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HALLECK’S
INTERNATIONAL LAW
" VOL. II.
HALLECK’S
INTERNATIONAL LAW
OR
RULES REGULATING THE INTERCOURSE OF
STATES IN PEACE AND WAR
FOURTH EDITION
THOROUGHLY REVISED AND IN MANY PARTS REWRITTEN
BY HIS HONOUR SIR G. SHERSTON BAKER, BT.
JUDGE 0F (:0 UNTY COURTS
RECORDER OF BARNSTAPLE AND BIDEFORD;
ASSOCIATE OF THE INSTITUT DE DROIT INTERNATIONAL
ASSISTED BY
MAURICE N. DRUCQUER, M.A., LL.B.,LOND.
BARSTOW SCHOLAR; OF THE MIDDLE TEMPLE, BARRISTER AT LAW'
VOL. II.
LONDON‘
KEGAN PAUL, TRENCH, TRfiBNER & Co. LTD.
DRYDEN HQUSE, GERRARD STREET, W.
1908
CONTENTS
OF
THE SECOND VOLUME’

CHAPTER XIX
T lze Enemy and his Allies
PARA’ Difference between public and private enemies
Status of legal hostility .
Differences of treatment .
Allies not necessarily associates in a war .
If an ally of the enemy engage in hostilities
Warlike alliance made during a war
Warlike alliance made before a war
An offensive alliance .
A defensive alliance . . . . . .
Remarks on character and efiect of such alliances .
I ,I. Obligation of an alliance determined by justness of the war
12. Distinction between auxiliaries and subsidy .
13. If unable to furnish the promised aid .
I4. Example of Switzerland
I 5. Capitulations for mercenaries . .
16. Limited assistance rendered to an enem
I7. Defence of the thing guaranteed .
18. Alliance for war, with reservation of allies
19. Warlike associates .
20. Vattel’s opinion . . . . . . . . . .
21. No declaration necessary against enemy’s associates .
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22. Policy of treating enemy's allies as friends 13
CHAPTER XX
Rzlglzts of War as to E nemy’s Person
I. General rights as to enemy’s person . . . . . I4
2. Limitation of right to take life . . . . I 5
3. Convention of Geneva and Convention of the Hague . I6
figéiififi
CONTENTS OF
App.
APP- .
. Lieber’s instructions for armies of the United States
App.
Hr—IH
Prppeosshanewwe
Exemption may be forfeited
Exemption is limited
Prisoners entitled to quarter
Treatment of prisoners of war
Made slaves in ancient times
Ransom and exchange . . .
No positive obligation to exchang
Release on parole . . .
Conditions imposed on release .
Delay in making exchanges .
General rule for support of prisoners
Where exchanges cannot be eflected
Historical examples .
Character of support to be given .
Where no probability of an exchange
May he kill them in certain cases P
Useless defence of a place .
Sacking a captured town
Remarks of Napier
Deserters . .
Rule of reciprocity . .
Limitation of the rule . . . . . . . .
Limitation as to the time of punishing military offences .
. The Convention of Geneva, 1864 . . . .
. International Convention with respect to the laws and
customs of war by land . . . . . . .
International Convention for adapting to maritime War-
fare the principles of the Geneva Convention, 1864 .
Further Conventions of the Hague, 1907 . .
Halleck’s instructions as commander-in-chief .
CHAPTER XXI
Enemy’s Properly on Lama’
General right of capture in war . . . . . .
Distinction between movables and immovables . i .
Alienation of the public domain .
Title of property . . . . . . . .
Who may purchase . . . . . . .
Purchase by a neutral State . .
Movables . . . . . . . . .
Documentary evidence of debts . . . . . .
Public archives, &c. . . . . . . . .
Works of art, &c. . . . . . . . . .
Civil structures and monuments . . . . . ~
Private property on land . . . . . .
42
51
53A
70
73
74
74
75
75
77
77
78
8o
81
82 j
THE SECOND VOLUME
PARA.
13.
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23.
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26.
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General exceptions to rule of exemption
Penalty for offences
Military contributions
Of hostile populations . .
Capture on the battle field . . .
Useless destruction of enemy’s property
The right to private property . .
Captures in war . . . . . .
All booty belongs primarily to the State
Rule of moderation . . . .
Laying waste a country
The Admiral’s Court .
The English Prize Court
English law respecting booty
CHAPTER XXII
Enemy’s Property on the Seas
No relaxation of ancient rules as to maritime captures
Attempts to modify it
Difficulties in its application
Ownership at time of capture .
Rule as to consignee . . . .
Doctrine in the United States courts
Contract and shipment made in contemplation of war
Contract made in peace and shipment in war .
If both be made in time of peace . . .
Shipment at risk of neutral consignee . . .
If neutral consignor become an enemy during voyage
‘Acceptance in tramsz'iu by neutral consignee . .
Change of ownership by stoppage z'n transz'iu
National character of goods . . .
Transfer of enemy’s ships to neutrals .
Rules of such transfer . . . .
General rule as to character of ships and goods .
Effect of liens . . . . . . .
Documentary proofs of ownership
Laws of different States .
Decisions of French prize courts .
Vessels of discovery
Fishing-boats . . .
Cases‘ of shipwreck . . . . . .
Distinctions between reprisals and privateering
Privateers not used in recent wars . . .
Declaration of the Conference of Paris, 1856
0pinion of other States . . .
Privateers, by whom commissioned
Treaty stipulations . . . . . . .
96
97
99
99
100
102
103
103
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104
106
107
107
108
109
111
113
115
115
119
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123
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126
130
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I39
141
viii
CONTENTS OF
PARA.
l—l
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11.
12.
13.
14.
15.
16.
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18.
19.
20.
21.
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CHAPTER XXIII
Trade with me Enemy
Property of subjects engaged in trade with the enemy
liable to confiscation . . .
Exceptions to rule
Rule rigorously enforced
Cases of attempt to evade it
Withdrawal from enemy’s country at beginning of war .
Distinction between cases of domicile and mere residence
Necessity of a license of withdrawal discussed .
Decisions in the United States .
Where order of shipment cannot be countermanded
Good faith or a mistake no defence
Trade through a neutral port
Continuous voyages
When offence is completed v
Share of partner in neutral house
Transfer of ships . . . .
