrine laid down by Judge
Story in The Santissima Trinidad,5 and the imposition of such a
duty upon a neutral disposed to carry out his obligations in good
faith would make war more burdensome upon him than upon the
belligerents themselves, since it would necessarily upset the business
of a large portion of the population of the neutral state, which they
carry on during the normal relations of states.
Again, there exists a confusion asto what articles are to be con-
sidered as contraband, which during peace are not so, and are only
5 The Santissima Trinidad, 7 Wheat. 340: “The question as to the original
illegal armament and outﬁt of the Independencia may be dismissed in a few
words. It is apparent that though equipped as a vessel of war, she was sent
to Buenos Ayres on a commercial adventure, contraband, indeed, but ~in no
shape violating our laws or our national neutrality. If captured by a Spanish
ship of war during the voyage, she would have been justly condemnable as
good prize, for being engaged in a trafﬁc prohibited by the law of nations.
But there is nothing in our laws or 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, and which only exposes the persons engaged in it to the penalty of
conﬁscation.”
Ch. 22] CONTRABAND DEFINED. 001 9
,
rendered so by virtue of the accidental relation of war. Certainly, as
to this class, it would be impossible for a neutral state to forbid
dealings on the part of its inhabitants. It may be that certain
articles, which, from'their nature, are specially noxious, might be
placed upon the same footing as those which a neutral is bound to
prohibit being supplied to a belligerent by his subjects. It must
not be forgotten that the burden of the war should be borne by.
the belligerent, and should not be transferred to the neutral or his
subjects. The‘latter should not be'made to suffer in their trade on
account of the differences of belligerents, further than taking the
risks at present assumed under the international rights of seizure
‘conferred upon a belligerent. The true principle seems to be that,
7 to render a particular article contraband, it must possess the quality
of being essential to the belligerent, for his warlike purposes. The
neutral merchant has an unquestioned right to carry on his trade,
and this right, in regard to contraband articles, comes into conﬂict
with that of the belligerent to prevent his enemy from obtaining
articles of immediate use in his operations of war. The former has
not ordinarily an intent to do wrong, but merely the idea of ob-
taining the best market for his goods; the latter, the idea of putting
stress upon his enemy. It is impossible to determine from treaty
or international usage what articles are to be classed as contraband,
because of the lack of uniformity in both. The same nation makes a
certain article contraband in a treaty with one nation, and classes
it as free in a treaty concluded with another nation about the
same time, Text writers are equally at variance with regard to
what articles are to be classed as contraband.‘
6 For general law of contraband, Vide Hall, Int. Law, pt. 4, c. 5; 2 Halleck,
p. 244 et seq.; Vatt. bk. 3, c. 7, § 112 et seq.; Wheat Int. Law, D, § 476 et seq.;
Whart. Dig. §§ 368-375; Walker, Int. Law, pp. 506-516; Davis, ‘Int. Law,
c. 12; Dahlgren, Int. Law, pp. 65-100; Lawrence, Handbook, pp. 130-133; Mann.
Int. Law, (2. 7; Twiss, Law Nat. c. 7; Bynk. Int. Law, cc. 10, 14; Gal--
laudet, Int. Law, 283-292; Pitt-Cobbett, Gas. Int. Law, pp. 211-230; Greasy,-
Int. Law, 604-633; Phillim. Int. Law, pt. 10, c. 1; Wools. Int. Law, §§ 193-
199; Calvo, Int. Law, § 2703 et seq.; Bluntschli, §§ 801-817.
302 coNTRABAND. [Ch. 22
ARMS AND MUNITIONS OF WAR. ‘
243. Arms and munitions of war, of whatever descrip-
tion, being of immediate use in the prosecution of war, are,
without question, regarded as contraband.
This comprises all those articles that cannot be used for anything
else than military purposes, or that are generally made use of in that
manner. It would include all ordnance, and arms of every de-
scription (cannon, mortars, ﬁrearms, pistols, bomb-s, grenades, etc.),
balls, shells, shot, gunpowder of all kinds, gun carriages, ammunition
wagons, belts, scabbards, and military equipments of all ‘kinds, mili-
tary clothing, vessels clearly intended for warlike use, with their
armament, torpedoes, with the electric appliances connected with
them, and all other articles, whether manufactured or not, that are
.almost exclusively used for military purposes, such as machinery
for manufacture of arms and munitions.7
'1 Ortolan gives the following as contraband: “(1) Arms and instruments
‘of war, and munitions of every kind directly serving for the use of those
arms, are the only objects generally and necessarily contraband. (2) Raw
materials or merchandise of every kind ﬁtted for peaceful use, even-though
equally capable of being employed in the manufacture or application of arms,
instruments, and munitions of war, are not strictly comprised in this contra-
band. It is, at most, permitted to a belligerent power, in view of some special
circumstances affecting its military operations, to treat such articles as con— 4
traband, but they ought only to be so assimilated as a rare exception, which
should be limited to those cases in which they in fact form a disguised con-
traband; that is to say, in which they are tainted with fraud. (3) Provisions
and all other objects of ﬁrst necessity are incapable of being included in any
case, or for any reason, among goods contraband of war.” Dip. De La Mer. 2,
190; Hall, Int. Law, p. 657. Bluntschli, §§ 803-806, says: “As a general
rule, unless special conventions exist between the two parties, are contra-
band: (a) Guns, muskets, swords, cannon, balls, bullets, powder, and other
material of War; (b) saltpeter and sulphur serving to manufacture powder;
(c) ships of war, dispatches relative to the war, and transported with the in-
tention of favoring one of the belligerents. The arms and munitions that a
neutral ship carries for its own needs are not contraband of war. The trans-
porting of articles serving for individual needs of individuals, clothing, money,
horses, timber for naval construction, sail cloth, iron plates, steam engines,
coal and merchant vessels, etc., are as a rule authorized. These articles can
be exceptionally regarded as contraband if specially mentioned in treaties, or
Ch. 22] ARTIcLEs FOR MANUFAcTURE, EQUIPMENT, m0. 303
ARTICLES FOR MANUFACTURE, EQUIPMENT, ETC.
244. Materials for naval construction, for ammunition
and equipment, and machinery for the manufacture of
arms and munitions of war, are, in general, regarded as
contraband.
This is not the accepted usage of all nations, but it is certainly
the general practice of England and of ‘the United States. _ England
has always treated as contraband all manufactured articles that,
in their natural state, are ﬁtted for military use, or for building
or equipping ships of war, and would include, not only all articles
that were formerly used in the construction of ships, but also all
articles which go to make the modern steam vessel of war, with
its armament, armor, engines, etc.8
Saltpeter and sulphur are generally placed upon the list of contra-
band,because of their use in the manufacture of explosives of all
kinds,‘ and they are very generally included in all treaties upon
the subject of contraband. Their use is extending under the
modern inventor. .
Whether horses are contraband or not has been much discussed.
The general rule seems to be that they are. Russia seems to be
the only country which has not included them in her treaties, as
contraband, at some time or other. The general rule formerly
was to regard all beasts of burden, except the horse, as free, but
‘at the present time asses, mules, and horses are regarded as con-
traband. Sometimes a distinction based upon the use to which
the animal is adapted, as for artillery or transport, or for cavalry,
is attempted to be drawn, but there is no means of determining
this. The safer rule is to assume that they are intended for mili-
tary use, when exported to a belligerent, instead of for agricultural
purposes. _
if in the same manner it can be shown that they are specially destined for
warlike purposes, and transported with the intention of aiding one of the
belligerents.” Vide 2 Halleck, Int. Law, pp. 257-263.
8 For list of articles usually regarded as contraband, vide Whart. Dig. §368.'
Page 413 shows the list given in a draft convention between the United States
and England in 1804. ’
304 CONTRABAND. [Ch. 22
In considering whether or not coal is contraband, it must be borne
in mind that during the early part of this century was the period
when the introduction of the use of this article into vessels of war '
so extensively ﬁrst gave rise to the tendency to extend the right
of a belligerent to place it upon the list of articles which he could
deny the transportation of to his enemy. It is an article very ex-
tensively used in nearly all peaceful pursuits,—~so much so as to
render it vitally necessary. It is essential for commercial naviga-
tion, and is not exclusively, or even principally, used in war. The
transportation of this article to a belligerent port cannot, from the
nature of the article itself, create the presumption that it is for
belligerent use. On the other hand, it may be transported or fur- -
nished under circumstances such as to clearly render it was hostilis.
If it is sent direct to a belligerent ﬂeet, or to a place used as a base
, of operations by the navy of one of the belligerents, it may very
properly be regarded as contraband. Again, if it is supplied to
one of the bellegerents, as in the case of The Shenandoah, during
the Civil War in this country, it becomes a violation of neutrality.
“When I see the Florida and the Shenandoah choose for their ﬁeld
of action, the one the stretch of sea between the Bahama Archi-
pelago and Bermuda, to cruise there at its ease, and the other Mel-
bourne and Hobson’s Bay, for the purpose, immediately carried
out, of going to the Arctic seas, there to attack the whaling vessels,
I cannot but regard the supplies of coal in quantities sufﬁcient for
such services infraction of the second rule of article VI.” The
’ circumstances, therefore, of each case, will determine the nature of
the transaction. It would certainly be no breach of neutrality
to sell coal for use on a belligerent steamer visiting the port of sale
on account of stress of weather, but a plain breach of neutrality to
establish a coaling station’ to supply all vessels of a particular
belligerent.0 ,
Articles of food are now very generally regarded as belonging to
the free list. This has been the contention of the United States
since Mr. Jeﬁerson was Secretary of State. During his term of
office, England maintained that under certain conditions provisions
9 Count Sclopis, in the Geneva award. vWhart. Dig. § 369; Hall, Int. Law,
pp. 664, 665; Bluntschli, § 805. -
Ch. 22] ARTICLES FOR MANUFACTURE, EQUIPMENT, ETC. 305
were contraband, and carried the doctrine so far as to seize all
vessels laden with provisions which were bound for a French port,
on the ground that there was a pro-spect of reducing her enemy by
‘famine. As a result of the controversy that arose at this time, it
was agreed that when provisions become contraband by the law
of nations, and are captured, they shall be paid for, with a reason-
able proﬁt. In the case of The Commercen, Mr. Justice Story said:
“By the modern law of nations, provisions are not, in general,
deemed contraband, but they may become so, although the property-
of a neutral, on account of the particular situation of the war, or on
account of-their destination. If destined for the ordinary use of
life in the enemy’s country, they are not, in general, contraband; but
it is‘ otherwise if destined for military use. Hence, if destined for
the army or navy of the enemy, or for his ports of naval or military
equipment, they are deemed contraband.” 1° The American courts
have been in accord with those of England, while the doctrine of the
French courts has been that provisions are always free. In the year
1885 the French government declared that rice destined for any
port north of Canton would be regarded as contraband. This
caused a vigorous protest from Great Britain, but no authoritative
decision was had upon the subject by a French tribunal, as the
war wasbrought to a close very soon after, and before any seizures
were made. The attitude of England at that time placed her un-
equivocally in favor of provisions being free. Lord Granville,
speaking for Great Britain. said that she would not consider herself
bound by the decision of any prize court which should give effect
to the doctrine put forward by France. “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 by ships, and not ordinary articles of import into the port
of consignment, their capture produces an analogous effect to that
of commissariat trains in the rear of an army.” 11
Money may, like provisions, under certain circumstances, become
contraband of war, but is certainly not so if sent to‘ a belligerent
10 The Commercen, 1 Wheat. 382; A'Iaisonnaire v. Keating, 2 Gall. 325, Fed.
Gas. No. 8,978. .
11 Parl. Papers, France, N0. 1, 1885; Hall, Int. Law, p. 667; Whart. Dig.
§ 370.
IN'l‘ERNAT.LAW—20 .
306 CONTRABAND. } [Ch. 22
country for the payment of debts or the purchase of goods. Should
it be sent for the purpose of assisting belligerent operations, the
holding it contraband is authorized. Money, silver plate, and bul-
lion, when destined for hostile use or for the purchase of hostile sup~~
plies, being contraband of war, the general in command at New
‘Orleans was authorized to order them to be removed from a foreign
vessel outward bound, and her clearance withheld until the order
was complied with.12
Under the head of “merchandise” may be considered articles not
previously mentioned separately, and in regard to them it can be
said that those which have produced the greatest amount of dis-
cussion, and which at the same time have received most attention
from the courts, are those used in the construction of vessels of war.
This list, as previously stated, has been very much increased by the
change in the nature of such vessels. The English- and American
courts have uniformly regarded such articles as contraband, the
practice of the French courts being the reverse. Cotton, during
the Civil War in the United States, was regarded as contraband by
the Federal Government, because it was used as collateral for loans
secured abroad, was sold for cash to meet current expenses, was used
to purchase arms and munitions of war, and its use for such pur-
poses was publicly proclaimed by the Confederate Government. Un—
der the circumstances there was no doubt as to the right of the
United States authorities to regard it as conﬁscable, as contraband.
It has been held that blankets, boots, and other articles of clothing,
were contraband when the circumstances clearly indicated that they
were intended for the use of the enemy.13
12 Mann. Int. Law, p. 358; U. S. v. Diekelman, 92 U. S. 520.
18 Mr. Bayard, Secretary of State, Spain, June 28, 1886; Whart. Dig. § 373.
The following list is from Mr. Godfrey Lushington’s Manual of NavalPrize Law:
“Goods absolutely contraband: Arms of all kinds, and machinery for manu-
facturing of arms; ammunition and materials for'ammunition, including lead,
sulphate of ‘potash, muriate of potash, chloride of potassium, chlorate of pot-
ash, and nitrate of soda; gunpowder and its materials,—saltpeter and brim-
stone; also gun cotton; military equipments and clothing; military stores;
naval stores, such as masts (The Charlotte, 5 C. Rob. Adm. 305), spars, rud-
ders, and ship timber (The Twende Brodre, 4 C. Rob. Adm. 33), hemp (The
Apollo, Li C. Rob. Adm. 158) and cordage, sail cloth (The Neptunus, 3 C. Rob.
Adm. 108), pitch and tar (The Jonge Tobias, 1 C. Rob. Adm. 329), copper ﬁt
Ch. 22] PENALTY FOR cARRYINc CONTRABAND. 307
PENALTY FOR CARRYING CONTRABAND.
245. Articles which are clearly contraband, if more in
quantity than the needs of the vessel, are subject to con—
ﬁscation upon being captured, with loss of freight to the
carrier. '
246. The modern rule is that the vessel carrying con-
traband articles, with the goods on board not contraband,
go free, except in the following cases in which the vessel
is condemned: _
(a) ‘Where the vessel and cargo belong to the same
I owner.
(b) Where the owner of the vessel has been privy to
the carriage of the contraband.
(0) Where false papers have been used.
(d) Vessels have sometimes been conﬁscated-—
(1)1When the contraband goods make up three-
fourths of the cargo. '
(2) When the owner of the vessel is bound, by
special treaties of his government with that
of the captor, to refrain from carrying the
contraband articles.
for sheathing vessels (The Charlotte, 5 C. Rob. Adm. 275); 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 materials used in the manufacture thereof, as blue has
and Portland cement; iron, in any of the following forms: Anchors, rivet
iron, angle iron, round bars of from three-quarters to ﬁveeighths of an inch
in diameter, rivets, strips of iron, sheet-plate iron exceeding one-fourth of an
inch, and low moor and bowling plates. Goods conditionally contraband: Pro-
visions and liquors ﬁt for the consumption of an army or navy (The Haabet,
2 C. Rob. Adm. 182); money; telegraph materials, such as wire, porous cups,
platina, sulphuric acid, and zinc (Parl. Papers, North America, No. 14, 1863);
materials for the construction of a railway, as iron bars, sleepers, etc.; coals;
hay (Hosaek, 45); horses; rosin (The Nostra Signora De Begona, 5 C. Rob.
Adm. 98); tallow (The Neptunus, 3 C. Rob. Adm. 108); timber (The Twende
Brodre, 4 0. Rob. Adm.‘ 37).” 2 Halleck, Int. Law, pp 260, 261, note.
308 . CONTRABAND. ‘ [Ch. 22
Some authorities maintain that a. vessel has the right to abandon
the contraband articles on board to the belligerent captor, unless in
too large quantity for the captor to receive them, and purchase the-
free continuance of her voyage. This is not in accordwith the
common practice, which is to take the vessel into port, where the
articles of contraband are duly condemned, and the vessel, with her
free goods on board, is permitted to go free, with loss of time,
freight, and expenses.“ '
PRE-EMPTION.
247. The doctrine of pre-emption arises from the rule-
adopted by the English prize courts, by which articles
occasionally contraband, which are intercepted by a bel-
ligerent, are to be paid for by such belligerent govern—
ment, with a fair proﬁt on the commodity‘.
The general English practice was to pay a fair mercantile value
for the merchandise, with a proﬁt of ten per cent. This has bee-n
modiﬁed by treaty stipulations by which the price to be paid is
regulated, and also the indemniﬁcation to be paid for the loss of
freight and detention. The principle has been extended to articles,
native products of the exporting country, even, in some instances,
when tainted with contraband.15
TIME WHEN PENALTY ATTACHES.
248. The penalty attaches, and is complete, from the
time of quitting port, for an enemy’s port, with contra-
band goods.
The destination is assumed to be belligerent, if clearly not friendly,
- as this must not be left open to question. In order to authorize
14 Wools. Int. Law, §198;- Wheat. Int. Law, D, note No. 230; Hall, Int. Law,
669-672; 1 Kent, Comm. p. 142; lVhart. Dig. § 375; The Bermuda, 3 Wall.
514; The Springbok, 5 I'Vall. 1; The Peterhoff, Id. 28; Seton v. Low, 1.
Johns. Cas. 1; The Neutralitet, 3 C. Rob. Adm. 295.
15 Wools. Int. Law, § 197; Hall, Int. Law, p. 669, and note; 2 Halleck, Int.
Law, p. 263; “Talker, Int. Law, pp. 510, 511; Mann. Int. Law, bk. 5, c. 8;
Pitt-Cobbett, Cas. Int. Law, p. 318; Calvo, Int. Law, §§ 2790-2795.
Ch. 22] CARRIAGE or DESPATCHES. I 309
condemnation, both the contraband character of the goods, and their
destination for a hostile port, must be shown. If, however, a neutral
destination be the ostensible one, and it be clearly shown that the
. ultimate destination is hostile, the former being used to screen the
goods so far on their voyage, even if the rest of the voyage be over-
land, they may be conﬁscated. The general rule seems to be that
the liability to penalty ceases as soon as the voyage is complete,
and the goods have been deposited in the enemy port, so that neither
the vessel, nor thev proceeds of the sales of her cargo, can be con-
ﬁscated on her return voyage.16
CARRIAGE OF DESPATCHES.
249. The carriage of hostile despatches of the belligerent
‘by a neutral is forbidden.
250. Despatches are communications passing between
persons in the military or civil service of a state, in their
official capacity. Those addressed to or received from a
regular diplomatic or consular agent are not presumed to
be hostile in their nature. Those addressed to persons in
the military service, and those addressed to unaccredited
agents in a neutral state, are presumed hostile.
It has been stated that the carriage of despatches is prohibited
because they are contraband. The more correct reason authorizing
a belligerent to prevent their carriage seems to be that a neutral
carrying them is thereby rendering aid directly to his enemy. Inter-
national law recognizes the right of a belligerent to prevent his
enemy from receiving despatches which are hostile in their nature,
and in doing this he not only intercepts the despatches themselves
but in certain appropriate cases punishes the carrier in a similar
manner to that adoptedfor preventing the carriage of contraband
of war. It is in regard to this method of punishment that the car-
riage of despatches is analogous to contraband, more than in the
nature of the articles themselves. This has been prohibited by
proclamations of diﬁerent nations addressed to their subjects and is
16 The Imina, 3 0. Rob. Adm. 167; The Maria, 5 0. Rob. Adm. 365; The
Bermuda, 3 Wall 551.
310 CONTRABAND. ‘ . [Ch. 22
usually contained in the prohibition addressed to the subject of
contraband articles. The carriage of such by neutrals is generally
regarded as an. unneutral act.“
CARRIAGE OF PERSONS.
251. The carriage of persons in the service of a belliger-
ent by a neutral vessel is an unneutral act, provided:
(a) The vessel so employed is under the control of the
belligerent entirely, and has thus become a trans-
port.
(b) The circumstances attending the carriage are such
that a reasonable presumption exists of intention
to render service to the belligerent. This may
_ be manifested either from the number, rank, etc.,
of the persons transported, or from the reception
‘ ‘of them.
One of the cases illustrating this was that of The Orozembo, an
American merchant vessel chartered by a merchant at Lisbon, os-
tensibly to proceed inballast to Macao, and thence to take a cargo
to America Afterwards, this vessel was specially ﬁtted up for the
carriage of passengers, when three Dutch officers of rank, and two
persons of the civil service in the government of Batavia., with some
others, were received on board, and the vessel actually sailed for
Batavia. The vessel was condemned by the English‘ Courts upon
the facts, because it was assumed that a contract had been entered
into with the Dutch government before the vessel left Rotterdam.
In the case of The Friendship, the vessel was condemned upon the
ground that she was employed as a transport; the facts being that
she was not allowed to take cargo, but shipped some eighty French
sailors, who had been shipwrecked, and the passage was paid for by
the French government, thus rendering them not ordinary passen-
gers, but members of the French navy being transported from the
United States to France.18
17 The Madison, 1 Edw. Adm. 226; Whart. Dig. § 374; Hall, Int. Law, pp.
676-678; Wools. Int. Law, § 199.
18 The Orozembo, 6 C. Rob. Adm. 430; The Friendship, Id. 420; The Caro-
lina, 4 C. Rob. Adm. 256.
Ch. 22] PENALTY FOR. CARRYING HOSTILE PERsoNs AND PAPERs. 311
PENALTY FOR CARRYING HOSTILE PERSONS AND PAPERS.
252. The penalty for carrying hostile persons and des-
patches consists in the conﬁscation of the vessel, the seizure
of the despatches, and making the captured persons prison—
ers of war.
This differs from the ordinary carriage of contraband of war, and
the conﬁscation of the ship results from the difference in the na-
ture of the acts. In the case under consideration the ‘vessel is
employed in the service of the belligerent, and the loss of the des-
patches or persons would inflict, as a rule, no punishment upon the
carrier, which his act certainly warrants. In the case of contraband .
goods, on the other hand, there is no presumption of intended aid
to the enemy, and thewloss of the goods conﬁscated—causing, as it
does, a pecuniary loss—acts as a sufﬁcient determent. Despatches
are not necessarily noxious, and unless establishedn'to be such, either
from the fact of their outward address or destination, or from the
character of the despatch itself, the conﬁscation of the ship does
not necessarily result from their carriage. The carrier is bound to
exercise great diligence in the acceptance of despatches, and when
they contain noxious matter, in order to avoid conﬁscation of the
vessel, it must appear from all the circumstances that he was igno-
rant of the character of the persons or papers carried. To do this it
is necessary to consider all the circumstances of the delivery, the
nature of the ports of shipment and delivery, the source of the letter,
and its character. The transporting of diplomatic despatches know-
ingly by a neutral does not entail a penalty, since it is not regarded
as an unneutral act, and it is the policy of nations to maintain
diplomatic relations undisturbed by wars.19 Y'Vhen a vessel, either
in the carriage of persons or despatches, is in the service of the
enemy, she becomes liable to conﬁscation. In this case it is not
necessary to consider the number, rank, etc, of the persons she
carries, or the nature of her cargo; nor is it necessary to determine
upon the importance of the despatches, or the exact form of the em-
19 The Madison, 1 Edw. Adm. 224; Pitt-Cobbett, Cas. Int. Law, p. 327;
Hall, Int. Law, p. 680; 2 Halleck, Int. Law, pp. 321-323, note; The Carolina,
6 C. Rob. Adm. 461; The Tulip, 3 Wash. C. C. 181, Fed. Gas: No. 14,234.
312 CONTRABAND. [Ch. 22
ployment. So long as the fact of temporary ownership is establish-
ed, she becomes a transport of the enemy and is condemned as
such. The English courts have held that a vessel is liable even
where the employment was obtained by force _, of the belligerent, or
through deception on the part of the latter.20
CARRIAGE OF PERSONS AND DESPA'TCHES IN THE ORDI-
NARY COURSE OF BUSINESS.
253. The carriage of persons and despatches in the or-
dinary course of business does not entail the penalty of
forfeiture of the vessel.-
The business of carrying the mails is now largely regulated by
conventions between nations, and yet the practice in regard to
the visit and search of such vessels has not become authoritative. .
That they are exempt from condemnation is acknowledged, but their
mail bags, when visited, may, under certain circumstances, be
seized, and despatches that are hostile taken from them. France
enunciated in 1870 that, when the vessel visited by her ofﬁcers was
a packet boat engaged in postal service with a government agent
of the state whose ﬂag the vessel carried on board, the word of
such agent as to the character of the letters and despatches was to
be accepted. The tendency is to form some such practice, and that
a very general immunity will in future be conceded to mails, un-
der such circumstances, there is no doubt, the belligerent exercising
his right of search only in case of reasonable suspicion.
The right of a' belligerent to take noxious persons from an inno-
cent neutral vessel was the real question that was presented in the
‘celebrated case of The Trent The facts in this case, brieﬂy, are
that in 1861 the Confederate Government appointed Mr. Mason to
England, and Mr. Slidell to France, ostensibly as ministers, ‘al-
though not in reality such, because the Confederate Government had
not at that time been recognized, further than as a belligerent, and
had no authority to maintain diplomatic relations. The two gentle-
men, with their secretaries, managed to run the blockade, and arrived
20 Dana’s notes to Wheat. Int. Law, pp. 228—230, and cases cited; 1 Kent,
Comm. 146; 2 Phillim. Int. Law, 571.
Ch. 22] CARRIAGE or PERSONS AND DESPATCHES. 313
safely at Havana, where their destination, and the purpose of their
mission, were well known. In short, it was to aid their government
in every manner possible,—-by granting commissions, securing mili-
tary and naval aid, and to counteract the diplomacy of the Federal
Government of the United States. They took passage in the Trent
-a regular steamer (British) carrying the mails—from Havana
to N assau,.en route to Europe. A short distance out from Havana
this vessel was overhauled by a United States vessel of war (the San
Jacinto; Capt. Wilkes), and, after search, Messrs. Mason, Slidell,
and their secretaries were taken from aboard this vessel, and car-
ried to the United States, while the Trent was permitted to pursue
her course. The despatches of these gentlemen were concealed by
them among the passengers, and‘ were‘ not discovered. There was
nothing to connect the crew with the concealment of the despatches.
It is well to state that the captain of the Trent was well aware of
the destination and purpose of the gentlemen named. Immediately
upon receipt of information of the action of Capt. _Wilkes in Eng-
land, demand was made for their release, and a suitable apology on
the part of the United States. The men were released under an ar-
rangement satisfactory to both governments. In regard to the
legal points involved in this case, which has a great notoriety, from
the political consequences threatened at the time, it has been said
that only one principle was settled by it, “and that had substan-
tially ceased to be a disputed question, viz. that a public ship,
though of a nation at war, cannot take persons out of a neutral
vessel at sea, whatever may be the claim of her government on
those persons.” In the correspondence of Mr. Seward, it was main-
tained that these persons were contraband of war, and in arriving
at this conclusion he cites Vattel as saying, “War allows us to cut
off from our enemy all his resources, and to hinder him from send-
‘ ing ministers to solicit assistance.” He also cites Sir William Scott
as saying: “You may stop the ambassador of your enemy on his
passage.” “If it is of sufficient importance to the enemy that such
persons should be sent out on the public service at the public ex-
pense, it should aﬁord equal ground of forfeiture of the vessel that
may be let out for a purpose so intimately connected with the hostile
operations.” There was no doubt that the right of visit and search
was authorized-in this case, and that Capt. Wilkes, in pursuance of
314 CONTRABAND. .‘ [Ch.. 22 ‘
this right, could have taken the Trent as, prize, and brought her in
for adjudication, but in such case the action of the court could have
been directed only against the vessel, the status of the offending
persons could not have been determined by it, being purely a ques-
tion- for diplomacy. His (Mr. Seward’s) action in restoring the
captured persons was basedv upon the fact, therefore, that the action
of Capt. Wilkes should have been to have brought in the vessel; not
having done this, he was unauthorized to take the persons from the
vessel, which action was contrary to the settled policy of the United
States since its organization. It was very clearly pointed out, however,
that the position assumed by England at this time was diametrically
opposed to her previous settled policy in the similar circumstances
of taking seamen, etc., from the vessels of neutrals, as an exercise of
ocean police, and that her action in this case committed her to a
course of conduct in the future that the United States had repeatedly
endeavored to accomplish by treaty stipulation ‘ previous to that
time. Lord Russell maintained that these men were not contra-
band, because the nature and character of their service was not such
as to render them such, and, even if they were admitted to be such,
that the Trent, being in passage between two neutral ports, could
not be held liable for carrying contraband. It is unfortunate that
so celebrated a case should have settled so little international law,
and yet cause so much discussion and speculation as to its legal
aspect, aside from its political importance, which was due, as stated,
to the complicated situation of the countries involved.21
21 For full discussion of this case, vide Dana’s note to Wheat. No. 228;,Ha11,
Int. Law, pp. 683-686; Pitt-Cobbett, Cas. Int. Law, 327-330; Wools. Int. Law,
p. 338; and the authorities cited at beginning of this subject. '
Ch. 23] - RLocxADE DEFINED. 315
CHAPTER XXIII.
BLOCKADE. '
254. Blockade Deﬁned.
255. Places That can be Blockaded.
256. Commercial Blockade.
257. Notiﬁcation of Blockade.
258. What Constitutes a Valid Blockade.
259. When a Blockade Ceases. I
- 260-261. Effect of Blockade upon Vessels in the Blockaded Port.
262. What is a Breach of Blockade.
263. Penalty for Breach of Blockade.
264. When [Penalty Attaches.
265. Blockade of a River Partly in Neutral Territory.
266. The Rule of the ‘Var of 1796.
267. Continuous Voyages.
BLOCKADE DEFINED.
254. By blockade is understood the exercise of the
recognized belligerent‘ right of excluding trade or com-
merce from a place or port of the enemy, and is, in gen-
eral, applied to the prevention of communication by water.1
' 1 Other deﬁnitions are:
Vattel, Law Nat. bk. 2, c. 7, § 117: “If I lay siege to a place, or even simply
blockade it, I have a right to hinder any one from entering, and to treat as an
enemy whoever attempts to enter the place, or carry anything to the besieged,
without my leave; for he opposes my undertaking, and may contribute to the
miscarriage of it, and thus involve me in all the misfortunes of an unsuccess-
ful war.”
Pitt-Cobbett, Cas. Int. Law, p. 301: “Blockade is the obstruction of a pas-
sage to or from a place by land or sea.”
Wools. Int. Law, § 202: “The word ‘blockade’ properly denotes obstructing
passage into or from a’ place on either element, but is more especially applied
to naval forces preventing communication by water. Unlike siege, it implies
no intention to get possession of the blockaded place. With blockades by land
or ordinary sieges neutrals have usually little to do.” _,
Davis, Int. Law, p. 366: “The interruption or suspension of neutral com-
merce which results from the forcible closing of a belligerent’s ports or har-
bors is called a ‘blockade.’ ”
316 ' BLOCKADE. [Ch. 23
A general deﬁnition of this term will render it applicable to in-
.terception of communication by land as well as by sea, but the
former is usually discussed under the head of “sieges,” and the
rights of the belligerent are differently enforced. At the same
time, these rights do not come into conﬂict with the equal rights
of neutrals to trade with a blockaded port, so clearly and sharply.
This right of blockade is a sovereign right, exercised as a measure
of war, and has been subjected to certain rules, since a breach of a
blockade carries with it penalties of such a severe nature upon
neutrals and their commerce.2
PLACES THAT CAN BE BLOCKADED.
255. Blockade is not conﬁned to a seaport, but may ex-
tend to any avenue of communication, such as a river,
gulf, bay, etc., or a portion of the enemy coast.
This must be understood to refer to such places as are clearly
within the territorial limits of the enemy state, and would not be
extended to the case of a river on one bank of which was a neutral
state, or if the neutral state were situated above the enemy state,
on the same river, and it afforded communication for such neutral
with the sea.
COMMERCIAL BLOCKADE.
256. By a commercial blockade is understood the ex-
tension of the prohibition to innocent trade with the enemy
country beyond the area of purely military operations,
to all coasts of the belligerent which can be guarded by
the ﬂeet of the belligerent.
The most extensive blockade that has ever been introduced was
that of the entire coasts of the Confederate States by the federal
2 For general discussion of subject of blockade, vide Hall, Int. Law, pp.
694-714; Bluntschli, §§ 827-840; Walk. Int. Law, pp. 516-526; Pitt-Cob-
bett, Cas. Int. Law, pp. 299-311; Dahlgren, Mar. Int. Law, pp. 25-61; Davis,
Int. Law, pp. 366-374; Gallaudet, Int. Law, 292-301; Twiss, Law Nat. c. 6;
Mann. Int. Law, c. 9; Wools. Int. Law, §§ 202-207; Wheat. ‘Int. Law, D, §
511 et seq.; Calvo, Int. Law, § 2827 et seq.; 2 Halleck, Int. Law, c. 25;
Whart. Dig. §§ 359-365.
Ch. 23] NOTIFICATION OF BLOCKADE. 317
government during the Civil War, which eventually proved to be a
most material aid to the cessation of hostilities. The usual under-
standing of a blockade is that itmust have some connection with
the actual military operations that are being carried on by the land
forces, but in the case of a commercial blockade there is not nec-
essarily any direct connection with the two, and one of the best il-
lustrations of this class of blockade would be the institution of a
blockade of the entire Paciﬁc coast of the United States by a power
at War with them, when the only military operations on land were
being conducted on the Atlantic coast. This right has been very
much questioned, and was not generally supported until the Civil
War, but it may be said to be an ‘undisputed. right at the present
time.8
NOTIFICATION OF BLOCKADE.
257. In order to incur liability for its breach, a neutral
must be notiﬁed of the existence of a blockade. This
knowledge is communicated either:
(a) By proclamation announcing the date upon which
the designated place will be blockaded.
(b) By warning vessels, when they approach, of the
existence of the blockade.
(o) By combining the two previous methods.
The ﬁrst and second are both employed in the practice of the
United States, England, Prussia, and Denmark, as follows: If a
blockade is proclaimed after a neutral vessel has departed for the
blockaded place, warning is given to such vessel upon arrival at the
entrance of the place, which warning is indorsed upon the ship’s
papers by the blockading squadron, and after which time an attempt
to enter the place will entail all of the penalties for breaclrof block-
ade upon such vessel. The proclamation is resorted to because it is
a convenient method of notifying neutrals, and it is considered to be
the duty of the neutral state receiving such notice to warn its sub-
jects of its contents. This proclamation is not considered as es-
sential in case it is established clearly that the offending vessel has
actual knowledge of the existence of the blockade, as, for instance,
8 Hall, Int. Law, § 233; The Franciska, 10 Moore, P. C. 50.
318 ‘ BLOCKADE. > [Ch. 23
in case of a vessel sailing for a place, the blockade of which is so
notorious as to render ignorance ‘of its existence impossible. In
case of a de facto blockade, knowledge of its existence could not
be presumed, and in such case warning would be necessary.4
According to what is known as the “French rule,” a neutral trader
is not aﬁected by information gained previous to arrival at the
blockaded place,—not eve-n by information received through his
own government,—butcan, on the contrary, proceed to the entrance
of the place, and there ascertain personally of the existence of
blockade at the moment of arrival. The practice of France, and
nations who have adopted this‘rule, is to issue a proclamation of
the existence of a blockade; but this is regarded simply as an act
of courtesy, as the inhabitants of the neutral country are not af-
fected by such notice. This is adopted by a number of text writers
upon this subject, who claim that it is the right of a‘ neutral trader
to sail for a blockaded place, in hopes that he can succeed in ﬁnd-
ing it open, either on account of abandonment, or by stress of
weather, etc.
A VALID BLOCKADE.
258. By the declaration of Paris, it was decided that a
“blockade, to be binding, must be effective.” ' -
The blockade of a port is eﬁective when ingress or egress is
"liable to be intercepted either by ships of war stationed before
the port, or by batteries upon the shore. , No exact number of ves-
sels of war or of cannon is requisite, but it is necessary that the
belligerent have enough vessels or cannon to render vessels who"
attempt to break the blockade dangerously liable to capture. An
isolated capture would not be sufficient, nor, on the other hand, is it “
requisite that all vessels should be captured which attempt to pass.
The amount of danger required has not been determined, and this
will be dependent upon the circumstances of thecase under con-
sideration. In the Civil War of the United States, a large number
l ' .
4 Wools. Int. Law, § 203; Hall, Int Law, pp. 699-702; 2 Halleck, Int. Law,
p. 225; The Prize Cases, 2 Black, 635; The Admiral, 3 Wall. 603; The Co-
lumbia, 1 C. Rob. Adm. 156; The Adelaide Rose, 2 C. Rob. Adm. 111, note;
The Nereide, 9 Cranch, 440; The Circassian, 2. Wall. 151; Bluntschli, § 832.
Ch. 23] , WHEN A BLOCKADE CEASES. 319
of vessels succeeded in running the blockade established at Charles-
ton without the cessation of the same. Again, the exact distance
of the blockading squadron'from the port has not been ﬁxed, but
must have some relation to the place to be blockaded. In the case
of the blockade of Riga during the Russian war in 1854, which was
accomplished by one vessel in the Lyser Ort, a channel only three
miles wide, which forms the only navigable entrance to the gulf,
although this vessel was one hundred and twenty miles from the
place blockaded, yet the blockade so established was considered
legal because elfective. From the foregoing, which is the English
and American rule, the continental authorities differ, and maintain
that a blockade, to be eﬁective, must be supported by such a force
as to render access practically impossible, or express their require-
ments in such language as to imply the same conditions.5 Their
contention is based upon the language of‘ the treaty of Paris, which
the American and English authorities interpret to mean that the
force contemplated by that declaration was not such as to absolutely
prevent access to the port blockaded, but such as would practically
accomplish the same result; and further contend that the intention
of the declaration was to do away with “paper blockades,” and those
attempted to be enforced with manifestly inadequate force.6
WHEN A. BLOCKADE CEASES.
259. A blockade ceases under the following circum-
stances:
(a) When the vessels enforcing it are withdrawn.
(b) When these vessels are driven away by the enemy,
however short the time of absence. But a tem-
porary' absence on account of stress of weather
_ would not cause it to cease.
(c) In case the blockading squadron pursues a prize so
far that a neutral ship, ﬁnding it absent, may
reasonably suppose that abandonment has taken
place.
5 Hall, Int. Law, p. 706, note 1, contains the authorities.
6 Wools. Int. Law, pp. 343, 344; The Franciska, Spinks, Prize Gas. 115;
Bluntschli, § 829; i 1 Kent, Comm. p. 144 et seq.
320 ' BLOCKADE. [Ch. 23
In the ﬁrst and second cases there would be a complete cessa-
tion of the blockade, which would require the same formalities for
its renewal as are required in the original establishment thereof.
In the third case a neutral vessel entering the port would be ex-
empt from seizure for violation of the blockade. In regard to this
subject, also, some continental writers are not in accord with the
doctrine of the text, and maintain, on the contrary, that whenever _
there is a temporary absence of the blockading squadron, for what—
ever cause, a neutral vessel is authorized to enter. It is not recog-
nized as necessary when a blockade ceases, even when it is raised
by the belligerent, that it shall be noticed to neutrals, although such
is, without doubt, the duty of such belligerent; and this notice, espe-
cially when the blockade is established by proclamation, should be
as formal as practicable, and given as promptly as practicable.
The actual cessation may take place before notice is given, in which
case vessels are not liable for entering between the date of actual
cessation and date of receipt of notice. It will be necessary,
for a vessel to escape the penalty, in such case, to show that the
blockade did not actually exist at the time of entrance.7
EFFECT OF BLOCKADE UPON VESSELS IN THE
BLOCKADED PORT.
260. The neutral vessels lying in the blockaded port‘
are, by general usage, permitted to come out within a
designated time.
261. Vessels in blockaded ports are permitted to come
out, also, in case—
(a) The entrance into the port arose from necessity,
such as stress of weather, immediate need of pro
visions, etc.8 '
7Hall, Int. Law, pp. 705-709; The Columbia, 1 C. Rob. Adm. 154; The
Frederick Molke, Id. 86; Radcliff v. Insurance Co., 7 Johns. 53. That a block-
ade is not suspended by occasional absence of blockading squadron on ac-
coimt of weather. The Hoffnung, 6 C. Rob. Adm. 116. For presumption in
regard to the continuance of a regularly notiﬁed blockade continuing until
displaced by evidence, vide The Neptunus, 1 C. Rob. Adm. 171; The Circas-
sian, 2 Wall. 150; The Baigorry, Id. 480.
8 The Charlotta, Edw. 252; The Hustige Ham, 2 C. Rob. Adm. 127. Blunt-
Ch. 23] EFFECT or BLOCKADE ON VESSELS IN BLOCKADED roar. 321
(b) Where the entrance was by license, or the'vessel,
coming to the blockaded port in ignorance of the
blockade, is permitted to pass, authority to re-
turn is inferred.9
(c) In the case of a vessel employed exclusively by a
minister of a neutral state for transportation
_ home of distressed marines of his own state.
. (d) A neutral vessel which has legally entered is per-
mitted to return with a cargo found unsalable.
(e) Vessels of war of a neutral state are, as a courtesy,
usually permitted to go into and out of a block-
aded port.
The time for neutral vessels lying in a blockaded port to come out
after the institution of a blockade which has been generally desig-
nated is ﬁfteen days but for various reasons this time has been ex-
tended for as much as three times this number of days. The block-
aded place is usually notiﬁed of the existence of the blockade and
the time in which neutral vessels must leave is then designated.
In certain cases vessels would ‘not be conﬁscated for attempting
to come out after the designated time. This time was extended
by the commander of the ﬂeet in the blockade of New Orleans in
favor of vessels of deep draught on account of the low water in the
Mississippi.10 '
schli, § 838: “One cannot refuse to neutral ships in distress the privilege of
refuge in blockaded ports; but they must respect the regulations prescribed
by the maritime power that gives them the authority to pass notwithstanding;
the blockade.” * I
9 The Juffrow Maria Schroeder, 3 C. Rob. Adm. 160.
10 The limit of time named in the text has been authorized in most of the
wars during this century, including the Civil W’ar in this country and the
Franco-German War of 1870. Vide Hall, Int. Law, pp. 709-712; Bluntschli,
§ 837; The Franciska, Spinks, Prize Gas. 122; The Vrouw Judith, 1 C. Rob.
Adm. 152. '
INTERNA'1‘.LAW—-21
322 BLOCKADE. [Ch. 23
WHAT IS BREACH OF BLOCKADE.
262. A breach of a blockade consists in some positive
act of entering or quitting a blockaded place, or by show—
ing an evident and speedy intention of doing so.
According to the rulings of the United States and English courts,
it appears that when the intention to enter a blockaded place is
manifest at the outset from a neutral port, the ship is liable for
breach of blockade. This has been extended by the courts of the
former country to the case in which a vessel bound, although os-
tensibly for a neutral port, yet, when it was manifest that the
ultimate intention was to try a blockaded port, the ship upon
seizure was subject to conﬁscation. The doctrine of the French
courts is different, in so much that they hold that an actual attempt
to pass into or out of the blockaded place is necessary, in order to
create a breach of blockade. This diﬁerence in the practice of
France arises from the difference in the conception of the notice
required by this country. Should a vessel receive information
from a belligerent cruiser of the blockading country of the existence
‘of the blockade, and continue her journey to the blockaded place,
the French rule permits in such case an inference of intention to
commit a breach of blockade. It is manifest that the breach takes
place, under the rules of England and the United States, as soon
as the vessel leaves the neutral port, and, if captured en route,
she is liable to the penalty for breach. It is not necessary that the
vessel herself cross the line of blockade, provided she receive her
cargo from the blockaded port by vessels or lighters.11
11 Pitt-Cobbett, Cas. Int. Law, p. 301: “The essentials of liability for breach
of blockade are (1) the existence of an actual blockade; (2) knowledge of the
party; and (3) some act of violation by entering or attempting to enter, after
the blockade has been established, or by coming out after time.” The Irene,
5 C. Rob. Adm. 80; The Cheshire, 3 Wall. 235; The Maria, 6 C. Rob. Adm.
201; Hall, Int. Law, pp. 712, 713.
Ch. 23] WHEN PENALTY ATTACHES. 323
PENALTY FOR BREACH OF BLOCKADE.
263. The penalty for breach of blockade is forfeiture of
vessel and cargo, if captured, or the forfeiture of the ves-
sel only, in certain cases.
It has been held that a breach of blockade is not an oifense
against the laws of the country of the neutral owner or master,
the only penalty being the liability to capture and condemnation
by the belligerent. The cargo and vessel are both condemned
when they both belong to the same owner, but should the cargo
belong to one who has no interest in the vessel, and at the time of
shipment he is ignorant of the blockade, or in case the vessel devi—
ates to a blockaded place, thus departing from her legitimate course,
then the vessel only will be condemned, and the cargo restored.12
WHEN PENALTY ATTACHES.
264. The penalty attaches upon ‘valid capture after
breach of blockade has been committed.
In order that there shall be a valid capture for breach of blockade,
the following essentials must exist: The blockade must be ef-
fective. Notiﬁcation must have been given, and the intention‘ to
commit the breach must appear. The penalty for breach of blockade
is held to continue until the completion of the voyage, unless the
blockade ceases before that time. A vessel committing a breach
of blockade by egress would therefore be liable until the end of her
return voyage.13 The raising of the blockade carries with it the
suspension of liability to the penalty for its breach, since the offense
is due to and dependent upon the existence of the same state of
things.“
12 The Alexander, 4 0. Rob. Adm. 93; The Adonis, 5 0. Rob. Adm. 258;
The Marianna Flora, 11 \Vheat. 57.
18 Dana’s notes to Wheat. Int. Law, Nos. 236 and 237. Vide, also, Blunt-
schli, § 836.
14 The Lisette, 6 0. Rob. Adm. 387; Wools. pp. 350-357; The Helen, L. R. l
Adm. & Ecc. 1.
324 . BLOCKADE. [Ch. 23
BLOCKADE OF A RIVER PARTLY IN NEUTRAL TERRITORY.‘
265. The blockade of enemy territory cannot affect the
territory of a neutral state, whose territory is contiguous.
This question arises in case of the blockade of rivers forming the
boundary between the enemy territory and that of a neutral, or,
again, in case of the blockade of a river upon the upper part of the-
navigable portion of which is situated a neutral state. A blockade-
of Holland was held not to be broken by a destination to Antwerp.15
In the Civil War in the United States the blockade of the Southern.
ports was held not to affect trade with Matamoras, on the Mexican
shore of the Rio Grande river. But vessels were required to keep
upon the south side of the line dividing Texas from Mexico, and for
violation of this requirement no allowance was made for costs and
expenses.16 ‘
THE RULE OF THE WAR OF 1756.
266. The rule of 1756 is that a neutral cannot lawfully
engage in trade with the enemy, during a war, from which
he had been shut out during peace. '
This question ﬁrst arose in the year named, and was brought about
by the fact that France (then at war with England) opened up the
trade between the mother country and the colonies to the Dutch.
Previous to that time it had been the practice of nations to deny‘
such trade to other nations. Some Dutch vessels were captured by
the English, and condemned upon the ground that they had in eﬁectv
been incorporated into the French navy. This practice gave rise
to a protest by the ﬁrst armed neutrality, in so far as coasting trade
was concerned, and has been made the subject of regulation by
treaty.17 This rule was extended and enforced by England in
1793 beyond what has been considered‘ legitimate limits by some
15 The Frau Ilsabe, 4 0. Rob. Adm. 64.
16 The Peterhoff, 5 Wall. 54; The‘ Dashing Wave, Id. 170; The Volant, Id.
179; The Science, Id. 178.
17 Hall, Int. Law, pp. 639, 640; Wools. Int. Law, § 200.
Ch. 23] THE RULE on THE WAR OF 1796. 325
authorities. It appears that France threw open to all neutrals her
colonial and coasting trade, but England at once forbade the carry-
‘ing of French goods from the mother country to her colonies by
neutrals, and , also their engaging in the coasting trade.18 The
English courts based their condemnation of vessels upon the ground
that since the belligerent would not depart from'a recognized right
of such importance to his commercial interests as the retention in
his own hands the colonial‘ and coasting trade, unless he felt unable
to carry it on, that in consequence the neutral must be aware that
by indulging in such trade he is rendering aid to one of the belliger-
ents, of such an effective nature as to be unwarranted.19 The exer-
cise of this prohibitionin regard to trade with the colonies was
based upon the further fact that they were, in all probability, pe-
culiarly in need of the supplies, and, in case the mother country
could not furnish them, they fell naturally to the belligerent. The
belligerent can with more propriety prevent the trade between the
mother country and the colony, especially if thrown open only dur-
ing war, than prevent all intercourse with the colonies, as between
neutral ports and such colonies.20
18 The Emanuel, 1 C. Rob. Adm. 296.
19 The Immanuel, 2 C. Rob. Adm. 186. 1 Kent, Comm. pp. 82-86: “It is very
possible that if the United States should hereafter attain that elevation of
maritime power and inﬂuence which their rapid growth and great resources
seem to indicate, and which shall prove sufficient to render it expedient for
‘her maritime enemy (if any such enemy shall ever exist) to open all his do-
mestic trade to enterprising neutrals, we might be induced to feel more sensi—
bly than we have heretofore done the weight of the argument of the foreign
jurists in favor of the policy and equity of the rule.”
20 Wools. Int. Law, p. 241, and authorities cited; Halleck, Int. Law, pp. 330-
339; 3 Phillim. Int. Law, §§ 212-221; Calvo, Int. Law, pp. 49, 60, 61; \Vheat. Int.
Law, D, § 508; Walker, Int. Law, 259-262, 399-402. Bluntschli, § 799:
“The principle of the liberty of neutral commerce ought to be maintained in
case where one of the belligerents authorized during war a special branch of
commerce that it denied before the war, and that it will restrain perhaps
when the war is terminated.” Section 800: “When, in time of peace, trade be-
tween different ports of the same state [coasting trade] is exclusively reserved
to the national marine, and when one of the belligerent parties gives, during
the war, to neutrals, authority to carry on this trade, neutral ships that proﬁt
by this permission do not violate the laws of war, and cannot be captured
upon the pretext that they are engaging in a forbidden trade.”
326 BLOCKADE. [Ch. 23
CONTINUOUS VOYAGES.
267. By the doctrine of continuous voyage is meant the
carrying of goods to a hostile destination, but touching at
a neutral port, unloading and reloading before sailing for
the forbidden port. This principle of continuous voyage
was applied by the United States to contraband and
blockade, so that a vessel whose goods were evidently
contraband, and destined for belligerent use, or where the
ultimate destination was for a blockaded port, the vessel
was liable to capture before touching the neutral port.
The doctrine of continuous voyage arose from the rule of 17 56, and
was enunciated to prevent neutral traders from touching at a. neutral
port for the purpose of concealing the fraudulent intent in original
shipment. The extension of the'rule by the United States has been
much censured by jurists and international authorities‘ outside of
the United States. In .The Commercen, the principle was an-
nounced that, so long as the goods shipped were destined for mili-
tary use of the enemy, the destination to a neutral port could not
change the eﬁect of the rule applicable to the transaction in that
case. In the case of The Bermuda it was held that “it makes no
diﬁerence whether the destination to the rebel port was ulterior or
direct; nor could the question of destination be affected by tran-
shipment at Nassau, if transhipment was intended, for that could
not break the continuity of transportation of the cargo. * * *
A transportation from one point to another remains continuous so
long as intent remains unchanged, no matter what stoppages or-
transhipments intervene.” This vessel was claimed to be en route
between two neutral ports at the time of capture. This question
was again presented to the United States Supreme Court in the
case of The Springbok, in which it was held that, where a neutral
vessel carries goods destined for a belligerent port between two
neutral ports, it is not subject to condemnation, but is subject to‘
seizure in order to effect a conﬁscation of the goods. And where
the cargo was originally shipped with intent to violatethe blockade,
to be transhipped at a neutral port, the liability to condemnation,
Ch. 23] COhlTINUOUS VOYAGES. 327
if captured during any part of that voyage, attached to the cargo at
the time of sailing. It is this extension of the rule of liability to
capture when on a voyage between neutral ports that has caused
so much adverse criticism.21
21 The Gommercen, 1 Wheat. 382. For the English decisions, vide The Wil-
liam, 5 0. Rob. Adm. 385; The Maria, Id. 365. For the American decisions,
vide The Bermuda, 3 Wall. 514; The Springbok, 5 Wall. 1. Vide, also, Dana’s
note to Wheat. Int. Law, No. 231; Wools. Int. Law, § 207; Hall, Int. Law, pp.
672, 673; Walk. Int. Law, pp. 512, 514, 515; Calvo, Int. Law, §§ 2762-2766;
Bluntschli, § 835, note; Pitt-Cobbett, Gas. Int. Law, 333-340; Whart. Dig.
§§ 362, 388.
328 VISIT AND SEARCH, AND RIGHT OF ANGARY. [Ch. 24
CHAPTER XXIV.
' VISIT AND SEARCH, AND RIGHT on ANGARY.
268. The Right Deﬁned.
269. Who can Visit.
270. Who Liable to Exercise of the Right.
271-272. Convoy Deﬁned—Exemption from Visit and Search.
273. Formalities in Exercising the Right of Search.
274. When a Vessel may be Captured.
275. Spoliation of Papers.
276. The Right of Search in Time of Peace.
277. Duties of the Captor.
278. Capture of Enemy’s Goods in Neutral Vessels.
279. The Right of Angary.
THE RIGHT DEFINED.
268. The right of visit or search is a belligerent right
which authorizes both belligerents to stop neutral vessels
on the open seas, to go on board of them, and to examine
their papers, and, in certain cases, their cargo.
This right is exercised by a belligerent for the purpose of ascer-
taining whether a vessel carrying a neutral ﬂag is in reality what
she claims to be, whether she has on board any contraband of war,
whether she is guilty of a breach of blockade, or, in short, whether
she has been guilty of any breach of law. This right cannot be
exercised in neutral waters.1
1 For discussion of the general subject of visit, search, and capture, vide
Wheat. Int. Law, D, §§ 525-538; Hall, Int. Law, pp. 724-741; Wools. Int.
Law, §§ 208-215; Mann. Int. Law, cc. 11, 12; Calvo, Int. Law, §§ 2939-3003;
Whart. Dig. §§ 325-331; 2 Halleck, Int. Law, pp. 267-304, 0. 27; 1 Kent,
Comm. pp. 153-157; 3 Phillim. pp. 417-503; Bluntschli, §§ 344-346, 819-826;
Dahlgren, Mar. Int. Law, pp. 100-115; Vatt. Int. Law, bk. 3, c. 7, §§ 114-116;
Davis, Int. Law, c. 14; Creasy, Int. Law, 668.
Ch. 24] CONVOY—EXEMPTION FROM VISIT AND SEARCH. 329
WHO CAN VISIT.
269. From the nature of this right, only a regularly com-
missioned vessel of the belligerent state can visit a neutral
vessel.
This being a belligerent right, which comes into existence at the
commencement of war, and ends with peace, it must be exercised
in accordance with recognized usage or treaty obligations, a viola-
tion of which is to be remedied through the neutral government.
WHO LIABLE TO EXERCISE OF THE RIGHT.
2'70. All private vessels of neutrals are subject to the ex-
ercise of this right by either belligerent in the open seas or
waters of either belligerent.
It is the duty of neutral vessels to be provided with the necessary
papers to establish their neutrality, and that they are not engaged
in unlawful carriage, which a belligerent has a right to interfere
with, which papers, it is conceded, must be produced. upon demand
made by a duly authorized agent of the belligerent, for his inspec-
tion. It is further considered to be the duty of a neutral vessel not
to resist the exercise of the right of belligerent search, since such
resistance entails the appropriate penalty of conﬁscation of the ves-
sel, and in certain cases the cargo also. Vessels of war of the
neutral state are not liable to visit, because, from their nature, they
are not ﬁtted to carry on a business that a belligerent can prohibit.
CONVOY—EXEMPTION FROM VISIT AND SEARCH.
271. By the term “convoy” is understood the protection
of merchant vessels during a voyage by a public vessel
of war. The term is applied both to the protecting and
protected vessels.
2'72. The right of convoy, by which is understood the
exemption of such vessels from search by belligerents,
was never conceded by England, and is not very gener-
ally claimed by other nations, when the presence of con-
traband is suspected.
330 VISIT AND SEARCH, AND RIGHT on ANGARY. [Ch. 24
This question of exemption of vessels under convoy was ﬁrst
raised in the middle of the seventeenth century by the Dutch. It
was again raised in the middle of the next century, and the dis-
cussion has continued from that date. Towards the latter part
of that century, instructions were given by the Dutch that their
vessels of war acting as convoys should resist the search of the
merchant vessels under their escort. In 1798, however, when a
Swedish vessel of war, acting as convoy, resisted a search of ves-
sels under her charge, the whole ﬂeet that was captured was con-
demned? Shortly after this the second armed neutrality maintained
that search of vessels under convoy should be prevented by a dec-
laration of the officer in charge of the convoy that the vessels under
his charge contained no contraband. This extreme right main-
tained by the parties to that agreement was waived the following
year, when, by convention between the powers concerned, it was
agreed that goods on neutral vessels, except contraband of war and
enemy’s property, should be free, and that the right of visit should
be conﬁned to public vessels of war, and never committed to pri-
vateers, and in other ways regulated the exercise of the right,
which right, however, was distinctly recognized.3 The policy of the
political department of the United States has been to recognize the
2 The Maria, 1 C. Rob. Adm. 340.
8 By the convention referred to, it was provided: (1) That the right of
search should only be exercised by war ships, and should not be extended to
privateers. (2) That the owners of merchantmen should produce their pass-
ports and certiﬁcates to the commander of the convoy before being allowed to
sail under convoy. (3) That the convoy and merchant ships should keep out
of cannon shot if possible, and that, for the purpose of making a search, a
boat should be sent by the belligerent to the convoy. (4) That no search
should be made if the papers were in form, and there was no good motive
for suspicion. In the contrary case the commander of the convoy was to de-
tain the merchantman for sufficient time to allow of search, which was to be
made in the presence of officers selected by the commanders of both the bel-
ligerent and the convoying vessels. (5) If there appeared sufficient reason for
making further search, notiﬁcation of the intention to do so was to be made
to the commander of the convoy, the latter having the right to appoint an
oﬁ’icer to remain on board and assist at the examination. The merchantman in
such case was to be taken as soon as possible to the nearest and most con-
venient port of the belligerent, and the search was to be made with all pos—
sible dispatch. (6) If a merchantman under convoy should be detained with-
Ch. 24] FORMALITIES IN EXERCISING THE RIGHT or SEARCH. 331
right of convoy, and a number of treaties have been entered into
with other nations which recognize it; but the judicial department
has followed the rulings of the English courts, and held that no such
principle is recognized by the law of nations. In support of the
right of convoy, it is maintained that the commander of the convoy-
ing vessel distinctly represents the state, so that, when he asserts
that none of the vessels under his charge have any contraband
goods on board, it is practically a guaranty from the neutral state.
From the nature and extent of commercial shipments, it will be
very difficult for any neutral government to be able to affirm that
none of the vessels under convoy are engaged in acts which the bel-
ligerent has the right to prevent, either in carrying contraband
goods, despatches, military persons, etc., or that such vessels have no
intention to commit a breach of blockade, etc. This is placing upon
the neutral government the duty of standing between individuals
and the belligerent, under conditions that are practically impossible
to expect. The changed conditions under which vessels of all kinds
now navigate has rendered the exercise of this right so difficult
that it has not the importance in the community of states that it
once had.‘
FORMALI'I'IES IN EXERCISING THE RIGHT OI? SEARCH.
2'73. In the exercise of the right of search, only such
acts as may be necessary to ascertain the character of the
vessel, cargo, and destination are authorized.
All acts in excess of this are illegal, and will render the persons
guilty of them liable in damages. In the exercise of the principal
out suﬁicient cause, the commander of the ship should not only be bound to
make compensation, but should suffer further punishment for every act of
violence committed. On the other hand, a convoying ship should not be al-
lowed to resist by force the detention of a merchantman.
4Vide Hall, Int. Law, pp. 725-732; Pitt-Cobbett. (“as Int. Law, 342-344.
Wools. Int. Law, § 192, questions the right of a neutral to employ armed ves
sels of a belligerent to convey his goods, it being essentially a resistance to
search. The Ncreide, 9 Cranch, 440; 1 Kent, Comm. p. 156; The Marianna
Flora, 11 Wheat. 42. Bluntschli, §§ 824, 825, practically denies the right of
search of vessels under convoy, following the above convention.
332 VISIT AND SEARCH, AND RIGHT or ANGARY. [Ch. 24
right, all the means essential for this purpose are recognized as
pertaining to it. The usual method pursued is for the visiting ship,
when at a reasonable distance, to hoist its colors and ﬁre a cannon,
called the “semonce,” “coup d’assurance,” or “affirming gun,” al~
though this is not obligatory, since any other method will be con—
sidered as equally effective if actually communicated to and under-
stood by the neutral ship. The formalities are set forth with great
precision in some conventions, and specify the distance at which the
belligerent vessel must bring to, the party who is to make the visit,
together with the persons to accompany him, etc. It is customary
for one ofﬁcer only to make the visit, who examines ﬁrst the papers
which establish the character of the vessel, the nature of the cargo,
and the points of departure and destination.5
WHEN VESSEL MAY BE CAPTURED.
2'74. A vessel may be captured:
(a) If resistance is made to visit and search.
(b) If it has false papers or double papers. Con-
cealment of papers of the vessel is regarded
as sufﬁcient to justify capturing a neutral
vessel and bringing her in for adjudication,
though it does not follow that there will be
a condemnation.
Upon the Ground of Resistance.
Deliberate and continued resistance to search, on the part of a
neutral vessel, to a lawful cruiser, is followed by the legal conse—
quences of capture and conﬁscation. The English and American
5 Dahlgren, Mar. Int. Law, p. 103: “The rule of search is nearly alike in
all cases: (1) The examiner is to remain out of cannon shot. (2) Send boats,
but only two or three men must go on board. (3) The master shall show his
passport or sea letter and certiﬁcates, showing name and character of vessel,
port left, where bound, particulars of cargo, so as to show if,contraband be on
board. No other papers are to be required, and the master is not required
to leave the ship. (4) Hatches are not to be opened, nor the packages of the
cargo, unless in landing, and then in the presence of competent officers. If
any papers are retained by captor, a receipt is to be given.”
For papers carried by vessels of different nationalities, vide Append. p. 365.
I
Ch. 24] ‘ WHEN vEssEi. MAY BE CAPTURED. 333
courts agree that in case of such resistance by a neutral master both
the vessel and cargo are conﬁscated. In the case of neutral goods
in a merchantman of the belligerent, the English courts hold that
they are not liable to conﬁscation in case of capture after resistance
by the master, since such master has a right to protect the belligerent
goods of his cargo, and the neutral shipper is not presumed to know
that resistance will occur when he makes the shipment.6 If, on the
other hand, the neutral places his goods on board of a belligerent
ship of.force, he is presumed to know that the intention is to resist
visit and search, and relies on force for the protection of his goods.7
The doctrine of immunity is carried further by the American courts,
who maintain that the shipment by a neutral in a belligerent ship of
force does not authorize the conﬁscation of the goods. In the lead-
ing case upon this question, Mr. Justice Story wrote a strong dis-
senting opinion, maintaining the rule of the English courts and the
later authorities seem to hold that this view is the better one.8 It
was in regard to the employment of an English man-of-war as a con-
voy for American vessels that a dispute arose between the United
States and Denmark in the early part of this century. It seems that
certain merchant vessels were in the habit of receiving cargoes of
naval stores in Russian ports, and assembling on the coasts of
Sweden, from which point they were escorted by a British man-of-
war. The Danish government issued an ordinance forbidding it, and
declaring such vessels good prize. Some American vessels were
actually captured, without resistance, and were condemned. This
controversy was settled by treaty between the two countries, by
which Denmark agreed to pay an indemnity, but without its action
being construed as a precedent.9
6 The Catharina Elizabeth, 5 0. Rob. Adm. 232.
'1 The Fanny, 1 Dod. 448.
8 The Nereide, 9 Cranch, 441.
9 Hall, Int. Law, pp. 735-737; Wheat. Int. Law, D, §§ 531-537. Vide, also,
Dana’s note No. 245, who gives the authorities, and says: “There seems little
doubt that in condemning these vessels, as the practice in respect to convoys
then stood, and in the relations of Denmark with France, the Danish court
did not violate any established rule of international law.” Mann. Int. Law,
p. 369.
334 VISIT AND sEARcH, AND RIGHT OF ANGARY. [Ch. 24
Possession of False Documents.
In the case of false or fraudulent papers, some countries hold that
it is always good ground for condemnation, but in England and the
United States it is held that the possession of such papers does not
necessarily entail condemnation, since the falsity is only noxious
when the circumstances indicate clearly intention to deceive, or there
is a reasonable presumption that they were prepared with the ex-
press intention of deceiving the belligerent that makes the capture,
or would act as a fraud on the rights of the captors, and these
fraudulent papers must relate to the voyage in which the capture is
made.1°‘
SPOLIATION OF PAPERS.
275. Spoliation of papers of a vessel subject to visit and
search, although regarded as a more aggravated offense
than concealment, does not necessarily entail condemna-
tion.
The courts of the United States and England hold that, while this
is a circumstance of a most serious nature, yet it is subject to ex-
planation, and if the same be open and frank the vessel will not be
condemned for this offense alone. If, on the other hand, they are de-
stroyed under circumstances that indicate with reasonable certainty
that the act was to cover up their real nature, condemnation would
follow.11
THE RIGHT OF SEARCH IN TIME OF PEACE.
2'76. The right of search during peace may be exercised
under the following conditions:
(a) For the execution of revenue laws, which is con-
ﬁned to the territorial waters of_ the state.-
(b) Any and all public vessels are authorized to visit
and search vessels suspected of being piratical,
10 2 Halleck, Int. Law, p. 299; The St. Nicholas, 1 Wheat. 417; Phoenix
Ins. Co. v. Pratt, 2 Bin. 308; The Mars, 6 C. Rob. Adm. 86; The Eliza and
Katy, Id. 192. I
11 The Rising Sun, 2 C. Rob. Adm 106; Livingston v. Maryland Ins. Co.,
6 Cranch, 274; The Pizarro, 2 Wheat. 241.
Ch. 24] DUTIES OF THE CAPTOR. 335
provided it is done in good faith, and on the open
sea, or the territorial waters of the state to which
the visiting vessel belongs.
(c) In a proper case of self-defense.
In the execution of revenue laws, or in case of suspected engage
ment in unlawful commerce, the action of the visiting government
is really an exercise of sovereignty; and some authors extend the
right to visit during peace, in certain cases, to the open sea, as in
case of criminals escaping from territorial waters, when it is main-
tained that a right exists to pursue the vessel into the high seas, and
there make the search. This is questionable, since the exercise of the
right of visit and search is a belligerent right only, and contemplates
the existence of the relation of war. A nation is authorized,‘on the
ground of self-defense, to visit and capture a vessel on the high
seas, or in its own waters, when there is reasonable ground to be-
lieve it to be engaged in a hostile expedition against the territory
of such nation.12
r
DUTIES OF THE CAPTOR.
277. The captor, in addition to the duties incidentally
discussed herein, is under the following obligations:
(a) In case persons are detained by him as witnesses,
they cannot be regarded as prisoners of war, and,
if maltreated, the courts will decree damages. D
(b) The captured property must be brought in for ad-
judication with all possible dispatch.
(c) He is liable for negligence in the preservation of
the vessel or goods.
In the discussion of the formalities of visit, the duties of the cap-
tor were suiiiciently discussed in regard to the persons and property
on board. It is the duty of the prize master, immediately upon
arrival in port, to institute proceedings in the proper court for
the adjudication of his prize. He should deliver over to the court
the proper papers, and furnish the proper evidence for the examina-
tion of the court. For any improper delay demurrage will be
12 2 Halleck, Int. Law, 268-282; Wools. Int. Law, § 212 et seq.
336 VISIT AND SEARCH, AND RIGHT on ANGARY. [Ch. 24
granted, and for any loss of the property captured the prize master
is regarded in the light of a bailee, and held to a strict accounta-
bility.‘3
CAPTURE OF ENEMY’S GOODS IN NEUTRAL VESSELS.
2'78. By the declaration of Paris, a neutral vessel con-
taining goods of the enemy is invested with power to pro-
tect them from capture. By the same declaration, the
goods of neutrals in enemy vessels were also declared to
be free.
In regard to the question of belligerent goods in enemy vessels,
two theories were for a long time, previous to 1856, held in regard
to them. The one theory was that, being enemy goods, they were
liable to seizure wherever found outside of the jurisdiction of a
third state, and therefore liable to capture. The other theory con-
formed with the statement in the text. The Dutch were the
strongest advocates of the latter theory, because for a long time the
great carriers of commerce. In regard to the question o-f-‘neutral
goods on board of enemy vessels, two theories were held upon the
subject,—the one, as stated in the black-letter text; and the other,
that such goods, by contact with property subject to conﬁscation,
became so irredeemably tainted that they shared the fate of such
property. This question has been practically settled, but, since the
United States has never become a party to the treaty ofParis, this
country is not bound by the declarations contained therein. In the
absence of treaty, and according to the international common law, it
18 Vide 2 Halleck, Int. Law, c. 31; Hall, Int. Law, pp. 739-741; 3 Phillim.
Int. Law, § 361 et seq.
In illustration of duties towards persons on board of the prize, vide The
Salvor, 4 Phila. 409; Fed. Cas. No. 12,272; The Anna Maria, 2 Wheat. 327;
The Vrow Johanna, 4 C. Rob. Adm. 351; The St. Juan Baptista, 5 C. Rob.
Adm. 33. -
In illustration of duty as to bringing in for adjudication, vide The Zee Star, 4
C. Rob. Adm. 71; The Felicity, 2 Dod. 383; Wilcocks v. Union Ins. Co., 2
Bin. 574; Willis v. Commissioners, 5 East, 22; Penhallow v. Doane, 3 Dall. 54.
In the case of negligence, vide The Der Mohr, 4 C. Rob. Adm. 314; The
Felicity, 2 Dod. 383; The Leucade, Spinks, Prize Cas. 221.
Ch. 24] THE RIGHT OF ANGARY. 337
has been decided in this country that the goods of neutrals, in
enemy’s vessels, are free.“
THE RIGHT OF ANGARY.-
2'79. By the right of anga‘ry is understood the right pos-
sessed by a belligerent to use or destroy, if necessary, the
property of neutral subjects within the territory of the
belligerent.
Mr. Phillimore says: “There is yet another measure, partaking
also of a belligerent character, though exercised, strictly speaking,
in time of peace, called by the French ‘le droit d’angarie.’ It is an
act of the state, by which foreign as well as private domestic ves-
sels, which happen to be within the jurisdiction of the state, are
seized upon, and compelled to transport soldiers, ammunition, or
other instruments of war; in other words, to become parties, against
14 The Atalanta, 3 Wheat. 415. For more extended discussion of this sub-
ject, vide Hall, Int. Law, pp. 687-695, 717-723. '
“In 1872 the French prize court gave judgment in a case, arising out of the
war of 1870-71, in which the neutral owners of property on board two Ger-
man ships, the Ludwig and the Vorwarts, 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 follows that the neutral who has
embarked his goods on such vessel has a right to restitution of his merchan-
dise, 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 de-
manded for injury which may have been caused to him either by a legally-
good capture of the ship, or by acts of war which may have accompanied or
followed the capture. In the particular case, the destruction of the ships Withl
their cargoes having taken place under orders of the commander of the cap-
turing ships, 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 de-
stroying 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 in-
direct repudiation of the Declaration of Paris.” Hall, Int. Law, p. 722.
INTERNArLAw—22
338 VISIT AND SEARCH, AND RIGHT on ANGARY. [Ch. 24
their will, to carrying on direct hostilities against a power with
whom they are at peace. The owners of these vessels receive pay-
ment of freight beforehand. Such a measure is not without
the sanction of practice and usage.” This right was exercised
during the Franco-German war of 187 0-7 1 by the seizure of certain
railway carriages belonging to the Central Swiss Railway, and a
large amount of Austrian rolling stock, all of which was retained
and used for some time.15 i
15 Hall, Int Law, pp. 743-745; 3 Phillim. Int. Law, § 29; Bluntschli, §
795 bis. Mr. Hall recites a case of the enforcing of /this right upon neutral
property passing within neutral territory: “Some English vessels were
seized by the German general in command at Rouen, and sunk in the Seine
at Duclairfin order to prevent French gunboats from running up the river.
and from barring the German corps operating upon its two banks from com-
munication with each other. The German commanders appear to have en-
deavored 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 infrac-
tion of neutrality,’ and the vessels were sunk by the unnecessarily violent
method of ﬁring upon them while some, at least, of the members of the crews
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 de-
stroyed should receive the compensation to which a dispatch of Count Bis-
marck had already admitted their right. Count Bismarck, on his side, in writ-
ing upon the matter, claimed that ‘the measure in question, however excep-
tional in its nature, did not overstep the bounds of international warlike
usage.’ ”
APPENDIX.
INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE
UNITED STATES IN THE FIELD.