Regularity of papers not conclusive
Trade by stranger in enemy’s country
Distinction as to native subject
Acceptance of license from enemy . .
Trade with possessions and colonies of enem
Rule of insurance
CHAPTER XXIV
Rzlg/zz‘s ama Duzfz'es of Neuz‘mls
Neutrality in war . . . .
Qualified neutrality . 1. . . .
Neutrality must be observed and enforced
No hostilities to be permitted within neutral jurisdic
Passage of troops through neutral territory
Pretended exception of Bynkershoek
Opinions of writers on public law.
Neutral ports and the Suez Canal
Right of asylum . . .
When this right is presumed . . .
Duties of belligerents while in neutral waters
Distinction in regard to asylum to troops
The ‘ Alabama ’ case . .
Arming vessels and enlisting troops
Loans of money by neutrals .
Pursuit of enemy from neutral ports
Passage over neutral waters .
Municipal laws enforcing neutrality
0
tion
PAGE
143
I44
I45
I47
148
148
I49‘
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151
151
152
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153
I54
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155
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167
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185
187
188
189
THE SECOND VOLUME ix
PARA- PAGE
19. Laws of the United States . . . ~ . . . . 191
20. Foreign Enlistment Act . . . . . . 192
21. Protection of property in neutral territory . . . 195
22. Restitution of property captured in neutral territory . . 196
23. If such property be in possession of neutral . . . 197
24. Decisions in the United States . . . . . . . 197
2 5. Purchases in foreign ports . . . . . . . 198
26. If condemned in captor’s country . . . . . . 198
27. In cases of illegal equipment and outfit . . . . 199
28. Case of Arbuthnot and Ambrister . . . . . . 200
29. North Sea incident . . . . . . . . . 202
App. British proclamation of neutrality, 1877 . . . . 205
CHAPTER XXV
Law of Sz'eges and Blockades
1. No intercourse with a place besieged or blockaded . . 210
2. Authority to institute sieges and blockades . . . 21 1
3. Distinction between them . . . . . . . . 212
4. Actual presence of an adequate blockading force . . 214
5. Temporary absence produced by accident . . . . 214
6. Constructive or paper blockades . . . . . . 215
7. Use of steam . . . . . . 216
8. In the wars of Napoleon . . . . . . . 217
9. De faoto blockades . . . . . . . . . 218
10. Public blockades . . . . . . . . . 218
1 1. If driven away by force . . . . . . . . 219
12. If removed for other duty . . . . . . . 219
13. If blockade be irregularly maintained . . . . . 220
14. Efiect of maritime blockades on interior communications 221
15. Effect of a siege upon communications by sea . . . 221
16. Breach of blockade a criminal act . . . . . 222
17. Public notification charges parties with knowledge . . 22 3
18. What constitutes a public notification . . . . 224
19. Effect of general notoriety. . . . . . . 224
20. Cases which preclude a denial of knowledge . . . 225
21. When presumption of knowledge may be rebutted . . 22 5
22. Proof of actual knowledge or warning . . . . 226
23. Attempt to enter a blockaded port . . . . . . 227
24. Inception of voyage . . . . . . . . 228
25. Distant voyages . . . . . . . 229
26. Exception in case of de facto blockades . . . . 2 3o
2 7. When presumption of intention to enter cannot be repelled 2 3o
28. Neutral vessels entering in ballast . . . . . . 23 1
29. Declaration of master . . . . . . . . 232
30. Delay in obeying warning . . . . . . . . 2 3 3
31. Disregard of warning . . . . . . . . 233
When ingress is excused . . . . . . . . 234
c»
5°
X CONTENTS OF
PARA. PAGE
33. Violation of blockade by egress . . . . . . 2 35
34. When egress is allowed . . . . . . . . 236
35. Penalty for breach of blockade . . . . . . 237
36. When cargo is exempted from condemnatio . . . 238
37. Duration of offence . . . . . . . . 239
38. Insurance, how affected by violation of a blockade . . 240
39. Hautefeuille’s theory of the law of blockades . . . 241
CHAPTER XXVI
Com‘méand 0] War
1. Definition of contraband . . . . . . . 243
2. Contraband articles confiscated . . . . . . 244
3. Ancient rule in regard to ships . . . . . . 245
4. Modern rule . . . . . . . . . . . 245
5. Cases Where the ship also is condemned . . . . 246
6. Plea of ignorance or force . . . . . . . . 246
7. The ‘ Springbok ’ . . . . . . . . . 247
8. Return voyage . . . . . . . . . . 247
9. If not contraband at time of seizure . . . . . 248
10. Transfer from one port to another . . . . . . 248
1 1. If for enemy’s use in a neutral port . . . . . 249
12. The ‘ Commercen ’ . . . . . . . . . 249
1 3. Disagreement as to what particular articles are contraband 2 5o
14. Views of Grotius and others . . . . . . . 250
15. Of modern writers . . . . . . . . . 25 1
16. Discordancy of earlier treaties and ordinances . . . 25 3
17. Of those of more recent date . . . . . . . 25 5
18. Decisions of prize courts . . . . . . . 258 .
19. There is no positive rule . . . . . . . . 259
20. Munitions of war . . . . . . . . . 2 59
2 1 Manufactured articles . . . . . . . . 2 59
22. Unwrought articles . . . . . . . . 260
23. Intended use deduced from destination . . . . . 261
24. Provisions . . . . . . . . . . 262
25. The Russo-Japanese War, 1904 . . . . . . 263
26. Ancient rule of pre-emption . . . . . . . 266
27. British rule of pre-emption . . . . . . . 267
28. Contested by others . . . . . . . . 267
29. Insurance on articles contraband of war . . . . 268
CHAPTER XXVII
Rig/2t 0] Vz'sz'z‘az‘z'on and Sea? ch
1. General exemption of merchant vessels on the high seas . 271
Right of search a belligerent right . . . . . . 272
3. Claim of England to visit in time of peace . . . 272
THE SECOND VOLUME
xi
90v sane-952° r
10.
11.
12.
13.
14.
15.
16.
17.
Claim denied by the United States .
Views of publicists . .
Of Continental writers
' 0f Lord Stowell
Distinction between pirates and slavers .
Treaties in regard to the slave trade
Visit and search in time of war.
English views as to extent of search
American writers .
Continental writers . .. . .
Enforcement of the right of search
It must be exercised in a lawful manner
Penalty for resisting search
Can they exempt their convoys P .
Vessels of war are exempt from search
Merchant ships under their convoy
Treaties respecting neutral convoy
Opinions of publicists .
Effect of enemy’s convoy . . .
Effect of resistance of neutral maste
Neutral property in enemy’s vessels .
Documents required to prove neutral character
Concealment of papers
Spoliation of papers
Use of false papers 7 . . . . . .
Impressment of seamen from neutral vessels
CHAPTER XXVIII
Violation of Neutral Duties
The rights and duties of neutrality are correlative .
Violation of neutral duty by a State . . . . .
Responsibility of individuals for violation of neutral duties
Character of such violations . . .
Neutral vessels transporting enemy’s goods .
Opinions of English and American text-writers
Neutral goods in enemy’s vessels . . . . .
Maxims of ‘ free ships free goods ’ and’ ‘ enemy ships enemy
goods ’ . . . . . . . .
The maxims distinct in the United States
Treaties and ordinances . . .
France and England as allies in 1854 .
Declaration of the Congress of Paris, 1856 .
Proof of neutral goods in enemy’s ships . . . .i .
Neutral ships under enemy’s flag and pass
Neutral goods in such vessels .
Neutral vessel in enemy’s service
Transporting military persons .
PAGE
27 3
275
275
27 7
27 7
27 9
284
285
286
286
287
28 7
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289
299
291
292
293
295
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301
301
302
395
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xii
CONTENTS OF
PARA-
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Conveying enemy’s despatches by ship, post, or cable ‘ .
The case of the ‘ Trent ’ . . . . . . .
Rules of 1756 and 1793 .
Explication of them
Distinction between them . . . .
Effect on American commerce of the rule of 179 3 .
Opinions of Story and of Phillimore
Views of American Government
Change of British colonial policy . . . . .
Extension of the doctrine of continuous voyages by the
United States . . . . . . .
CHAPTER XXIX
Paez'jz'e Intercourse of Bellz'gerents
Object and character of eommewoz'a bellz'
Military compacts and conventions . . . .
Suspensions of arms, truces and conventions . . .
Authority to make them . . .
Acts of inidviduals ignorant of a truce
What may be done during a truce .
Conditional and special truces
Their interpretation
Renewal of hostilities
Capitulations . .
Individual promises . .
Passports and safe-conducts
When and how revoked
_Their violation, how punished .
Safeguards .
Cartels for prisoners
Cartel ships . .
Their rights and duties
Ransom of prisoners of war .
Ransom of captured property .
In England . . . . . . . . .
If given by one ally is binding upon the others . . .
If ransomed vessel be lost . . . .
If it be recaptured
If hostage be recaptured . . . . . . .
Suits on contracts of ransom . . . . . . .
Flags of truce . . , . . . . . . .
CHAPTER XXX
Licenses to T fade‘ _
Licenses to trade . . . . . . . ' . .
A general license . . . . . . .- . . .
PAGE
322
325
333
334
337
339
340
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345
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347
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361
362
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368
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THE SECOND VOLUME
xiii
PARA.
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4.
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29.
HbgIHI-IHHH
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A special license . .
Judicial decisions on licenses . . . . . . .
Want of uniformity in British decisions
Representations of grantee .
Intentions of grantor
Persons entitled to use a license .
Where the grantee acts as agent for others
Character of vessel . .
Exception of a particular flag .
Change of national character during voyage .
Protection before and after voyage
Quality and quantity of goods .
Protection to enemy’s goods .
License to an alien enemy .
If cargo be injured .
If it cannot he landed .
Compulsory change of cargo . . . . .
Licenses to import no protection for re-exportation
Course of voyage
Change of destination
Intended ulterior destination
Condition to call for convoy .
Capture before and after deviation
Time limited in license . .
A license has no retrospective action . . . .
If not on board, or not endorsed, or if its date be altered
Breach of blockade, &c., by a licensed vessel
CHAPTER XXXI
Rzjg/zz‘s and Duties of Captors
Of captures generally . . . .
What constitutes a maritime character .
The Naval Prize Act, 1864
Title, when changed .
Where prizes must be taken .
Of joint captures generally . . .
Constructive captures by public vessels
When actual sight is not necessary .
Of joint chase . . . . . .
Services before and after capture .
Vessels associated in same service
Mere association not sufiicient .
Convoying ships
Detached vessels . . . .
Joint captures by land and sea forces
By public ships of allies . . . . . . .
Constructive joint captures not allowed to privateers
PAGE
373
374
375
376
377
377
378
378
379
380
380
380
381
381
383
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384
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384
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388
389
390
392
393
395
399
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406
xiv
CONTENTS OF
PARA.
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25
O
Captures by revenue cutters
By boats .
By tenders . .
By prize masters . . .
By non-commissioned vessels
Public vessels of war and privateers
Effect of fraud on claims for joint capture
Distribution of prize to joint captors .
Of bounty or head money
Collusive captures .
Forfeiture of claims to prize . .
Probable cause of seizure usually sufficient
When captors are liable for costs and damages
Of owners of privateers .
Duties of prize master
CHAPTER XXXII
Prz'ze Courts, their jurisdiction and Proceedings
Validity of a maritime capture, how determined
Why prize courts of other countries cannot condemn .
Apparent exceptions to rule .
Rule varied by municipal regulations
By treaty stipulations
Prize courts in general
English prize courts . . .
Prize courts of the United States . .
The President cannot confer prize jurisdiction .
Court may sit in country of captor or of ally
But not in neutral territory .
In conquered territory . . .
Extent of jurisdiction of prize courts .
Location of prize . . . .
Decision of competent court conclusive
State responsible for unjust condemnation
Cases of England and Prussia in 1 7 53, and of
States and Denmark in 1830 . .
When jurisdiction may be inquired into . .
How far governed by municipal laws .
Character of proceedings
Custody of property
the United
Conduct of suit by captors . . .