GENERAL ORDERS,
No. 100.
The following “Instructions for the Government of Armies of the
United States in the Field,” prepared by Francis Lieber, LL, D., and
revised by a Board of Officers, of which Major—General E. A. Hitch-
cock is president, having been approved by the President of the
United States, he commands that they be published for the informa-
tion of all concerned.
Br QRDER or THE SECRETARY OF WAR:
E. D. TOWNSEND,
Assistant Adjutant-General.
ADJUTANT-GENERAL’S OFFICE,
WAR DEPARTMENT,
WASHINGTON, APRIL 24, 1863.
SECTION I.
Martial Law—Military JurisdictionTMilitary Necessity—-
Retaliation.
1. A place, district, or country occupied by an enemy stands, in
consequence of the occupation, under the Martial Law of the invad-
ing or occupying army, whether any proclamation declaring Martial
Law, or‘any public warning to the inhabitants, has been issued or
not. Martial Law is the immediate and direct effect and conse
.quence of occupation or conquest. ‘
The presence of a hostile army proclaims its Martial Law.
2. Martial Law does not cease during the hostile occupation, ex- .
cept by special proclamation, ordered by the commander-in-chief; or’
by special mention in the treaty of peace concluding the war, when‘
the occupation of a place or territory continuesbeyond the conclusion ' "
of peace as one of the conditions of the same.
INTERNAT. LAW (339)
340 APPENDIX.
3. Martial Law in a hostile country consists in the suspension, by
the occupying military authority, of the criminal and civil law, and
of the domestic administration and government in the occupied place
-or territory, and in the substitution of military rule and force for the
same, as well as in the dictation of general laws, as far as military‘
necessity requires this suspension, substitution, or dictation.a
The commander of the forces may proclaim that the administra-
tion of all civil and penal law shall continue, either wholly or in part,
as in times of peace, unless otherwise ordered by the military au-
thority. .
4. Martial Law is simply military authority exercised in accord-
ance with the laws and usages of war. Military oppression is not
Martial Law; it is the abuse of the power which that law confers.
As Martial Law is executed by military force, it is incumbent upon
those who administer it to be strictly guided by the principles of
justice, honor, and humanity—virtues adorning a soldier even more
than other men, for the very reason that he possesses the power of
his arms against the unarmed.
5. Martial Law should be less stringent in places and countries
fully occupied and fairly conquered. Much greater severity may be
exercised in places or regions where actual hostilities exist, or are
expected and must be prepared for. Its most complete sway is al-
lowed—even in the commander’s own country—when face to face
with the enemy, because of the absolute necessities of the case, and
of the paramount duty to defend the country against invasion.
To save the country is paramount to all otherconsiderations.
6. All civil and penal law shall continue to take its usual course in
the enemy’s places and territories under Martial Law, unless inter-
rupted or stopped by order of the occupying military power; but
all the functions of the hostile government—legislative, executive,
or administrative—whether of a general, provincial, or local char-
acter, cease under Martial Law, or continue only with the sanction,
‘or if deemed necessary, the participation of the occupier or invader.
3 7. Martial Law extends to property, and to persons, whether they
00‘
n
‘are subjects of the enemy or aliens to that government.
'1 ' 8. Consuls, among American and European nations, are not dip-
lomatic agents. Nevertheless, their offices and persons will be
subjected to Martial Law in cases of urgent necessity only: their
C
a.’
I
o
‘u
AMERICAN INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES.
property and business are not exempted. Any delinquency they
commit against the established military rule may be punished as in
the case of any other inhabitant, and such punishment furnishes no
reasonable ground for international complaint. _
9. The functions of Ambassadors, Ministers, or other diplomatic
agents, accredited by neutral powers to the hostile government,
cease, so far as regards the displaced government; but the conquer-
ing or occupying power usually recognizes them as temporarily ac-
credited to itself. -
10. Martial Law affects chieﬂy the police and collection of public
revenue and taxes, whether imposed by the expelled government or
by the invader, and refers mainly to the support and eﬂiciency of the
army, its safety, and the safety of its operations.
11. The law of war does not only disclaim all. cruelty and bad faith
concerning engagements concluded with the enemy during the war,
but also the breaking of stipulations solemnly contracted by the bel-
ligerents in time of peace, and avowedly intended to remain in force
in case of war between the contracting powers.
It disclaims all extortions and other transactions for individual
gain; all acts of private revenge, or connivance at such acts.
Oﬁences to the contrary shall be severely punished, and especially
so if committed by officers.
12. Whenever feasible, Martial Law is carried out in case of in-
dividual offenders by Military Courts; but sentences of death shall
be executed only with the approval of the chief executive, provided
the urgency of the case does not require a speedier execution, and
then only with the approval of the chief commander.
13. Military jurisdiction is of two kinds: ﬁrst, that which is
conferred and deﬁned by statute; second, that which is derived
from the common law of war. Military oﬂences under the statute
law must be tried in the manner therein directed; but military of-
fences which do not come within the statute must be tried and
punished under the common law of war. The character of the courts
which exercise these jurisdictions depends upon the local laws of
each particular country.
In the armies of the United States the ﬁrst is exercised by courts-
martial; while cases which do not come within the “Rules and
342 , _ APPENDIX.
Articles of War,” or the jurisdiction conferred by'statu'te on courts-
martial, are tried by military commissions.
14. Military necessity, as understood by modern civilized nations,
consists in the necessity of those measures which are indispensable.
for securing the ends of the war, and which are lawful according to
the modern law and usages of war.
15. Military necessity admits of all direct destruction of life or
limb of armed enemies, and of other persons whose destruction is
incidentally unavoidable in the armed contests of the war; it al-.
lows of the capturing of every armed enemy, and every enemy of im-’
portance to the hostile government, or of peculiar danger to the
captor; it allows of all, destruction of property, and obstruction ‘of
the ways and channels of trafﬁc, travel, or communication, and of all-
withholding of sustenance or means of life from the enemy; of the
appropriation of whatever an enemy’s country affords necessary for
the subsistence and safety of the army, and of, such deception as does
not involve the breaking of good faith either positively pledged, re-
garding agreements entered into during the ‘war, or supposed by
the modern law of war to exist. Men who take up arms against
one another in public war do not cease on this account to be moral
beings, responsible to one another, and to God.
16. Military necessity does not admit of cruelty, that is, the in
ﬂiction of suffering for the “sake of suffering or for revenge, nor of
maiming or wounding except in ﬁght, nor of torture to extort con-
fessions. It does not admit of the use of poison in any way, nor of
the wanton devastation of a district. It admits of deception, but
disclaims acts of perﬁdy; and, in general, military necessity does
not include any act of hostility which makes the return to peace un-
necessarily difficult. > ' -
17. War is not carried on by arms alone. It is lawful to starve
the hostile belligerent, ‘armed or unarmed, so that it leads to the
speedier subjection of the enemy.
18. When the commander of a besieged place expels the non-
combatants, in order to lessen the number of those who consume
his stock of provisions, it is lawful, though an extreme measure,
to drive them back, so as to hasten on the surrender.
19. Commanders, whenever admissible, inform the enemy of their
AMERICAN INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES. 343
intention to bombard a place, so that the non-combatants, and espe-
cially the women and children, may be removed before the bom-
bardment commences. But it is no infraction of the common law
of war to omit thus to inform the enemy. Surprise may be a ne—
cessity. '
20. Public war is a state of armed hostility between sovereign
nations or governments. It is a law and requisite of civilized ex-
istence that men live in political, continuous societies, forming or:-
ganized units, called states or nations, whose constituents bear, en‘-
joy, and suffer, advance and retrograde together, in peace and in
war.
21. The citizen or native of a hostile country is thus an enemy,
as one of the constituents of ‘the hostile state or nation, and as
such is subjected to the hardships of the war.
22. Nevertheless, as civilization has advanced during the last
centuries, so has likewise steadily advanced, especially in war on
land, the distinction between the private individual belonging to a
hostile country and the hostile country itself, with its men in
arms. The principle has been more and more acknowledged that
the unarmed citizen is to be spared in person, property, and honor
as much as the exigencies of war will admit
23. Private citizens are no longer murdered, enslaved, or carried
off to distant parts, and the inoffensive individual is as little dis-
turbed in his private relations as the commander of the hostile
troops can afford to grant in the overruling demands of a vigorous
war. I '
24. The almost universal rule in remote times was, and con-
tinues to be with barbarous armies, that the private individual of
the hostile country is destined to suffer every privation of liberty
and protection, and every disruption of family ties. Protection
was, and still is with uncivilized people, the exception. '
25. In modern regular wars of the Europeans, and their descend-
ants in other portions of the globe, protection of the inoffensive
citizen of the hostile country is the rule; privation and disturbance
of private relations are the exceptions. A
26. Commanding generals may cause the magistrates and civil
oﬂicers of the hostile country to take the oath of temporary alle-
344 APPENDIX.
giance or an oath of ﬁdelity to their own victorious government or
rulers, and they may expel every one who declines to do so. But
whether they do so or not, the people and their civil officers owe
strict obedience to them as long as they hold sway over the dis-
trict or country, at the peril of their lives.
27. The law of war can no more wholly dispense with retaliation
than can the law of nations, of which it is a branch. Yet civilized
nations acknowledge retaliation as the sternest feature of war. A
reckless enemy often leaves to his opponent no other means of se-
curing himself against the repetition of barbarous outrage.
28. Retaliation will, therefore, never be resorted to as a measure
of mere revenge, but only as a means of protective retribution, and,
moreover, cautiously and unavoidably; that is to say, retaliation
shall only be resorted to after careful inquiry into the real oc-
currence, and the character of the misdeeds that may demand ret-
ribution.
Unjust or inconsiderate retaliation removes the belligerents far-
ther and farther from the mitigating rules of a regular war, and
by rapid steps leads them nearer to the internecine wars of savages.
29. Modern times are distinguished from earlier ages by the ex-
istence, at one and the same time, of many nations and great gov-
ernments related to one another in close intercourse. /
Peace is their normal condition; war is the exception. The ulti-
mate object of all modern war is a renewed state of peace.
The more vigorously wars are pursued, the better it is for human-
ity. Sharp wars are brief.
30. Ever since the formation and co-existence of modern nations,
and ever since wars have become great national wars, war has
come to be acknowledged not to be its own end, but the means to
obtain great ends of state, or to consist in defense against wrong;
and no conventional restriction of the modes adopted to injure the
enemy is any longer admitted; but the law of war imposes many
limitations and restrictions on principles of justice, faith, and
honor.
AMERICAN INSTRUCTIONS FOR THE GOVERNMENT or ARMIEs. 345
9
w
SECTION II.
Public and private Property of the Enemy—Protection of
persons, and especially women; of religion, the arts and
sciences—Punishment of crimes against the inhabitants
of hostile countries.
31. A victorious army appropriates all public money, seizes all
public movable property until further direction by its government,
and sequesters for its own beneﬁt or that of its government all the
revenues of real property belonging to the hostile government or
nation. The title to such real property remains in abeyance during
military occupation, and until the conquest is made complete.
32. A victorious army, by the martial powers inherent in the
same, may suspend, change, or abolish, as far as the martial power
extends, the relations which arise from the services due, according
to the existing laws of'the invaded country, from one citizen, sub-
ject, or native of the same to another.
The commander of the army must leave it to the ultimate treaty
of peace to settle the permanency of this change.
33. It is no longer considered lawful—on the contrary, it is held
to be a serious breach of the law of war—to force the subjects of
the enemy into the service of the victorious government, except the
latter should proclaim, after a fair and complete conquest of the
hostile country or district, that it is resolved to keep the country,
district, or place permanently as its own, and make it a portion of
its own country.
34. As a general rule, the property belonging to churches, to
hospitals, or other establishments of an exclusively charitable char-
acter, to establishments of education, or foundations for the pro-
motion of knowledge, whether public schools, universities, academies
of learning or observatories, museums of the ﬁne arts, or of a
scientiﬁc character—such property is not to be considered public
property in the sense of paragraph 31; but it may be taxed or used
when the public service may require it.
35. Classical works of art, libraries, scientiﬁc collections, or pre-
cious instruments, such as astronomical telescopes, as well as hos—
346 APPENDIX.
pitals, must be secured against all avoidable injury, even when they
are contained in fortiﬁed places whilst besieged or bombarded.
36. If such works of art, libraries, collections, or instruments be-
longing to a hostile nation or government, can be removed without
injury, the ruler of the conquering state or nation may order them
to be seized and removed for the beneﬁt of the said nation. The
ultimate ownership is to be settled by the ensuing treaty of peace.
In no case shall they be sold or given away, if captured by the
armies of the United States, nor shall they ever be privately ap-
propriated, or wantonly destroyed or injured.
37. The United States acknowledge and protect, in hostile coun-
' tries occupied by them, religion and morality; strictly private prop-
erty; the persons of the inhabitants, especially those of women;
and the sacredness of domestic relations. Offences to the contrary
shall be rigorously punished.
This rule does not interfere with the right of the victorious invader
to tax the people or their property, to levy forced loans, to billet
soldiers, or to appropriate property, especially houses, land, boats
or ships, and churches, for temporary and military uses.
38. Private property, unless forfeited by crimes or by offences
of the owner, can be seized only by way of military necessity, for
the support or other beneﬁt of the army of the United States.
If the owner has not ﬂed, the commanding officer will cause re-
ceipts to be given, which may serve the spoliated owner to obtain
indemnity.'
39. The salaries of civil officers of the hostile government who
remain in the invaded territory, and continue the work of their
office, and can continue it according to the circumstances arising out
of the war—such as judges, administrative or police officers, officers
of city or communal governments—are paid from the public revenue
of the invaded territory, until the military government has reason
wholly or partially to discontinue it. Salaries or incomes connected
with purely honorary titles are always stopped.
40. There exists no law or body of authoritative rules of action
between hostile armies, except that branch of the law of nature and
nations which is called the law and usages of war on land.
41. All municipal law of the ground on which the armies stand,
AMERICAN INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES. 347
or of the countries to which they belong, is silent and of no effect
between armies in the ﬁeld.
42. Slavery, complicating and confounding the ideas of property,
(that is of a thing,) and of personality, (that is of humanity,) exists
according to municipal law or local law only. The law of nature
and nations has never acknowledged it. The digest of the Roman
law enacts the early dictum of the pagan jurist, that “so far as the
law of nature is concerned, all men are equal.” Fugitives escaping
from a country in which they were slaves, villains, or serfs, into
another country, have, for centuries past, been held free and ac-
knowledged free by judicial decisions of European countries, even
though the municipal law of the country in which the slave had taken
refuge acknowledged slavery within its own dominions.
43. Therefore, in a war between the United States and a bel-
ligerent which admits of slavery, if a person held in bondage by that
belligerent be captured by or come as a fugitive under the protection
of the military forces of the United States, such person is immedi-
ately entitled to the rights and privileges of a freeman. To return
such person into slavery would amount to enslaving a free person,
and neither the United States nor any ofﬁcer under their authority
can enslave any human being. Moreover, a person so made free
by the law of war is under the shield of the law of nations, and the
former owner or State can have, by the law of post-liminy, no bellig-
erent lien or claim of service.
44. All wanton violence committed against persons in the in-
vaded country, all destruction of property not commanded by the
authorized officer, all robbery, all pillage or sacking, even after tak»
ing a place by main force, all rape, wounding, maiming, or killing of
such inhabitants, are prohibited under the penalty of death, or such
other severe punishment as may seem adequate for the gravity of
the offence.
A soldier, officer or private, in the act of committing such violence,
and disobeying a superior ordering him to abstain from it, may be
lawfully killed on the spot by such superior.
45. All captures and booty belong, according to the modern law
of war, primarily to the government of the captor.
Prize money, whether on sea or land, can now only be claimed
under local law.
348 APPENDIX
46. Neither officers nor soldiers are allowed to make use of their
position or power in the hostile country for private gain, not even
for commercial transactions otherwise legitimate. Offences to the
contrary committed by commissioned oﬁ‘icers will be punished with
cashiering or such other punishment as the nature of the offence may
require; if by soldiers, they shall be punished according to the nature
of the offence.
47. Crimes punishable by all penal vcodes, such as arson, murder,
maiming, assaults, highway robbery, theft, burglary, fraud, forgery,
and rape, if committed by an American soldier in a hostile country
against its inhabitants, are not only punishable as at home, but in
all cases. in which death is not inﬂicted, the severer punishment shall
be preferred. '
SECTION III.
Deserters—Prisoners of War—Hostages—Booty on the
Battle-Field.
48. Deserters from the American army, having entered the ser-
vice of the enemy, suffer death if they fall again into the hands of
the United States, whether by capture, or being delivered up to the
American army; and if a deserter from the enemy, having taken ser-
vice in the army of the United States, is captured by the enemy, and
punished by them with death or otherwise, it is not a breach against
the law and usages of war, requiring redress or retaliation.
49. A prisoner of war is a public enemy armed or attached to the
hostile army for active aid, who has fallen into the hands of the
captor, either ﬁghting or wounded, on the ﬁeld or in the hospital,
by individual surrender or by capitulation. '
All soldiers, of whatever species of arms; all men who belong to
the rising en masse of the hostile country; all those who are at-
tached to the army for its efficiency and promote directly the object
of the war, except such as are hereinafter provided for; all dis-
abled men or ofﬁcers on the ﬁeld or elsewhere, if captured; all ene-
mies who have thrown away their arms and ask for quarter, are
prisoners of war, and as such exposed to the inconveniences as well
as entitled to the privileges’ of a prisoner of war. I I
50. Moreover, citizens who accompany an army'for whatever pur-
AMERICAN INSTRUCTIONS FOR THE GOVERNMENT or ARMIES. 349
pose, such as sutlers, editors, or reporters of journals, or contractors,
if captured, may be made prisoners of war, and be detained as such.
The monarch and members of the hostile reigning family, male or
female, the chief, and chief ofﬁcers of the .hostile government, its
diplomatic agents, and all persons who are of particular and singular
use and beneﬁt to the hostile army or its government, are, if captured
on belligerent ground, and if unprovided with a safe conduct granted
by the captor’s government, prisoners of war.
51. 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 ap-
proach of a hostile army, rise under a duly authorized levy, en
masse to resist the invader, they are now treated as public enemies,
and if captured, are prisoners of war.
52. No belligerent has the right to declare that he will treat every
captured man in arms of a levy en masse as a brigand or bandit.
If, however, the people of a country, or any portion of the same,
already occupied by an army, rise against it, they are violators of
the laws of war, and are not entitled to their protection.
53. The enemy’s chaplains, officers of the medical staff, apothe-
caries, hospital nurses and servants, if they fall into the hands of
the American army, are not prisoners of war, unless the commander
has reasons to retain them. In this latter case, or if, at their own
desire, they are allowed to remain with their captured companions,
they are treated as prisoners of war, and may be exchanged if the
commander sees ﬁt.
54. A hostage is a person accepted as a pledge for the fulﬁllment
of an agreement concluded between belligerents during the war, or
in consequence of a war. Hostages are rare in the present age.
55. If a hostage is accepted, he is treated like a prisoner of war,
according to rank and condition, as circumstances may admit.
56. A prisoner of war is subject to no punishment for being a
public enemy, nor is any revenge wreaked upon him by the inten-
tional inﬂiction of any suffering, or disgrace, by cruel imprisonment,
‘ want of food, by mutilation, death, or any other barbarity.
57. So soon as a man is armed by a sovereign government, and
takes the soldier’s oath of ﬁdelity, he is a belligerent; his killing,
wounding, or other warlike acts, ‘are no individual crimes or offences.
No belligerent has a right to declare that enemies of a certain class,
3-30 APPENDIX.
color, or condition, when properly organized as soldiers, will not be
treated by him as public enemies.
58. The law of nations knows of no distinction of color, and if
an enemy of the United States should enslave and sell any captured
persons of their army, it would be a case for the severest retaliation,
if not redressed upon complaint.
The United States cannot retaliate by enslavement; therefore
death must be the retaliation for this crime against the law of na-
tions.
59. A prisoner of war remains answerable for his crimes com—
mitted against the captor’s army or people, committed before he was
captured, and for which he has not been punished by his own au-
thorities.
All prisoners of war are liable to the infliction of retaliatory
measures.
60. It is against the usage of modern war to resolve, in hatred and
revenge, to give no quarter. No body of troops has the right to
declare that it will not give, and therefore will not expect, quarter;
but a commander is permitted to direct his troops to give no quarter,
in great straits, when his own salvation makes it impossible to
cumber himself with prisoners.
61. Troops that give no quarter have no right to kill enemies al-
ready disabled on the ground, or prisoners captured by other troops.
62. All troops of the enemy known or discovered to give no quarter
in general, or to any portion of the army, receive none.
63. Troops who ﬁght in the uniform of their enemies, without any
plain, striking, and uniform mark of distinction of their own, can
expect no quarter.
64. If American troops capture a train containing uniforms of the
enemy, and the commander considers it advisable to distribute them
for use among his men, some striking mark or sign must be adopted
to distinguish the American soldier from the enemy.
65. The use of the enemy’s national standard, ﬂag, or other em-
blem of nationality, for the purpose of deceiving the enemy in battle,
is an act of perﬁdy by which they lose all claim to the protection
of the laws of war.
66. Quarter having been given to an enemy by American troops,
under a misapprehension of his true character, he may, neverthe-
AMERICAN INSTRUCTIONS FOR THE GOVERNMENT or ARMIEs. 351
\
less, be ordered to suffer death if, within three days after the
battle it be discovered that he belongs to a corps which gives no
quarter.
67. The law of nations allows every sovereign government to
make war upon another sovereign state, and, therefore, admits of no
rules or laws different from those of regular warfare, regarding the
treatment of prisoners of war, although they may belong to the
army of a government which the captor may consider as a wanton
and unjust assailant.
68. Modern wars are not internecine wars, in which the killing of
the enemy is the object. The destruction of the enemy in modern
war, and, indeed, modern war itself, are means to obtain that object
of the belligerent which lies beyond the war.
Unnecessary or revengeful destruction of life is not lawful.
69. Outposts, Sentinels, or pickets are not to be ﬁred upon, except
to drive them in, or when a positive order, special or general, has
been issued to that eﬁect.
70. The use of poison in any manner, be it to poison wells, or
food, or arms, is wholly excluded from modern warfare. He that
uses it puts himself out of the pale of the law and usages of war.
71. Whoever intentionally inﬂicts additional wounds on an ene-
my already wholly disabled, or kills such an enemy, or who orders
or encourages soldiers to do so, shall xsuffer death, if duly convicted,
whether he belongs to the army of the United States, or is an enemy
captured after having committed his misdeed.
72. Money and other valuables on the person of a prisoner, such
as watches or jewelry, as well as extra clothing, are regarded by the
American army as the private property of the prisoner, and the ap-
propriation of such valuables or money is considered dishonorable,
and is prohibited,
Nevertheless, if large sums are found upon the persons of pris-
oners, or in their possession, they shall be taken from them, and
the surplus, after providing for their own support, appropriated for
the use of the army, under the direction of the commander, unless
otherwise ordered by the government. Nor can prisoners claim, as
private property, large sums found and captured in their train, al—
though they had been placed in the private luggage of the prisoners.
73. All ofﬁcers, when captured, must surrender their sidearms
352 APPENDIX.
to the captor. They may be restored to the prisoner in marked
cases, by the commander, to signalize admiration of his distin-
guished bravery, or approbation of his humane treatment of pris—
oners before his capture. The captured officer to whom they may
be restored cannot wear them during captivity.
74. A prisoner of war being a public enemy, is the prisoner of the
government, and not of the captor. No ransom can be paid by a
prisoner of war to his individual captor, or to any officer in com-
mand. The government alone releases captives, according to rules
prescribed by itself.
75. Prisoners of war are subject to conﬁnement or imprisonment
such as may be deemed necessary on account of safety, but they are
to be subjected to no other intentional suffering or indignity. The
conﬁnement and mode of treating a prisoner may be varied during
his captivity according to the demands of safety.
76. Prisoners of war shall be fed upon plain and wholesome food
whenever practicable, and treated with humanity. '
They may be required to work for the beneﬁt of the captor’s gov-
ernment, according to their rank and condition.
77. A prisoner of war who escapes may be shot, or otherwise
killed in his ﬂight; but neither death nor any other punishment
shall be inﬂicted upon him simply for his attempt to escape, which
the law of war does not consider a crime. Stricter means of se-
curity shall be used after an unsuccessful attempt at escape.
If, however, a conspiracy is discovered, the purpose of which is
a united or general escape, the conspirators may be rigorously pun’-
ished, even with death; and capital punishment may also be in-
ﬂicted upon prisoners of war discovered to have plotted rebellion
against the authorities of the captors, whether in union with fellow-
prisoners or other persons.
78. If prisoners of war, having given no pledge nor made any
promise on their honor, forcibly or otherwise escape, and are cap-
tured again in battle, after having rejoined their own army, they
shall not be punished for their escape, but shall be treated as sim-
ple prisoners of war, although they will be subjected to stricter
conﬁnement.
79. Every captured wounded enemy shall be medically treated,
according to the ability of the medical staff.
AMERICAN INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES.
80. Honorable men, when captured, will abstain from giving to
the enemy information concerning their own army, and the modern
law of war permits no longer the use of any violence against pris-
oners, in order to extort the desired information, or to punish them
for having given false information.
SECTION IV.
Partisans—Armed enemies not belonging to the hostile
army—Scouts—Armed prowlers—War-rebels.
81. Partisans are soldiers armed and wearing the uniform of
their army, but belonging to a corps which acts detached from the
main body for the purpose of making inroads into the territory oc-
cupied by the enemy. If captured, they are entitled to all the privi-
leges of the prisoner of war.
82. Men, or squads of men, who commit hostilities, whether by
ﬁghting, or inroads for destruction or plunder, or by raids of any
kind, without commission, without being part and portion of the
organized hostile army, and without sharing continuously in the
war, but who do so with intermitting returns to their homes and
avocations, or with the occasional assumption of the semblance of
peaceful pursuits, divesting themselves of the character or appear-
ance of soldiers—such men, or squads of men, are not public ene—
mies, and therefore, if captured, are not entitled to the privileges
of prisoners of war, but shall be treated summarily as highway rob-
bers or pirates.
83. Scouts or single soldiers, if disguised in the dress of the
country, or in the uniform of the army hostile to their own, em-
ployed in obtaining information, if found within or lurking about
the lines of the captor, are treated as spies, and suffer death.
84. Armed prowlers, by whatever names they may be called, or per-
sons of the enemy’s territory, who steal within the lines of the hos-
tile army, for the purpose of robbing, killing, or of destroying
bridges, roads or canals, or of robbing or destroying the mail, or of
cutting the telegraph wires, are not entitled to the privileges of
the prisoner of war.
85. War-rebels are persons within an occupied territory who rise
in arms against the occupying or conquering army, or against the
INTERNAT. L A w-23
354 _ \ _APPENDIX.
authorities, established by the same. If captured, they may suffer '
death, whether they rise singly, in small or large bands, and
whether called upon to do so by their own, but expelled, govern-
ment or not. \ They are not prisoners of war; nor are they, if dis-
covered and secured before their conspiracy has matured to an
actual rising, or to armed violence. ‘
SECTION V.
Safe—conduct— Spies—War-traitors '— Captured messengers
-—Abuse of the ﬂag of truce.
86. All intercourse between the territories occupied by belligerent
armies, whether by traffic, by letter, by travel, or in any other way,
ceases. This is-the general rule, to be observed without special
proclamation.~ . ,
Exceptions to this rule, whether by safe-conduct, or permission
to trade on a small or large scale, or by exchanging mails, or by
travel from one territory into the other, can take place only accord-
ing to agreement approved by the government, or by the highest
military authority.
Contraventions of this rule are highly punishable.
87. Ambassadors, and all other diplomatic agents of neutral
powers, accredited to the enemy, may receive safe conducts through
the territories occupied by the belligerents, unless there are military
reasons to the contrary, and'unless they may reach the place of
their destination conveniently by another route. It implies no
international affront if the safe conduct is declined. Such passes
are usually given by the supreme authority of the state, and not by
subordinate ofﬁcers.
88. A spy is a person who secretly, in disguise or under false
, pretence, seeks information with the intention of communicating it
to ‘the enemy.
The spy is punishable with death by hanging by the neck, whether
or not he succeeded in obtaining the information or in conveying it
to the enemy.
89. If a citizen of the United States obtains information in a
legitimate manner, and betrays it to the enemy, be he a military or
civil‘ ofﬁcer, or a private citizen, he shall suﬁer deatht
AMERICAN INSTRUCTIONS FOR THE GOVERNMENT or ARMIES. 355
90. A traitor under the law of war, or a war-traitor, is a person in
a place or district under martial law who, unauthorized by the
military commander, gives information of any kind to the enemy,
or holds intercourse with him.
91. The war-traitor is always severely punished. If his offence
consists in betraying to the enemy anything concerning the condi-
tion, safety, operations or plans of the troops holding or occupying
the place or district, his punishment is death.
92. If the citizen or subject of a country or place invaded or con-
quered gives information to his own government, from which he is
separated by the hostile army, or to the army of his government,
he is a war-traitor, and death is the penalty of his offence.
93. All armies in the ﬁeld stand in need of guides, and impress
them if they cannot obtain them otherwise.
94. No person having been forced by the enemy to serve as guide
is punishable for having done so.
95. If a citizen of a hostile and invaded district voluntarily serves
as a guide to the enemy, or offers to do so, he is deemed a war-
traitor, and shall suffer death.
96. A citizen serving voluntarily as a guide against his own coun-
try commits treason, and will be dealt with according to the law of
his country.
97. Guides, when it is clearly proved that they have misled in-
tentionally, may be put to death.
98. All unauthorized or secret communication with the enemy is
considered treasonable by the law of war.
Foreign residents in an invaded or occupied territory, or foreign
visitors in the same, can claim no immunity from this law. They
may communicate with foreign parts, or with the inhabitants of the
hostile country, so far as the military authority permits, but no
further. Instant expulsion from the occupied territory would be
the very least punishment for the infraction of this rule.
99. A messenger carrying written dispatches or verbal messages
from one portion of the army, or from a besieged place, to another
portion of the same army, or its government, if armed, and in the
uniform of his army, and if captured while doing so, in the territory
occupied by the enemy, is treated by the captor as a prisoner of
war. If not in uniform, nor a soldier, the circumstances connected
356 APPENDIX.
with his capture must determine the disposition that shall be made
of him.
100. A messenger or agent who attempts to steal through the
territory occupied by the enemy, to further, in any manner, the
interests of the enemy, if captured, is not entitled to the privileges
of the prisoner of war, and may be dealt with according to the cir-
cumstances of the case.
101. While deception in war is admitted as a just and necessary
means of hostility, and is consistent with honorable warfare, the
common law of war allows even capital punishment for clandestine
or treacherous attempts to injure an enemy, because they are so
dangerous, and it is so difficult to guard against them.
102. The law of war, like the criminal law regarding other of-
fences, makes no diﬁerence on account of the difference of sexes,
concerning the spy, the war-traitor, or the warjreléel.
103. Spies, war-traitors, and war-rebels, are ii‘ot‘éxchanged accord-
ing to the common law of war. The exchange of such persons
would require a special cartel, authorized by the government, or, at
a great distance from it, by the chief commander of the army in the
ﬁeld.
104. A successful spy or war-traitor, safely returned to his own
army, and afterwards captured as an enemy, is not subject to pun-
ishment for his acts as a spy or war-traitor, but he may be held in
closer custody as a person individually dangerous.
SECTION VI.
Exchange of prisoners—Flags of truce—Flags of
protection.
105. Exchanges of prisoners take place—number for number-
rank for rank-wounded for wounded—with added condition for
added condition—such, for instance, as not to serve for a certain
period.
106. In exchanging prisoners of war, such numbers of persons
of inferior rank may be substituted as an equivalent for one of
superior rank as may be agreed upon by cartel, which requires the
sanction of the government, or of the commander of the army in the
ﬁeld.
AMERICAN INSTRUCTIONS FOR. THE GOVERNMENT or ARMIES. 357
107. A prisoner of war is in honor bound truly to state to the
captor his rank; and he is not to assume a lower rank than belongs
to him, in order to cause a more advantageous exchange; nor a
higher rank, for the purpose of obtaining better treatment.
Offenses to the contrary have been justly punished by the com-
manders of released prisoners, and may be good cause for refusing
to release such prisoners.
108.. The surplus number of prisoners of war remaining after an
exchange has taken place is sometimes released either for the pay-
ment of a stipulated sum of money, or, in urgent cases of provision,
clothing, or other necessaries.
Such arrangement, however, requires the sanction of the highest
authority.
109. The exchange of prisoners of war is an act of convenience to
both belligerents. If no general cartel has been concluded, it can-
not he demanded by either of them. No belligerent is obliged to
exchange prisoners of war.
A cartel is voidable so soon as either party has violated it.
110. No exchange of prisoners shall be made except after complete
capture, and'after an accurate account of them, and a list of the
captured officers, has been taken.
111. The bearer of a ﬂag of truce cannot insist upon being ad-
mitted. He must always be admitted with great caution. Unnec-
essary frequency is carefully to be avoided.
112. ‘If the bearer of a ﬂag of truce oifer himself during an en-
gagement, he can be admitted as a very rare exception only. It
is no breach of good faith to retain such a ﬂag of truce, if admitted
during the engagement. Firing is not required to cease on the
appearance of a ﬂag of truce in battle.
113. If the bearer of a ﬂag of truce, presenting himself during an
engagement, is killed or wounded, it furnishes no ground of com-
plaint whatever. - '
11.4. If it be discovered, and fairly proved, that a ﬂag of truce has I
been abused for surreptitiously obtaining military knowledge, the
bearer of the ﬂag thus abusing his sacred character is deemed a spy.
So sacred is the character of a ﬂag of truce, and so necessary is its
saeredness, that while its abuse is an especially heinous offence,
358 APPENDIX.
‘ great caution is requisite, on the other hand, in convicting the bearer
of a ﬂag of truce as a spy.
115. It is customary to designate by certain ﬂags (usually yellow),
the hospitals in places which are shelled, so that the besieging enemy
may avoid ﬁring on them. The same has been done in battles,
when hospitals are situated within the ﬁeld of the engagement.
116. Honorable belligerents often request that the hospitals with-
in the territory of the enemy may be designated, so that they may
be spared.
An honorable belligerent allows himself to be guided by ﬂags
or signals of protection as much as the contingencies and the neces-
sities of the ﬁght will permit.
117. It is justly considered an act of bad faith, of infamy or
ﬁendishness, to deceive the enemy by ﬂags of protection. Such act
of bad faith may be good cause for refusing to respect such ﬂags.
118. The besieging belligerent has~sometimes requested the be-
sieged to designate the buildings containing collections of works of
art, scientiﬁc museums, astronomical observatories, or precious li-
braries, so that their destruction may be avoided as much as possible.
SECTION VII.
The Parole.
119. Prisoners of war may be released from captivity by exchange,
and, under certain circumstances, also by parole.
120. The term parole designates the pledge of individual good
faith and honor to do, or to omit doing, certain acts after he who
gives his parole shall have been dismissed, wholly or partially, from
the power of the captor.
121. The pledge of the parole is always an individual but not a
private act.
122. The parole applies chieﬂy to prisoners of war whom the
captor allows to return to their country, or to live in greater free-
dom within the captor’s country or territory, on conditions stated
in the parole.
123. Release of prisoners of war by exchange is the general rule;
release by parole is the exception.
AMERICAN INSTRUCTIONS FOR THE GOVERNMENT or ARMIES. 359
124. Breaking the parole is punished with death when the person
breaking the parole is captured again. -
Accurate lists, therefore, of the paroled persons must be kept by
the belligerents.
125. When paroles are given and received, there must be an ex-
change of two written documents, in which the name and rank of the
paroled individuals are accurately and truthfully stated.
126. Commissioned ofﬁcers only are allowed to give their parole,
and they can give it only with the permission of their superior,
as long as a superior in rank is within reach.
127. No non-commissioned ofﬁcer or private can give his parole
except through an officer. Individual paroles not given through
an ofﬁcer are not only void, but subject the individual giving
them to the punishment of death as deserters. The only admissible
exception is where individuals, properly separated from their com-
mands, have suffered long conﬁnement without the possibility of
being paroled through an oﬂicer.
128. No paroling on the battle-ﬁeld, no paroling of entire bodies
of troops after a battle, and no dismissal of large numbers of
prisoners, with a general declaration that they are paroled, is
permitted, or of any value.
129. In capitulations for the surrender of strong places or forti-
ﬁed camps, the commanding officer, in cases of urgent necessity,
may agree that the troops under his command shall not ﬁght again
during the war, unless exchanged.
130. The usual pledge given in the parole is not to serve during
the existing war, unless exchanged.
This pledge refers only to the active service in the ﬁeld, against
the paroling belligerent or his allies actively engaged in the same
war. These cases of breaking the parole are patent acts, and can
be visited with the punishment of death; but the pledge does not
refer to internal service, such as recruiting or drilling the recruits,
fortifying places not besieged, quelling civil commotions, ﬁghting
against belligerents unconnected with the paroling belligerents, or
to civil or diplomatic service for which the paroled ofﬁcer may be
employed.
131. If the government does not approve of the parole, the
360 APPENDIX.
paroled officer must return into captivity; and should the enemy
refuse to receive him, he is free of his parole.
132. A belligerent government may declare, by a general order,
whether it will allow paroling, and on what conditions it will
allow it. Such order is communicated to the enemy.
133. No prisoner of war can be forced by the hostile government
to parole himself, and no government is obliged to parole prisoners
of war, or to parole all captured officers if it paroles any. As the
pledging of the parole is an individual act, so is paroling, on the
other hand, an act of choice on the part of the belligerent.
134. The commander of an occupying army may require of the
civil officers of the enemy, and of its citizens, any pledge he may
consider necessary for the safety or security of his army; and
upon their failure to give it, he may arrest, conﬁne, or detain
them.
SECTION VHI.
Armistice—Capitulation.
135. An armistice is the cessation of active hostilities for a period
agreed upon between belligerents. It must be agreed upon in writ-
ing, and duly ratiﬁed by the highest authorities of the contending
parties.
136. If an armistice be declared, without conditions, it extends
no further than to require a total cessation of hostilities along the
front of both belligerents.
If conditions be agreed upon, they should be clearly expressed,
and must be rigidly adhered to by both parties. If either party
violates any express condition, the armistice may be declared null
and void by the other.
137. An armistice may be general, and valid for all points and
lines of the belligerents; or special-that is, referring to certain
troops or certain localities only.
An armistice may be concluded for a deﬁnite time; or for an
indeﬁnite time, during which either belligerent may resume hostili-
ties on giving the notice agreed upon to the other.
138. The motives which induce the one or the other belligerent
to conclude an armistice, whether it be expected to be preliminary
AMERICAN INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES.
to a treaty of peace, or to prepare during the armistice for a more
vigorous prosecution of the War, do in no way affect the character of
the armistice itself.
139. An armistice is binding upon the belligerents from the day
of the agreed commencement; but the officers of the armies are
responsible from the day only when they receive ofﬁcial information
of its existence.
14:0. Commanding ofﬁcers have the right to conclude armistices
binding on the district over which their command extends; but
such armistice is subject to the ratiﬁcation of the superior authority,
and ceases so soon as it is made known to the enemy that the
armistice is not ratiﬁed, even if a certain time for the elapsing be-
tween giving notice of cessation and the resumption of hostilities
should have been stipulated for.
141. It is incumbent upon the contracting parties of an armistice
to stipulate what intercourse of persons or traffic between the in-
habitants of the territories occupied by the hostile armies shall be
allowed, if any.
If nothing is stipulated, the intercourse remains suspended, as
during actual hostilities.
142. An armistice is not a partial or a temporary peace; it is only
the suspension of military operations to the extent agreed upon
by the parties.
143. When an armistice is concluded between a fortiﬁed place
and the army besieging it, it is agreed by all the authorities on this
subject that the besieger must cease all extension, perfection, or
advance of his attacking works, as much so as from attacks by main
force.
But as there is a difference of opinion among martial jurists,
whether the besieged have the right to repair breaches or to erect
new Works of defence within the place during an armistice, this
point should be determined by express agreement between the
parties. .
144:. So soon as a capitulation is signed, the capitulator has no
right to demolish, destroy, or injure the works, arms, stores, or am-
munition, in his possession, during the time which elapses between
the signing and the execution of the capitulation, unless otherwise
stipulated in the same.
362 APPENDIX.
145. When an armistice is clearly broken by one of the parties,
the other party is released from all obligations to observe it.
146. Prisoners, taken in the act of breaking an armistice, must
be treated as prisoners of war, the officer alone being responsible
who gives the order for such a violation of an armistice. The
highest authority of the belligerent aggrieved may demand redress
for the infraction of an armistice.
147. Belligerents sometimes conclude an armistice while their
plenipotentiaries are met to discuss the conditions of a treaty of
peace; but plenipotentiaries may meet without a preliminary armis-
tice: in the latter case, the war is carried on without any abate-
ment.
‘\
SECTION IX.
Assassination.
148. The law oi war does not allow proclaiming either an indi-
vidual belonging to the hostile army, or a citizen, or a subject of the
hostile governir ent, an outlaw, who may be slain without trial by
any captor, any more than the modern law of peace allows such
international outlawry; on the contrary, it abhors such outrage.
The sternest retaliation should follow the murder committed in
consequence of such proclamation, made by whatever authority.
Civilized nations look with horror upon offers of rewards for the
assassination of enemies, as relapses into barbarism.
SECTION X.
Insurrection—Civil War—Rebellion.
149. Insurrection is the rising of people in arms against their
government, or a portion of it, or against one or more of its laws,
or against an oﬂicer or oﬂicers of the government. It may be con-
ﬁned to mere armed resistance, or it may have greater ends in view.
150. Civil war is war between two or more portions of a country
or state, each contending for the mastery of the whole, and each
claiming to be the legitimate government. The term is also some-
times applied to war of rebellion, when the rebellious provinces or
portions of the state are contiguous to those containing the seat
of government.
AMERICAN INsTRUcTIoNs FOR THE GOVERNMENT OF ARMIEs. 363
151. The term rebellion is applied to an insurrection of large
extent, and is usually a war between the legitimate government
of a country and portions or provinces of the same who seek to throw
off their allegiance to it, and set up a government of their own.
152. When humanity induces the adoption of the rules of regular
war toward rebels, whether the adoption is partial or entire, it does
in no way whatever imply a partial or complete acknowledgment of
their government, if they have set up one, or of them, as an inde- .
pendent or sovereign power. Neutrals have no right to make the
adoption of the rules of war by the assailed government toward
rebels the ground of their own acknowledgment of the revolted peo-
ple as an independent power.
153. Treating captured rebels as prisoners of war, exchanging
them, concluding of cartels, capitulations, or other warlike agree-
ments with them; addressing oﬁicers of a rebel army by the rank
they may have in the same; accepting ﬂags of truce; or, on the
other hand, proclaiming martial law in their territory, or levying
war-taxes or forced loans, or doing any other act sanctioned or de—
manded by the law and usages of public war between sovereign bel-
ligerents, neither proves nor establishes an acknowledgment of the
rebellious people, or of the government which they may have erected,
as a public or sovereign power. Nor does the adoption of the rules
of war toward rebels imply an engagement with them extending be-
yond the limits of these rules. It is victory in the ﬁeld that ends
the strife, and settles the future relations between the contending
parties.
154. Treating, in the ﬁeld, the rebellious enemy according to the
law and usages of war, has never prevented the legitimate govern-
' ment from trying the leaders of the rebellion or chief rebels for high
treason, and from treating them accordingly, unless they are in-
cluded in a general amnesty.
155. All enemies in regular war are divided into two general
classes; that is to say, into combatants and noncombatants, or un-
armed citizens of the hostile government.
The military commander of the legitimate government, in a war
of rebellion, distinguishes between the loyal citizen in the revolted
portion of the country and the disloyal citizen. The disloyal citizens
may further be classiﬁed into those citizens known to sympathize
364 APPENDIX.
with the rebellion, without positively aiding it, and those who, with-
out taking up arms, give positive aid and comfort to the rebellious
enemy, without being bodily forced thereto.
156. Common justice and plain expediency require that the mili-
tary commander protect the manifestly loyal citizens, in revolted
territories, against the hardships of the war, as much as the common
misfortune of all war admits.
The commander will throw the burden of the war, as much as lies
within his power, on the disloyal citizens of the revolted portion or
province, subjecting them to a stricter police than the non-combat-
ant enemies have to suffer in regular war; and if he deems it ap-
propriate, or if his government demands of him, that every citizen
shall, by an oath of allegiance, or by some other manifest act, de-
clare his ﬁdelity to the legitimate government, he may expel, trans-
fer, imprison, or ﬁne the revolted citizens who refuse to pledge them-
selves anew as citizens obedient to the law, and loyal to the govern-
ment.
Whether it is expedient to do so, and whether reliance can be
placed upon such oaths, the commander or his government have the
right to decide.
157 . Armed or unarmed resistance by citizens of the United States
against the lawful movements of their troops, is levying war against
the United States, and is therefore treason.
PAPERS CARRIED BY VESSELS. 065
PAPERS CARRIED BY VESSELS IN EVIDENCE OF THEIR
NATIONALITY, AND OTHER PAPERS WHICH
OUGHT TO BE FOUND ON BOARD.
Austria.
Papers evidencing nationality:
Patente sovrana (royal license).
Scontrino ministeriale (certiﬁcate of registry).
Other papers carried:
Giornale di navigazione (official log book).
Scartafaccio, giornale di navigazione cotidiano (ship’s log
book)
Buolo del equipaggio (muster roll).
Manifest of cargo and bills of lading.
Oharter party, if the vessel is chartered.
Belgium.
Brazil.
Lettre de mer (sea letter).
Role d’équipages.
Registre de certiﬁcat de jaugeage (certiﬁcate of registry).
Log book.
Manifest of cargo.
Les connaissements (bills of lading).
Acte de propriété.
Charter party.‘
Papers evidencing nationality:
Oarta de registro (certiﬁcate of registry).
Passe especial (special pass), issued to Brazilians out of the
empire by the minister or consul in foreign country, and
constituting provisional proof of nationality.
Other papers carried:
Passport.
Muster roll.
Manifest of cargo.
Bills of lading.
366 APPENDIX.
Denmark.
Evidence of nationality:
Registering certiﬁkat (certiﬁcate of registry and nation-
ality).
Provisional certiﬁcate of registry issued by governors of
possessions abroad, or by consuls.
The letters “D. E.” (Dansk Eiendom) must be burnt into
the main beam in the after part of the main hatchway.
Papers carried, other than those above mentioned:
Royal passport, in Latin, with translation, available only
for the voyage for which it is issued, unless renewed
by attestation.
.Certiﬁcate of ownership.
Build~brief (certiﬁcate of build).
Admeasurement brief.l
Burgher-brief (certiﬁcate that the master has burgher
rights in some town of the kingdom).
Muster roll.’
Charter party, if the vessel is chartered.
France.
Papers evidencing nationality;
L’acte de francisation (certiﬁcate of nationality).
Acte de francisation provisoire.
Other papers which must be carried under the provisions of
the Code de Commerce:
Congé (sailing license).
Le role d’équipage.
L’acte de propriété de navire.
Les connaissements et charte-parties.
Les proces-verbaux de visite.
Les acquits de paiement ou a caution.
Manifest of cargo and inventory of ship’s ﬁtting and
stores.
Germany.
Papers evidencing nationality:
Schiffs-Certiﬁkat (certiﬁcate of nationality).
Flaggen-Attest (provisional certiﬁcate of nationality).
PAPERS CARRIED BY VESSELS.
367
Germany—Continued.
Other papers carried:
Messbrief (certiﬁcate of measurement).
Beilbrief (builder’s certiﬁcate).
See-Pass (sailing license).
Journal (ship’s log book).
Musterrolle (muster roll).
Charter party, if the vessel is chartered.
Great Britain.
Paper evidencing nationality:
Certiﬁcate of registry, or provisional certiﬁcate granted
by a consul resident in a foreign country to a vessel
brought there. The provisional certiﬁcate is good for
six months from the date of issue. A pass granted to
a vessel before registration, enabling her to go from one
port to another within the British dominions, has also
the force of a certiﬁcate.
Other papers carried:
Greece.
Official log book.
Ship’s log book.
Shipping articles,
Muster roll.
Manifest of cargo.
Bills of lading.
Charter party, if the vessel is chartered.
Paper evidencing nationality:
Certiﬁcate of nationality.
Other papers carried:
Congé or passport
Inventory of ship’s ﬁttings.
Certiﬁcate of tonnage,
Muster roll,
Description of visits to which the ship has been sub-
jected.
Log book.
Bill of health.
368 APPENDIX.
Italy.
Paper evidencing nationality:
Alto di nazionalita (certiﬁcate of nationality).
Other papers carried:
Giornale di navigazione (ofﬁcial log book).
Scartafaccio, giornale di navigazione cotidiano (ship’s log
book).
Ruolo dell’ equipaggio (muster roll).
Manifest of cargo and bills of lading.
Charter party, if the vessel is chartered.
Netherlands.
Zeebrief (sailing license),
Voorloopige Zeebrief (provisional sailing license).
Buitengevone Zeebrief (extraordinary sailing license).
Bijlbrief (certiﬁcate of ownership).
Meetbrief (certiﬁcate of tonnage).
Journal (ship’s log book).
Monster-roll (muster roll).
Manifest of cargo and bills of lading.
Charter party, if the vessel is chartered.
Norway.
Papers evidencing nationality:
N ationalitetsbreviis (certiﬁcate of nationality).
Provisional certiﬁcate granted by a consul.
Other papers carried:
Bulbrev (certiﬁcate of build).
Maalebrev (certiﬁcate of measurement).
N. B. The bulbrev and the maalbrev need not be carried
by vessels for two years after purchase.
Mandskabliste (muster roll).
J ournale (ship’s log boo-k).
Manifest of cargo and bills of lading.
Charter party, if the vessel is chartered.
PAPERS CARRIED BY VESSELS. 369
Russia;
Evidence of nationality:
Patent authorizing the use of the Russian ﬂag.
The fact that the master and half the crew are Russian.
N. B. The patent is not conclusive evidence in itself,
because it can be granted, though it is not commonly
granted, to foreign ships.
Papers which must be carried by Russian ships:
The patent above mentioned.‘
Beilbrief (builder’s certiﬁcate).
Oustomhouse passport.
Other papers carried:
Ship’s log book,
Muster roll.
Charter party, if the vessel is chartered.
Spain.
Paper evidencing nationality;
La patente o pasaporte de navigacion.
Other papers carried :,
El rol del equip‘age y lista de pasajeros.
Testimonio de la escritura de propriedad de la nave.
Oontrato de ﬂetamento.
Oonocimientos, facturas y guias de la carga.
Sweden.
A passport from a chief magistrate or commissioner of
customs.
Bilbrief (builder’s certiﬁcate).
Matebref (certiﬁcate of measurement).
Fribref (certiﬁcate of registry).
Journalen (ship’s log book),
Folkpass or sjomansrubla (muster roll).
Charter party, if the vessel is chartered.
United States. _
Papers evidencing nationality :,
Certiﬁcate of registry.‘
\ Provisional certiﬁcate of registry issued by a consul.
INTERNAT.LAW——24
370 APPENDIX.
United States—Continued.
Other papers carried:
Sea letter, or certiﬁcate of ownership.
Ship’s log book.
Shipping articles.
Muster roll.
Bill of health.
Char-ter- party, if the vessel is chartered.
THE DECLARATION OF rARIs. 371
THE DECLARATION OF PARIS.
Declaration Respecting Maritime Law, Signed by the
Plenipotentiaries of Great Britain, Austria, France, Prus-
sia, Russia, Sardinia, and Turkey Assembled in Congress
at Paris, April 16, 1856.
The Plenipotentiaries who signed the Treaty of Paris on the 30th
of March, 1856, assembled in conference, considering:
That Maritime law, in time of war, has long been the subject of
deplorable disputes;
That the uncertainty of the law, and of the duties in such a matter,
gives rise to differences of opinion between neutrals and belligerents
which may occasion serious difficulties, and even conﬂicts;
That it is consequently advantageous to establish a uniform doc-
trine on so important a point;
That the Plenipotentiaries assembled in Congress at Paris cannot
better respond to the intentions by which their governments are
animated than by seeking to introduce into international relations
ﬁxed principles in this respect:
The above-mentioned Plenipotentiaries, being duly authorized, re-
solved to concert among themselves as to the means of attaining
this object; and, having come to an agreement, have adopted the
following solemn declaration:
1. Privateering is, and remains abolished.
2. The neutral ﬂag covers enemy’s goods, with the exception of
contraband of war.
3. Neutral goods, with the exception of contraband of war, are not
liable to capture under the enemy’s ﬂag.
4. 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. .
The governments of the undersigned Plenipotentiaries engage to
bring the present Declaration to the knowledge of the states which
have not taken part in the Congress of Paris, and to invite them to
accede to it.
37 2 APPENDIX.
Convinced that the maxims which they now proclaim cannot but be
received with gratitude by the whole world, the undersigned Plenipo-
tentiaries doubt not that the efforts of their governments to obtain
the general adoption thereof will be crowned with full success.
The present declaration is not and shall not be binding, except be-
tween those powers who have acceded, or shall accede to it.
‘ Done at Paris, April 16, 1856.
, THE DECLARATION or sT. PETERSBURG. 373
THE DECLARATION OF ST. PETERSBURGN
' “Considering that the progress of civilization should have the '
effect of alleviating, as much as possible, the calamities of war;
“That the only legitimate object which states should endeavor to
accomplish during war is to weaken the military force of the enemy;
“That for this purpose, it is sufficient to disable the greatest pos-
sible number of men; -
“That this object would be exceeded by the employment of arms
which uselessly aggravate the sufferings of disabled men, or render
their death inevitable;
“That the‘employment of such arms would, therefore, be contrary
to the laws of humanity;
“The contracting parties engage, mutually, to renounce, in case of
war among themselves, the employment, by their military or naval
forces, of any projectile of less weight than four hundred grammes,
which is explosive, or is charged with fulminating or inﬂammable
substances.
“They agree to invite all the states which have not taken part in
the deliberations of the International Military Oommission, assem-
bled at St. Petersburg, by sending delegates thereto, to accede to the
present engagement.
“This engagement is obligatory only upon the contracting or ac-
ceding parties thereto, in case of war between two or more of them-
selves; it is not applicable with regard to non-contracting powers,
or powers that shall not have acceded to it.
“It will also cease to be obligatory from the moment when, in a
war between contracting or acceding parties, a non-contracting
party, or a non-acceding party, shall join one of the belligerents.
“The contracting or acceding parties reserve to themselves the
right to come to an understanding, hereafter, whenever a precise
proposition shall be drawn up, in view of future improvements which
may be eﬁected in the armament of troops, in order to maintain the
principles which they have established, and to reconcile the neces-
sities of war with the laws of humanity.”
L‘
37 4 APPENDIX.
THE GENEVA CONVENTION FOR THE AMELIORATION OF
THE CONDITION OF THE SICK AND WOUNDED
OF ARMIES IN THE FIELD.
Article I. Ambulances and military hospitals shall be acknowl-'
edged to be neuter, and, as such, shall be protected and respected
by belligerents so long as any sick or wounded may be therein. Such
neutrality shall cease if the ambulances or hospitals should be held
by a military force.
Art. 11. Persons employed in hospitals and ambulances, compris-
ing the staﬁ for superintendence, medical service, administration,
transport of wounded, as well as chaplains, shall participate in the
beneﬁt of neutrality, while so employed, and so long as there remain
any wounded to bring in or to succor. ' I
Art. III. The persons designated in the preceding articles may,
even after occupation by the enemy, continue to fulﬁll their duties in
the hospital or ambulance which they serve, or may withdraw in
order to rejoin the corps to which they belong.
Under such circumstances, when these persons shall cease from
their functions, they shall be delivered by the occupying army to
the outposts of the enemy.
‘Art. IV. As the equipment of military hospitals remains subject
to the laws of war, persons attached to such hospitals cannot, in
withdrawing, carry away ‘any articles but such as are their private
property. ' ' , ,
Under the same circumstances an ambulance shall, on the con-
trary, retain its equipment.
Art. V. Inhabitants of the country who may bring help to the
wounded shall be respected, and shall remain free. The generals
of the belligerent powers shall make it their care to inform-the in-
habitants of the appeal addressed to their humanity, and the neu-
trality which will be the consequence of it. ‘
Any wounded man entertained or taken care of in a'ho-use shall
be considered a protection thereto. Any inhabitant who shall have
entertained wounded men in his house shall be exempted from the
THE GENEVA coNVENTIoN. 375
quartering of troops, as well as from a part of the contributions of
war which maybe imposed. . . - i 1
Art VI. Wounded or sick soldiers shall be entertained or taken
care of, to whatever nation they may belong.
Commanders-in-chief shall have the power to deliver immediately,
to the outpostsof the enemy, soldiers who have been wounded in an
engagement, when circumstances permit this to be done, and with
the consent of both parties.
Those who are recognized, after their wounds are healed, as in-
capable of serving, shall be sent back to their own country.
The others may also be sent back, on condition of not bearing arms
during the continuance of the war.
Evacu-ations, together with the persons under whose direction they
shall take place, shall be protected by an absolute neutrality.
Art. VII. A distinctive and uniform ﬂag shall be ‘adopted for
hospitals, ambulances, and evacuations. It must on every occasion
be accompanied by the national ﬂag. An arm badge (brassard)
shall also be allowed for individuals neutralized, but the delivery
thereof shallbe left to military authority.
The ﬂag and arm badge shall bear a red cross on a unite ground.
Art. VIII. The details of execution of the present convention shall
be regulated by the commanders-in-chief of belligerent armies, ac-
cording to the instructions of their respective governments, and in
conformity with the general principles laid down in this convention.
Art. IX. vThe high contracting powers have agreed to communicate
the present convention to those governments which have not found
it convenient to send plenipotentiaries to the International Conven-
tion at ‘Geneva, with an invitation to accede thereto; the protocol is
for that purpose left open.
Art. X. The present convention shall be ratiﬁed, and the ratiﬁca-
' tions exchanged at Berne, in four months, or sooner if possible.
376 I APPENDIX.
THE LAWS OF WAR ON LAND.
Recommended for Adoption by the Institute of International Law
at Its Session in Oxford, September 9, 1880.
PART FIRST.
General Principles.
' 1. The state of war does not admit of acts of violence, save be-
tween the armed forces of belligerent states. Individuals who form
no part of a belligerent armed force should abstain from such acts.
This rule implies a distinction between the individuals who com-
pose the armed force of a state and its other citizens or subjects. A
precise deﬁnition of the term “armed force” is therefore necessary.
2. The armed force of a state includes: '
(1) The army proper, or permanent military establishment, in-
cluding the militia and reserve forces.
(2) The national guard, landsturm, free corps, and other bodies
which fulﬁll the three following conditions; i. e.:
(a) They must be under the direction of responsible chiefs.
(b) They must have a uniform, or distinguishing mark, or badge,
recognizable at a distance, and worn by individuals composing such '
corps.
(c) They must carry arms openly.
(3) The crews of public armed ships, and other vessels used for
warlike purposes.
(4) The inhabitants of non-occupied territory, who, at the ‘approach
of the enemy, take arms openly and spontaneously to resist an in-
vader, even if they have not had time to organize.
3. Every belligerent armed force must carry on its military opera-
tions in accordance with the laws of war.
The only legitimate end that a state may have in war is to weaken
the military strength of the enemy.
4. The laws of war do not recognize in belligerents an unlimited
liberty as to the means of injuring the enemy. They are tofabstain
THE LAws or WAR 0N LAND. 377
from all needless severity, as well as from all perﬁdious, unjust, or
tyrannical acts.
5. Agreements made between belligerents during the continuance
of war, such as armistices, capitulations, and the like, are to bev~
scrupulously observed and respected.
6. Noinvaded territory is to be regarded as conquered until the
end of the war. Until that time the invader exercises, in’ such ter-
ritory, only a de facto power, essentially provisional in character.
PART SECOND.
Application of General Principles.
I. HOSTILITIES.
- A. RULES or OoNDUcT WITH REGARD To INDIVIDUALS.
(a) Inoﬁ'ensiz-e Populations.
The Contest Being Carried on by “Armed Forces” Only.
7. It is forbidden to deal harshly with inoﬂensive populations.
(b) Means of Injur'ing the Enemy.
8. It is forbidden,
(a) To make use of poison, in any form whatever.
(b) To make treacherous attempts upon the life of an enemy; as,
for example, by keeping assassins in pay, or by feigning to surrender.
(c) To attack an enemy by concealing the distinctive signs of an
‘ armed force.
(d) To use improperly the national ﬂag‘, uniform, or other dis-
tinctive signs'o-f the enemy; the ﬂag of truce, or the distinctive signs
of the Geneva Convention.
9. It is forbidden,
(a) To employ arms, projectiles, or materials of‘any kind, cal-
culated to cause needless suffering, or to aggravate wounds—notably
projectiles of less weight than four hundred grammes (fourteen
ounces avoirdupois), which are explosive, or are charged with ful-
minating or explosive substances.
(b) To kill or injure an enemy who has surrendered, or who is
disabled; or to declare in advance that quarter will not be given,
even by those who do not ask it themselves.
378 APPENDIX.‘
l (c) The Sick and Wounded, and the Sanitary Sew’ice.
The following provisions, extracted from the 'Geneva Convention,
exempt the sick and wounded, and the personnel of the sanitary
service, from many ofthe needless hardships to which they were
formerly exposed: , ,
. 10. Wounded or sick soldiers shall be collected together and cared
for, to whatever‘ nation they may belong.
11. Commanders-in-chief shall have power to deliver, immediately,
to the outposts of the enemy, soldiers who have been wounded in an
engagement, when circumstances are such- as to permit this to be
done, and with the consent of both parties. Those who are recog-
nized after their wounds are healed, as incapable of serving, shall
be sent back to their own country. The others may also be sent
back, on condition of not again bearing arms during the continuance
of- the war. Evacuations, together with the persons under whose
direction they take place, shall 'be ‘protected by an absolute neu-
trality. '
12. Persons employed in hospitals and ambulances, comprising
the staff for superintendence, medical service, administration, trans-
port of wounded, as well as chaplains, and the duly accredited agents
of relief associations, who are authorized to assist the regular sani-
tary staﬁ", shall participate in the beneﬁt of neutrality while so em-
ployed, and so long as there remain any wounded to bring in or to
succor. ' ,
13. The persons designated in the preceding article should, even
, after occupation by the enemy, continue to attend, according to
their needs, the sick and wounded in the hospital, or ambulance, to
which they are attached. ‘
14. When they request to withdraw, the commander of the oc-
cupying troops shall ﬁx the time of departure, which he shall only be
allowed to delay, for a short time, in case of military necessity.
15. Suitable arrangements should be made to assure to neutralized
persons, who have fallen into the hands of the enemy, the enjoy-
- ment of suitable salaries.
16. An arm-badge (brassard) shall be worn by neutralized indi-
viduals, but the ‘delivery thereof shall be regulated by military au-
thority.
17. The commanding generals of the belligerent powers should ap-
THE LAWs or WAR oN.,LANn. 379
q
peal to the humanity of the inhabitants, and should endeavor to in-
duce them to assist the wounded, by pointing out to them the ad-
vantages that will result from so doing. They should regard as in-
violable those who respond to this appeal.
(d) The Dead.
' 18. It is forbidden to rob, or mutilate, the bodies of the dead lying
_on the field of battle.
19. The bodies of the dead should not be buried until they have
been carefully examined, and all articles which may serve to ﬁx their
identity, such as names, medals, numbers, pocket-books, etc, shall
have been secured. The articles thus collected, from the bodies of
the enemy’s dead, should be transmitted to their army or govern-
ment.
(e) Who may be Made Prisoners of War.
' 20. Individuals who form a part of the belligerent armed force of
a state, if they fall into the hands of the enemy, are to be treated as
prisoners of war, in conformity with articles 61-78 of these instruc-
tions. The same rule is observed in the case of messengers who
carry oiﬁcial despatches openly; and towards aeronauts charged
. with observing the operations of an enemy, or with the maintenance
of communications between the various parts of an army, or theatre
of military operations.
21. Individuals who accompany an army, but who are not a part
of the regular armed force of the state, such as correspondents,
traders, sutlers, etc., and who fall‘into the hands of the enemy, may
be detained for such length of time only as is warranted by strict
military necessity. '
(f) Spies-
22. Spies, captured in the act, cannot demand to be treated as
prisoners’ of war. .
23. An individual may not be regarded as a spy, however, who,
belonging to the armed force of either belligerent, penetrates,
without disguise, into the zone of military operations of the enemy. I
Nor does the term apply to aeronauts, or to couriers, or messengers,
380 APPENDIX.
who carry openly, and without concealment, the oﬂicial dispatches
of the enemy. ' r
24. No person, charged with being a spy, shall be punished for
that oﬁense, until the fact of his guilt shall have been established
before a competent military tribunal.
25. A spy who succeeds in quitting the territory occupied by an
enemy, incurs no penalty for his previous offense, should he at any
future time fall into the hands of that enemy.
(g) Flags of Truce.
26. The bearer of a ﬂag of truce, who, with proper authority from
one belligerent, presents himself to the other, for the purpose of
communicating with him, is entitled to complete inviolability of
person.
27. He may be accompanied by a drummer or ‘trumpeter, by a
color-bearer, and, if need be, by a guide and interpreter, all of
whom shall be entitled to a similar inviolability of person.
28. The commander to whom a ﬂag is sent, is not obliged to
receive the ﬂag under all circumstances.
29. The commander who receives a ﬂag has a right to take such
precautionary measures as will prevent his cause from being
injured by the presence of an enemy within his lines.
30. If the bearer of a ﬂag of truce abuse the trust reposed in
him, he may be temporarily detained, and, if it be proven that he
has taken advantage of his position to abet a treasonable act, he
forfeits his character of inviolability.
B. RULES OF CONDUCT WITH REGARD TO THINGS.
(a) Means of Injuring the Enemy—Bombardments.
Certa/in precautions are made necessary, by the rule that a bellig-
erent must abstain from useless severity. In accordance with this
principle, ,
31. It is forbidden _
(a) To pillage, even places taken by assault.
(b) To destroy public or private property, unless such destruc-
tion be commanded by'urgent military necessity.
(c) To attack, or bombard, open or undefended towns.
THE LAWs or‘ 'WAR ON LAND. 381
32. The commander of an attacking force, save in cases of open
assault shall, before undertaking a bombardment, make due effort
to give notice of his‘ intention to the local authorities.
33. In cases of bo-mbardments all needful measures shall be taken
to spare, if it be possible to do so, buildings devoted to religion
and charity, to the arts and sciences, hospitals, and depots of
sick and wounded. This on condition, however, that such places
be not made use of, directly or indirectly, for purposes of defence.
34. It is the duty of the besieged to designate such buildings by
suitable marks or signs, indicated, in advance, to the besieger.
(b) Sanitary Establishments.
The arrangements for the relief of the wounded, which are made the
subject of article 10 ct seq. of the Geneva Convention, would be inad-
equate to their purpose, were not sanitary establishments granted equal
protection. Hence, in accordance with the rules of the Geneva Conven-
tion,
35. Ambulances and military hospitals are recognized as neutral,
and, as/such, are to be protected by belligerents, so long as any
sick or wounded remain therein.
36. The same rule applies to buildings, or parts of buildings, in
which the sick or wounded are gathered together or cared for.
37 . The neutrality of hospitals and ambulances ceases if they are
guarded by a\military force. This does not preclude the presence
of an adequate police force.
38. As the equipment of military hospitals remains subject to the
laws of war, persons attached to such hospitals cannot, in with-
drawing, carry away articles but such as are their private property.
Under the same circumstances, an ambulance shall, on the contrary,
retain its equipment.
39. Under the circumstances foreseen in the above paragraphs,
the term “ambulance” is applied to ﬁeld hospitals, and other tem-
porary establishments, which follow the troops on the ﬁeld of
battle to receive the sick and wounded. \
40. A distinctive and uniform ﬂag is adopted for ambulances,
hospitals, and evacuations. It bears a red cross on a white ground.
It must, on all occasions, be accompanied by the national ﬂag.
382 APPENDIX.
11.. OCCUPIED TERRITORY.
A. DEFINITION.
41. Territory is regarded as occupied when, as the consequence
of its’ invasion by the enemy’s forces, the state from which it has
been taken has ceased, in fact, to exercise there its regular author-
ity, and the invading state, alone, ﬁnds itself able to maintain
order therein. The limits within which this state of affairs exists
determine the extent and duration of the occupation.
B. RULES oECoN-DUcT WITH {RESPECT TO PERsoNs.
42. It is the duty of the occupying military authority to inform
the inhabitants, at the earliest practicable moment, of the powers
that he exercises, as well as to deﬁne the limits of the occupied
territory. I
‘ ,43. The occupying authority should take ‘all due and needful
measures to assure order and public tranquillity.
44. To that end the invader should maintain the laws in force
in the territory in time of peace, and should not modify, suspend,
or replace them, unless it becomes absolutely necessary to do so.
'45. The administrative ofﬁcials and civil employees, of every
grade, who consent to continue in the performance of their duties,
should be supported and protected by the occupying authority.
Their appointments are‘always revocable, and they have the right ,
to resign their places at time. They should be’ subjected to
penalties. only when they fail to perform the duties freely accepted
by them, and should/be given over to justice only when they have
betrayed them. '
46. In case of urgency, the invader may demand the co-operation
of the inhabitants, to enable him to provide for the necessities of
local administration.
47. The population of an invaded district cannot be compelled
to swear allegiance to the hostile power; but individuals who
commit acts of hostility against the occupying ‘authority are
punishable.
48. The inhabitants of an occupied territory, who do not submit
to theiorders of the occupying authority, may be compelled ‘to do
THE LAWS ‘or WAR oN LAND. 383
so. The invader, however, cannot compel the inhabitants to assist
him in his works of attack or defence, or to take part in military
operations against their own country.
49. Family honor and rights, the lives of individuals, as well as
their religious convictions, and the right of religious worship
should be respected.
O. RULES OF CONDUCT WITH REGARD To PRoPERTY.
(a) Public Property.
Although the authority of the invader replaces that of the government
of the occupied territory, his power is not absolute. So long as the fate
of the territory remains in suspense—that is, until the peace—the in-
vader is not free‘to dispose of property which still belongs to the enemy,
and which is not of direct use to him in his military operations. From
these principles the following rules are deduced.-
50. ' The occupying authority may seize only the cash, public funds,
and bills due or transferable, belonging to the state in its own right,
depots of arms and supplies, and, in general, the movable property
of the state, of such character as to be useful in military operations.
51. Means of transportation (railways, boats, etc.), as well as tele-
graph lines and landing cables, can only be appropriated to the use
of the invader. Their destruction is forbidden, unless it be com-
manded by military necessity. They are to be restored, at the peace,
in the condition in which they are at that time. ,
52. The invader can only act in the capacity of a provisional ad-
ministrator in respect to real property; such as buildings, forests,
agricultural establishments, etc., belonging to the enemy’s state.
He should protect these properties and see to their maintenance.
53. The property of communes, and that of establishments devoted
to religious worship, and to the arts and sciences, cannot be seized.
All destruction, or intentional defacement of such establishments,
of historic monuments or archives, or of works of science or art, is
formally prohibited, save when commanded by urgent military neces-
sity.
384 APPENDIX.
(b) Private Property.
If the powers of the invader are limited with respect to the public
property of the enemy’s state, with greater reason are they limited with
respect to the private property of individuals.
54. Private property, whether belonging to individuals or corpora-
tions, is to be respected, and can be conﬁscated only under the limi-
tations contained in the following articles:
55. Means of transportation (railways, boats, eta), telegraphs,
factories of arms and munitions of war, although belonging to private
individuals or corporations, may be seized by an invader, but must
be restored at peace; if possible, with suitable indemnities.
56. Impositions in kind (requisitions), levied upon communes, or _
the residents of invaded districts, should bear direct relation to the
, generally recognized necessities of war, and should be in. proportion
to the resources of the district. Requisitions can only be made, or
levied, with the authority of the commanding officer of the occupied
district. '
57. The invader may levy, in the way of dues and imposts, only
such as are already established for the beneﬁt of the state revenues.
He employes them to defray the expenses of administration of the
occupied territory, contributing in the same proportion in which
‘the legal government was bound.
58. The invader cannot levy extraordinary contributions of money,
save as an equivalent for ﬁnes, or imposts not paid, or for pay-
ments not made in kind. Contributions in'money can only be im-
posed by the order, and upon the responsibility, of the general-in-
chief, or that of the superior civil authority established in the oc-
cupied territory; and then, as nearly as possible, in accordance with
the rule of apportionment and assessment of existing imposts.
59. In the apportionment of burdens relating to the quartering of
troops, and in the levying of requisitions and contributions of war,
account is to be made of the charitable zeal displayed by the in-
habitants in behalf of the wounded.
60. Impositions in kind, when they’ are not paid for in cash, and
contributions of war, are authenticated by receipts. Measures
should be taken to assure the regularity and bona ﬁde character of
these receipts.
THE LAws or WAR oN LAND. 385
III. PRISONERS OF WAR.
The conﬁnement of prisoners of war is not in the nature of a penalty
for crime; neither is it an act of vengeance. It is a temporary deten-
tion only, entirely without character. In the following provisions,
therefore, regard has been had to the consideration due them as prison-
ers, and to the necessity of their secure detention.
61. Prisoners of war are the prisoners of the captor’s government,
and not of the individuals or corps who captured them.
62. They are subject to the laws and regulations in force in the
army of the enemy. -
‘63. ‘They must be treated with humanity.
64. All articles in their personal possessions, arms excepted, re-
‘ ' main their private property.
65. Every prisoner of war is obliged to disclose, when duly in-
terrogated upon the subject, his true name and grade. Should he
fail to do so, he may be deprived of all, or a part, of the privileges
accorded to prisoners of his rank and station. .
66. Prisoners of war may be conﬁned in towns, fortresses, camps,
or other places, with an obligation not to go beyond certain speciﬁc
limits; but they may only be imprisoned as an indispensable measure
of security.
67. Every act of insubordination, on the part of a prisoner of war,
authorizes the resort to suitable measures of severity on the part of
the government in whose hands he is. ,
68. Prisoners of war attempting to escape may, after having been
summoned to halt or surrender, be ﬁred upon. If an escaped pris—
oner be recaptured, before being able to rejoin his own army or to
quit the territory of his captor, he is only liable to disciplinary
penalties; or he may be subjected to a more rigorous conﬁnement.
If, after having successfully effected his escape, he is again made prisoner, he incurs no penalty for his previous escape. If, however,
the prisoner so recaptured, or retaken, has given his parole not to
attempt to escape, he may be deprived of his rights as a prisoner
of war. A
69. The government, having prisoners of war in its hands, is obli-
ged to support them. If there be no agreement between the bellig-
erents upon this point, prisoners of war are placed, in all matters
INTENNAT. LAW—25
386 - APPENDIX.
regarding food and clothing, upon the peace footing of the troops of
the state which holds them in captivity.
70. Prisoners cannot be compelled to take any part whatsoever in
operations of war. Neither can they be compelled to give informa-
tion concerning their army or country. ‘
71. They may be employed upon public works that have no direct
connection with the captor’s military operations; provided, however,
that such labor is not detrimental to health, nor humilating to
their military rank, if they belong to the army; or to their official
or social position, if they are civilians, not connected with any
branch of the military service.
72. In the event of their being authorized to engage in private
industries, their pay for such services may be collected by the au-
thority in charge of them. The sums so received may be employed
in bettering their condition, or may be paid to them, at their re-
lease, subject to deduction, if that course is deemed expedient, of
the expense of their maintenance.
IV. TERMINATION OF CAPTIVITY.
The right of detaining individuals in captivity exists only during the
continuance of hostilities. Hence:
73. The captivity of prisoners of war ceases, as a matter of right,
at the conclusion of peace; but their liberation is then regulated by
agreement between the belligerents. _
74. Captivity also ceases, in so far as sick or wounded prisoners
are concerned, so soon as they are found to be unﬁt for military serv-
ice. It is the duty of the captor, under such circumstances, to
send them back to their country.
7 5. During the continuance of hostilities, prisoners of war may be
released in accordance with cartels of exchange, agreed upon by the
belligerents. A
76. Without formal exchange, prisoners may be liberated on pa-
' role, provided they are not forbidden, by their own government, to
give paroles. In such a case they are‘ obliged, as a matter of
military honor, to perform, with scrupulous exactness, the engage-
ments which they have freely undertaken, and which should be
clearly speciﬁed. On its part, their own government should not
THE LAWS OF WAR on LAND. 387
demand, or accept from them, any service contrary to, or inconsist-
ent with, their plighted word. I "
77. A prisoner of war cannot be constrained to accept a release
on parole. For a similar reason, the enemy’s government is not obliged
to accede to the demand of a prisoner of war to be released on parole.
78. Every prisoner of war, liberated on parole, who is recaptured
in arms against the government to which he has, given such parole,
I may be deprived of his rights and privileges as a prisoner of war;
' unless, since his liberation, he has been included in an uncondi-
tional exchange of prisoners.
V. TROOPS INTERNED IN NEUTRAL TERRITORY.
It is universally admitted that a neutral state cannot, without com-
promising its vneutrality, lend aid to either belligerent, or permit them
to make use of its territory. On the other hand, considerations of
humanity dictate that asylum should not be refused to individuals who '
take refuge in neutral territory to escape death or captivity. From
these principles the following provisions are deduced. They are cal-
culated to reconcile, to some extent, the opposing interests involved.
79.1t is the duty of a neutral state, within whose territory com-
mands, or individuals, have taken refuge, to intern them at points
as far removed as possible from the theater of war. It should pur-
" sue a similar course towards those who make use of its territory for
warlike operations, or to render military aid to either belligerent.
80. Interned troops may be guarded in camps, or fortiﬁed places.
The neutral state decides whether officers are to be released, on
parole, by taking an engagement not to quit neutral territory with-
out authority.
81. In the event of there being no agreement with the belligerents
concerning the maintenance of interned troops, the neutral state
shall supply them with food and clothing, and the immediate aid
demanded by humanity. It also takes such steps as it deems neces-
sary to care for the arms and other public property brought into its
territory by the interned troops. When peace has been concluded,
or sooner, if possible, the expenses occasioned by the internment are
reimbursed to the neutral state, by the belligerent state to whom
the interned troops belong.
388 _ APPENDIX.
82. The provisions of the Geneva Convention of August 22, 1864
(articles 10—18, 35—40‘, 59 & 74 above given), are applicable to the
sanitary staff, as well as to the sick and wounded, who take refuge
in, or are conveyed to, neutral territory.
83. Evacuations of sick and wounded, not prisoners of war, may
pass through neutral territory, provided the personnel and material
accompanying them are exclusively sanitary. It is the duty of the
neutral state, through whose territory the evacuation is made, to
take such measures of safety and necessary control as it may deem
necessary to the rigorous performance of its neutral duty.
PART THIRD.
Penal Sanction.
If any of the foregoing rules be violated, the Qﬁ‘endiny parties should
be punished, after a judicial hearing, by the belligerent in whose hands
they are.
84:. Offenders against the laws of war are liable to the punishments
speciﬁed in the penal or criminal law.
This mode of repression, however, is only applicable when the person
of the oﬁender can be secured. In the contrary case, the criminal law
is powerless, and, if the injured party deem the misdeed so serious in
character as tomake it necessary to recall the enemy to a respect for
law, no other resource remains than a resort to reprisals. Iteprisuls
are an exception to the general rule of equity, that an innocent person
ought not to safer for the guilty. They are also at variance with the
rules of war, without reciprocity on the part of the enemy. This nec-
essary rigor, however, is modiﬁed, to some extent, by the following re-‘
striations:
85,. Reprisals are formally prohibited in all cases in which the
injury complained of has been repaired.
86. In all cases of serious importance, in which reprisals appear
to be absolutely necessary, they shall not exceed, in kind or degree,
nor in their mode of" application, the exact violation of the law of war
committed by the enemy. They can only be_ resorted to with the
express authority of the general-in-chief. They must conform, in
all cases, to the laws of humanity and morality.
ACTES DE LA CONFÉRENCE
DE
BRUXELLES, 1874.

No. III.
PROJET
présenté dans la séance du 31 Juillet, par M. le premier Délégué de
Belgique, concernant les prisonniers de guerre, les non-combattants
et les blessés, les belligérants internés et les blessés soignés chez les
neutres. (Voir Prot. No. II.)
CHAPITRE Ier.
Des prisonniers de guerre.
ARTICLE PREMIER.
Les prisonniers de guerre ne sont pas des criminels, mais des en-
nemis légaux et‘désarmés. Ils sont au pouvoir du Gouvernement
ennemi, ‘mais non des individus ou des corps qui les ont capturés.
Ils ne doivent être l’objet d'aucune violence ou mauvais traitement.
ART. 2.
Les prisonniers de guerre sont assujettis à l’internement dans une
ville, forteresse, camp ou localité quelconque, avec obligation de ne
pas s’en éloigner au delà de certaines limites déterminées.
ART. 3.
Les prisonniers de guerre peuvent être employés à. certains tra—
vaux publics qui ne soient pas exténuants ou humiliants pour leur
grade et la position sociale qu‘ils occupent dans leur pays et qui, en
même temps, n’aient pas un rapport direct avec les opérations de
guerre entreprises contre leur patrie ou contre ses alliés. Leur sa-
INTERNAT. LAW (389)
390 APPENDIX.
laire servira à améliorer leur position, ou leur sera compté au mo-
ment de leur libération.
Ils pourront également, en se conformant aux dispositions règle“
mentaires, et ﬁxer par l’autorité militaire, prendre part aux travaux
de l'industrie privée.
ART. 4.
Les prisonniers de guerre ne peuvent pas être astreints à prendre
une part quelconque à la poursuite des opérations de guerre.
ART. 5.
Le Gouvernement au pouvoir duquel se trouvent les prisonniers
de guerre est chargé de leur entretien. Les conditions de l’entre-
tien des prisonniers de guerre sont, autant que possible, établies par
une entente mutuelle entre les belligérants.
ART. 6.
Un prisonnier de guerre qui prend la fuite peut être tué pendant
la poursuite, mais s’il est repris ou de nouveau fait prisonnier, il
n’est passible d’aucune punition pour sa fuite; la surveillance dont
il est l’objet seulement peut être renforcée.
ART. 7.
Les prisonniers de guerre ayant commis, durant leur captivité,
des délits quelconques, peuvent être déférés aux tribunaux.
ART. 8.
Tout complot des prisonniers de guerre, en vue d’une fuite géné-
rale, ou bien contre les autorités établies au lieu de leur internement,
est puni d’après les lois militaires.
ART. 9.
Chaque prisonnier de guerre est tenu par l’honneur de déclarer
son véritable grade et, dans le cas où il enfreindrait cette règle, il
encourrait une restriction de la jouissance des droits reconnus aux
prisonniers de guerre.
ART. 10.
L’échange des prisonniers de guerre dépend entièrement des con-
venances des parties belligérantes et toutes les conditions de cet
échange sont ﬁxés par une entente mutuelle.
THE BRUSSELS CONFERENCE. 391
ART. 11.
Les prisonniers de guerre peuvent être mis en liberté sur parole,
si le Gouvernement de leur pays les y autorise et, en pareil cas, ils
‘sont obligés, sous la garantie de leur honneur personnel, de rem-
plir scrupuleusement, tant vis-à-vis de leur propre Gouvernement que
vis-a-vis de celui qui ‘les a faits prisonniers, les engagements qu'ils
auraient contractés.
ART. 12.
Un prisonnier de guerre ne peut pas être contraint à accepter sa
liberté sur parole, de même que le Gouvernement ennemi n’est pas
obligé d’accéder a la demande du prisonnier réclamant sa mise en
liberté sur ‘parole.
ART. 13.
Tout prisonnier de guerre, libéré sur parole et repris portant les
armes contre le Gouvernement envers lequel il s’était engagé d’hon-
neur, n’a plus qualité pour réclamer le traitement des prisonniers de
guerre.
CHAPITRE II.
Des non-combattants et des blessés.
ART. 14.
Les malades et les blessés tombés entre les mains de l’ennemi
sont considérés comme prisonniers de guerre et traités conformé-
ment à la Convention de Genève et aux articles additionels suivants:
ART. 15.
Le fait que les hôpitaux et les ambulances sont protégés par un
piquet ou des sentinelles, ne les prive pas de la neutralité; le piquet
ou les sentinelles, s’ils sont capturés, sont seuls considérés comme
prisonniers de guerre.
ART. 16.
Les personnes jouissant du droit de neutralité et mises dans la
nécessité de recourir aux armes pour leur défense personnelle ne per’
dent point, par ce fait, leur droit a la neutralité.
392 APPENDIX.
ART. 17'.
Les parties belligérantes sont tenues de prêter leur assistance
aux personnes neutralisées aﬁn de leur obtenir la jouissance de l’en-
tretien qui leur est assigné par leur Gouvernement et, en cas de
nécessité, de leur délivrer des secours comme avance sur cet entre
tien.
ART. 18. ‘
Les non-combattants jouissant du droit de neutralité doivent por—
ter un signe distinctif délivré par leur Gouvernement et, en outre, un
certiﬁcat d’identité.
CHAPITRE III.
Des belligérants internés et des blessés soignés chez les
neutres.
ART. 19.
Les officiers peuvent être laissés libres s’ils prennent l’engagement
écrit de ne pas quitter le territoire neutre sans autorisation.
Les sous-oﬁiciers et les soldats doivent être internés, autant que
possible, loin du théâtre de la guerre. Ils peuvent être gardés dans
les camps et même renfermés dans les forteresses ou dans les lieux
appropriés à cet effet, si l’on a des motifs sérieux de craindre qu’ils
ne s’évadent
ART. 20.
L’État neutre a le droit de mettre en liberté les prisonniers amenés
par des troupes qui pénétrent sur son territoire.
ART. 21.
r O O 0
L’Etat neutre fournit aux 1nternés des vlvres et tous les secours
commandés par l’humanité.
ART. 22.
L’État neutre ne procède à un échange d’internés, que de com-
mun accord avec les États belligérants. Il en est de même de la
levée de l’internement avant la conclusion de la paix déﬁnitive.
~ THE BRUSSELS CONFERENCE. 393
ART. ,23.
Dès que le traité de paix est ratiﬁé, les internés sont rendus à
’ l’État auquel ils appartiennent, lequel est tenu de rembourser les
dépenses qu’ils ont occasionées.
L’État neutre restituera, en même temps, et sous la même condi-
tion,à l’État qui en est resté propriétaire, le matériel, les armes,muni—
tions, effets d’équipement et autres objets amenés ou apportés, par
les internés ou le prix de perte, s’il en a été disposé par suite d’une
utilité évidente ou d’une commune entente.
‘\
ART. 24.
L’État neutre peut autoriser le passage par son territoire des
blessés ou malades appartenant aux armées en guerre.
ART. 25.
L’État neutre a le droit d’accueillir chez lui des blessés ou malades
à. condition de les garder jusqu’à la conclusion de la paix. Ceux
qui seraient estropiés au point d’être devenus impropres au service
ou des la convalescence seraient renvoyés dans leur pays dès que
leur état le permettrait. '
No. XVII.
PROJET D’UNE DÉCLARATION INTERNATIONALE CONCERNANT
LES LOIS ET COUTUMES DE LA GUERRE.
(Texte modiﬁé par la Commission.)
De l’autoritê militaire sur le territoire de 1’Êtat ennemi.
ARTICLE PREMIER.
Un territoire est considéré comme occupé lorsqu’il se trouve placé
de fait sous l’autorité de l’armée ennemie.
L’occupation ne s’étend qu’aux territoires où cette autorité est
établie et en mesure de s’exercer.
ART. 2.
L’autorité de pouvoir légal étant suspendue et ayant passée de fait
entre les mains de l’occupant, celui-ci prendra toutes les mesures
394 APPENDIX.
' qui dépendent de lui en vue. de rétablir et d’assurer, autant qu’il
_ est possible, l’ordre et la vie publique.
‘ ART. 3.
(See article 3, page 400.)
ART. 4.
(Sec article 4, page 400.)
ART. 5.
L’armée d’occupation ne prélevera que les impôts, redevances,
droits et péages déjà établis au proﬁt de l’État, ou leur équivalent, '
s’il est possible de les encaisser, et, autant que possible, dans la forme
et suivant les usages existants. Elle les emploiera a pourvoir aux
frais de l’administration dans la mesure où le Gouvernement légal
du pays y était obligé.
ART. 6.
L’armée qui occupe‘ un territoire ne pourra saisir que le numéraire,
les fonds et les valeurs exigibles appartenant en propre à l’État, les
dépôts d’armes, moyens de transport,’ magasins et approvisionne-
ments et, en général, toute propriété mobilière de l’État de nature à
Servir au but de la guerre.
. Le matériel des chemins de fer, les télégraphes de terre, les ba-
teaux à vapeur et autres navires en dehors des cas régis par la
loi maritime, de même que les dépôts d’armes et en général toute
espèce de‘ munitions de guerre, quoique appartenant à, des Sociétés
ou à des personnes privées, sont également des moyens de nature à
servir au but de la guerre et qui peuvent ne pas être laissés par l’ar-
mée d’occupation à la disposition de l’ennemi. Le matériel des che—
mins de fer, les télégraphes de terre, de même que les bateaux à
vapeur iet autres navires susmentionnés, seront restitués et les in-
demnités réglées à. la paix.
ART. 7.
(See article 7, page 401.)
ART. 8.
Les biens des communes, ceux des établissements consacrés aux
cultes, à. la charitéet à. l’instruction, aux arts et aux sciences, même
appartenant à. l’Etat, seront traités comme la propriété privée. _
THE BRUssEIls CONFERENCE. 395
Toute saisie, destruction ou dégradation intentionnelle de sembla-
bles établissements, de monuments historiques, des oeuvres d’art ou
de science, doit être poursuivie par les autorités competentes.
Qui doit être reconnu comme partie belligèrante; des
combattants et des non-combattants.
ART. 9.
(See article 9, page 402.)
ART. 10. -
(See article 10, page 402.)
ART. 11.
((See article 11, page 402.)
ART. 12.
(See article 12, page 402.)
ART. 13.
D’après ce principe sont notamment inta'dits:
a. L’emploi du poison ou d’armes empoisonnées;
b. Le meurtre par trahison d’individus appartenant à l’armée en-
nemie;
c. Le meurtre d’un ennemi qui, ayant mis bas les armes ou n’ayant
plus les moyens de se défendre, s'est rendu a merci;
d. La déclaration qu’il ne sera pas fait de quartier;
e. L’emploi d’armes, de projectiles ou de matières propres à
causer des maux superﬂus, ainsi que l’usage des projectiles prohibés
par la déclaration de St. Pétersbourg de 1868;
f. L’abus du pavillon parlementaire, du pavillon national ou des
insignes militaires et de l’uniforme de l’ennemi, ainsi que les signes
distinctifs de la Convention de Genève;
g. Toute destruction ou saisie de propriétés ennemies qui ne serait
pas impérieusement commandée par la nécessité de la guerre.
ART. 14.
Les ruses de guerre et l’emploi des moyens nécessaires pour se
procurer des renseignements sur l’ennemi et sur le terrain (sauf les
dispositions de l’art. 36) sont considérés comme des moyens licites.
096 APPENDIX.
Des sièges et bombardements.
ART. 15.
(See article 15, page 403.)
ART. 16.
(See article 16, page 403.)
ART. 17.
En pareil cas, toutes les mesures nécessaires doivent être prises
pour épargner, autant qu’il est possible, les édiﬁces consacrés aux
cultes, aux arts, aux sciences et a la bienfaisance, les hôpitaux et les
lieux de rassemblement de malades et de blessés à condition qu’ils
ne soient pas employés en même temps à un but militaire.
Le devoir des assiégés est de désigner ces édiﬁces par des signes
visibles spéciaux et indiquer d’avance par l’assiégé.
ART. 18.
(See article 18, page 403.)
ART. 19.
(See article 19, page 404.)
ART. 20.
(See article 20, page 404.)
ART. 21.
(See article 21, page 404.)
ART. 22.
Les militaires qui ont pénétré dans la zone d’opérations de l’armée
ennemie a l’effet de recueillir des informations, ne sont pas consi-
dérés comme espions, s’il a été possible de reconnaître leur qualité de
militaires.
De même, ne doivent pas être considérés comme espions, s’ils sont
capturés par l’ennemi: les militaires (et aussi les non-militaires
accomplissant ouvertement leur mission) chargés de transmettre des
dépêches destinées soit a leur propre armée, soit à. l’armée ennemie.
A cette catégorie appartiennent également, s’ils sont capturés, les
individus envoyés en ballon pour transmettre les dépêches, et, en
THE BRUSSELS CONFERENCE. 397
général, pour entretenir les communications entre les diverses par-
ties d’une armée ou d’un territoire.
Des prisonniers de guerre.
ART. 23.
Les prisonniers sont les ennemis légaux et désarmés.
Ils sont au pouvoir du Gouvernement ennemi, mais non des indi-
vidus ou des corps qui les ont capturés.
Ils doivent être traités avec humanité.
Tout acte d’insubordination autorise à leur égard les mesures de
rigueur nécessaires.
Tout ce qui leur appartient personnellement, les armes exceptées,
reste leur propriété.
ART. 24.
(See article 24, page 405.)
ART. 25.
(See article 25, page 405.)
ART. 26.
(See article 26, page 405.)
ART. 27.
Le Gouvernement au pouvoir duquel se trouvent les prisonniers
de guerre se charge de leur entretien.
Les conditions de l’entretien des prisonniers de guerre peuvent être
établies par une entente mutuelle entre les parties belligérantes.
À défaut de cette entente, et comme‘ principe général, les prison-
niers de guerre seront traités pour la nourriture et l‘habillement sur
le même pied que les troupes du Gouvernement qui les aura. capturés.
ART. 28.
(See article 28, page 405.)
ART. 29.
Chaque prisonnier de guerre est tenu de déclarer, s’il est inter-
rogé a ce sujet, ses véritables noms et grade et, dans le cas où il
enfreindrait cette règle, il encourrait une restriction des avantages
accordés aux prisonniers de guerre de sa catégorie.
398
- APPENDIX.
La population de territoires occupés ne peut être contrainte de
ART. 30.
(See article 30, page 406.)
ART. 31.
(See article 31, page 406.)
ART. 32.
(See article 32, page 406.)
ART. 33.
(See article 33, page 406.)
ART. 34.
(See article 34, page 406.)
ART. 35.
(See article 35, page 407.)
l ART. 36.
(See article 36, page 407.)
ART. 37.
prêter serment a la puissance ennemie.
ART‘. 38.
(See article 38, page 407.)
ART. 39.
, (See article 39, page 407 .)
ART. 40.
(See article 40, page 407.)
ART. 41.
(See article 41, page 408.)
ART. 42.
(See article 42, page 408.)
ART. 43.
(See article 43, page 408.)
_THE BRUSSELS CONFERENCE. 399
ART. 44.
(See article 44, page 408.)
ART. 45.
(See article 45, page 409.)
ART. 46.
(See article 46, page 409.)
ART. 47.
(See article 47, page 409.)
ART. 48.
(See article 48, page 409.)
ART. 49.
(See article 49, page 409.)
ART. 50.
(See article 50, page 409.)
ART. 51.
(See article 51, page 410.)
ART. 52.
La violation des clauses de l’armistice par des particuliers, sur
leur initiative personnelle, donne droit seulement à réclamer la puni-
tion des coupables et, s’il y a lieu, une indemnité pour les pertes
éprouvées.
‘ \
Des belligérants internés et des blessés soignés chez les
neutres.
ART. 53.
(See article 53, page 410.)
ART. 54.
À défaut de convention spéciale, l’État neutre qui reçoit des trou-
pes belligérantes fournira aux internés les vivres, les habillements
et les secours commandés par l’humanité.
Boniﬁcation sera faite a la paix des frais occasionnés par l’interne-
ment.
400 APPENDIX.
ART. 55.
(See article 55, page 410.)
ART. 56.
(See article 56, page 410.)
N0. XXIII.
PROJET D’UNE DÉCLARATION INTERNATIONALE CONCERNANT
LES LOIS ET COUTUMES DE LA GUERRE.
(Texte modiﬁé par la Conférence. Voir protocole des séances plénières No. IV.)
De 1’autorité militaire sur le territoire de l’Ëtat ennemi.
ARTICLE PREMIER.
Un territoire est considéré comme occupé lorsqu'il se trouve placé
de fait sous l’autorité de l’armée ennemie. L’occupation ne s’étend
qu’aux territoires où cette autorité est établie et en mesure de s’ex-
ercer.
ART. 2.
L’autorité du pouvoir légal étant suspendue et ayant passée 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 publique.
ART. 3.
A cet effet, il maintiendra les lois qui étaient en Vigueur dans le
pays en temps de paix, et ne les modiﬁera, ne les suspendra ou ne les
remplacera que s’il y a nécessité.
ART. 4.
Les fonctionnaires et les employés de tout ordre qui consenti‘
raient, sur son invitation, à continuer leurs fonctions, jouiront de sa
protection. Ils ne seront revoqués ou punis disciplinairement que
s’ils manquent aux obligations acceptées par eux et livrés à la justice
que s’ils les trahissent.
THE BRUSSELS CONFERENCE. 401
ART. 5.
L’armée d’occupation ne prélevera que les impôts, redevances,
droits et péages déjà établis au proﬁts de l’Etat, ou leur équivalent,
s’il est impossible de les encaisser, et, autant que possible dans la
forme et suivant les usages existants. Elle les emploiera a pour-*
Voir aux frais de l’administration du pays dans la mesure ou le Gou«
vernement légal y était obligé.
ART. 6.
L’armée qui occupe un territoire ne pourra saisir que le numéraire,
les fonds et les Valeurs exigibles appartenant en propre à l’État, les
dépôts d’armes, moyens de transport, magasins et approvisionne-
ments et, en général, toute propriété mobilière de l’État de nature
à servir aux opérations de la guerre.
Le matériel des chemins de fer, les télégraphes de terre, les ba-
teaux à vapeur et autres navires en dehors des cas régis par la loi
maritime, de même que les dépôts d’armes et en général toute espèce
de munitions de guerre, quoique appartenant à des Sociétés ou a
des personnes privées, sont également des moyens de nature à
servir aux opérations de la guerre et qui peuvent ne pas être laissés
par l’armée d’occupation a la disposition de l’ennemi. Le matériel
des chemins de fer, les télégraphes de terre, de même que les bateaux
à vapeur et autres navires susmentionnés, seront restitués et les in-
demnités réglées a la paix.
ART. 7.
L’État occupant ne se considérera que comme administrateur et
usufruitier des édiﬁces publics, immeubles, forêts et exploitations
agricoles appartenant à l’État ennemi et se trouvant dans le pays oc-
cupé. Il devra sauvegarder le fond de ces propriétés et les adminis-
trer conformément aux règles de l’usufruit. - g
ART. 8.
Les biens des communes, ceux des établissements consacrés aux
cultes, à la charité et à l’instruction, aux arts et aux sciences, même
appartenant à l’Etat, seront traités comme la propriété privée.
Toute saisie, destruction ou dégradation intentionnelle de sembla-
INTERNAT. L A w—26
402 APPEN DIX.
bles établissements, de monuments historiques, d’oeuvres d'art ou de
sciences, doit être poursuit par les autorités compétentes.
ART. 9.
Les lois, les droits et les devoirs de la guerre ne s’appliquent pas
seulement a l’armée, mais encore aux milices et aux corps de volon-
taires réunissant les conditions suivantes:
(1) D’avoir a leur tête une personne responsable pour ses subor-
donnés;
(2) D'avoir un signe distinctif ﬁxe et reconnaissable à distance;
(3) De porter les armes ouvertement, et
(4) De se conformer dans leur operations aux lois et coutumes de
la guerre.
Dans les pays où les milices constituent l’armée ou en font partie,
elles sont comprises sous la dénomination d’armée.
ART. 10.
La population d’un territoire non occupé qui, a l’approche de l’en-
nemi, prend spontanément les armes pour combattre les troupes d’in-
vasion sans avoir eu le temps de s’organiser conformément à Particle
9, sera considérée comme belligérante si elle respecte les lois et
coutumes de guerre.
ART. 11.
Les forces armées des parties belligérantes peuvent se composer
de combattants et de non-combattants. En cas de capture par l’en-
nemi, les uns et les autres jouiront des droits de prisonniers de
guerre.
Des moyens de nuire a l’ennemi.
ART. 12.
Les lois de la guerre ne reconnaissent pas aux belligérants un
pouvoir illimité quant aux choix des moyens de nuire à l’ennemi.
ART. 13.
D’après ce principle sont notamment interdits:
a. L’emploi du poison ou d’armes empoisonnées;
b. Le meurtre par trahison d’individus appartenant à la nation ou
à. l’armée ennemie;
THE BRUSSELS CONFERENCE. 403
c. Le meurtre d’un ennemi qui ayant mis bas les armes ou n’ayant
plus les moyens de se défendre, s’est rendu à discrétion;
d. La déclaration qu’il ne sera pas fait de quartier;
e. L’emploi d’armes, de projectiles ou de matières propres à
causer des maux superﬂus, ainsi que l’usage des projectiles prohibés
par la déclaration de St. Pétersbourg de 1868;
f. L’abus du pavillon parlementaire, du pavillon nationale ou des
insignes militaires et de l’uniforme de l’ennemi, ainsi que des signes
distinctifs de la Convention de Genève;
g. Toute destruction ou saisie de propriétés ennemies qui ne serait
pas impérieusement commandée par la nécessité de guerre.
ART. 14.
Les ruses de guerre et l’emploi des moyens nécessaires pour se pro-
curer des renseignements sur l‘ennemi et sur le terrain (sauf les
dispositions de l’art. 56) sont considérés comme licites.
ART. 15.
Les places fortes peuvent seules être assiégées. Des villes, ag-
glomérations d’habitations ou villages ouverts qui ne sont pas dé-
fendus ne peuvent être ni attaqués ni bombardés.
ART. 16.
Mais si une ville ou place de guerre, agglomération d‘habitations ou
village, est défendu, le commandant des troupes assaillantes, avant
d’cntreprendre le bombardement, et sauf l'attaque de vive force, de-
vra faire tout ce qui dépend de lui pour en avertir les autorités.
ART. 17.
En pareil cas, toutes les mesures nécessaires doivent être prises
pour épargner, autant qu’il est possible, les édiﬁces consacrés aux
cultes, aux arts, aux sciences et a la bienfaisance, les hôpitaux et les
lieux de rassemblement de malades et de blessés à condition qu‘ils
ne soient pas employés en même temps a un but militaire.
Le devoir des assiégés est de désigner ces édiﬁces par des signes
visibles spéciaux et indiquer d‘avance a l’assiégeant.
ART. 18.
Une ville prise d’assaut ne doit pas être livrée au pillage des trou-
pes victorieuses.
404 ‘ APPENDIX.
Des espions.
ART. 19.
Ne peut être considéré comme espion que l’individu qui, agissant
clandestinement ou sous de faux prétextes, recueille ou cherche à
recueillir des informations dans les localités occupées par l’ennemi,
avec l’intention de les communiquer à. la partie adverse.
ART. 20.
L’espion pris sur le fait sera jugé et traité d’après les lois en
vigueur dans l’armée qui l’a saisi.
ART. 21.
L’espion qui rejoint l’armée a laquelle il appartient et qui est cap‘
turé plus tard par l’ennemi est traité comme prisonnier de guerre et
n‘encourt aucune responsibilité pour ses actes antérieurs.
ART. 22
Les militaires non déguisés qui ont pénétré dans la zone d’opéra:
tions de l’armée ennemie, a l’etfet de recueillir des informations, ne
sont pas considérés comme espions.
De même, ne doivent pas être considérés comme espions, s’ils sont
capturés par l’ennemi: les militaires (et aussi les non-militaires
accomplissant ouvertement leur mission) chargés de transmettre des
dépêches destinées soit a leur propre armée, soit à l’armée ennemie.
A cette catégorie appartiennent également, s’ils sont capturés, les
individus envoyés en ballon pour transmettre les dépêches, et, en gé-
néral, pour entretenir les communications entre les diverses parties
d’une armée ou d’un territoire.
Des prisonniers de guerre.
ART. 23.
Les prisonniers de guerre sont des ennemis légaux et désarmés. Ils
sont au pouvoir du Gouvernement ennemi, mais non des individus
ou des corps qui les ont capturés. Ils doivent être traités avec huma-
nité.
THE BRUSSELS CONFERENCE. 405
Tout acte d’insubordination autorise à. leur égard les mesures de
rigueur nécessaires.
Tout ce qui les appartient personnellement, les armes exceptées,
reste leur propriété.
ART. 24.
Les prisonniers de guerre peuvent être assujettis à l’internement
dans une ville, forteresse, camp ou localité quelconque, avec obli-
gation de ne pas s’en éloigner au delà. de certaines limites détermi—
nées; mais ils ne peuvent être enfermés que par mesure de sûreté
indispensable.
ART. 25.
Les prisonniers de guerre peuvent être employés à certains travaux
publics qui n’aient pas un rapport direct avec les opérations sur le
théâtre de la guerre et qui ne soient pas exténuants ou himiliants
pour leur grade militaire, s’ils appartiennent à l’armée, ou pour leur
position officielle ou sociale, s‘ils n’en tout point partie.
Ils pourront également, en se conformant aux dispositions régle-
mentaires et ﬁxées par l’autorité militaire, prendre part aux travaux
de l’industrie privée. Leur salaire servira, à améliorer leur posi-
tion ou leur sera compté au moment de leur libération. Dans ce
cas, les frais d‘entretien pourront être défalqués de ce salaire.
ART. 26.
Les prisonniers de guerre ne peuvent être astreints d’aucune ma-
nière à prendre une part quelconque a la poursuite des opérations
de la guerre.
ART. 27.
Le Gouvernement au pouvoir duquel se trouvent les prisonniers
de guerre se charge de leur entretien.
Les conditions de cet entretien peuvent être établies par une en-
tente mutuelle entre les parties belligérantes.
À défaut de cette entente, et comme principe générale, les prison-
niers de guerre seront traités pour la nourriture et l’habillement sur le
même pied que les troupes du Gouvernement qui les aura capturés.
ART. 28.
Les prisonniers de guerrre sont soumis aux lois et réglements en
vigueur dans l’armée au pouvoir de laquelle ils se trouvent.
406 APPENDIX.
Contre un prisonnier de guerre en fuite il est permis, après som-
mation, de faire usage des armes. Repris, il est passible de peines
disciplinaires ou soumis à. une surveillance plus sévère.
Si, après avoir réussi à s’échapper, il est de nouveau fait prison-
nier, il n’est passible d’aucune peine pour sa fuite antérieure.
ART. 29.
Chaque prisonnier de guerre est tenu de déclarer, s’il est inter-
rogé à. ce sujet, ses véritables noms et grade et, dans le cas où il
enfreindrait cette règle, il s’exposerait à. une restriction des avan-
tages accordés aux prisonniers de guerre de sa catégorie.
ART. 30.
L’échange de prisonniers de guerre est réglé par une entente
mutuelle entre les parties belligérantes. i
ART. 31.
Les prisonniers de guerre peuvent être mis en liberté sur parole, -
si les lois de leur pays les y autorisent, et, en pareil cas, ils sont obli-
gés, sous la garantie de leur honneur personnel, de remplir scrupu-
leusement, tant vis-a-vis de leur propre Gouvernement que vis—à-vis.
de celui qui les a fait prisonniers, les engagements qu’ils auraient
contractés.
Dans le même cas leur propre Gouvernement ne doit ni exiger ni
accepter d’eux aucun service contraire a la parole donnée.
ART. 32.
Un prisonnier de guerre ne peut pas être contraint d’accepter sa
liberté sur parole; de même le Gouvernement ennemi n’est pas 01b-
ligé d’accéder à. la demande du prisonnier réclamant sa mise en
liberté sur parole.
ART. 33.
Tout prisonnier de guerre, libéré sur parole et repris portant les
armes contre le Gouvernement envers lequel il s’était engagé d’hon-
neur, peut être privé des droits de prisonnier de guerre et traduit
devant les tribunaux.‘
ART. 34.
Peuvent également être faits prisonniers les individus qui, se
trouvant auprès des armées, n’en font pas'directement partie, tels
THE BRUSSELS CONFERENCE. , 407
que: les correspondants, les reporteurs de journaux, les vivandiers,
les fournisseurs, etc., etc. Toutefois ils doivent être munis d’une
autorisation émanant du‘ pouvoir compétent et d’un certiﬁcat d’iden-
tité.
Des malades et des blessés.
ART. 35.
Les obligations des belligérants concernant le service des ma-
lades et des blessés sont régis par la Convention de Genève du 22
août, .1864; sauf les modiﬁcations dont celléci pourra être l’objet.
Du. pouvoirlmilita‘ire a l’egard des personnes privées.
ART. 36.
La population d’un territoire occupé ne peut être forcée de prendre
part aux opérations militaires contre son propre pays.
ART. 37.
La ‘population d’un territoire occupé ne peut être contrainte de
prêter serment à la puissance ennemie.
ART. 38‘.
L’honneur et les droits de la famille, la vie et la propriété des
individus, ainsi que leurs convictions religieuses et l’exercice de leur
0 culte doivent être respectés. La propriété privée ne peut pas être
conﬁsquée.
ART. 39.
Le pillage est formellement interdit.
Des contributions et des réquisitions.
\ ART. 40.
La propriété privée devant être respectée, l’ennemi ne demandera
aux communes ou aux habitants que des, prestations et des services
en rapport avec les nécessités de guerre généralement reconnues, en
proportion avec les ressources du pays et qui n’impliquent pas pour
les populations l’obligation de prendre part ‘aux operations de guerre
contre leur patrie. v
408 APPENDIX.
ART. 41.
L’ennemi prélevant des contributions soit comme équivalent pour
des impôts (v. art. 5) ou pour des prestations qui devraient être
faites en nature soit a titre d’amendes, n’y procédera, autant que
possible, que d’après les règles de la répartition et de l’assiette des
impôts en vigueur dans le territoire occupé.‘
Les autorités civiles du Gouvernement légal y prêteront leur as-
sistance si elles sont restées en fonctions.
Les contributions ne pourront être imposées que sur l’ordre et
sous la responsibilité du général en chef ou de l’autorité civile su-
périeure établie par l’ennemi dans le territoire occupé.
Pour toute contribution, un reçu sera donné au contribuable.
ART. 42.
Les réquisitions ne seront faites qu’avec l'autorisation du com-
mandant dans la localité occupé.
Pour toute réquisition, il sera accordé une indemnité ou delivré un
reçu.
Des parlementaires.
ART. 43..
Est considéré comme parlementaire l’individu autorisé par l’un
des belligérants à entrer en pourparlers avec l’autre et se présentant
avec le drapeau blanc, accompagné d’un trompette (clairon ou tam-
bour) ou aussi d’un porte-drapeau. Il aura droit a l’inviolabilité
ainsi que le trompette (clairon ou tambour) et le porte-drapeau qui
l’accompagnent.
ART. 44. ‘
Le chef auquel un parlementaire est expédité n’est pas obligé de le
recevoir en toutes circonstances et dans toutes conditions.
Il lui est loisible de prendre toutes les mesures nécessaires pour
empêcher le parlementaire de proﬁter de son séjour dans le rayon
des positionsde l’ennemi au préjudice de ce dernier,’ et si le parle-
mentaire s’est rendu coupable de cet abus de conﬁance, il a le droit
de le retenir temporairement.
Il peut également déclarer d’avance qu’il ne recevra pas de parle—
mentaires pendant un temps déterminé. Les parlementaires qui
THE BR‘USSELS CONFERENCE.
viendraient à se présenter après une pareille notiﬁcation, du côte de
la partie qu’il aurait reçue, perdraient le droit à. l’inviolabilité.
_ ART. 45.
Le parlementaire perd ses droits d’inviolabilité, s’il est prouvé
d’une manière positive et irrécusable qu’il a proﬁté de sa position
privilégiée pour provoquer ou commettre un acte de trahison.
Des capitulations.
ART. 46.
Les conditions des capitulations sont débattues entre les parties
contractantes.
Elles ne doiventpas être contraires à l’honneur militaire.
Une fois ﬁxées par une convention, elles doivent être scrupuleuse-
ment observées par les deux parties.
De l’armistice.
ART. 47.
L’armistice suspend les opérations de guerre par un accord mutuel
des parties belligérantes. .
“ Si la durée n’est pas déterminée, les parties belligérantes peuvent
reprendre en tout ‘temps les opérations, pourvu, toutefois, que l’en—
nemi soit averti en temps convenu, conformément aux conditions de
l’armistice.
ART. 48.
L’armistice peut être général ou local. Le premier suspend partout
les opérations de guerre des États belligérants; le second seulement
entre certaines fractions des armées belligérantes et dans un rayon
déterminé. ‘ ~-
ART. 49. ‘
L’armistice doit être officiellement et sans retard notiﬁé aux au-
torités compétentes et aux troupes. Les hostilités sont suspendus
immédiatement après la notiﬁcation. ‘
ART. 50.
Il dépend des parties contractantes de ﬁxer dans les clauses de
l’armistice les ‘rapports qui pourront avoir lieu entre les populations.
410 APPENDIX.
ART. 51.
7 violation de l’armistice, par l’une des parties, donne a l’autre 1e- V
droit de le dénoncer.
ART. 52.
La violation des clauses de l’armistice par des particuliers, agissant
de leur propre initiative, donne droit seulement à réclamer la puni-
tion des coupables et, s’il y a lieu, une indemnité pour les pertes
éprouvées.
ART. 53.
L’État neutre qui reçoit sur son territoire des troupes appartenant
aux armées belligérantes, les internera autant que possible loin du
théâtre de la guerre.
Il pourra les garder dans des camps et même les enfermer dans
des forteresses ou dans des lieux appropriés à cet effet.
Il décidera si les oﬂiciers peuvent être laissés libres en prenant
l’engagement sur parole de ne pas quitter le territoire neutre sans
autorisation.
ART. 54.
À défaut de convention spéciale, l’État neutre fournira aux in-
ternés les vivres, les habillements et les secours commandés par
lihumanité. '
Boniﬁcation sera faite a la paix des frais occasionnés par l’interne-
ment.
ART. 55.
L’É‘tat neutre pourra autoriser le passage par son territoire des
blessés ou malades, appartenant aux armées belligérantes, sous la
réserve que les trains qui les amèneront ne transporteront ni per-
sonnel ni matériel de guerre. I ‘
En pareil cas, l’État neutre est tenu de prendre les mesures de
sûreté et de contrôle nécessaires a cet eﬁet. '
ART. 56.
La Convention de Genève s’applique aux malades et aux blessés
internés sur territoire neutre.
THE BRUSSELS CONFERENCE. 411
No. XIX.
PROTOCOLE FINAL.
La Conférence réunie à Bruxelles sur l’invitation du Gouverne-
ment de S. M. L’Empereur de Russie pour délibérer sur un Projet de
réglement international des lois et coutumes de la guerre, a examiné
le Projet déféré a ses discussions dans un esprit conforme à la
‘haute pensée qui avait présidé à sa convocation et que tous les
Gouvernements qui y sont représentés ont accueilli avec sympathie.
Cette pensée avait ‘déjà trouvé son expression dans la déclaration
échangée en 1868 entre tous les Gouvernements relativement à
l’exclusion des balles exploisibles. Il avait été unanimement constaté
que les progrès de la civilization doivent avoir pour effet d’atténuer,
autant que possible, les calamités de la guerre, et que le seul but
légitime que les États doivent se proposer durant la guerre est
d’affaiblir l’ennemie, sans lui inﬂiger des souffrances inutiles.
Ces principes ont recontré alors un assentiment universel.
Aujourd’hui, la Conférence, se maintenant dans la même voie,
s’associe à. la conviction exprimée par le Gouvernementde S. M. l’Em—
pereur de Russie, qu’il y a un pas de plus a faire en revisant les lois et
coutumes générales de la guerre, soit dans le but de les déﬁnir avec
plus de précision, soit aﬁn d’y tracer d’un commun accord certaines
limites destinées à en restreindre, autant que possible, les rigueurs.
La guerre étant ainsi regularisée entraînerait de moindres cal-
amités, serait moins sujetti aux aggravations qu'y appartienne,
l’incertitude, l’imprévu et les passions excitées par la lutte; elle
conduirait plus efﬁcacement a ce qui doit être son but ﬁnal, c’est-
a»dire, le rétablissement de bonnes relations et d’une paix plus
solide et plus durable entre les États belligérants.
La Conférence n’a pas cru pouvoir mieux répondre a ces idées
d’humanité qu’en s’en inspirant également dans l’examen du Projet
sur lequel devaient porter ses délibérations. Les modiﬁcations qui y
ont été introduites, les commentaires réservés, et avis séparés, que
les Délégués ont cru devoir insérer dans les protocoles d’après les
instructions et les points de vue particuliers de leurs Gouvernements
ou leur opinions personnelles, forment l’ensemble de son travail.
Elle croit pouvoir le déférer aux Gouvernements, respectifs dont elle
412 APPENDIX.
est mandataire, comme une enquête consciencieuse, de nature à servir
de base a un échange d’idées ultérieur et a un développement des
dispositions de la Convention de Genève de 1864 et de la déclaration
de Saint-Pétersbourg de 1868. Il leur appartiendra d’apprécier ce.
qui, dans ce travail, pourra devenir l’objet d’une entente, et ce qui
nécessiterait un plus mûr examen.
La Conférence exprime, en terminant, la conviction que ses débats
auront en tout cas appelé la lumière sur ces importants questions
dont le règlement, s’il résultait d’une entente générale, serait un
progrès réel pour l’humanité.
Fait à Bruxelles, le 27 août 187 4.
(S) Le Conseiller privé Baron A. J OMINI.
(S) Le Général-major H. LEER. -
(S) Le Conseiller de Cour D’MARTENS.
(S) Général-major v. VOIGTS—RHETZ.
(S) Général-major v. LEONROD.
(S) Major Freiherr von WELOK.
(S) Staatsrath Frh. v. SODEN.
(S) Dr. BLUNTSCHLI.
(S) B. CHOTEK. ‘
(S) Freiherr von SOHONFELD, général major.-
(S) ‘Bon LAMBERMONT.
(s) ‚Ch. FAIDER.
(S) MOCKEL.
(S) P. VEDEL.
(S) Le-colonel H. BRUN.
(S) E1 Duque de TETUAN.
~ (S) Général SERVERT.
(S) Contr’almirante M. de la PEZUELA.
(S) Bon BAUDE.
(S) Général E. ARNAUDEAU.
(S) _A. HORSFORD, M. Genl.
(S) N. MANOS.
(S) ALBERT BLANC.
A (S) C. LANZA.
(S) van LANSBERGE.
(S) van der SCHRIEC'K.
(s) M. (TANTAS.
(S) Gal A. PALMEIRIM.
(S) F. M. STAAFF.
~(S) HAMMER Eidg. Oberst.
(S) CARATHEODORY.
(S) J. EDHEM.
- TABLE OF CASES CITED.