Who may appear as claimants . . . . .
Duties of claimants . . . . . .
Nature and form of decrees .
App. Proceedings in British prize courts . . .
App. Practice in prize courts . . . . . .
App. Additional note on the same subject .
PAGE
407
407
407
408
408
409
410
41 1
41 1
412
413
415
418
420
421
423
424
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431
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432
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435
437
438
440
442
442
444
447
448
449
45 I
452
45 3
457
462
THE SECOND VOLUME
XV
PARA.-
‘99°?‘ 9“??? 3°
~<J~anea~9~
CHAPTER XXXIII
Rzlg'lzts of Military Occupation
Distinction between military occupation and complete
conquest . . . . . .
When rights of military occupation begin
Submission sufficient . . .
Effect upon political laws .
Upon municipal laws . . . .
Punishment of crimes in such territory . . . . .
Effect of military occupation under the laws of England
Under the constitution of the United States . . . .
Distinction concerning relations of inhabitants with regard
to foreign States . . . . .
In regard to States of the Union . . .
Collection and use of revenues in such territory
Transfer of private property
Laws relating to such transfers . . . . . .
Allegiance of inhabitants of occupied territory . .‘ .
Lawful resistance and insurrection
Implied obligations of the conquered
Of the conqueror
Right of revolution
Military insurrection
Punishing military insurrections
Historical examples . . . . . .
Alienations of territory occupied by an enemy
Alienations made in anticipation of conquest
Private grants so made . . . .
Transfer of territory to neutrals . . . . .
Effect of military occupation on incorporeal rights
Debts due to the displaced government
If former government be restored
Examples. from ancient history
Examples from modern history
C
CHAPTER XXXIV
Rzlg/zts 4y’ Complete Conquest
Conquests, how completed
Acquisition of parts of a State .
Subjugation of an entire State . . . .
Retroactive effect of confirmation of conquest
Transfer of personal allegiance by conquest
The assent of the subject required . . . .
Such assent determined by domicile . . . . .
VOL. II.
PAGE
465
467
469
479
47 I
473
477
477
479
480
48 1
482
482
484
484
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486
487
487
488
489
490
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492
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494
49s
496
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593
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xfl
CONTENTS OF
PARA.
IO.
11.
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HHHHHHH
.mmeweeoweoveeeeee
Case of Hallemund . . . . . . . .
Its application to foreign residents . . . . .
Rule may be varied by treaty or municipal law
Right to citizenship under new sovereign
English law on this subject . . . -.
American decisions . .
Laws of the conquered territory .
Conquered territory under British laws
Under the United States . . . . . .
Laws of conquered territory and the constitution of the
new State . . . . . . . . .
How far laws of military occupation continue after com-
plete conquest . .' . . .
What laws of the new sovereignty extend . .
Distinction in English law between conquered and
covered territory . . . . . . . . .
Laws contrary to fundamental principles of new
sovereignty . . . . . . . .
Decisions of the Supreme Court of the United States .
Revenue laws in California . . . - . . . .
Conquest changes political rights, but not rights of
property. . . . . . _. . .
Title to private property
Necessity of remedial laws. . . . .
Effect of conquest on the property of the State
The alienated domains of Hesse-Cassel
The debts of Hesse-Cassel
dis-
CHAPTER XXXV
Rzjg/zz‘s of Postliminy and Reeapz‘ure
Right of postliminy defined . . . . . e .
Postliminy with regard to personal status and rights .
Postliminy in regard to things . . . . .
Right of postliminy belongs exclusively to a state of war
Postliminy in regard to allies
In a neutral territory
Upon movables on land
Upon real property
Upon towns and provinces
If a State be entirely subjugated
Case of Genoa in 1814 . . . .
Application of postliminy to. maritime captures
Text-writers and prize courts .
Regulated in part by treaty stipulations.
Laws of Great Britain . . ' . . I
Laws of the United States.
7
PAGE
510
512
513
513
514
515
516
517
518
520.
522
523
524
524
525
526
528
528
529
530
532
533
‘535
536
537
537
538
538
539
540
541
544
544
545
546
54s
548
550
THE SECOND VOLUME xvii
PARA. PA GE
17. Laws of different European States . . . . . 5 52
18. Quantum of salvage on recaptures . . . . . . 55 5
19. Recapture of neutral property . . . . . . 5 5 5
20. International law on salvage . . . . . . . 5 56
21. Military and civil salvage . . . . . . . 5 57
22. Special rules of military salvage . . . . . . 5 58
2 3. If original capture be unlawful . . . . . . 5 59
24. In case of ransom . . . . . . . 560
2 5. A vessel recaptured by her master and crew . . . 561
26. Recapture from pirates . . . . . . . . 561
27. Recapture by land and sea forces. . . . . . 563
28. By native and allied armies in native ports . . . . 56 3
APPENDIX
General Act of the Brussels Conference, 1890 . . . . 565
Earliest age at which marriage can be solemnised in each of the
States of Europe . . . . . . . . . . 593
The Foreign Marriage Act, 1892 . . . . . . . 605
Agreement for suppression of White Slave T raflic . . . . 614
INDEX . . . . . . . . . . . . 619
INTERNATIONAL LAW -
CHAPTER XIX
THE ENEMY AND HIS ALLIES
I . Character of public enemies—2. Limits to hostility between public
enemies—3. With regard to persons and property—4. Allies
not necessarily associates in a war—5. How distinguished—
6. Hostile alliances—7. The oasus foedem's of an alliance——
8. Offensive alliances—9. Defensive alliances—10. Remarks on
character and effect of such alliances—11. General presump-
tion in favour of cause of ally—12. Treaties of succour, if
the war be unjust—~13. If unable to furnish the promised
aid—14. Subsidy and succour not necessarily causes of war-
15. Capitulations for mercenaries—16. Limited assistance to
an enemy—17. Effect of treaties on guarantee—18. Conflicting
alliances—~19. A warlike association—20. Vattel’s opinion-—
21. Declaration of war unnecessary against enemy’s asso-
ciates—22. Policy of treating enemy’s allies as friends.