A
Page
Adelaide Rose, The, 2 0. Rob. Adm. 111, note . . . . . . . . . . . . . . . . . . . . . . .. . 318
Adeline, The, 9 Granch, 288 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214
Admiral, The, 3 Wall. 603 . . . . . . . . . . . . . . . . . . . . . . . .' . . . . . . . . . . . . . . . . . . . . 318
Adonis, The, 5 0. Rob. Adm. 258 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323
Airhart v. Massien, 98 U. S. 491. .. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 40
Alexander, The, 4 0. Rob. Adm. 93 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323
Alibert, Case of, Pitt-Cobbett, Gas. Int. Law, p. 96 . . . . . . . . . . . . . . . . . . . . . 136
Amelia, The, 4 Dall. 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 10
American Ins. Co. v. Canter, 1 Pet. 542 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 264
Amistad de Rues, La, 5 Wheat. 385, 390 . . . . . . . . . . . . . . . . . . . . . . . . . . . .293, 296
Ann, The Eliza, 1 Dod. 244.- . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 174
Anna, The, 5 0. Rob. Adm. 373 . . . . . . . . . .- . . . . . . . . . . . . . . . . . . . . . . . . . . . .52, 283
Anna Catharina, The, 4 C. Rob. Adm. 119 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
Anna Maria, The, 2 Wheat. 327 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 336
Anne, The, 3 Wheat. 435, 447 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .283, 297
Ann Green, The, 1 Gall. 274, Fed. Gas. No. 414 . . . . . . . . . . . . . . . . . . . . . . . . . 240
Antelope, The, 10 Wheat. 120 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189
Anthon v. Fisher, 2 Doug. 650, note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
ApollotThe, 4 0. Rob. Adm. 158 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 306
‘Atlanta, The, 8 0p. Attys. Gen. 73; 3 Wheat. 415 . . . . . . . . . . . . . . . . . .7 7, 96, 337
Attorney General v. Wilson, 3 Price, 431 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
B
Baigorry, The, 2 Wall. 480 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 320
Banda, The, and Kirwee Booty, L. R. 1 Adm. & Eco. 109, 35 Law J.
Adm. 17, Pitt-Cobbett, Gas. Int. Law, p. 195 . . . . . . . . . . . . . . . . . . . . . . . . . . 198
Belgenland, The, 114 U. S. 355, 5 Sup. Ct. 860 . . . . . . . . . . . . . . . . . . . . . . . . .. 96
Bentzon v. Boyle, 9 Oranch, 191 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 237
Bermuda, The, 3 Wall. 514, 551 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .308, 309, 327
Bernon, The, 1 0. Rob. Adm. 102 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239
Boedes Lust, The, 5 C. Rch. Adm. 233; Snow, Cas. p. 249, and note . . . . . . 161
Bourse, The, 1 Edw. Adm. 370 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
Brown v. Hiatts, 15 Wall. 177 . . . . . . . . . . . . . . . . . . . . ..' . . . . . . . . . . . . . . . . . . 257
\V v. U. s., s Craneh, 110 ........................................... .. 199
INTERNAT. LAW (413)
414 TABLE OF CASES CITED.
0 .
. . Page
Cabrera, Ex parte, 1 Wash. C. C. 232, Fed. Cas. No. 2,278 . . . . . . . . . . . . . .. 70
Campbell v. Hall, 1 Cowp. 208 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264
Carlotta, The, 5 C. Rob. Adm. 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 213
Carolina, The, 4 C. Rob. Adm. 256; 6 C. Rob. Adm. 336, 461 . . . . . .249, 310, 311
Carthagena, The, Whart. Dig. 466; Hall, Int. Law, 261 . . . . . . . . . . . . . . . . . . 103
Castioni, In re [1891] 1 Q. B. Div. 149 . . . . . . . . . . . . . . . . . . . . . . . . . ., . . . . . .. 87
Catharina, The Anna, 4 C. Rob. Adm. 119 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 237
Catharina Elizabeth, The, 5 C. Rob. Adm. 232 . . . . . . . . . . . . . . . . . . . . ., .. .. . 333
Ceylon, The, 1 Dod. 105 ............................................. .. 213
Charlotta, The, Edw. 252 ........................................... 320
Charlotte, The, 5 C. Rob. Adm. 275, 305 . . . . . . . . . . . . . . . . . . . . . . . . . . . .306, 307 '
Charming Betsy, The,2 Cranch, 64, 118 . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . 10
Cherokee Nation v. Georgia, 5 Pet. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17, 137
Cheshire, The, 3 Wall. 235 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322
Chin King, Ex parte, 35 Fed. 354 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
Circassian, The, 2 Wall. 150, 151 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .318, 320
Columbia, The, 1 C. Rob. Adm. 154, 156 . . . . . . . . . . . . . . . . . . . . . . . . . . . .318, 320
Commercen, The, 1 Wheat. 382 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .305, 327
Commonwealth v. Blanding, 3 Pick. 304 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
v. Macloon, 101 Mass. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Cooper, In re, 143 U. S. 472, 12 Sup. Ct. 453 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Coppell v. Hall, 7 Wall. 542 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .117, 252'
Cornu v. Blackburne, 2 Doug. 640 . . . . . . . . . . . . . . . . . . . . . . . . .'. . . . . . . . . . . . . 207
Count Gyllenbourg’s Case, Pitt-Cobbett, Cas. Int. Law, p. 68 . . . . . . . . . . .. 69
Cross v. Harrison, 16 How. 164 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 242
Crow Dog, Ex parte, 109 U. S. 556, 3 Sup. Ct. 396 . . . . . . . . . . . . . . . . . . . . . . . 138
D
Daifjie, The, 3 C. Rob. Adm. 141 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250
Dashing Wave, The, 5 Wall. 170 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 324
De Haber v. Queen of Portugal, 17 Q. B. 196 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Delassus v. U. S., 9 Pet. 117 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Dent V. Emmeger, 14 Wall. 308 . . . . . . . . . . . . . . . . . . . .. ~.' . . . . . . . . . . . . . . . . . . 40
Der Mohr, The, 4 C. Rob. Adm. 314 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336
De Wutz v. Hendricks, 9 Moore, 586, 2 Bing. 314 . . . . . . . . . . . . . . . . . . . . .. 278
Direct U. S. Cable Co. v. Anglo-American Tel. Co., 2 App. Cas. 394. .. .. .61, 62
Dole v. Insurance Co., 6 Allen, 373 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104‘
Don Paciﬁco, Case of, Ann. Reg. 1850, p. 281, Pitt-Cobbett, Cas. Int. Law
(2d Ed.) pp. 148, 149, Snow, Cas. p. 246 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
Dos Santos, Ex parte, 2 Brock. 493, Fed. Cas. No. 4,016 . . . . . . . . . . . . . . . . . . 85
TABLE OF oAsEs- CITED. 415
E
, Page
Effurth v. Smith, 5 Taunt. 329 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
“ Eliza and Katy, The, 6 G. Rob. Adm. .. 334
Eliza Ann, The, 1 Dod. 244 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
Elizabeth, The Catharina, 5 G. Rob. Adm. 232 . . . . . . . , . . . . . . . . . . . . . . . . . . 333
Elk v. Wilkins, 112 U. S. 94, 5 Sup. Ct. 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
Emanuel, The, 1 G. Rob. Adm. 296 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5
Emilie, Johanna, Spinks, PrizeGas. 14, cited Snow, Gas. 270, note . . . . . . . . 200
Emily St. Pierre, The, Snow, Gas. 361-363 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215
Estrella, The, 4 ‘W heat. 298 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .283, 297
Europa, The, 1 Edw. Adm. 342 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 253
Exchange, The, v. McFaddon, 7 Granch, 116 . . . . . . . . . . . . . . . . . . . . . . . . . . .74—76
F
Fanny, The, 1 Dod. 448 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 333'
Felicity, The, 2 Dod. 383 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336
Fenton v. Pearson, 15 East, 419 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
Fleming v. Page, 9 How. 603 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 242
Flora, The Marianna, 11 WVheat. 42, 57 . . . . . . . . . . . . . . . . . . . . . . . . .296, 323, 331
Foltina, The, 1 Dod. 452 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 258
Ford v. Surget, 97 U. S. 619 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Franc-es, The, l Gall. 445, Fed. Gas. No. 5,032; 8 Granch, 335, 354. .. .233, 240
Franciska, The, 10 Moore, P. G. 50; Spinks, Prize Gas. 115, 122. .317, 319, 321
Franconia, The, 2 Exch. Div. 63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..11, 60
Frau Ilsabe, The, 4 G. Rob. Adm. 64 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324
Frederick Molke, The, 1 0. Rob. Adm. so ............................. .. 320
Friendschaft, The, 4 YVheat. 105 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 237
Friendship, The, 6 G. Rob. Adm. 420 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 310
Friswell v. Moore, 3 Phillim. 138 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277
G
General Armstrong, The, 2 Whart- Dig. 604 . . . . . . . . . . . . . . . . . . . . . . . . . . .. 283
Gloire, La, 5 0.301).. Adm. 192 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 250
Grange, The, 10p. Attys. Gen. so
Gran Para, The, 7 Wheat. 471. . . . .' . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .287, 288
Green, The Ann, 1 Gall. 274, Fed. Gas. No. 414 . . . . . . . . . . . . . . . . . . . . . . . . . . 240
Grigg v. Scott, 4 Camp. 339 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
Grotius, The, 9 Granch, 370 . . . . . . . . . . . . . . . . . . . ._ . . . . . . . . . . . . . . . . . . . . . . .. 204
H
Haabet, The, 2 G. Rob. Adm. 182 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 307
Hackett’s Case, 1 Halleck, Int. Law, p. 375. .- . . . . . . . . . . . . . . . . . . . . . . . . .. 136
416 TABLE OF CASES CITED.
' Page
.HaneyThe Hustige,2G.Rob.Adm. . . . . . . . . . . .. 3,20
Harmony, The, 2 G. Rob. Adm. 322 . . . . . . _. . . . . = . . . . . . . . . . . . . . . . . . . . . . . . . 234
Hausding’s Case, Snow, Gas. 222 . . . . . . . . . . . . . . . . . .. _.. . . . . . . . . . . . . . . . . . 128
Helen, The, L. R. 1 Adm. & Ecc. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323
Hoffnung, The, 2 C. Rob. Adm. 162; 6 G. Rob. Adm. 116 . . . . . . . . . . . . . .253, 320
Hoop, The, 1 C. Rob. Adm. 201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
Hustige Hane, The, 2 C. Rob. Adm. 127 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 320
Hylton v. Brown, 1 Wash. C. C. 312, Fed. Gas. No. 6,981 . . . . . . . . . . . . . .. . 256
I
Ilsabe, The Frau, 4 C. Rob. Adm. 64 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 324
Imina, The, 3 0. Rob. Adm. 167 . . . . . . . . . . . . . . . . . . . . . . . .'. . . . . . . . . .. 309
Immanuel, The, 2 C. Rob. Adm. 186 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 325
Indian Chief, The, 3 C. Rob. Adm. 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
Irene, The, 5 G. Rob. Adm. 80 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322
J
Jan Frederick, The, 5 0. Rob. ‘Adm. 12s ........................ . .... .. .. 240
J ecker v. Montgomery, 13 How. 498 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220
Johanna Emilie, Spinks, Prize Gas. 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
Johnson v. McIntosh, 8 Wheat. 543, 588 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .46, 264
J onge Klassina, The, 5 C. Rob. Adm. 297, 302 . . . . . . . . . . . . . . . . . . . . . . .237, 253
Jonge Tobias, The, 1 G. Rob. Adm. 329 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 306
Judith, The Vrouw, 1 0.11010. Adm. 152 . . . . . . . . . . . . . . . . . . . . . . . . .. .. 321
J uffrow Maria Schroeder, The, 3 C. Rob. Adm. 160 . . . . . . . . . . . . . . . . . . . . . . 321
K .
Keir v. Andrade, 6 Taunt. 498 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
Kennett v. Chambers, 14 How. 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10, 278
Kensington v. Inglis, 8 East, 273 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
King of Spain v. Hullet, 1 Clark & F. 348 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Klingender v. Bond, 14 East, 484 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
L
La Amistad de Rues, 5 Wheat. 385, 390 . . . . . . . . . . . . . . . . . . . . . . .. . . . .293," 296
La Estrella, 4 Wheat. 298 . . . . . . .,. . ., . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .283, 297
La Gloire, 5 0; Rob. Adm. 192 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 250
La Santissima Trinidad, 7 Wheat. 283, 340, 341 . . . . . . . . . .74, 76, 288, 297, 300
Leitensdorfer v. Webb, 20 How. 176 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Lesley, Case of, Pitt-Cobbett, Gas. Int. Law, 65, 104, 105 . . . . . . . . . . . . . . . . 69
Leucade, The, Spinks, Prize Gas. 221 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336
Lilla, The, 2 Spr. 177, Fed. Gas. No. 8,348 . . . . . . . . . . . . . . . . . . . . . .26, 30, 283
TABLE OF CASES CITED. ‘ 417
Page
L’Invincible, 1 Wheat- 252, 254 . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .294, 297
Lisette, The, 6 0. Rob. Adm. 387 ..................... .............. .. 923
Livingston v. Maryland Ins. (30., 6 Granch, 274 . . . . . . . . . . . . . .. . . . . . . . . . . . 334
- M
McDonald’s Case, Gockb. Nat. p. 64, note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
McDonough v. Dannery, 3 Dall. 188 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 208
Madison, The, 1 Edw. Adm. 224, 226 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .310, 311
Magdalena Steam Nav. Go. v. Martin, 2 El. & El. 111, 28 Law J. Q. B. 310. 70
Magellan Pirates, The, 1 Spinks, 81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Maisonnaire v. Keating, 2 Gall. 325, 337, Fed. Gas. No. 8,978 . . . . . . . . . .207, 305
Maria, The, 1 G. Rob. Adm. 340; 5 G. Rob. Adm. 365; 6 G. Rob. Adm. 201
309, 322, 327, 330
Maria, The Anna, 2 Wheat. 327 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336
Maria, The Sarah, 1 Edw. Adm. 361 .................................. .. 253
Marianna Flora, The, 11 Wheat. 42, 57 . . . . . . . . . . . . . . . . . . . . . . . . .296, 323, 331
Mars, The, 6 G. Rob. Adm. 86 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 334
Mentor, The, 1 0. Rob. Adm. 183 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 260
Meteor, The, 1 Am. Law Rev. 401, Fed. Gas. No. 9,498 . . . . . . . . . . . . . . . . . . 286
Minerva, The, 1 Edw. Adm. 375 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 253
Mitchell v. U. S., 9 Pet. 711 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Molke, The Frederick, 1 G. Rob. Adm. 86 . . . . . . . . . . . . . . . . . . . . . ..'. . . . . . . 320.
Molly, The, 1 Dod. 396 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 260
Moodie v. The Alfred, 3 Dall. 307 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239
Mutual Assur. Soc. v. Watts, 1 Wheat. 279 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
N
Nayade, The, 4 G. Rob. Adm. 253 . . . . . . . . . . . . . . . . . . . . . .-. . . . . . . . . . . . .. . 174
Neptunus, The, 1 G. Rob. Adm. 171; 3 G. Rob. Adm. 108 . . . . . . . .306, 307, 320
Nereide, The, 9 Granch, 440, 441 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .318, 331, 333
Neutralitet, The, 3 0. Rob. Adm. 295 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308
New Orleans v. Steamship (30., 20 Wall. 259 . . . . . . . . . . . . . . . . . . . . . . . .. 219
Newton, The, and The Sally, 1 Ortolan, Dip. de la Mer, p. 271 . . . . . . . .. . 78
Nostra Signora De Begona, The, 5 G. Rob. Adm. 98 . . . . . . . . . . . . . . . . . . . . . 307
O
Orozembo, The, 6 G. Rob. Adm. 430 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . .. . 310
I P
Packet De Bilboa, The, 2 G. Rob. Adm. 133 . . . . . . . . . . . . . . . . . . . . . . . . . .. . 242
Parlement Belge, The, 5 Prob. Div. 197 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Penhallow v. Doane, 3 Dall. 54. . . . . . . . . .. .. ... . . . . . . . . . . . . . . . . . . . . .. 336
INTERNAT.LAW——-27 ‘
418 TABLE OF CASES CITED.
Page
i People v. McLeod, 25 Wend. 483 . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Peterhoﬁf, The, 5 Wall. 28, 54, 58 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .299, 308, 324
Phoenix, The, 5 0. Rob. Adm. 20 .................. . .‘ . . . . . . . . . . . . .234, 237
Phoenix Ins. Co. v. Pratt, 2 Bin. 308 . . . . . . . . . ., . . . . . . . . . . . . . . . . . . . . . . 334
Pizarro, The, 2 V'Vheat. 241 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33!
Planters’ Bank v. Union Bank, 16 Wall. 483 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
President. The, 5 0. Rob. Adm. 2"? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
Prince Cellamare’s Case, Snow, Cas. 88 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Prioleau v. U. S., L. R. 2 Eq. 659 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Prize Cases, 2 Black, 635, 665, 667 . . . . . . . . . . . . . . . . . . . . . .28, 30, 174, 233, 318
Protector, The, 12 Wall. 700 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257
Q .
Queen, The, v. Keyn, 2 Exch. Div. 63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11, 60
Queen Christina of Sweden, 1 De Marten’s Causes Celebres, p. 1 . . . . . . . . 67
R
Radcliff v. Insurance Co., 7 Johns. 53 . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . 320
Reg. v. Cunningham, Bell, Cr. Cas. 72 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
v. Lesley, Bell, Cr. Cas. 220 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Res Publica v. De Longchamps, 1 Dall. 111 . . . . . . . . . . . . . . . . . . .. . . . . . . 10
Rhode Island v. Massachusetts, 4 How. 639 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Rising Sun, The, 2 C. Rob. Adm. 106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 334
Robinson v. Morris, 5 Taunt. 725. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
Rose, The Adelaide, 2 C. Rob. Adm. 111, note . . . . . . . . . . . . . . . . . . . . . . . . . . 318
Rothschild v. Queen of Portugal, 3 Younge & C. Exch. 594 . . . . . . . . . . . . . . . 67
S /
St. Juan Baptista, The, 5 0. Rob. Adm. 33 ....................... 333
St. Nicholas, The, 1 \Vheat. 417 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 334
St. Pierre, The Emily, Snow, Cas. 361—363 . . . . . . . . . . . . . . . . . . . . . . . . . . . 21'5
Sally, The, 3 C. Rob. Adm. 179 . . . . . . . . . . . . . . .’ . . . . . . . . . . . . . . . . . . . . . . . . . . 242
Salvor, The, 4 Phila. 409, Fed. Gas. No. 12,272 . . . . . . . . . . . . . . . . . . . . . . . . . . . 336
San Jose Indiano, The, 2 Gall. 233, Fed. Cas. No. 12,322 . . . . . . . . . . . . . . . . .. 242
Santa Cruz, The, 1 0. Rob. Adm. 50, 60 . . . . . . . . . . . . . . . . . . . . . . . . . .213, 214
Santissima Trinidad, The, and The St. Ander, 7 Wheat. 283, 340, 341 . . . . . .
74, 76, 288, 297, 300'
Sarah Maria, The, 1 Edw. Adm. 361. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
,Savannah, The, 5 Blatchf. 6, Fed. Cas. No. 14.501 . . . . . . . . . . . . . . . . . . . . . . 102
Schroeder, The .Iuffrow Maria, 3 C. Rob. Adm. 160 . . . . . . . . . . . . . . . . . . . . . . 321
Science, The, 5 Wall. 178 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 324
Scotia, The, 14 Wall. 170 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 10‘
TABLE OF CASES CITED. 419
Page
Sea Lion, The,5Wall. 630 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252
Sechs Geschwister, The, 4 G. Rob. Adm. 100 . . . . . . . . . . . . . . . . . . . . . . . . . . . 239
Seton v. Low, 1 Johns. Gas. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308
Sitka, The, 7 Op. Attys. Gen. 122 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 74
Soglasie, The, 2 Spinks, 101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 239
Springbok, The, 5 Wall. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .308, 327
State v. Wyckoff, 31 N. J. Law, 68 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 90
Strother v. Lucas, 12 Pet. 410. .. .' . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 40
, T
Talbot v. Janson, 3 Dall. 157 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 297
v. Seeman, 1 Granch, 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 10
Taylor v. Best, 14 G. B. 487. ., . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Tempest, The, 1 Ortolan, Dip. de la Mer. 455 . . . . . . . . . . . . . . . . . . . . . . . . .. 78
Teutonia, The, L. R. 3 Adm. & Ecc. 394, L. R. 4 P. G. 171 . . . . . . . . . . . .174, 200
Thirty Hogsheads of Sugarv. Boyle, 9 Granch, 191, 198 . . . . . . . . . . . . . . . .. 10
Tobias, The Jonge, 1 0. Rob. Adm. 329.. . . . . . . . . . . . . . . . . ._ . . . . . . . . . . . . .. 303
Tousig, Case of, Wheat. Int. Law, L, 929, Snow. Gas. 228, Pitt-Gobbett, '
Gas. In-t. Law, p. 90 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 136
Townsend v. Greeley, 5 Wall. 326 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Trent, The, Dana’s note to Wheat. No. 223. .. ....................... .. 314.
Trinidad, La Santissima, 7 Wheat. 233, 340, 341 . . . . . . . . . .74, 76, 233, 297, 300
Tulip, The, 3 Wash. G. G. 181, Fed. Gas. No. 14,234 . . . . . . . . . . . . . . . . . . . .. 311
Twee Geb'roeders, The, 3 G. Rob. Adm. 162, 165 . . . . . . . . . . . . . . . . . . . .294, 297
Twende Brodre, The, 4 G. Rob. Adm. 33, 37 . . . . . . . . . . . . . . . . . . . . . . . .306, 307
Two Friends, The, 1 G. Rob. Adm. 271 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 214
U
United States v. The Ambrose Light, 25 Fed. 408 . . . . . . . . . . . . . . . . . . . . . . 102
v. Auguisola, 1 Wall. 352 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
v. Baker, 5 Blatchf. 6, Fed. Gas. No. 14,501 . . . . . . . . . . . . . . . . . . . . . . . . . . 102
v. Davis, 2 Sumn. 482, Fed. Gas. No. 14,932 . . . . . . . . . . . . . . . . . . . . . . . . 90
v. Diekelman, 92 U. S. 520 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 306
v. Hayward, 2 Gall. 485, Fed. Gas. No. 15,336 . . . . . . . . . . . . . . . . . . . . . . . . 218
v. Holmes, 5 Wheat. 412. .. ._ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
v. Jeffers, 4 Granch, G. G. 704, Fed. Gas. No. 15,471 . . . . . . . . . . . . . . . . . 73
v. Kagama, 118 U. S. 375, 6 Sup. Ct. 1109 . . . . . . . . . . . . . . . . . . . . . . . . . 138
v. Kazinski, 2 Spr. 7, Fed. Gas. No. 15,508 . . . . . . . . . . . . . . . . . . . . . . . . . . . 281
v. Klintock, 5 Wheat. 1.52 . . . . . . . . . . .. ............................ .. 101
v. Lafontaine, 4 Granch, G. G. 173, Fed. Gas. No. 15,550 . . . . . . . . . . . . . . 70
v. Lumsden, 1 Bond, 5, Fed. Gas. No. 15,641 . . . . . . . . . . . . . . . . . . . . . . .. 285
v. Moreno, 1 Wall. 400 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40, 264
v. Palmer, 3 Wheat. 610 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29, 101
420 " TABLE OF CASES CITED.
Page
V.Percheman, 7 Pet. . . . . . . . . . . . . . . . . . . . '39
v: Pirates, 5 Wheat. 185 . . . . . . . . . . . . . . . . . . . . -. . . . . . . . . . . . . . . .4 . . . . .. 101
v. Quincy, 6 Pet. 445 . . . . . . . . . . . . . . . . . . .‘ . . . . . . . . . . . . . . . . . . . . . . . .287, 288
v. Rauscher, 119 U. S. 407, 7 Sup. Ct. 234 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
v. Repentigny, 5 Wall. 260 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 264
v. Reynes, 9 How. 127 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 256
v. Rice, 4 Wheat. 246 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..218, 242
‘ v. Smith, 5~Wheat. 153, 157 ............................ .97, 100, 101
v. Wagner, L. R. 2 Ch. App. 582 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
v. Wright, 2 Pitts. R. 440 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 249
Usparicha v. Noble, 13 East, 332 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
‘T
Vavasseur v. Krupp, 9 Ch. Div. 351 . . . . . . . . . . . . .3 . . . . . . . . . . . . . . . . . . . . . . . 67
Venice, The, 2 Wall. 258 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220
Venus, The, 8 Cranch, 253; 4 C. Rob. Adm. 355 . . . . . . . . . . . . . . . . .234, 235, 250
Vigilantia, The, 1 C. Rob. Adm. 13. . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237
V olant, The, 5 Wall. 179 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ., . . . . . . . 324
Vrouw Judith, The, 1 C. Rob. Adm. 152 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 321
V row Cornelia, The, 1 Edw. Adm. 350. . . ., . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
Vrow Johanna, The, 4 C. Rob. Adm. 351 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336
V row Margaretha, The, 1 C. Rob. Adm. 336 . . . . . . . . . . . . . . . . . . . . . . . . . 240
W
Ware v. Hylton, 3 Ball. 199... .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
Warin v. Scott, 4 Taunt. 605 ....................................... 253
Wheaton’s Case, Wheat. Int. Law, D, 308-310, and-note 130 . . . . . . . . . . . . . . 70
White v. Burnley, 20 How. 249 ...................................... .. 170
Wilcocks v. Union Ins. Co., 2 Bin. 574 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336
Wildenhus’ Case, 120 U. S. 1, 7 Sup. Ct. 385. . . . . . . . . . . . . . . . . . . . . .. 78
William, The, 5 C. Rob. Adm. 385 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327
Williams, Case of, Whart. State Tr. 652 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
v. Marshall, 6 Taunt. 390 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
Willis v. Commissioners, 5 East, 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336
Wolff v. Oxholm, 6 Maule & S. 92 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 200
Z
Zee Star, The, 4 C. Rob. Adm. 71 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 336
INDEX.
[THE FIGURES REFER To PAGES.]
ABANDONMENT,
of captured property, 207.
see “Capture”; “Property.”
ABSORPTION,
_ of one state by another, 18.
see “States.”
effect of upon sovereignty, 36.
see “Sovereignty.”
ABUSE,
of ﬂags of trace (Lieber), 354.
AGGRETION,
as a method of acquiring territorial property, 52.
ACQUISITION,
of territorial property, 45.
AGTS,
of hostility in neutral territory, 283.
see “Neutral State”; “Neutrality.”
done before commencement of War, 259.
done after commencement of war, 259.
done after termination of war, 260.
see “Termination of War”; “Treaties.”
‘ in excess of legal powers of an invader as to property, 211.
see “,Postliminium.”
ADMINISTRATION,
theories in regard to in occupied territory, 217.
practice as to in occupied territory, 224.
see “Occupation.” ‘
AGENTS ‘
of a state in general, 105.
see “Diplomatic Agents”; “Gonsuls.”
powers of to bind his state, 140.
see “Treaties.”
INTERNAT.LAW ' (421)
422 INDEX.
[The ﬁgures refer to pages]
AGREEMENTS,
of a state when not treaties, 139.
with individuals, 139.
with a church, 139.
with sovereigns, etc., 139.
see “Treaties.”
ALIENS,
exemption from military and naval duty, 81.
may be compelled to assist in repelling savages. 81.
may be compelled to maintain public order, 81.
see “Immunities”; “Jurisdiction.”
ALLEGIANCE,
doctrine of indelible, 129.
see “Nationality.”
ALLY,
effect upon property recaptured by, 209.
see “Postli'minium.”
AMBASSADORS,
are diplomatic agents, 106.
see “Diplomatic Agents.”
AMERICA,
practice of as to neutrality in War of Independence, 271.
AMICABLE,
settlement of disputes, 155.
see “Disputes.”
AMNESTY,
as to individuals for acts done during war, 259.
see “Treaties.”
ANGARY,
deﬁnition of the right of, 337.
exercise of by Germany in 1870-71, 338.
APPOINTMENT,
of consuls, 116.
commission of, 117.
by exequatur, 117.
of consular agents, 117.
see “Consuls.”
ARBITRATION,
in general, 155.
when award of tribunal of can be disregarded, 156.
when tribunal exceeds powers, 156.
INDEX. 423
[The ﬁgures refer to pages]
ARBITRATION—Continued,
when denial of justice is open, 156.
when obtained through fraud, 156.
when terms equivocal, 156.
decisions as a source of international law, 8.
ARMED NEUTRALITY,
what, 273.
ARMED PROWLERS,
instructions for armies (Lieber), 353.
ARMIES,
instructions for government of (Lieber), 339.
see “Neutrality”; “War.”
instructions as to sick and wounded of, in the ﬁeld, 374.
see “Geneva Convention.”
ARMISTICE,
deﬁned, 245.
what can be done during, 246, 247.
commencement, 248.
conclusion of, 248.
see “Nonehostile Relations.”
instructions for armies (Lieber), 360.
\
ARMS,
as contraband, 302.
see “Contraband.”
to be carried openly in war, 181.
see “Combatants.”
ARTICLES,
of manufacture as contraband. 303.
of equipment as contraband, 303.
list of contraband (Ortolan), 302, note.
list of contraband (Lushington), 306, note 13.
of food as contraband, 304.
see “Contraband.”
ARTS,
protection of (Lieber), 345.
ASSASSINATION,
instruction for armies (Lieber), 362.
ASYLUM,
right of in house of sovereign, 66.
right of in house of diplomatic agent, 73.
424 INDEX.
[The ﬁgures refer to pages]
ASYLUM—Continued,
right of in merchant vessels, 76.
right of political refugees in, 77.
see “Jurisdiction.”
as to right of to troops in neutral territory, 294.
as to right of to naval forces in neutral territory, 294.
see “Neutrality.”
ATTACK,
of forts and fortiﬁed places, 227.
see “Hostilities.”
AUSTRIA,
papers carried by vessels of, 365.
AUTHORITIES,
see “Sources of International Law.”
AUXILIARY,
war, what, 169.
see “War.”
AWARD,
of tribunal in arbitration, 156.
when award can be disregarded, 156.
see “Arbitration."
BALANCE OF POWER,
as a ground for intervention, 123.
BALLOONS,
employment of in war, 231.
see “Hostilities.”
BASE OF OPERATIONS,
use of neutral territory as, 283.
see “Neutral State.”
BATTLEFIELD,
booty on (Lieber), 348.
BAYS,
as territorial waters, 60.
BELGIUM,
papers carried by vessels of, 365.
BELLIGERENCY,
deﬁned, 20. “
recognition of, 26.
INDEX. 425
[The ﬁgures refer to pages]
BELLIGERENGY—Gontinued,
recognition of creates a de facto state, 26.
right of communities to demand recognition of, 27.
when recognition of permissible, 28.
eﬁect of recognition of, 31.
see “States.”
BELLIGERENTS,
as to rights and duties of to neutral states, 274.
as to relations towards neutral individuals, 274.
see “Neutrality.”
carriage of persons in service of, 310, 311.
carriage of dispatches of, 309—311.
see “Conﬁscation”; “Contraband”; “Neutrality”; “Neutral State.”
BLANKETS,
as contraband, 306.
BLOGKADE,
deﬁned, 315.
places that can be blockaded, 316.
commercial, ,what, 316.
notiﬁcation of, 317.
by proclamation, 317.
by warning vessels on approach, 317.
by combining the two, 317.
a valid, what, 318.
when it ceases, 319.
by vessels being withdrawn, 319.
when driven away by enemy, 319.
when pursuing a prize, 319.
eﬁect of upon vessels in blockaded port, 320.
when such vessels can come out, 320.
when entrance was necessary, 320.
where entrance by license, 321.
where employed exclusively by minister of neutral state, etc., 321.
where entrance was legal, 321.
courtesy as to vessels of war, 321.
breach of, what, 322.
penalty for breach of, 323.
when penalty for breach of attaches, 323.
of a river partly in neutral territory, 324.
as to rule of war of 1756, 324.
as to continuous voyages, 326.
provisions of Declaration of Paris, 371.
see “Paciﬁc Blockade.”
426 .. INDEX.
[The ﬁgures refer to pages]
BOARDS OF ARBITRATION,
see “Arbitration.”
BOOTS,
' as contraband, 306.
BOOTY,
what, 198.
instructions for armies (Lieber), 348.
BOUNDARIES OF STATES,
how determined, 56. _ i
when separated by hills or mountains, 56. (
when separated by river not owned by either, 56.
when separated by a lake, 57.
BRAZIL,
papers carried by vessels of, 365.
BREACH,
of blockade, what, 322.
penalty for breach of blockade, 323.
when penalty attaches, 323.
see “Blockade.”
effect of as to a treaty by one party, 153.
of neutrality, 276-297.
see “Neutrality”; “Neutral State.”
BRUSSELS CONFERENCE,
in full, 389.
CAPACITY, I
of a state to contract, 140.
of agents of a state to contract, 140.
see “Treaties.” -
CAPITULATIONS,
deﬁned, 250.
see “Non-hostile Relations.”
‘instructions, for armies (Lieber), 360.
CAPTURE,
of prisoners of war, duties of state as to, 188.
see “Prisoners of War.”
of enemy goods in neutral vessels, 336.
of neutral goods in enemy vessels, 336.
of vessels upon ground of resistance to visit and search, 332.
upon ground of possession of false papers, 332, 334. I
INDEX. 427.
[The ﬁgures refer to pages]
CAPTURE—Continued,
for spoliation 6f papers, 334.
duties as to, 335.
see “Visit and Search.”
what a valid, of property in war, 203.
disposition of property captured, 205.
ransom of captures, 206.
loss of captures, 207.
by recapture, 207.
by abandonment, 207.
by escape of prize, 207.
by rescue by crew, 207.’
by discharge, 207.
CAPTURED MESSENGERS,
instructions for armies (Lieber), 354.
CAPTURED PROPERTY,
duty of neutral as to, when in violation of neutrality, 297.
when converted into a vessel of ,war, 297.
see “Neutral State.”
CARGO,
‘effect of capture of when contraband, 307.
doctrine of pre-emption, 308.
see “Conﬁscation”; “Contraband.”
CARRIAGE,
of contraband. 307. ‘
penalty for, 307,
duration of liability for, 308.
of dispatches, 309.
of persons when un-neutral, 310.
if vessel is a transport, ‘310.
if presumption is to render service to belligerent, 310.
penalty for as to persons and papers, 311.
in ordinary course‘of business of persons and dispatches, 312.
see “Contraband.”
CARTELS
deﬁned, 249.
cartel ship, 249.
see “Non-hostile Relations." '
CARTEL SHIP,
deﬁned, 249.
see “Non-hostile Relations.”
428 INDEX.
[The ﬁgures refer to pages]
CAUSES,
of war, when just, 171.
see “War.”
CENTRALIZED,
state, what, 22.
see “States.”
CESSATION,
of occupation, 225.
of blockade, 319.
when vessels withdrawn, 319.
when vessels driven away by the enemy, 319.
when vessels pursue a prize, 319.
see “Blockade.”
of hostilities as a mode of terminating war, 254.
effect of, in terminating war, 256.
see “Termination of War.”
CESSION,
effect 'of, upon sovereignty, 36.
as a method of acquiring territorial property, 49.
of territory by a sovereign upon conquest, 261.
see “Conquest.”
CHANGE,
of domicile, 235.
see “Domicile."
effect of internal changes upon identity or personality of a state, 19.
effect of external changes upon the identity or personality of a state, 19.
see “States.”
CHARACTER,
to whom enemy character attributed, 232.
see “Enemy Character.”
CHILDREN,
see “Citizenship”; “Nationality.”
CHARGES D’AFFAIRES,
are diplomatic agents when, 106.
CHURCHES,
agreements of with a state not treaties, 139.
see “Treaties.”
CITIZENS,
extradition of, by a state, 87.
see “States.”
INDEX. 429
[The ﬁgures refer to pages]
CITIZENS—Continued,
duties of consuls as to, 116.
see “Gonsuls.”
GITIZENSHIP,
deﬁned, 127.
how determined, 127.
by nativity, 127.
by naturalization, 127, 131.
of females, 127.
legitimate children, 127.
illegitimate children, 127.
foundlings, 127 .
see “Naturalization.”
GIVIL,
war, what, 171.
see “Jurisdiction”; “War.”
CIVIL WAR,
effect of a proclamation in terminating, 254.
see “Termination of War.”
instructions for armies (Lieber), 362.
GLASSES,
of unions of states, 20.
see “States.”
GLASSIFIGATION,
of diplomatic agents, 106.
of consuls, 115.
see “Gonsuls”; “Diplomatic Agents.”
of wars, 168.
by military authorities, 168.
by historians, 168.
by publicists, 168.
see “War.”
GLAUSES,
in conﬂict in treaties, 146.
most favored nation, 154.
see “Interpretation”; “Treaties.”
GOAL,
as contraband, 303.
GOMBATANTS,
who are, in war, 181.
the permanent military, 181.
430 INDEX.
[The ﬁgures refer to pages]
COMBATANTS—Continued,
the militia as, 181.
the reserves as, 181.
the national guard, landsturm, free corps, etc., 181, 182.
when under responsible chief, 181.
/
when in possession of uniform or distinguishing marks, 181.
carrying arms openly, 181.
levies en masse in non~occupied territory, 181, 183.
COMMENCEMENT,
of state existence, 33.
see “States.”
of diplomatic mission, 108.
see “Diplomatic Agents.”
of military occupation, 219.
see “Occupation.”
of a war, 175.
rule in absence of a declaration, 175.
of truces and armistices, 248.
see “Armistices”; “Truces.”
COMMERCIA BELLI,
in general, 243.
see “Non-hostile Relations.”
COMMERCIAL,
blockade, what, 316.
COMMUNITIES,
as persons in international law, 15.
belligerent, what, 26.
belligerent, right of recognition of, 27.
see “Belligerency.”
CONCLUSION,
of truces and armistices, 248.
see “Armistices”; “Truces.”
CONDEMNATION,
of vessel for carrying contraband, 307.
see “Conﬁscation”; “Contraband.”
CONDITIONS,
in treaties, effect of, 151.
CONFEDERATE,
states, what, 22.
union, what, 22.
see “States.”
INDEX. 431
[The ﬁgures refer to pages]
CONFERENCE,
Brussels Conference, 389.
CONFINEMENT,
of prisoners of war, 188.
CONFISCATION,
of vessel for carrying contraband, 307.
modern rule, vessel is free, 307.
unless vessel and cargo belong to same owner, 307.
unless owner privy to carriage, 307.
unless false papers are used, 307.
when contraband goods is three-fourths of cargo, 307.
unless owner bound to refrain by treaties of his government, 307.,
for carrying hostile persons and dispatches, 311.
contra if in ordinary course of business, 312.
see “Contraband.”
CONFLICT, ,
in provisions of a treaty, 146.
in different treaties, 147.
see “Interpretation”; “Treaties.”
CONFLICT OF LAWS,
see “Private International Law.”
CONQUEROR,
rights acquired by in conquest, 261-263.
see “Conquest.”
CONQUEST,
as a mode of terminating war, 254.
in general, 261.
effect upon property and sovereignty of territory, 261.
effect of cession by former sovereign, 261.
acquiescence of sovereign and people in, 261.
entire extinction of conquered state, 261.
result of, when complete, 263.
retroactive effect upon acts of conqueror, 261.
as to acquisition of rights and assumption of obligations attendant
upon, 261.
as to the sovereignty acquired by conqueror, 261.
as to property recaptured before being completed, 209.
see “Postliminium.”
CONSENT.
of a state to contracts, 141.
see “Treaties.”
CONSULS.
in general, 115.
classiﬁcation of, 115.
432 INDEX.
[The ﬁgures refer to pages]
CON SULS—Continued,
functions of, 115.
as to commercial interests of country, 115.
as to reports to his government, 116.
as to vessels of his country, 116.
as to subjects of his country, 116.
appointment of, 116.
to whom commissions are issued, 116.
the granting of exequaturs to, 117.
to whom patents are issued, 117.
dismissal of, 117.
privileges of, 118.
exemption of from arrest for political reasons, ‘118.
exemption of from personal taxes, 118.
exemption of from quartering soldiers, 118.
as to arms and ﬂag of his country, 118.
privileges necessary for performance of duties, 118.
see “Diplomatic Agents.”
CONSTRUCTIVE,
occupation, what, 220.
see “Occupation.”
CONTRABAND,
deﬁned, 298.
theories as to, 299.
arms and munitions of war as, 302.
articles for manufacture, equipment, etc., as, 303.
saltpeter and Sulphur, 303.
horses as, 303.
coal as, 304.
articles of food as, 304.
money as, 305.
merchandise as, 306.
cotton as, 306.
blankets, boots, etc., as, 306.
the penalty for carrying, 307.
eifect of carriage as to conﬁscation of vessel, 307.
when vessel and cargo belong to same owner, 307.
where owner of vessel is privy to carriage of, 307.
use of false papers, 307.
if contraband is three-fourths of cargo, 307.
if owner of vessel bound by treaty not to carry, 307.
the doctrine of pre-emption, 308.
time when penalty attaches, 308.
the carriage of dispatches, 309.
the carriage of persons in service of belligerent, 310.
l
INDEX. 6 433
[The ﬁgures refer to pages]
GONTRABAND—Gontin'ued,
when vessel is a transport, 310.
when presumption is of intention to render service to belligerent, 3.10.
penalty for carrying hostile persons and papers, 311.
carriage of persons and dispatches, in ordinary course of business, 312.
list of articles, 302, note; 306, note.
provisions of Declaration of Paris, 371.
CONTINUOUS VOYAGES,
rule as to, 326.
application of by United States in the Civil War, 326.
CONTRIBUTION S,
in war, 195.
maritime, 196..
see “Effect of War”; “Property”; “War.”
CONVENTIONS,
as a source of international law, 7.
Declaration of Paris, 371.
Declaration of St. Petersburg, 373.
Geneva Convention, 374..
CONVOY,
deﬁned,329.‘
exemption of vessels under from visit, etc., 329.
protection of vessels under, 329.
COTTON,
as contraband, 306.
CRIMES,
against inhabitants of hostile country (Lieber), 345.
CRIMINAL,
see “Jurisdiction”; “Extradition.”
CRIMINALS,
prisoners of war not, 188.
see “Prisoners of War.”
D
DEATH,
of diplomatic agent terminates mission, 109.
of sovereign, eﬁect of upon diplomatic mission, 110.
war, instruments employed that render it inevitable, 226.
see “Hostilities”; “Instructions for Armies in the Field”; “Laws of War-
on. Land”; “War.”
DECEIT,
employment of in war, 229.
see “Hostilities.”
INTERNAT.LAW-—28
434 INDEX.
[The ﬁgures refer to pages]
DECISIONS,
see “Sources of International Law."
DECLARATION,
effect of in recognition of new state, 35.
of war, 172.
rule as to issuing proclamation of, 172.
see “War.”
DECLARATION OF PARIS,
in full, 371.
as to privateers, 186.
as to effective blockade, 318.
DECLARATION OF ST. PETERSBURG,
in full, 373.
DE FACTO,
state, what, 26.
see “State.”
occupation begins when, 219.
see “Occupation.”
DEFENSIVE,
war, what, 168.
see “War.”
DEFINITION,
public international law, or law of nations, 1.
private international law, 2.
of persons in international law, 15.
of a state, 17.
of a personal union of states, 20.
of a real union of states, 21.
of a federal state, 22.
of a centralized state, 22.
of confederated states, 22.
of a confederate union, 22.
of protected states, 24.
of a neutralized state, 25.
of belligerency, 26.
of a de facto state, 26.
of territorial property, 45.
of servitude, 53.
of exterritoriality, 64.
of piracy, 97.
of intervention, 120.
.of nationality, 125.
of citizenship, 127.
of naturalization, 131. _
. INDEX. 435
[The ﬁgures refer to pages]
DEFINITION—Continued,
of indelible allegiance, 129.
of expatriation, 130.
of a treaty, 139.
of mediation, 155.
of arbitration, 155.
of retorsion, 157.
of reprisal, 158.
of embargo, 160.
of paciﬁc blockade, 161.
of war, 167, and note.
of foraging, 198.
of booty, 198.
of postliminium, 209.
of recapture, 213.
of salvage, 214.
of spies, 230.
of Commercia belli, 243.
of ﬂags of truce, 244.
of passports, 245.
of safe-conducts, 245.
of suspensions of arms, truces, and armistices, 245.
of cartels, 249.
of cartel ship, 249.
of capitulations, 250.
of safeguards, 251.
of licenses to trade, 251.
of neutrality, 267.
of permanent neutrality, 272.
of armed neutrality, 273.
of contraband, 298.
of despatches, 309.
see “Contraband.”
of blockade, 315.
DENMARK,
papers carried by vessels of, 366.
DEPREDATIONS,
when piracy, 98.
see “Piracy.”
DERIVATION, ,
of the term neutrality, 268.
436 INDEX.
[The ﬁgures refer to pages]
DESERTERS,
instructions for armies (Lieber), 348.
DESPATCHES,
deﬁned, 309.
neutral cannot carry when hostile, 310.
penalty for carriage of, 311.
carriage of in ordinary course of business, 312.
see “Conﬁscation”; “Contraband.”
DEVASTATION,
when permissible in war, 227.
see “Hostilities.”
DIPLOMATIC AGENTS,
in general, 106.
classiﬁcation of, 106.
a state cannot ordinarily refuse to receive, 106.
can refuse if sovereignty of state is doubtful, 106.
can refuse if mission inconsistent with dignity, 107.
can refuse particular individual, 107.
commencement of mission, 108.
termination of mission, 109.
by recall, 109.
by dismissal, 109.
by war, 109.
by death of, 110.
by departure for cause, 110.
by completion of duty, 110.
by death of sovereign, 110.
by change of government, 110.
rights of in third states, 112.
of innocent passage, 112.
in a state at war with his own, 112.
when sent to a congress, 112.
in a state at war with a third state, 112.
right of passage through a third state, 112.
of a friendly state accredited to a state at War, 113.
of a country at war with another, 113.
see “Consuls”; “Rights.”
as persons in international law, 16. -
see “Jurisdiction”; “Immunities.”
DISCHARGE,
of captured property, 207.
see “Capture”; “Property.”
max. 437
[The ﬁgures refer to pages.)
DISMISSAL,
of diplomatic agent, 109.
of consul, 117.
DISPATCH,
necessity for, in bringing in captured property, 335.
DISPOSITION, '
of captured property, 205.
see “Capture”; “Property.”
DISPUTES,
amicable settlement of, 155.
mediation, 155.
arbitration, 155.
measures of restraint short of war, 157.
retorsion, 157.
reprisal, 157.
embargo, 157.
paciﬁc blockade, 157.
DISTINGUISHING MARKS,
necessary in war, 181.
'see “Combatants.”
DIVISION,
of the subject of neutrality, 274.
see “Neutrality.”
DOCTRINE,
of pre-emption, 308. - ‘
DOMICILE, 5
deﬁned, 233.
as a test of nationality, 233.
change of, 234.
as to house of trade, 236.
see “Enemy Character.”
DUTIES,
existing between belligerent and neutral states, 274.
of belligerents to neutral individuals, 274.
fundamental, of a state, 44.
of a state to use reasonable diligence to protect foreigners, 44.
of a state to respect independence of others, 44.
of a state as to good faith, 44.
of an occupant, 224.
see “Occupation.”
438 INDEX.
[The ﬁgures refer to pages]
DUTIES—Continued,
of captor, 335.
as to witnesses detained, 335.
as to dispatch in bringing in captured property, 335.
as to preservation of captured vessel and cargo, 335.
see “Visit and Search.”
of consuls, 115.
as to commercial interests of his country, 115.
as to report of information to his country, 116.
as to vessels and crews of his own country, 116.
as to judicial instruments, 116.
as an arbiter of differences between members of crew, 116.
E
EFFECT,
of treaties of peace in terminating war, 254.
of conquest, 263.
see “Conquest”; “Termination of War”; “Treaties.”
EFFECTS OF WAR,
as to persons, 176.
who are enemies, 176.
upon the relations of enemies, 178.
who are non-combatants. 180.
who are combatants, 181.
the permanent military establishment, 181.
national guard, etc., 182.
levies en masse, 183.
as to hostilities at sea, 184.
privateers, 184.
volunteer navy, 186.
prisoners of war, 187.
treatment of prisoners of war, 188.
exchange of prisoners of war, 189.
ransom of prisoners of war, 190.
parole of prisoners of war, 190.
upon property, the old rule, 192.
upon movable property of the state, 192.
upon immovable property of the state, 193.
upon immovable private property, 195.
upon movable private property, 195.
contributions, 195.
requisitions, 195.
maritime contributions and. requisitions, 196.
INDEX. 439
[The ﬁgures refer to pages]
EFFECTS OF WAR—Continued,
as to foraging, 198.
as to booty, 198.
upon private property within enemy jurisdiction, 198.
upon property in enemy ports or waters, 200.
upon private property not within jurisdiction of any state, 201.
upon ﬁshing vessels, 202.
what a valid capture of, 203.
disposition of captured property. 205.
ransom of captured property, 206.
loss of captured property, 207.
by recapture, 207.
by abandonment, 207.
by escape of prize, 207.
by rescue of prize by crew, 207.
by discharge, 207.
EMBARGO,
deﬁned, 160.
see “Disputes”; “Measures of Restraint.”
EMPLOYMENT,
of deceit in war, 229.
of spies in war, 230.
of balloons in war, 231.
see “Hostilities.”
ENEMIES,
who are, in a war, 176.
relations of, in a war, 178.
see “Combatants”; “Effects of War.”
armed not belonging to hostile army (Lieber), 353.
ENEMY CHARACTER,
to whom attributed, 232.
as to domicile, 233.
as to change of domicile, 235.
as to house of trade, 236.
as to property, 237.
as to transfer of in war or in anticipation of war, 238.
as to merchandise, 238.
as to vessels, 239.
as to transfer in transitu, 239.
as to goods consigned from belligerent ports to neutrals, and vice versa,
240.
the French rule, 241.
as to occupied territory, 242.
‘440 ‘ INDEX. '
[The ﬁgures refer to pages]
ENEMY JURISDICTION,
eﬁect of, on property, 198.
see “Eﬁect of War”; “Property”; “War.”
ENvoYs
.. are diplomatic agents, 106.
see “Diplomatic Agents.”
EQUALITY,
of states, doctrine of, 17, 31, 32. _
see “States.”
EQUIPMENT,
articles of, as contraband, 303.
see “Contraband.”
of vessels of war in neutral territory, 2%.
see “Neutrality.”
EQUIVOCAL, _
when terms in award in arbitration are, eﬁect of, 156.
see “Arbitration.”
ESCAPE,
attempt to escape by prisoner of war no offense, 188.
of prize, 207. .
see “Capture”; “Property.”
ESSENTIALS,
to a valid treaty, 140.
see “Treaties.”
ESTABLISHMENT,
the permanent military, as combatants in war, 181.
sanitary, 381.
EXCHANGE, '
of prisoners of war, 189.
instructions for armies (Lieber), 356.
EXECUTION,
of treaties, 152.
see “Treaties.”
EXEMPnbNs
see “Consuls”; “Immunities”; “Jurisdiction.”
EXEQUATUR,
issue of, to consuls, 117.
i see “Consuls.”
effect of grant of, to consul of a new state, 35. 3
INDEX .
441
[The ﬁgures refer to pages.)
EXPATRIATION,
deﬁned, 130.
see “Nationality.”
EXPEDITIONS,
use of neutral territory for ﬁtting out hostile, 284.
see “Neutral State.”
EXPIRATION,
of term in treaties, 151.
EXPULSION,
of enemy by power not an ally. 212.
see “Postliminium.”
EXTENT,
of occupied territory, 215.
of rights of military occupation, 218.
see “Occupation.”
EXTERRITORIALITY,
deﬁned, 64.
see “Jurisdiction.”
EXTINCTION,
of political existence upon conquest, 261.
see “Conquest”; “Treaties.”
EXTRADITION,
of fugitives from justice, 85.
of political offenses, 86.
of citizens of the state, 87.
see “States.”
EXTRATERRITORIAL ACTS,
by direction of a state, 81.
responsibility of state for injuries to foreign states and subjects in its
territory, 81.
of administrative agents of a state, resulting in injury to foreign states,
etc., 81.
of judiciary, resulting in injury to foreign states, etc., 81.
of citizens of a state, resulting in injury to foreign states, 81.
in case of civil commotion and mob violence, 83.
see “Jurisdiction”; “States.”
F
FALSE PAPERS,
effect of use of, in carrying contraband, 307.
see “Conﬁscation”; “Contraband.”
442 INDEX.
[The ﬁgures refer to pages]
FAVORED NATION,
clause of, in a treaty, 154.
FEDERAL,
state, what, 22.
see “States.”
FIELD,
instructions for armies in, 339.
instructions for sick and wounded in, 374.
FISHING VESSELS,
rule of war_as to, 202.
see “Effects of War”; “Property”; "War.”
FLAGS OF PROTECTION,
instructions for armies (Lieber), 356. ‘
FLAGS OF TRUCE,
deﬁned, 244.
see “Non-hostile Relations.”
instructions for armies (Lieber), 356.
abuse of (Lieber), 354.
the laws of war on land, 380.
FOOD,
articles of, contraband, 304.
FORAGING,
what, 198.
FORCES,
as to right of asylum to naval forces in neutral territory, 294.
see “Neutrality.”
FOREIGNERS,
duty of a state to protect, 44.
FORM,
of treaties, 142.
see “Treaties.”
FORMALITIES,
attending the right of search, 331.
FORTIFIED PLACES,
attack of, in war, 227.
FORTRESSES,
as places of conﬁnement for prisoners of war, 188.
see “Prisoners of War.”
FORTS,
attack of, in war, 227.
INDEX. 443
[The ﬁgures refer to pages]
FOUN DLIN GS, ”
see “Citizenship”; “Nationality.”
FRANCE,
papers carried by vessels of, 366.
FRAUD,
effect of, upon treaties, 153.
effect of, in award of arbitration, 156.
see “Arbitration.”
FREE CORPS,
as combatants in war, 181.
see “Combatants.”
FREIGHT,
loss of, for carrying contraband, 307.
see “Contraband.”
FRENCH,
rule of, as to transfers in war, 241.
see “Enemy Character.” '
FUNCTIONS,
see “Consuls.”
FUBNISHING,
troops to an ally, effect of, 276.
see “Neutrality”; “Neutral State.”
G
GENEVA CONVENTION,
in full, 374.
see “Armies”; “Sick and Wounded.”
GERMANY,
papers carried by vessels of, 366.
GOOD FAITH,
duty of a state as to, 44.
GOODS,
rule as to consignment of, 240.
rule of the French as to, 241.
see “Enemy Character.”
of the enemy in neutral vessels, 336.
of neutrals in enemy vessels, 336. ‘
GOVERNMENT OF ARMIES,
instructions for (Lieber), 339.
GREAT BRITAIN,
papers carried by vessels of, 367.
444 INDEX.
[The ﬁgures refer to pages]
GREECE,
papers carried by vessels of, 367.
GUARAN TY,
treaties of, 148.
different kinds of, 148.
mutual, 148.
undertaken by one or more for beneﬁt of a third party, 148.
to insure observance of a special arrangement, 148.
see “Treaties.”
a treaty of, as a ground for intervention, 122.
I GUARD,
the national, as combatants in war, 182.-
see “Combatants”; “Eﬁects of War.”
GULFS,
as territorial waters, 60.
HEIMATHLOSEN,
see “Nationality.”
HILLS,
as boundaries, 56.
HISTORIANS,
classiﬁcation of wars by, 168.
see “War.”
HISTORY,
as a source of international law, 9.
HORSES,
as contraband, 303.
see “Contraband.”
HOSTAGES,
instructions for armies (Lieber), 348.
HOSTILE EXPEDITIONS,
use of neutral, territory for ﬁtting out, 284.
see “Neutrality.”
\ HOSTILITIES,
instruments for conducting, 226, 377.
those rendering death inevitable, 226.
When devastation is permissible, 227, 377.
as to attack of forts and fortiﬁed places, 227.
as to employment of deceit, 229.
as to employment of spies, 230.
as to employment of balloons, 231.
INDEX. 445
[The ﬁgures refer to pages]
HOSTILITIES—Continued, _
how terminated, 254.
see “Termination of War”; “Treaties of Peace.”
acts of, in neutral territory, 283.
see “Neutral State.”
the laws of war on land, 376.
HOUSE,
see “Asylum”; “Immunities”; “Jurisdiction”; “Property.”
HOUSE OF TRADE,
as to character of, 236.
effect of domicile as to, 236.
see “Domicile”; “Enemy Character.”
IDENTITY,
of a state, how affected, 18.
and personality of a state the same, 18.
loss of, by a state, 18.
see “States.”
ILLEGAL,
War, what, 170.
see “War.”
ILLEGAL ACTS,
as a ground for intervention, 121.
see “Intervention.”
IMMORAL ACTS,
as a ground for intervention, 121.
see “Intervention.”
IMMOVABLE,
see “Property.”
IMMUNITIES,
of crew and persons on board in port, 75.
as to internal economy of vessel, 75.
as to matters regulated by special custom, 75.
as to merchant vessels, 77.
of aliens from military and naval service, 80.
does not extend in case of invasion by savages, 80.
may be compelled to maintain the social order, 80.
see “Jurisdiction.”
of diplomatic agents from civil jurisdiction, 70.
of~family and suite of, 71.
of house of, 72.
does not extend to asylum in, 73.
446 INDEX._
[The ﬁgures refer to pages]
IMMUNITIES—Continued,
as to evidence in local courts, 73.
of vessels of war, public vessels, and armed forces, 74.
as to asylum for criminals, 66.
as to status as a private citizen, 66.
as to property owned as an individual, 66.
of diplomatic agents in general, 68.
as to criminal jurisdiction, 68.
extends except in case of necessity, 68.
except for acts of high treason, 68.
of sovereigns in foreign territory, 65.
from payment of dues and taxes, 65.
of house of, 65.
of members of his suite, 65.
does not extend to all acts of sovereignty, 65.
as to crimes committed by members of suite, 65.
as to civil actions of, 66.
as to acts against safety of the foreign state, 66.
IMPERFECT,
war, what, 170.
see “War.”
IMPRESSMENT,
of seamen, 93.
INDELIBLE ALLEGIANCE,
see “Nationality."
INDEPENDENCE,
of a new state, recognition of, 34
of a state, 43.
see “Recognition”; “States."
INDIANS,
status in United States, 137.
see “Nationality.”
INDIVIDUALS,
as persons in international law, 16.
see “Persons.”
agreements of, with a state, not treaties, 139.
see “Treaties.”
as to amnesty granted to, by treaty of peace, 259.
see “Treaties.”
rules of conduct as to in war, 377.
INHABITANTS,
" in hostile country, protection of from crimes (Lieber), 345.
INDEX. 447
[The ﬁgures refer to pages]
INJURIES,
duty of neutral, as to those received in territory of, by belligerent, 296.
see “Neutral State.” -
INSTRUCTIONS,
for government of armies (Lieber), 339.
INSTITUTE,
laws of war on land recommended by, 376.
INSTRUMENTS OF WAR,
in general, 226.
rendering death inevitable, 226.
see “Hostilities.”
provisions of Declaration of St. Petersburg,l 373.
INSURGENTS,
when pirates, 101.
INSURRECTION,
instructions for armies (Lieber), 362.
INTERNATIONAL LAW,
division into public and private, 1.
deﬁnition, public, 1.
deﬁnition, private, 2.
origin of the terms “Law of Nations” and “International Law,” 3.
views as to the nature of these rules of conduct, 5.
sources of international law, 6.
treaties and conventions, 7.
works of eminent jurists, 8.
decisions of prize courts, etc., 8.
the Roman law, 9.
histories of important epochs, state papers, 9.
a part of the municipal law, 9.
a branch of true law, 11.
states as persons in, 15.
what states are subjects of, 25.
see “States”; “Persons.”
INTERPRETATION,
of treaties, 144.
rules of, as to treaties, 144.
when language in ordinary meaning yields plain sense, 144.
words having a double meaning, 145.
if language fails to give a reasonable sense, 145.
clauses having different meaning in two countries, 146.
rights and obligations attendant upon things conferred, 146.
448 , INDEX.
[The ﬁgures refer to pages]
INTERPRETATION—Continued,
of treaties or provisions of same treaty in conﬂict, 146.
as to prohibitive and imperative clauses, 146.
as to clauses of special permission, 147.
as to clauses with penalty attached, 147.
as to stipulations without priority, 147.
as to conﬂict in treaties of different dates, 147.
INTERVENTION,
in general, 120.
deﬁned, 120.
self-preservation as a ground for, 120.
against illegal and immoral acts, 121.
under a treaty of guaranty, 122.
to maintain balance of power, 123.
ITALY,
papers carried by vessels of, 368.
J
JURISDICTION,
immunities of sovereigns from territorial, 65.
exempt from payment of dues and taxes, 65.
house cannot be entered by foreign authorities, 65.
extend to members of his suite, 65.
can perform certain acts of sovereignty in foreign state, 65.
cannot try member of his suite, 65.
cannot hear action between foreigners and members of his suite, 66.
cannot enforce a judgment between members of suite, 66.
cannot commit acts dangerous to safety of community, 66.
members of suite must be restrained from such acts, 66.
house cannot be made an asylum for criminals, 66.
do not extend to sovereign as a private individual, 66.
extends to property held as private individual, 66.
immunities of diplomatic agents from, in general, 68.
of same from criminal, 68.
exempt from arrest, except in case of necessity, 68.
in ,case of high treason, 68.
immunities of diplomatic agents from civil, 70.
immunities of family and suite from, 71.
immunities of house of, 72.
asylum in, denied in general, 73.
immunities as to evidence in local courts, 74.
immunities of public vessels, vessels of war, and armed forces from terri-
torial, in general, 74.
INDEX. 449
[The ﬁgures refer to pages]
J URI SDICTI ON—Gontinued,
immunities of the crew‘and persons on board extends to, 7 5.
extends only to matters pertaining to internal economy of ship, 75.
to special customs, 75.
does not extend tofcrew when on shore, 75.
over merchant vessels in foreign ports, 76.
right of asylum of merchant vessels, 78.
over passing vessels, 79.
over aliens, 80.
exemption from military and naval duty, 81.
territorial, in case of civil commotion and mob violence, 83.
as to extradition of fugitives, 85.
in case of political offenses, 86.
in case of its own citizens, 87. i
of offenses beyond limits of state, 88.
see “Asylum”; “Exterritoriality”; “Extradition”; “Extraterritorial Acts.”
of state in places not within territory of another state, exclusive, 91.
of state over merchant vessels on open seas, 92.
as to criminal, 92.
as to civil, 92. _
as to protective, 92.
as to piracy, '99, note.
property in enemy during war, 198.
see “Effect of War”; “Exterritoriality”; “Property”; “War.”
J URISTS, .
see “Sources of International Law.”
JUSTICE,
effect of denial of, in arbitration, 156.
see “Arbitration.”
K
KINDS,
of war, 168.
see “War.”
L
LAKES,
as boundaries, 56.
as territorial waters, 57.
LAND,
‘ right of a state to occupy unappropriated, 40.
INTERNAT.LAW—-29 ’ A
450 INDEX.
[The ﬁgures refer to pages]
LAND—Continued,
of a state to use, acquire, alienate its own, 41.
see “Property.” ’
the laws of war on, 376.
LANDSTURM,
as combatants in War, 181.
see “Combatants.”
LANGUAGE,
conﬂict of, in treaties, 144.
see “Interpretation.”
LAW OF NATIONS,
origin of term, 3.
see “International Law.”
LEGAL,
war, what, 170.
see “Wan”
LEGAL POWERS,
effect of acts in excess of, upon property by invader, 211.
see “Postliminium.”
LEGATES,
are diplomatic agents, 106.
see “Diplomatic Agents.”
LETTERS OF MARQUE,
see “Piracy”; “Privateers.”
LEVIES,
of troops by belligerent in neutral territory, 280.
see “Neutral State.”
LEVIES EN MASSE,
in non-occupied territory, 181.
when authorized in war, 183.
LICENSES TO TRADE,
in general, 251.
see “Non-hostile Relations.”
LIMITATION,
upon demands of successful belligerent after close of war, 173.
upon the right of postliminium, 210.
see “Postliminium.”
LIST,
of articles contraband, 302, note; 306, note.
see “Contraband.”
INDEX. 451
[The ﬁgures refer to pages]
LOANS,
to a belligerent by a neutral state, 277. ’
to a belligerent by neutral individuals, 278.
see “Neutrality”; “Neutral State.”
LOSS,
of captured property, 207.
‘ see “Capture”; “Property.”
MALTREATMIENT,
of prisoners of war, 188.
of witnesses by captor, 332.
MANUFACTURE,
articles of, as contraband, 303.
see “Contraband.”
MARGINAL WATERS,
rule as to extent of, 59.
see “Territorial Waters”; “Waters.”
MARINERS,
transport of from blockaded ports, 321.
see “Blockade.”
MARITIME,
contributions and requisitions, 196.
see “Property”; “War.”
MARITIME LAW,
Declaration of Paris, 371. -
MARITIME WAR,
how carried on, 184.
regular navy. 184.
privateers, 184.
volunteer navy, 184.
see “War.”
MARKS,
necessity for distinguishing, in war, 181.
see “Combatants.”
MARRIED WOMEN,
see “Citizenship”; “Nationality.”
MARTIAL LAW,
instructions for armies (Lieber), 339.
452 INDEX.
[The ﬁgures refer to pages]
MEANS OF WAR,
means of carrying on hostilities, 226.
see “Hostilities.” .
provisions of Declaration of St. Petersburg, 373.
MEASURES OF RESTRAINT,
short of war, 157.
retorsion as, 157.
reprisal as, 157.
embargo as, 157.
paciﬁc blockade, 157.
MEDIATION,
deﬁned, 155.
l
MERCHANDISE,
as to transfer of, during or in anticipation of war, 238.
see “Enemy Character.”
as contraband, 306.
MERCHANT VESSELS,
jurisdiction of state over, when on open sea, 92.
see “Jurisdiction.” _
see “Asylum”; “Immunities”; “Jurisdiction.”
METHODS,
of terminating war, 254.
see “Termination of War.”
MILITARY,
authorities, classiﬁcation of wars by, 168.
see “WVar.” I
occupation deﬁned, 216.
authority exercised in occupied territory, 224.
see “Occupation.” '‘
MILITARY ESTABLISHMENT,
as combatants in war, 181.
see “Combatants”; “Effects of War.”
MILITARY JURISDICTION,
instructions for armies (Lieber), 33 .
B'IILITARY NEGESSITY,
instructions for armies (Lieber), 339.
MIILITIA, '
as combatants, 181. '
see “Combatants.”
INDEX. 453
[The ﬁgures refer to pages]
MINISTERS,
resident and plenipotentiary are diplomatic agents, 106.
see “Diplomatic Agents.”
effect of accrediting, upon a new state, 35.
MISSION,
commencement of diplomatic, 108.
termination of diplomatic, 109.
MIXED,
war, what, 169.
see “War.”
MOB VIOLENCE,
see “Extraterritorial Acts”; “States.”
MONEY,
as contraband, 305.
MOUNTAINS,
as boundaries, 56.
MOVABLE,
see “Property.”
MUNICIPAL LAW,
international law a branch of, 9.
MUNITIONS OF WAR,
sales of, to belligerent by neutral, 279.
see “Neutrality”; “Neutral State.”
as contraband, 302.
see “Contraband.”
I
N
NATIONAL GUARD,
as combatants in a war. 182.
see “Combatants”; “Effects of War.”
NATIONALITY,
deﬁned, 125.
as to persons, 127.
married women, 127.
children, 128.
persons destitute of, heimathlosen, 128.
as to doctrine of indelible allegiance, 129.
as to expatriation, 130.
as to naturalization, 131.
effect of incomplete naturalization, 132.
as to new state, 132.
as to other states, 133.
as to status of Indians in the United States, 137.
see “Citizenship.”
4554 INDEX.
[The ﬁgures refer to pages]
NATIVITY,
as to citizenship, 127.
as to status of Indians in United States, 137.
NATURALIZATION,
as to nationality, 127.
deﬁned, 131.
effect of incomplete, 132.
as to new state, 132.
as to other states, 133.
see “Citizenship”; “Nationality.”
NAVAL FORCES '
right of asylum in neutral territory, 294.
see “Neutrality.”
NAVIGATION,
of river wholly within a state, 54.
of river which is boundary between two states. 54.
of river rising in one and ﬂowing through another state, 55.
NAVY,
use of regular, in war, 184.
use of volunteer navy, 186.
see “War.”
NEGLIGENCE,
as to captured property, 335.
see “Visit and Search.”
NETHERLANDS,
papers carried by vessels of, 368.
,NEUTRAL,
individuals, duty of, to belligerents, 274.
states, duties, etc., of, to belligerents, 274.
see “Neutrality”; “Neutral State.”
rescue of property by, 215.
see “Postliminium.”
NEUTRALITY,
deﬁned, 267. -
in general, 268.
derivation of the term, 268.
opinions by earlier publicists as to, 268.
practice of down to eighteenth century, 270.
practice in America during the War of Independence, 271.
permanent, what, 272.
armed, what, 273.
division of the subject, 274.
as to rights, duties, etc., existing between belligerent and neutral
states, 274.
:NDEX. 455
[The ﬁgures refer to pages]
NEUTRALITY—Continued,
relations between beiligerents and neutral individuals, 274.
relations between belligerent and neutral states, 276.
furnish troops under treaty, 276.
loans by a neutral state to a belligerent, 277.
loans by neutral individuals to a belligerent, 278.
sales of munitions of war by neutral state, 279.
as to levies in neutral territory by a belligerent, 280.
as to use of territory of neutral for transit of troops, 281.
as to acts of hostility in neutral territory, 283.
as to use of neutral territory as base of operations, 283.
ﬁtting out hostile expeditions in neutral territory, 284.
as to equipment of vessels of war in neutral territory, 286.
as to effect of neutral territory on prisoners of war, 293.
as to right of asylum to belligerent troops, 294.
as to right of asylum to naval forces, 294.
as to effect of neutral sovereignty upon property, 295.
duty in regard to injuries to a belligerent in neutral territory, 296.
duty as to property captured in violation of, 297.
as to a captured vessel converted into vessel of war, 297.
provisions of Declaration of Paris, 371.
NEUTRAL STATE,
Cannot furnish troops to an ally, 276.
loans by to a belligerent, 277.
loans to a belligerent by an individual of, 278.
sales of munitions of war by, 279.
levies of troops by a belligerent within, 280.
use of territory for transit of troops, 281.
acts of hostility committed in, 283.
use of territory as base of operations, 283.
ﬁtting out: hostile expeditions in, 284.
equipment of vessels of war in, 286.
effect of territory of upon prisoners of war, 293.
territory of as asylum for belligerent troops, 294.
territory of as asylum for naval forces, 294.
effect of sovereignty of upon property, 295.
duty of in regard to injuries to a belligerent committed in. 296.
duty of as to property captured in violation of neutrality, 297.
as to captured vessel converted into vessel of war, 297.
NEUTRALIZED,
state, what, 25.
see “States.”
NONCOMBATANTS,
who are, in a war, 180.
see “Effects of War.”
456 INDEX.
[The ﬁgures refer to pages]
NON-HOSTILE RELATIONS,
commercia belli, what, 243.
ﬂags of truce, 244.
passports, 245.
safe-conducts, 245.
suspensions of arms, 245.
truces, 245.
armistices, 245.
commencement of truces, etc., 248.
conclusion of truces, etc., 248.
cartels, 249.
cartel ship, 249.
capitulations, 250.
safeguards, 251.
licenses to trade, 251.
NORWAY,
papers- carried by vessels of, 368.
NOTICE.
of blockade, how given, 317.
see “Blockade”; “Notiﬁcation.”
NOTIFICATION,
of blockade, how communicated, 317.
by proclamation, 317.
by warning to vessels on approach, 317.
by both proclamation and warning, 317.
see “Blockade.”
NUNCIOS,
are diplomatic agents, 106.
see “Diplomatic Agents”
0
OATH,
of civil ofﬁcers in occupied territory, 224.
OBEDIENCE,
duties of persons as to, in occupied territory, 224.
see “Occupation.”
OBJECT,
of a treaty to conform to law, 141.
see “Treaties.”
of war, 172.
not limited to cause for which commenced, 173.
see “War.”
INDEX. 457
[The ﬁgures refer to pages]
OBLIGATIONS,
existing between belligerent and neutral states, 274.
OCCUPATION,
as a mode of acquiring property by a state, 45.
area affected by, 47.
see “Property”; “Territorial Property.”
eﬁect of upon property as to enemy character, 242.
see “Enemy Character.”
eﬁect upon property that is freed from, during war, 209.
see “Postliminium.”
deﬁnition of military occupation, 216.
theories in regard to, 217.
extent of the rights of, 218.
the beginning. of, 219.
constructive occupation, 220.
rights exercised over persons in occupied territory, 221.
practice in regard to administrative, in occupied territory, 224.
as to retention of native ofiicials in office, 224.
as to oath of obedience or ﬁdelity of civil officers retained, 224.
duties of an occupant, 224.
when occupation ceases, 225.
the laws of war on land, 382.
OCEAN,
see “Jurisdiction”; “Territorial Waters."
OFFENSES,
see “Jurisdiction”; “Piracy”; “States.”
OFFENSIVE,
wars, what, 168. .
see “War.” '
OFFICIALS,
retention of civil in occupation, 224.
oath of in occupation, 224.
see “Occupation.”
duties of civil to military occupant, 224.
see “Occupation.”
OPEN SEA,
territorial jurisdiction of a state over property, etc., on, 91.
see “Jurisdiction.”
OPERATIONS,
use of neutral territory as a base of, 283.
458 ' INDEX.
[The ﬁgures refer to pages]
OPINIONS,
of earlier publicists as to neutrality, 268.
see “Neutrality.”
ORDERS
No. 100 (Lieber), 339.
ORGANIZATION,
right of a state to select its own, 40.
P
PACIFIC BLOCKADE,
deﬁned, 161.
see “Disputes”; “Measures of Restraint.”
PAPERS, '
use of false, when carrying contraband, 307.
carriage of, when despatches, 309.
effect upon vessel when hostile, 311.
see “Conﬁscation”; “Contraband.”
evidencing nationality of, and others carried by vessels, 365—370.
see “State Papers.”
PARIS,
Declaration of, 371.
Declaration of, as to blockade, 318.
see “Declaration.”
PAROLE,
of prisoners of war, 190.
instructions for armies (Lieber), 358.
PARTISANS,
instructions for armies (Lieber), 353.
PASSAGE,
of diplomatic agents through states, 112.
see “Diplomatic Agents.”
PASSPORTS,
deﬁned, 245.
see “Non-hostile Relations.”
PEACE,
methods of restoration of, 254.
see “Conquest”; “Termination of War”; "Treaty of Peace.”
right of search in, 334.
see “Visit and Search.”
PENALTY,
for carrying contraband, 307.
INDEX. 459
[The ﬁgures refer to pages]
PENALTY—Continued,
time when penalty attaches, 308.
see “Conﬁscation”; “Contraband.”
for breach of blockade, 323.
when it attaches, 323.
PERFECT,
war, what, 170.
see “War.”
PERMANENT NEUTRALITY,
what, 272.
PERSONS,
who are, in international law, 15.
sovereign states are, 15.
individuals not, in international law, 16.
political parties are not, 16.
Christian churches are not, 16.
sovereigns, princes, and diplomatic agents are not, 16.
see “States.”
belligerent communities are not, in international law, 27.
rights exercised over in occupied territory, 221.
see “Occupation.”
protection of (Lieber), 345.
see “Citizenship”; “Nationality.”
PIRACY,
deﬁned, 97.
acts constituting offense, 97.
robbery as, 97.
depredations, when, 98.
as to rebels and insurgents, 101.
as to privateers, 103.
as to slave trade, 104.
see “Jurisdiction.”
PLACES,
that can be blockaded, 316.
attack of fortiﬁed, in war, 227.
POLITICAL OFFENSES,
see “Extradition.” .
POLITICAL PARTIES,
as persons in international law, 16.
see “Persons.”
.
460 INDEX.
[The ﬁgures refer to pages]
PORTS,
property in during war, 200.
see “Effect of War”; “Property”; “War.”
POSTLIMINIUM,
deﬁned, 209.
effect of, in general, 209.
when foreign yoke thrown off before conquest complete, 209.
when freed by an ally, 209.
when occupied territory freed during war by original state, 209.
when property susceptible of appropriation is recaptured, 209.
limitations upon the right of, 210.
as to acts in excess of powers of invader, 211.
when enemy expelled by a power not an ally, 212.
in case of recapture, 213.
as to salvage, 214.
in case of rescue by neutrals, 215.
POWERS,
effect of acts in excess of legal powers by invader, 211.
see “Postliminium.”
PRACTICE,
as to neutrality down to eighteenth century, 270.
in America during War of Independence, 271.
PRE-EMPTION,
doctrine of, 308.
see “Contraband.”
PRESCRIPTION,
as a method of acquiring territorial property, 50.
length of time necessary, 51.
PRESUMPTION,
see “Conﬁscation”; “Contraband.”
PRINCES,
as persons in international law, 16.
PRISONERS OF WAR,
deﬁned, 187.
treatment of, 188.
are not criminals and cannot be maltreated, 188.
are taken in performance of a legal act, 188.
are conﬁned in fortresses, barracks, and similar places, 188.
commit no offense in attempting to escape, 188.
are fed and clothed at expense of capturing state, 188.
INDEX. 46 1
[The ﬁgures refer to pages]
PRISONERS OF WAR—Continued,
exchange of, 189.
ransom of, 190.
parole of, 190.
instructions for armies (Lieber), 348.
exchange of- (Lieber), 356.
parole of (Lieber), 358.
the laws of war on land, 379, 385.
PRIVATE,
War, what, 169.
effect of war upon private property, 195.
see “Effect of War”; “Property”; “War.”
PRIVATEERS,
deﬁned, 184. /
effect of Declaration of Paris as to, 186.
provision in Declaration of Paris, 371.
when pirates, 98, 103.
PRIVATE INTERNATIONAL LAW,
deﬁned, 2.
PRIVATE PROPERTY,
of enemy, instructions for armies (Lieber), 345.
PRIVATE RIGHTS,
effect of a treaty of peace upon those suspended, 259.
see “Sovereignty”; “States”; “Termination of War”; “Treaties.”
PRIVILEGES,
of consuls, 118.
see “Consuls”; “Diplomatic Agents”; “Immunities.”
PRIVY,
effect of being, to carriage of contraband by owner of vessel, 307.
see “Conﬁscation”; “Contraband.”
PRIZE,
escape of, 207.
rescue of, by the crew, 207.
see “Capture”; “Property.”
PRIZE COURTS,
decisions of, as a source of international law, 8.
PROCLAMATION,
necessity of, as to blockade, 317.
as a mode of terminating a civil war, 257.
see “Termination of War.”
462 INDEX.
[The ﬁgures refer to pages]
PROPERTY,
territorial, what, 45.
territorial, how acquired, 45.
acquisition of by occupancy, 45.
area affected by occupancy, 47.
territorial, acquired by cession. 49.
acquired by prescription, 50.
acquired by accretion, 50.
waters as territorial, 57 .
see “Territorial ll’aters.”
effect of war upon, ancient rule, 192.
upon movable, of state, 192.
upon immovable, of state, 193.
upon immovable private, 195.
upon movable private, 195.
contributions of, 195.
requisitions of, 195.
maritime contributions and requisitions, 196.
foraging, 198.
booty, 198.
within enemy jurisdiction, 198.
in enemy ports or waters, 200.
in jurisdiction of no state, 201.
ﬁshing vessels, 202.
a valid capture of, 203.
disposition of captured, 205.
ransom of captured, 206.
loss of captured, 207.
see “Effect of War”; “War.”
effect of neutral sovereignty upon, 295.
captured in violation of neutrality, duty of neutral as to, 297.
when a captured vessel is converted into a vessel of War, 297.
see “Neutrality”;- “Neutral State.”
enemy character of, 237.
transfer of during war, 238.
transfer of in transitu, 239.
see “Enemy Character.”
public and private of the enemy (Lieber), 345.
laws of war on land, 383, 384.
PROTECTED,
state, what, 24.
see “States.”
INDEX. 463
[The ﬁgures refer to pages]
PROTECTION,
of persons, instructions for armies (Lieber), 345.
of religion, instructions for armies (Lieber), 345.
of arts and sciences (Lieber), 345.
PROTECTIVE,
see “Jurisdiction.”
PROTOCOL,
effect of in recognition of new state, 35.
PROWLERS,
armed, instructions for armies (Lieber), 353.
PUBLIC,
war, what, 169.
see “War.”
PUBLIC INTERNATIONAL LAW,
deﬁned, 1. '
see “International Law.”
PUBLIC PROPERTY.
of enemy, instructions for armies (Lieber), 345.
PUBLIC RIGHTS,
see “Sovereignty”; “States.”
PUBLIC VESSELS,
see “Jurisdiction”; “Immunities.”
PUBLICISTS,
classiﬁcation of wars by, 168.
see “Wars.”
opinions of as to neutrality, 268.
see “Neutrality.”
PUNISHMENT,
of crimes against inhabitants of hostile Country (Lieber), 345.
R
RANSOM,
of prisoners of war, 190.
of captured property, 206.
see “Capture”; “Property.”
RATIFICATION,
of treaties, 142.
tacit, 142.
express, 142.
see “Treaties."
REBELLION,
instructions for armies (Lieber), 362.
464 INDEX.
[The ﬁgures refer to pages]
REBELS,
when pirates, 101.
RECAPTURE,
deﬁned, 213.
effect of, upon property, 213.
see “Postliminium.”
loss of property by, 207.
see “Capture”; “PropeI-ty."
RECEPTION,
of diplomatic agents, 106.
of consuls, 115.
see “Consuls”; “Diplomatic Agents.”
RECOGNITION,
of bclligerency, 26.
effect of,\ upon the belligerent community itself, 26.
right of belligerent community to demand, 27.
when permissible, of a belligerent community, 28.
when accorded to belligerent community, is irrevocable, 31.
of existence of a new state, 33.
of independence of new state, when proper, 34.
methods of recognizing new state, 35.
by declaration addressed to new state, 35.
by protocol, 35.
by admission as party to a treaty, 35.
by accrediting ministers, 35.
RELATIONS,
of enemies in a war, 178.
see “Combatants”; “Effects of War.”
of belligerents to neutral states, 274.
of belligerents to neutral individuals, 274.
see “Neutrality”; “Non-hostile Relations.”
RELIGION,
protection of (Lieber), 345.
RENEWAL,
of treaties, 154.
RENUNCIATION,
of treaties, 152.
REPRISAL, "
deﬁned, 158.
see “Disputes”; “Measures of Restraint.”
REQUISITIONS,
of property, 195.
maritime, 196.
see “Effect of War”; “Property”: “War."
INDEX. 465
[The ﬁgures refer to pages]
RESCUE,
of property by, 215.
see “Postliminium.”
of captured property, 207.
see “Capture”; “Property.”
RESERVES,
as combatants, in a war, 181.
see “Combatants.”
RESISTANCE,
eﬁect of, as to visit and search, 332.
RESTORATION,
of original order of things changed by war, 209.
before conquest is complete, 209.
by an ally, 209.
when possession regained during war by original state, 209.
when property susceptible of appropriation is recaptured, 209.
RESTRAINT,
measures of, short of war, 157.
see “Measures of Restraint.”
RETALIATION,
instructions for armies (Lieber), 339.
RETORSION,
deﬁned, 157.
see “Disputes”; “Measures of Restraint.”
REVOLUTION,
effect upon diplomatic mission, 110.
RIGHTS.
acquisition of, by a state in foreign territory, 53.
of navigation of rivers, 54.
of a river whollyavithin another state, 54.
of a river forming boundary of two or more states, 54.
of a river rising in one state and passing through other states, 55.
fundamental, of states, 4043.
of states to select their own organization, 40.
of states to do what deemed advisable to promote prosperity, 40.
of states to occupy unappropriated land, 40.
of a state to use and appropriate its own land, etc., 41.
of a state to independence, 42.
extent of, in military occupation, 218.
exercised over persons in occupied territory, 221.
see “Occupation.”
effect of a treaty of peace upon, 259.
see “Termination of War”; “Treaties.”
of diplomatic agents in third states in general, 112.
INTERNAT. LAW-30
466 INDEX.
[The ﬁgures refer to pages]
RIGHTS—Continued,
of passage of diplomatic agents through friendly third states, 112.
of diplomatic agents of a state at war with another, 113.
of diplomatic agents of friendly state accredited to a state at war, 113.
see “Diplomatic Agents.”
of belligerent and neutral states, 274.
of visit and search, what, 328.
of angary, what, 337.
RIVERS,
navigation of, 55.
as boundaries, 56.
blockade of, when partly in neutral territory, 324.
ROBBERY,
on the sea as piracy, 97.
see “Piracy.”
ROMAN LAW,
as a source of international law, 9.
RULE,
as to when treaties of peace are binding, 254.
see “Treaties.”
as to consignment of goods in war or in anticipation of war, 240.
of the French as to, 241.
see “Enemy Character.”
the ancient, as to effect of war upon property, 192.
see “Effect of War”; “War.”
of war of 1756, 324.
of conduct towards individuals, 377, 380.
RUSSIA,
papers carried by vessels of, 369.
SAFE—CONDUCTS,
‘ deﬁned, 245.
see “Non-hostile Relations.”
instructions for armies (Lieber), 354.
SAFEGUARDS,
deﬁned, 251.
see “Non-hostile Relations.”
ST. PETERSBURG,
Declaration of, 373. '
see “Declaration.”
INDEX. 467
[The ﬁgures refer to pages]
SALES, .
of munitions of war to a belligerent by a neutral, 279.
see “Neutrality”; “Neutral State.”
SALTPETER,
as contraband, 303.
see “Contraband.”
SALVAGE,
deﬁned, 214.
when granted, 214.
see “Postliminium."
SCIENCES,
protection of (Lieber), 345.
SCOUTS,
instructions for armies (Lieber), 353.
SEA,
see “Jurisdiction”; “Territorial Waters.”
SEAMEN,
impressment of, 93, note.
SEARCH,
see “Visit and Search.”
SELF—DEFENSE,
as a ground for visit and search in peace. 335.
SELF—PRESERVATION,
as a ground for intervention, 120.
see “Intervention.”
SEPARATION,
of a state from existing state, effect of, 36.
see “Sovereignty.”
SERVITUDES,
deﬁned, 53.
as to navigation of rivers, 54.
see “Rights.”
SETTLEMENT,
of claims arising during war, 259.
see “Disputes”; “Treaties.”
SHIPS,
see “Cartel.”
SICK AND WOUNDED, ‘
instructions as to for armies in the ﬁeld, 374.
see “Geneva Convention.”
468 INDEX.
[The ﬁgures refer-to pages]
SLAVE TRADE,
as piracy in international law, 104.
SOURCES OF INTERNATIONAL LAW,
in general, 6.
treaties and conventions, 7.
works of eminent jurists, 8.
decisions of prize courts, etc., 8.
the Roman law, 9.
histories of important epochs, 9.
state papers, 9.
SOVEREIGNS,
immunities of in foreign- territory, 65.
see “Immunities”; “Jurisdiction”; “Treaties.”
effect of acquiescence by, in conquest, 261.
_ see “Conquest.” '
as persons in international law, 16.
see “Persons.”
SOVE REI GN TY,
effect of change of, upon public rights and obligations, 36.
when a new state is formed, 36.
when territory lost by cession, 36.
when state is absorbed, 36.
effect of change of upon private rights, 39.
effect of conquest upon, 261.
how transferred, 261.
by cession, 261.
by acquiescence of the sovereign and people, 261.
by extinction of political existence, 261.
when conqueror acquires, 263.
effect of neutrality upon property, 295.
see “Neutrality.”
SPAIN,
papers carried by vessels of, 369.
SPIES,
deﬁned, 230.
employment of in war, 230.
see “Hostilities.”
instructions for armies (Lieber), 354.
the laws of war on land, 379. -
SPOLIATION,
of papers, effect of upon property captured, 334.
INDEX. / 469
[The ﬁgures refer to pages]
STATE PAPERS,
as a source of international law, 9.
STATES,
are persons in international law, 15.
deﬁnition of, 17.
identity of, how affected, 18.
personality of, how lost, 18.
identity, how lost, 18.
absorption by another state, 18.
division into two or more states, 18.
uniting with another state, 18.
affected by internal changes, 19.
affected by external changes, 19.
joinder or union with other states, 20.
classiﬁcation of unions of, 20.
personal union of, 20.
real union of, 21.
federal or centralized, 22.
confederated, 22.
protected, 24.
under suzerainty, 24.
neutralized, 25.
which are subjects of international law, 25.
de facto, what, 26.
belligerency of, 26.
equality of, 31.
see “Belligerency”; “Equality”; “Sovereignty.”
date of commencement of, 33.
recognition of independence of by third states, when proper, 34.
methods of recognizing new states, 35.
by declaration addressed to new state, 35.
by a protocol, 35.
by admission as a party to a treaty, 35.
by accrediting ministers of new state, 35.
eﬁect of change of sovereignty upon public rights, etc., of, 36.
when a portion separates, 36.
when a portion is added, 36.
when absorbed, 36.
eﬂfect of change of sovereignty of upon private rights, 39.
fundamental rights of, 40.
right to select their own organization, 40.
right to do what deemed advisable to promote prosperity, 40.
right to occupy unappropriated territory, ~10.
470 INDEX.
[The ﬁgures refer to pages]
STATES—Continued,
fundamental right of using and alienating \territory, 41.
fundamental right of independence, 42.
fundamental duties of, 44.
duty of protecting foreigners, 44.
duty of respecting independence of other states, 44.
duty of good faith. 44.
see “Exterritoriality”; “Immunities”; “Jurisdiction.”
jurisdiction over merchant vessels in ports, 77.
jurisdiction of over passing vessels, 79.
responsibility of for acts causing injury to other states or subjects, 81.
responsibility of for acts of administrative agents, 81.
responsibility of for acts of judiciary, 81.
responsibility of for acts of citizens, 81. ”
responsibility in case of civil commotion or mob violence, 83.
duty of as to extradition, 85.
see “Extradition.”
duty of to feed and clothe prisoners of war, 188.
see “Prisoners of War.”
effect of war upon property of, 192.
see “Effect of War”; “Property”; “War.”
right of passage of agents of another state through, 112.
see “Diplomatic Agents.”
effect of recapture of property by, 209.
effect of conquest of, 261—263.
see “Conquest.”
duties of when neutral to belligerents, 274.
see “Neutrality”; “Neutral State.”
STRAITS,
as territorial waters, 60, 61.
is the Suez canal a strait, 62.
SUBJECTS,
of international law, 15. ,
states as, 15.
individuals and communities as, 15.
what states are, in international. law, 25.
see “International Law”; “Persons”; “States.”
duties of consuls as to, 116.
see “Consuls.”
duty of those of a conquered state to the conqueror, 263.
see “Conquest.”
SUEZ CANAL,
its position in international law, 62.
. INDEX. 471
[The ﬁgures, refer to pages]
SUITE, ’
see “Immunities”; “Jurisdiction.”
SULPHUR,
as contraband, 303.
see “Contraband.”
SUSPENSION OF ARMS,
deﬁned, 245.
see “Non-hostile Relations.”
SUZERAINTY, -
effect of states under upon their personality, 24.
SWEDEN,
papers carried by vessels of, 369.
T
TERMINATION,
of occupation, 225.
see “Occupation.’
of diplomatic mission, 109.
see “Diplomatic Agents.”
TERMINATION OF WAR,
methods of, 254.
by a treaty of peace, 254.
by cessation of hostilities, 254.
by proclamation in civil wars, 254.
by conquest, 254.
rule in regard to treaties of peace. 254.
effect of a simple cessation of hostilities, 256.
effect of proclamation in civil war, 257.
the general effect of a treaty of peace, 257.
the principle of uti possidetis, 258.
'upon acts done before the commencement of war, 259.
as to quarrels resulting in the war, 259.
as to treaties, etc., suspended by the war, 259.
as to prosecution of private rights suspended during, 259.
upon acts done during the war, 259.
as to claims on behalf of state or subjects, 259.
as to amnesty for acts during, 259.
as to hostile acts committed after the war, 260.
by conquest, 261.
effect of conquest, 263.
see “Conquest”; “Treaties.”
TERRITORY,
eﬁect of occupation of, 215, 382.
control over by occupant, 218.
47 2 INDEX.
[The ﬁgures refer to pages]
TERRITORY—Continued,
when occupation of commences, 219.
when occupation of ceases, 225.
see “Occupation.”
effect of occupation of as to enemy character by belligerent, 242.
see “Enemy Character.” ‘
effect of conquest upon, 261.
see “Conquest.”
TERRITORIAL PROPERTY,
deﬁnition of, 45.
modes of acquiring, 45.
occupation, 45, 46.
area affected by occupation, 47.
cession, 49.
prescription, 50.
length of time necessary, 51.
accretion, 52.
see “Servitudes.”
boundaries, how determined, 56.
see “Boundaries.”
TERRITORIAL WATERS,
of a state, 57.
rule as to marginal waters, 59.
bays, gulfs, and straits, 60.
rule as to bays and gulfs wholly within state territory, 60.
rule as to straits. 60, 61.
the Suez canal, 62.
the ocean or open sea as, 57.
THEORIES,
as to contraband, 299.
see “Contraband.” _
in regard to occupation, 217.
see “Occupation.”
TRADE,
with the enemy, 251.
see “Licenses to Trade.”
TRANSFER, ‘
of property during war or in anticipation of war, 238.
of merchandise during war, 238.
of vessels during or in anticipation of war, 238.
in transitu, 239.
of goods by belligerents from their ports to neutrals and vice versa, 240.
see “Enemy Character.”
TRANSIT,
of troops through neutral territory, 281.
INDEX. 47 3
[The ﬁgures refer to pages]
TRANSPORT,
eﬁect upon a vessel that becomes such in service of belligerent, 310.
see “Conﬁscation”; “Contraband.”
TREATMENT,
of prisoners of war, 188.
see “Effects of War”; “Prisoners of War”; “War.”
TREATIES,
as a source of international law, 7.
deﬁned, 139.
agreements of a state that are not treaties, 139.
by a state with individuals, 139.
by a state with the church, 139.
by a state with sovereigns, etc., 139.
essentials of a valid treaty, 140.
capacity to contract, 140.
powers of agent, 140.
freedom of consent, 141.
object to conform to law, 141.
form of, 142.
ratiﬁcation of, 142.
tacit ratiﬁcation, 142.
express ratiﬁcation, 142.
interpretation of, 144.
rules of, 144-146.
conﬂicting provisions of, 146.
rules for interpretation of, 146, 147.
of guaranty, 148.
kinds of, 148.
when they become operative, 149.
extinction of, 151.
when they become void, 151.
when object accomplished, 151.
by mutual agreement, 151.
expiration of term, 151.
upon condition, 151.
express renunciation, 151.
execution impossible, 152.
destruction of object, 152.
declaration of war, 152.
incompatibility in, 152.
when voidable, 153.
that threaten state existence, 153.
absence of freedom of will, 153.
consent by force or fraud, 153.
lack of capacity to contract, 153.
breach by one party, 153.
474 INDEX.
[The ﬁgures refer to pages]
TREATIES—-Continued,
renewal of, 154.
most'favored nation, clause of, 154.
effect of being a party to upon recognition of new state, 35.
effect upon vessel carrying contraband, 307.
see “Conﬁscation.”
of guaranty as a ground for intervention, 122.
see “Intervention.”
as a mode of terminating war, 254.
rule in regard to, when binding, 254.
general effect of, 257.
the principle of uti possidetis, 258.
effect of upon acts done before commencement of war, 259.
as to the quarrels resulting in the war, 259.
effect of upon suspended treaties, 259.
effect upon private‘ rights suspended by the war, 259.
effect upon acts during the war, 259.
settlement of claims of the state and subjects, etc., 259.
as to amnesty of individuals, 259.
effect of upon acts done after the war, 260.
TRIBUNAL,
award of in arbitration, 156.
see “Arbitration.”
TROOPS,
furnished to an ally under a treaty as to neutrality, 276.
see “Neutrality”; “Neutral State.”
levies of by belligerent in neutral territory, 280.
transit of through neutral territory, 281.
right of asylum of in neutral territory, 294, 387.
TRUCES,
deﬁned, 245.
what can be done during, 246, 247.
commencement of, 248. '
conclusion of, 248.
see “Non-hostile Relations.”
U
UNIFORM,
necessity for, to secure recognition as combatants, 181.
see “Combatants.”
UNION,
of one state with another, effect upon personality or identity, 18.
of states, different kinds of, 20.
a personal, what, 20.
INDEX. 47 5
[The ﬁgures refer to pages]
UNION—Continued,
a real, what, 21.
a federal, what, 22.
a confederated, what, 22.
see “States.”
UNITED STATES,
papers carried by vessels of, 369, 370.
UTI POSSIDETIS,
the principle of, 258.
see “Termination of War”; “Treaties.”
V
VESSELS,
duties of consuls as to, 116.
see “Consuls.”
eﬁect of recapture of, 211.
see “Postliminium.”
effect of carriage of contraband upon, 307.
effect of carriage of despatches upon, 309.
effect of use of as a transport by a belligerent, 310.
see “Conﬁscation”; “Contraband.”
rule of war as to ﬁshing, 202.
see “Blockade”; “Eﬁects of War”; “Property”; “War.”
effect of blockade upon those in port, 320.
when can come out of blockaded port. 320.
when entrance of was necessary, 320.
when entrance was by license, 321.
when entrance was legal, 321.
courtesy in case of vessels of war, 321.
transfer of, during or in anticipation of war, 239.
who can visit, 329.
liable to visit, 329.
protection of, under convoy, 329.
see “Immunities”; “Jurisdiction”; “States.”
VESSELS OF WAR,
courtesy as to, in case of blockade, 321.
equipment of, in neutral territory, 286.
duty of neutral as to captured vessel converted into, 297.
see “Neutrality.”
VISIT AND SEARCH,
the right of, deﬁned, 328.
who can visit, 329.
\
47 6 ‘INDEX.
[The ﬁgures refer to pages]
VISIT AND SEARCH—Continued,
who liable to be visited, 329.
as to convoy, 329.
formalities as to exercise of the right, 331.
when vessel may be captured, 332.
if resistance made to visit and search, 332.
possession of false or double papers, 332, 334.
concealment of papers, 332.
spoliation of papers, 334.
the right of, in time of peace, 334.
to execute revenue laws, 334.
as to piratical vessels, 334.
in self-defense, 335.
duties of the captor, 335. _
as to persons detained as witnesses. 335.
as to dispatch in bringing captured property, 335.
as to negligence in preservation of vessel or goods, 3%.
VOID,
when treaties become, 151.
see “Treaties.”
VOIDABLE,
when treaties become, 153.
see “Treaties.”
VOLUNTEER NAVY,
use of, in Franco-German war, 186.
VOYAGES,
rule as to, continuous, 326.
WAR,
eﬁect of, upon treaties, 151.
see “Treaties.”
deﬁnition of, 167.
kinds of, 168.
classification by military authorities, 168.
classiﬁcation of historians, 168.
classiﬁcation of publicists, 168.
offensive and defensive, 168.
auxiliary, 169.
public, 169.
private, 169.
mixed, 169.
perfect and imperfect, 170.
INDEX’. \ 47 7
[The ﬁgures refer to pages]
WAR—Continued,
legal and illegal, 170.
civil, 171.
causes of, 171.
object of, 172.
not limited to object for which begun, 173.
declaration of, 173.
‘ date of commencement of, 175.
effect of, upon property, ancient rule, 192.
movable property of state, 192.
immovable property of state, 193.
immovable private property, 195.
movable private property, 195.
contributions, 195.
requisitions, 195.
maritime contributions and requisitions, 196.
foraging, 198.
booty, 198.
private property in enemy jurisdiction, 198.
property in enemy ports or waters, 200.
property not in jurisdiction of any state, 201.
ﬁshing vessels, 202.
capture of in war, when valid, 203.
disposition of captured, 205.
ransom of captured, 206.
loss of captured, 207.
by recapture, 207.
by abandonment, 207.
by escape of prize, 207.
by rescue by prize crew, 207.
~ by discharge, 207.
instruments authorized in, 226.
that render death inevitable, 226.
see “Hostilities.”
maritime, how carried on, 184.
regular navy, 184.
privateers, 184.
volunteer navy, 184.
prisoners of, what, 187.
treatment of, 188.
exchange of, 189.
ransom of, 190.
parole of, 190.
see “Combatants”; “Effects of War.”
effect of, upon house of trade, 236.
as to transfers of property during, 238.
47 8 INDEX.
. [The ﬁgures refer to pages]
WARi—Continued,
as to transfers of merchandise, 238.
as to transfers in transitu during, 239.
as to transfers of vessels during, 239.
as to consignments of goods during, 240.
see “Enemy Character”; “Transfers.”
how terminated, 254.
see “Conquest”; “Termination of War”; “Treaties.”
as to termination of diplomatic mission, 109.
equipment of vessels of, in neutral territory, 286.
prisoners of, in neutral territory, 293.
conversion of‘captured vessel into a vessel of war, 297.
see “Neutrality.”
munitions of, as contraband, 302.
see “Contraband.”
rule of the war of 1756, 324.
see “Blockade.”
instruments and means of, Declaration of St Petersburg, 373.
provisions of Declaration of St. Petersburg, 373.
Geneva Convention, provisions of, 374.
“Laws of War on Land,” recommended by Institute of International Law
at its session in Oxford, September 9, 1880, 376.
WARNING,
as notice of blockade, 317.
WAR-REBELS,
instructions for armies (Lieber), 353.
WAR—TRAITORS,
instructions for armies (Lieber), 354.
WATERS,
see “Territorial Waters.”
WOMEN,
protection of (Lieber), 345.
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TABLE OF CONTENTS.