§ I. IT has already been stated that a War, duly com-
menced and ratified, is not confined to the Governments
or authorities of the belligerent States, but that it makes
all the subjects of the one State the legal enemies of each
and every subject of the other. This hostile character
results from political ties, and not from personal feelings or
personal antipathies ; their status is that of legal hostility,
and not of personal enmity. So long as these political ties
continue, or so long as the individual continues to be the
citizen or subject of one of the belligerent States, just so long
does he continue in legal hostility towards all the citizens
and subjects of the opposing belligerent; such are public
enemies, Whatever may be their occupation, and in what-
ever country they may be found. The Romans had a
particular term (Hostz's) to denote a public enemy, and to
distinguish him from a private enemy, whom they called
I m'mz'cas. The distinction is a marked one, and should
VOL. 11. i B
Difl‘erence
between
public and
private
enemies
2 INTERNATIONAL LAW 011. xix
Status of
legal
hostility
never be lost sight of. Private enemies have hatred and
rancour in their hearts, and seek to do each other personal
injury. Not so with public enemies. They do not, as
individuals, seek to do each other personal harm. And
even where brought into actual conflict, as armed bel-
ligerents, there is usually no personal enmity between the
individuals of the contending forces. So far from this,
when peace is declared, the military forces of the opposing
belligerents are usually personal friends, and vie with each
other in politeness and mutual kindness.
§ 2. Moreover, there is a limit to public enmity. The
law of nature gives to a belligerent nation the right to use
such force as may be necessary, in order to obtain the object
for which the war was undertaken. Beyond this, the use of
force is unlawful ; this necessity forms the limit of hostility
between subjects of the belligerent States. They, there—
fore, have no right to take the lives of non-combatants,
or of such public enemies as they can subdue by other
means, nor to inflict any injuries upon them or their pro-
perty, unless the same should be necessary for the object
of the war.1
§ 3. The general effect of a declaration of war upon the
persons and property of the subjects of an enemy found
within our own territory is that while, by the strict rights
of war, we can retain them all as prisoners or prizes, this
right, by modern usage, is only applied to the military and
to ships of war; mere residents, merchants, and merchant
vessels being allowed a certain time to withdraw themselves
from our jurisdiction without molestation. Subjects of a
neutral State, resident or domiciled in the enemy’s country,
are, in many respects, to be regarded as enemies; but, as
they are not liable to military duty, in the proper sense of
that term, they cannot be treated either as actual com-
batants or as enemy’s subjects, who are liable to be called
upon by their own State to oppose us by force. Moreover,
our own subjects, resident or domiciled in the enemyis
Difference
of
treatment
1 Vattel, Dvoz't des Ge'ns, liv. iii. ch. viii. § 138 ; Wheaton, Elem.
Int. Law, pt. iv. ch. ii. § 2; Rutherforth, Institutes, b. ii. ch. ix.
§ I 5 ; Burlamaqui, Deoz't de la N at. et des Gems, tome v. pt. iv. ch. vi. ;
Cornu v. Blackburne, Doug. Rep, p. 644 ; Massé, Droz't Commemz'al,
liv. tit. i. ch. ii. ; De Félice, Droz't de la N at, &c., tome lec. xxv.
Riquelme, Deweoho P226. I mi, lib. i. tit, i. cap. xii,
on. xxx THE ENEMY AND HIS ALLIES 3
. I belligerent.
country, are, in certain matters relating to trade and the
rights of maritime capture, regarded as legal enemies, but
not with respect to their personal stains and personal duties.
Again, as belligerents are not permitted to use force against
each other within neutral territory, We cannot exercise
there the same rights against the person and property of an
enemy as we can within our own or enemy’s territory, or
upon the high seas. The treatment of an enemy, therefore,
depends in a measure upon the place in which he may be
found.1
§ 4. We have the same rights of war against the co-
allies or associates of an enemy as against the principal
It must, however, be observed that general
allies are not necessarily associates in a war. The allies of
our enemy, therefore, may, or may not, themselves become
our enemies, according to the character of the alliance
which they have formed with that enemy, the time of
making it, and the circumstances under which it was
entered into. We must, therefore, distinguish between the
general allies of an enemy and his associates in a war.2
§ 5. But the question here arises, how are we to know
whether an enemy’s ally is himself to be regarded as an
enemy, and to be treated in the same manner as the principal
belligerent? In the first place, if he has made common
cause with our enemy in beginning or carrying on hostilities
against us, we have toward him the same belligerent rights
as toward the principal in the war, for both are equally our
enemies. There is no need of proving him an enemy, for
his own conduct has made him such. Again, even where
there are no obligations of treaty, if he freely and voluntarily
declares in favour of his ally and against us, he, of his own
accord, becomes our enemy, and is to be treated in every
respect as the principal. But the simple fact of there being
an alliance between our enemy and other nations would not
justify us in treating such nations as belligerents.3
1 Burlamaqui, Droz't de la Nazi, &c., tome v. pt. iv. ch. vi.;
Bynkershoek, Qnaest. fur. Pnb., lib. i. ch. viii.; Rayneval, Droz't
de la Nazi, &c., liv. iii. ch. v. § 4 ; Bello, Derecho Internaoz'onai, pt. ca . § 2.
P2 Heffter, Droz't International, §§ 115-7; Wheaton, Elem. Int,
Law, pt. iii. ch. ii. §§ 13, 14.
3 Vattel, Droz‘t des Gens, liv. ch. vi. §§ 96-8,
Allies not
neces-
sarily
associates
in a war
If an ally
of the
enemy
engage in
hostilities
4 INTERNATIONAL LAW 011. m
warlike
alliance
made
during a
war
§ 6. Alliances, for warlike purposes, are divided into
two classes, ofi‘ensz've and defensive. In the former, the State
unites with its ally for the purpose of jointly waging war
against a third party; but in the latter, the State engages
to defend its ally in case of an attack. Some alliances are
both offensive and defensive; others are only defensive;
but there is seldom an offensive alliance which is not also a
defensive one. Some are against all opponents, and without
restriction ; while others are only against a particular State,
and on specified conditions, with limitations and exceptions.
Warlike alliances, made at the commencement of, or during
a war, are necessarily binding, for the contracting parties
then know the character of the war and the exact nature of
the obligations which they have assumed. Alliances, made
under such circumstances, are acts of hostility which make
the ally an enemy equally with the principal belligerent.
It is important, however, to satisfy ourselves as to the
character of such alliances, to see whether or not they are
really warlike compacts which make the contracting parties
also parties to the war. The alliance between France and
the English revolted colonies in North America, being made
during the war of the American revolution, was very pro-
perly regarded by Great Britain as tantamount to a declara-
tion of war on the part of France, and as justifying im-
mediate hostilities against this ally of the revolted colonies.1
§ 7. A warlike alliance made by a third party before the
war with a State, then our friend, but now our enemy, will
not, as a general rule, be, of itself, a sufficient cause for
commencing hostilities against such third party ; for there
may be good reason why he should not regard himself as
bound by the obligations of the alliance. It would certainly
be very impolitic, as Well as improper, for us to treat as a
belligerent one who may not be disposed to become our
enemy. The character of the alliance, and the peculiar
circumstances of the case, must serve as guides for our
conduct, always keeping in mind the maxim, that it is
better to have a friend than an enemy, and the rule of
international law, that we are justifiable in engaging in
warlike
alliance
made
before a.
war
1 Riquelme, Dereoho PzZb. Int, lib. i. tit. i. c. ; Bynkershoek,
Quoest. fur. Pub., lib. i. c. ix. ; Phillimore, On Int. Law, vol. iii,
§73~ -
on. xix THE ENEMY AND HIS ALLIES
5v
hostilities only so far as may be necessary for our own
security and the protection of our just rights. In case of
alliances, made before the war, the question is, to determine
Whether the actual circumstances are such as were con-
templated in the engagement—whether they are such as
were expressly specified, or tacitly supposed, in the treaty.
This is What the civilians call casas feedem's, or the case of
the alliance. Whatever has been promised, either ex-
pressly or tacitly, in the treaty, is due in the casas fcedem's.
But if not so promised, it is not due. If the War is not such
a case as the treaty contemplated, the ally does not become
a party to it; for the casas fcederz's does not take place.1
In 1826 the Princess Regent of Portugal required the
assistance of Great Britain against Spain, by virtue of the
tripartite treaty of 1703 between England, Portugal, and
Holland; Mr. Canning argued in the House of Commons
that it was necessary to show that a casas fcedere's had arisen,
although the existence of the treaty was not denied.
§ 8. In an ofiensz've alliance, made before the war, the
ally engages generally to co-operate in hostilities against a
specified power, or against any power with whom the other
party may declare war. Where an alliance is made in
general terms, and one of the two parties to it declares war
against its enemy, even though that enemy be the very
nation against which the alliance was formed, the other
ally is allowed time to examine into the causes of the war ;
if it be a just war, all his engagements come into force;
but if it be unjustly declared, his treaty obligations cease
to be binding.2 '
§ 9. So, also, in a defensive alliance made before the war,
the easas fcederz's does not take place immediately on one of
the parties being attacked by an enemy. The other con-
tracting party has the right, as indeed it is his duty, to
ascertain if his ally has not given the enemy just cause of
War, for no one is bound to undertake the defence of an ally,
in order to enable him to insult others, or to refuse them
justice. If he is manifestly in the Wrong, his co-ally may
1‘ Vattel, Droz't des Gems, liv. iii. ch. vi. § 88 ; Wheaton, Elem. 1m‘.
Law, pt. 011. ii. § 15 ; Martens, Pre’ez's da Droz‘t des Gene, § 299 ;
Moser, Versuoh, &c.,_b. ‘n1. pt. i. p. 24 ; Garden, De la Diplomatz'e,
liv. vi. § 2, and liv. vii. § 1.
2 Bello, Dereoho Internaoz'onal, pt. ii. ch. ix. § 1.
An
offensive
alliance
A
defensive
alliance
6 INTERNATIONAL LAW 1 CH. XIX
require him to offer reasonable satisfaction; and if the
enemy refuse to accept it, and insists upon a continuance
of the war, the co-ally is then bound to assist in his defence.
But without such offer of reasonable satisfaction, the war
continues to be aggressive in character, and therefore un-
just, and the ally may properly refuse to render the pro—
mised assistance, for the tacit condition on which such
assistance was stipulated to be given has not been observed,
or, in other words, the casus foederis has not taken place.
:Smarks § IO. If, on the contrary, a party to the defensive
character alliance, could call upon his ally to assist him whenever he
321;?“ was assailed, and without regard to the justice of the War,
alliances or the circumstances of the attack, there would be no
difference between a defensive and an offensive alliance,
for many wars which are defensive in their operations are
essentially offensive in their character and principles. Where
attack is the best mode of providing for the defence of a
State, the war is defensive in principle, though the opera-
tions are offensive. 7 Where the war is unnecessary to safety,
its oflensive character is not altered, because the wrong-doer
is reduced to defensive warfare. So, a State against which
a dangerous wrong is manifestly meditated, may prevent
it by striking the first blow, without thereby waging a war
in its principle offensive. Accordingly, it is not every
attack made on a State that will entitle it to aid under a
defensive alliance ; for if that State had given just cause of
war to the invader, the war would not be, on its part,
defensive in principle.1
Obligation § 11. Admitting the principle that every treaty of
$13,109 alliance contains the tacit clause that it shall not be binding,
deter- except in case of a just war, and that the co-ally has a right
311112221825’. to decide for himself upon the character of the war, and
of the War whether or not the casus foecleris has taken place, it is only
in case the war is clearly and obviously unjust that he can
claim a release from the obligations which he voluntarily
contracted. Whether the alliance be offensive or defensive,
or both, unless the ally upon examination find the war
manifestly unjust, he must comply with his engagements;
1 Wildman, Int. Law, vol. ii. p. 166; Grotius, De jure Bell. ac’
Pac., lib. c. xv. § 13 ; Garden, De la Diplomatie, liv. vi. sec. ii.
§ 2 ; Burlamaqui, Droit de la Nat. et des Gens, t. v. pt. iv. ch. iii.