CHAPTER I.
NEGOTIABILITY: Covering the purpose of
negotiable paper, the distinction between as-
signability and negotiability, and indicia of ne'
gotiability.
CHAPTER II.
NEGOTIABLE BILLS AND NOTES: Giving
the deﬁnition and the formal and essential req-
uisites of bills of exchange and notes, cover-
ing certainty as to terms, the speciﬁcation and
capacity of parties, payment, date, delivery of
instruments, value received, days of grace, etc.
CHAPTER III.
ACCEPTANCE OF BILLS OF EXCHANGE:
Covering requisites and varieties of accept.-
ance, who may accept, delivery, implied ac.
ceptance, acceptance in writing and by parol,
future bill, acceptance for honor or supra pro-
test, etc.
CHAPTER IV.
IN DORSEMENT: Covering nature and requisites
of an indorsement, its place on instrument,
form of words, indorsement in blank, in full,
without recourse, conditional indorsement,
anomalous indorsements, etc.
CHAPTER V.
LIABILITIES OF THE PARTIES: Covering
acceptor and maker, drawer and indorser, ac-

commodation parties and persons accommo-
dated, breach, damages, facts which parties
do not admit or are estopped to deny, etc.
CHAPTER VI.
TRANSFER: Covering methods, as by indorse-
ment and by operation of law, validity of in-
dorsement between immediate parties, over-
due paper, instruments payable to bearer, etc.
CHAPTER VII.
DEFENSES AGAINST A PURCHASER FOR
VALUE WITHOUT NOTICE: Real and per-
sonal defenses, usury, alteration of instrument,
fraud, duress, consideration and failure of con-
sideration, illegal consideration, lunacy, drunk-
enness, etc.
CHAPTER VIII.
PURCHASER FOR VALUE WITHOUT N O-
TICE: Covering notice, bona ﬁdes, consider-
ation, burden of proof, time of acquiring no-
tice, purchase out of usual course of business-
overdue paper, paper payable at sight, etc.
CHAPTER IX.
PRESENTMEN T AND NOTICE OF DISHONOR:
Covering manner, time and place of present-
ment, nonpresentment, nonacceptance, pro-
test, notice of dishonor, elements of notice,
waiver, etc.