CH. XIX
THE ENEMY AND HIS ALLIES 7
and ‘in the absence of any proof to the contrary, he is bound
to consider that his co-ally has just cause of War. In
~ speaking of the tacit restriction, which is necessarily under-
stood in every treaty of alliance, Wheaton remarks that it
‘ can be applied only to a manifest case of unjust aggression
on the part of the other contracting party, and cannot be
used as a pretext to elude the performance of a positive
and unequivocal engagement, without justly exposing the
ally to the imputation of bad faith. In doubtful cases,
the presumption ought rather to be in favour of our con-
federate, and of the justice of his quarrel.’ ‘
§ 12. In a treaty of succour, the ally stipulates to furnish
certain assistance in troops, ships of war, provisions, or
money. I, If the succour is to consist of troops, they are
called auxiliaries; if of money, it is called subsidy. The
rules already laid down, with respect to the casns feederz's
in treaties of alliance made before the war, apply equally
‘to treaties of limited succour and subsidy. Such treaties
are not binding where'the war is manifestly unjust.
§ 13. Vattel says that if the State which has promised
succour finds itself unable to furnish it, this inability alone
is sufficient to dispense with the obligation. If, for ex-
ample, one of the allies is engaged in another war, not con-
templated by the alliance, and which requires his whole
strength, he is absolved from sending assistance to his ally
in the war to which he is not yet a party. Again, if he has
- promised provisions, and his own subjects are suffering
from famine, the casus fwderz's, does not take effect ; for he
is not obliged to give another what is absolutely necessary
for the use of his own people.2 It seems to us that a promise
is none the less binding because of the inability of the pro-
miser to fulfil his engagements.
§ .14. It is also proper to remark that even where the
casns fwderz's is admitted to take place, and the stipulated
succours are furnished, the ally who furnishes them is not
necessarily made a party to the war. Where one State
' stipulates to furnish to another a limited succour of troops,
1 Wheaton, Elem. Int. Law, pt. ch. § 15 ; Bynkershoek,
Q'ucest. fur. Pub., lib. i. 0. ix.
.9 Vattel, Droz‘t- des Gens, liv. iii. ch. vi. §§ 81, 92 ; De Felice,
Droz't de la Nat. et des Gens, t. lec. 28. _
VOL. 11. B 4
Distinc-
tion
between
auxi-
liaries and
subsidy
If unable
to furnish
the
promised
aid
Example
of Swit-
zerland
8 INTERNATIONAL LAW 5 on. m
Capitula~
tions for
mer-
cenaries
ships of war, money, or provisions, without any promise
looking to an eventual engagement in ‘general hostilities,‘
such a treaty does not necessarily render the party fur-
nishing this limited succour the enemy of the opposite
belligerent. - It only becomes such, so far as respects the
auxiliary forces thus supplied; in all other respects it re-
mains neutral. Such, for example, formerly were the
accustomed relations of the confederated cantons of Switzer-
land with the other European powers.1 A treaty expires
if one of the contracting parties should lose its existence,
as was the case in the dissolution of Poland in 1795. _ _
§ 15. A distinction, however, must be made between
simple treaties 0/ succour and subsidy, and capitulatiorzs for
mercenaries, like those formerly entered into by the Swiss.2
Auxiliary troops are usually under the general control and
direction of the power which furnishes them, and which is,
therefore, in a measure, responsible for their acts. But
mercenaries, furnished under capitulations, usually engage
in a foreign service for a stated period, and for stipulated
pay and allowances, being entirely at the disposition of the
power which employs them, that which furnishes them
having no part in the conquests which are made, or in the
negotiations and treaties which are entered into.3
1 Vattel, liv. ch. vi. §§ 79, 82.; Riquelme, Dereoho Piib. Int,
lib. i. tit. i. c. xii. ; Bello, Dereoho Internaoional, pt. c. ix. § 1.
2 In 1859, the Federal Government passed a law—(1) forbidding
any Swiss citizen to enrol himself, as soldier to a foreign State,
without the permission of theGovernment of his Canton, (2) enacting
severe penalties against whosoever might seek to recruit, (3) for-
bidding any Swiss citizen to take service in a foreign country, in a
corps, not making part of the national army, of that State forwhich
he was enrolled, (4) forbidding any Swiss citizen to engage himself
to form a corps composed in whole, or in part, of Swiss citizens,
for any State; and, on the other hand, prohibiting foreigners to
enrol Swiss citizens, or to assist therein.
The Neapolitan Government had some regiments, composed
entirely of Swiss soldiers, by virtue of a capitulation, which ended
June 15, 1859. In that year a mutiny broke out among these
troops; 300 were shot down by the Neapolitan soldiers, and the
remainder were sent back to Switzerland. This occurrence, together
with some questions which arose the same year, concerning the-
employment of Swiss soldiers in foreign States, and especially in
Italy, was the immediate cause of the passing of the above-mentioned
law. Swiss troops were, and still are, in the Papal service, but
without _any capitulation ; they were also in France in the days of
the Bourbons. Moors and Heyducks were employed in many of
the former German courts. The Greek emperors had Varangians.
The Sultans of Morocco still depend on negroes or {black-guards.’
3 Martens, Pre’ois do» Droit des Geris, §§ 301-3; Galiani, Dei
on. XIX THE ENEMY AND HIS ALLIES 9
§ 16. Is a limited assistance rendered to the enemy,
under the obligations of a subsidy-treaty, a just cause of
war? If the ally of our enemy goes on further than to
furnish the stipulated succour, and, in other respects,
preserves toward us the accustomed relations of friendship
and neutrality, we may overlook this cause of complaint.
This prudent caution of avoiding an open rupture with
those who render to our enemy certain limited assistance,
previously stipulated for, has gradually introduced the
custom of not regarding it is an act of hostility, especially
where it is of a limited character.
suades us from making use of a right, it does not thereby
destroy the right itself. A cautious belligerent may choose
to overlook certain offences, rather than unnecessarily
increase the number of its enemies, and be influenced by
considerations of expediency, in not enforcing the strict
rights of war. It is therefore a question of policy, whether
the assistance furnished an enemy shall be regarded as
good and sufiicient cause for declaring war against the ally
who furnishes it.1
§ 17. We have described, in chapter viii., the general
character of treaties of guarantee and surety, as distinguished
from ordinary treaties of alliance. The question to be con-
sidered here is, how far such treaties bind the party making
the guarantee to assist the other party in a war for the
defence or the security of the thing guaranteed? For
example, Great Britain, by the treaties of 1642, 1654, 1661,
1703, 1807, 1810, and-1815, with Portugal, guaranteed the
latter kingdom to the lawful heir of the house of Braganza,
and agreed to defend it, ‘ against every hostile attack.’