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TABLE OF
CHAPTER I.
DEFINITION OF CRIME: The nature of crime
and ground of punishment.
CHAPTER II.
CRIMINAL LAW: How the criminal law is pre-
scribed; the common law: statutes, and the
powers of state and federal legislatures.
CHAPTER III.
CLASSIFICATION OF CRIMES: As treason, fel-
onies, misdemeanors, etc.; merger of offenses.
CHAPTER IV.
THE MENTAL ELEMENT IN CRIME: Con-
sidering the will, intention, motive, and crim-
inal intention or malice.
CHAPTER V.
PERSONS CAPABLE OF COMMITTING CRIME:
Covering also exemption from responsibility,
and discussing infancy, insanity, drunkenness,
ignorance or mistake of law or of fact, prove
cation, necessity and compulsion, married wo-
men and corporations.
CHAPTER VI.
PARTIES CONCERNED: Covering effect of
joining in criminal purpose, principles in ﬁrst.
and second degrees, accessories before and
after the fact, terms “aider and abettor" and
“accomplice. ”
CHAPTER VII.
THE OVERT ACT: Covering also attempts, so-
licitation and conspiracy.
CHAPTER VIII.
OFFENSES AGAINST THE PERSON: Cover-
ing homicide, murder, and manslaughter, with
consideration of the different degrees, acci—
dent, self-defense, etc.
CHAPTER IX.
OFFENSES AGAINST THE PERSON (Contin-
ued): Covering abortion, mayhem, rape, sod-
omy, seduction, assaults, false imprisonment,
kidnapping, abduction.

CONTENTS.
CHAPTER X.
OFFENSES AGAIN ST THE HABITATION:
Covering arson and burglary.
CHAPTER XI.
OFFENSES AGAINST PROPERTY: Covering
larceny, embezzlement, cheating at. common
law and by false pretenses, robbery, receiving
stolen goods, malicious mischief, forgery, etc.
CHAPTER XII.
OFFENSES AGAINST THE PUBLIC HEALTH,
MORALS, ETC.: Covering nuisances in gen-
eral, bigamy, polygamy, adultery, fornication,
lewdness, etc.
CHAPTER XIII.
OFFENSES AGAINST PUBLIC JUSTICE AND
AUTHORITY: Covering barretry, obstruct»
ing justice, embracery, prison breach, mispri-
sion of felony, compounding crime, perjury,
bribery, misconduct in office, etc.
CHAPTER XIV.
OFFENSES AGAINST THE PUBLIC PEACE:
Covering dueling, unlawful assembly, riot,
aﬂray, forcible entry and detainer, libels on
private persons, etc.
CHAPTER XV.
OFFENSES AGAINST THE GOVERNMENT:
Covering treason and misprision of treason.
CHAPTER XVI.
OFFENSES AGAINST THE LAW OF NA-
TIONS: As piracy.
CHAPTER XVII.
JURISDICTION: Covering territorial limits of
states and United States, jurisdiction as deter-
mined by localitv, federal courts and the com-
mon law, jurisdiction conferred by congress,
persons subject to our laws, etc.
CHAPTER XVIII.
FORMER J EOPARDY: In general.

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TABLE OF CONTENTS.
CHAPTER I.
ACTIONS IN GENERAL: Covering the nature
and classiﬁcation of actions, real, personal,
and mixed actions, assumpsit, special and gen-
eral, debt, covenant, detinue, trover, replevin,
trespass, ejectment, etc.
CHAPTER II.
THE PROCEEDINGS IN AN ACTION: Cover-
ing process, the summons, writ of attachment,
appearance, the declaration, demurrer, and va-
rious pleas, amendments, etc., the verdict, and
proceedings after the verdict, the judgment,
and proceedings thereafter to the writ of exe-
cution.
CHAPTER III.
THE PARTIES TO ACTIONS: Covering ac-
tions in form ex contractu and ex delicto, and
the consequences of misj oinder or nonjoinder
of parties plaintiff or defendant.
CHAPTER IV.
THE PRODUCTION OF THE ISSUE: Discuss-
ing the rules, and covering the demurrer, the
pleadings, the traverse, forms of the general
issue and of the special traverse, protesta-
tions, exceptions, issues in fact and law, etc.
CHAPTER V.
MATERIALITY IN PLEADING: Covering the
general rule, variance, limitation, etc.

CHAPTER VI.
SINGLENESS OR UNITY IN PLEADING: Cov~
ering the rules in general, duplicity, immate~
rial matter, consequences of duplicity and
of misjoinder, plea and demurrer. etc.
CHAPTER VII.
CERTAINTY IN PLEADING: Covering the
venue, the time, quantity, quality, and value,
names of persons, showing of title, and show-
ing of authority. with subordinate rules, and
special requirements in different stages.
CHAPTER VIII.
CONSISTEN CY AND SIMPLICITY IN PLEAD-
ING: Covering insensibility, ambiguity,
argumentative pleadings, pleadings in alter-
native, positive statements, legal eifect, con-
formance to precedent, commencement and
conclusion.
CHAPTER IX.
DIRECTNESS AND BREVITY IN PLEADING:
Covering the rules generally, departure, pleas
amounting to general issue, surplusage, etc.
CHAPTER X.
MISCELLANEOUS RULES: Covering con-
formance to process, alleging of damages,
order of pleading, defense, plea in abatement,
etc.

This book embodies such of the rules and principles of Common-Law Pleading
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CHAPTER I.
CONTRACT IN GENERAL: Covering its deﬂ-
nition, nature, and requisites, and discussing
agreement, obligation, promise, void, voidable,
and unenforceable agreements, and the essen-
tials of contract, etc.
CHAPTER II.
OFFER AND ACCEPTANCE: Covering im-
plied contracts, necessity for communication
and acceptance, character, mode, place, time,
and effect of acceptance, revocation, and lapse
of offer, etc.
CHAPTER III.
CLASSIFICATION OF CONTRACTS: Cover—
ing contracts of record and contracts under
seal, and their characteristics.
CHAPTER IV.
REQUIREMENT OF WRITING: Covering also
statute of frauds, and discussing promise by
executor, promise to answer for another,
agreements in consideration of marriage and
in relation to land, and agreements not to be
performed within a year, etc.
CHAPTER V.
CONSIDERATION: Covering the necessity for
consideration, its adequacy, reality, and legal-
lty, failure of consideration, etc.
CHAPTER VI.
CAPACITY OF PARTIES: Covering political
and professional status, infants, insane and
drunken persons, married women, and corpo-
rations.

CHAPTER VII. A
REALITY OF CONSENT: Covering mistake,
misrepresentation, fraud, duress, and undue
inﬂuence.
CHAPTER VIII.
LEGALITY OF OBJECT: Covering uniawful
agreements in general, agreements in viola-
tion of positive law and those contrary to pub-
lic policy, eifect of illegality, conﬂict of laws,
etc.
CHAPTER IX.
OPERATION OF CONTRACT: Covering the
limits of the contractual relation, assignment
of contracts, whether by act of parties or by
operation of law, joint and several contracts,
etc.
CHAPTER X.
INTERPRETATION OF CONTRACT: Cover-
ing the rules relating to evidence, proof of
document, rules of construction, etc.
CHAPTER XI.
DISCHARGE OF CONTRACT: Covering dis-
charge by agreement, by performance, by
breach, by impossibility of performance, by
operation of law, etc., and remedies on breach
of contract.
CHAPTER XII.
AGENCY: Covering the creation of the relation,
its cﬁect and determination, the capacity,
rights, and liabilities of the parties, etc.
CHAPTER XIII.
QUASI CONTRACT: Covering judgments, obli-
gations imposed by statute, acts of parties, etc.

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TABLE OF CONTENTS.
Chapter I.
DEFINITIONS AND GENERAL PRINCIPLES:
Considering the meaning of “Constitutional”
and “Unconstitutionah” written and unwrit-
ten constitutions, rights, responsibilities, etc.
Chapter II.
THE UNITED STATES AND THE STATES:
Considering the nature of the American
Union, sovereignty and rights of the states,
and of the people. form of government, etc.
Chapter III.
ESTABLISHMENT , AND AMENDMENT OF
CONSTITUTIONS: Containing an historical
introduction, and considering the establish-
ment and amendment of the Federal Constitu-
tion and of State Constitutions.
Chapter IV.
CONSTRUCTION AND INTERPRETATION OF
CONSTITUTIONS: Considering the ofﬁce
and duty of the judiciary in this direction.
Chapter V.
THE THREE DEPARTMENTS OF GOVERN-
MENT: Considering the division, limitations
on the departments, political and judicial
questions, etc.
Chapter VI.
THE FEDERAL EXECUTIVE: Considering
the election, qualiﬁcations, impeachment,
compensation and independence of the Presi-
dent, his oath of office, veto power, pardoning
and military power, and treaty-makin g power;
the cabinet, appointments to oﬂice, presiden-
tial messages, diplomatic relations, authority
to convene and adjourn congress, execute the
laws, etc.
Chapter VII.
FEDERAL JURISDICTION: Considering the
jurisdiction, powers and procedure of Federal
courts, removal of causes, the United States
and the states as parties, etc.
Chapter VIII.
THE POWERS OF CONGRESS: Considering
the constitution, organization and government
of congress, its powers, and the limitations
thereon.
Chapter IX.
INTERSTATE LAW, as determined by the Con-
stitution: Considering its eneral principles,
the privileges of citizens, nterstate extradi-
tion, etc.
Chapter X.
REPUBLICAN GOVERNMENT GUARANTIED.

Chapter XI.
EXECUTIVE POWER IN THE STATES.
Chapter XII.
JUDICIAL POWERS IN THE STATES: Con-
sidering the system of courts, judges, juris.
diction, process and procedure.
Chapter XIII.
LEGISLATIVE POWER IN THE STATES: Con-
sidering the organization and government of
legislature, limitation and delegation of legis—
lative powers, enactment of laws, etc.
Chapter XIV.
THE POLICE POWER: Considering the police
power as vested in Congress and in the states.
Chapter XV.
THE POWER OF TAXATION: Considering
the purposes of taxation, independence of
Federal and state governments, taxation and
representation, etc.
Chapter XVI.
THE RIGHT OF EMINENT DOMAIN: Deﬁni-
ti_on and nature of the power, its legislative
authority and public purpose, etc.
Chapter XVII.
MUNICIPAL CORPORATIONS: The nature,
control, powers, oﬂicers and by-laws of mu.
nicipal corporations, etc.
Chapter XVIII.
CIVIL RIGHTS, AND THEIR PROTECTION
BY THE CONSTITUTION: Considering
rights in general, personal liberty, protection
of vested rights, etc.
Chapter XIX.
POLITICAL AND PUBLIC RIGHTS: Consid—
ering citizenship, freedom of speech, right of
assembly and petition, etc.
Chapter XX.
CONSTITUTIONAL GUARANTIES IN CRIM-
INAL CASES: Considering trial by jury,
jeopardy, bail, ex post facto laws, habeas cor-
pus, etc.
Chapter XXI.
LAWS IMPAIRING THE OBLIGATION OF
CONTRACTS: Considering the obligation
and the impairment of the contract, remedies
on contracts, etc
Chapter XXII.
RETROACTIVE LAWS : Consid ering the validity
of retroactive statutes, curative statutes, etc.

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Chapter I.
NATURE AND DEFINITION OF EQUITY.
Chapter II.
PRINCIPLES DEFINING AND LIMITING JU-
RISDICTION: Considering crimes, adequate
legal remedy, complete relief, and multiplicity
of suits.
Chapter III.
THE MAXIMS 0F EQUITY: Deﬁnition and
classiﬁcation of maxims; the enabling and re-
ltrictive maxims.
Chapter IV.
THE DOCTRINES OF EQUITY: Considering
estoppel, election, satisfaction, performance,
and conversion.
Chapter ‘V.
THE DOCTRINES OF EQUITY (Con'rmunn):
Considering conﬂicting rights of purchasers,
assignees, etc.
Chapter VI.
THE DOCTRINES OF EQUITY (Cox'rmunn):
Considering penalties and forfeitures.
Chapter VII.
GROUNDS FOR F/QUITABLE RELIEF:
eidering accident, mistake, fraud, etc.
Con-
TABLE OF CONTENTS.
Chapter VIII.
PROPERTY IN EQUITY—TRUSTS: Covering
deﬁnition, history, and classiﬁcation of trusts,
duties and liabilities of trustees, remedies of
cestwt qua trust, etc.
Chapter IX.
PROPERTY IN EQUITY -- MORTGAGES,
LIEN S, AND ASSIGNMENTS.
Chapter X.
EQUITABLE REMEDIES: Covering accounting,
contribution, exoneration, subrogation. and
marshaling.
Chapter XI.
EQUITABLE REMEDIES (Gon'rmunn):
ering partition and boundaries.
Chapter XII.
EQUITABLE REMEDIES (CONTINUED): Cov-
ering speciﬁc performance, and considering
enforceable contracts, grounds for refusing re
lief, etc.
Cov-
Chapter XIII.
EQUITABLE REMEDIES (Comma-n): Cov-
ering injunctions, and considering their juris-
dictional principles, classes of cases where
remedy may be used, etc.
Chapter XIV.
REFORMATION, CANCELLATION,
QUIETIN G TITLE.
Chapter XV.
ANCILLARY REMEDIES: Covering discovery,
bills to perpetuate testimony, interplealer,
receivers, etc.
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TABLE OF CONTENTS.
Chapter I.
JURISDICTION: Covering courts of criminal ju-
risdiction and locality of crime.
Chapter II.
APPREHENSION OF PERSONS AND PROP-
ERTY: Covering arrest in general, searches
and seizures of property, and taking property
from prisoner.
Chapter III.
PRELIMINARY EXAMINATION, B AIL. AND
COMMITMENT: Covering right to release on
hail, the recognizance, release of sureties, etc.
Chapter IV.
MODE OF ACCUSATION: Covering the indict-
ment and presentment, time of prosecution,
and nolle prosequi.
Chapter V.
PLEADING -- THE ACCUSATION: Covering
form of indictment in general, the commence-
ment, and the statement of oﬂen se and descrip-
tion of defendant.
Chapter VI.
PLEADING—THE ACCUSATION (Continued):
Covering allegation of intent, knowledge, etc. ;
technical terms; setting forth Writings; de-
scription of property and persons.
Chapter VII.
PLEADlNG—THE ACCUSATION (Continued):
Covering statement of time and place.
I
Chapter VIII.
PLEADING—THE ACCUSATION (Continued):
Covering indictments on statutes.
Chapter IX.
PLEADING—THE ACCUSATION (Continued):
Covering duplicity. .l'Oinder of counts and par-
ties, conclusion of indictment, amendment, etc.
Chapter X.
PLEADING AND PROOF: Covering variance
and conviction of minor and higher offense.
Chapter XI.
MOTION TO QUASH: Covering also arraign-
ment, demurrer, and pleas of defendant.
Chapter XII.
TRIAL AND VERDICT: Coveringtime and place
of trial,,custody of defendant, bill of particu-
lars, the counsel, judge and jury, arguments
and instructions, etc.
Chapter XIII.
PROCEEDINGS AFTER VERDICT: Covering
motion in arrest of judgment, sentence, new
trial, writ. of error, etc.
Chapter XIV.
EVIDENCE: Covering facts in issue, motive,
res gestae, declarations, confessions, burden
of proof, witnesses, etc.
Chapter XV.
HABEAS CORPUS.

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