In the case of a war between Portugal and a third power,
in which the former was subjected to ‘ a hostile attack,’
was Great Britain bound to join in the war, without regard
to its justice or injustice P Some publicists have laid down
the general rule, that where one of the allies has guaranteed
to the other certain specified rights or possessions, which
are taken away or seized by a third power, this third power
Doverz' dez' Przn, &c., lib. i. c. v. p. 145 ; Moser, Versuoh, &c.,
b. x. pt. i. pp. I 39, ‘140.; Romainmatier, Hz'stoz're Mz'lz'zfaz're des
Sm'sses, passim ; Garden, De la Diplomatz'e, liv. vi. sec. § 2. "
1 Vattel, Droz't des Gens, liv. ch. vi. §§ 79-82 ; Hefiter, Droz't
International, §§ 1 1 5—7.
Limited
assistance
rendered
to an
enemy
But, if prudence dis- ~
Defence
of the
thing
guaran-
teed
IO INTERNATIONAL LAW on. xix
Alliance
for war
with re-
servation
of allies
places itself in a position of hostility towards both of the
contracting parties. In this case, it is said, the guaranteeing
party cannot refuse to succour his ally. Here his duty is
plain and indisputable, and if he should refuse tottake part
in the war, he is justly chargeable with a breach of the
alliance. The casus foederis takes place, it is said, as soon
as the rights or possessions so guaranteed are seized or
encroached upon. The agreement, being for the security
of a specific right, or the possession of a particular territory,
it is special, and the covenant cannot be evaded or avoided
by any general plea of the injustice. of the war. Others say
that treaties of guarantee are of the nature of a defensive
alliance ; and, consequently, that even where territories are
guaranteed, the guarantee does not extend to wars provoked
by the aggression of the party guaranteed. If, therefore,
the war be manifestly unjust on the part of the ally so
guaranteed, the casus faederis does not take place, and the
stipulation is not binding. This View is consonant with
general principles ; for if the war be morally wrong on the
part of one ally, he cannot reasonably demand the auxiliary
strength of his co-ally to assist him in its prosecution.
Again, in the case of the guarantee of a treaty, it is said
that the guarantor is not only not obliged, but is not even
authorised to interfere to compel its performance, unless
required to do so by a party guaranteed, because the con-
tracting parties are. at liberty to vary its stipulations, or
dispense altogether with their performance. It follows,
therefore, that a party to a treaty of guarantee is not
necessarily a party to a war undertaken by his co-ally,
even though it be in defence of the thing guaranteed.l
§ 18. Conflicts notv unfrequently occur in warlike
alliances. In the case of an alliance for war, made towards
and against all, with the reservation of allies, this exception
is to be understood to include present allies only, and not to
extend to any subsequent treaty stipulations with other
powers. Vattel supposes this case :4 ‘ Three powers have
entered into a treaty of defensive alliance; two of them
quarrel and make war on each other ; what shall the third
do P The treaty does not bind it to assist either the one
or the other. For it would be absurd to say that it has
1 Bello, Derecho Internacional, pt. ii. 0. ix. § 1.
on. 11111 THE ENEMY AND HIS ALLIES II
' stitute a justifiable cause of war.
‘ it also gives me against all his associates.
promised assistance to each against the other, or to one of
the two to the prejudice of the other. All that is incumbent
on it is to employ its good offices for reconciling its allies ;
and if such mediation fail, it remains free to assist the one
which shall appear to have justice on its side.’ The latter
part of this ‘quotation should, perhaps, be adopted only
with certain restrictions. If the alliances are such as to
leave the third party in the position of a neutral, and
exempt him from all obligations to assist either party, he
cannot be considered at liberty to assist the one whose
cause he may deem just. This fact alone would not con-
Moreover, as a neutral
he is bound to treat both the belligerents as having justice
on their side. What Vattel probably means to say is, that
the third party is at liberty, so far as his alliances are con-
cerned, to side with the belligerent whose cause he deems
just.1
§ 19. A Warlike association is where the alliance is of
such an intimate and perfect character as to form a union
of interests ; where each of the parties is bound to act with
his whole force, and all are alike principals in the war at its
commencement, or become so during its progress. Every
associate of my enemy is indeed himself my enemy; it
matters little whether anyone makes war on me directly,
and in his own name, or under the auspices of another ; the
same rights which war gives me against my principal enemy,
This results
directly from my right of security and of self-defence, for
I am equally attacked by the one and the other. But the
question is, to know who are lawfully to be accounted my
enemy’s associates, united against me in a war.“
§ 20. Vattel discusses at some length the question,
who are, and who are not to be regarded as such associates
in the war, and makes the following distinctions. He re-
gards as associates, first, those who make common cause
with the enemy, although not appearing as principals;
Warlike
associates
1 Bynkershoek, Quasi. jar. Pub, lib. i. 0. ix.; De Felice,
Droz't de la Nat. et des Gens, t. lec. xxviii. ; Vattel, Droz't des
Gens, liv. iii. ch. vi. p. 93. p
2 Wolfius, jns Gentz'um, §§ 7 30-6 ; Martens, Préoz's an Deon des
Gens, § 300 ; Garden, De la Diplomatz'e, liv. vi. sec. § 3 ; Riquelme,
Dereoho P2212. I nt., lib. i. tit. i. c,
Vattel’s
opinion
12 INTERNATIONAL LAW ' on. XIX
No de-
claration
necessary
against
enemy’ s
associates
second, those who assist the enemy without being bound to
do so by any treaty ; third, those who, under the obligations
of an offensive alliance, assist the principal in carrying on
the war; fourth, those who make defensive alliance With
the enemy after the commencement of the war, or on the
certain prospect of its declaration, or with special reference
to the defence of the enemy against the actual opposing
belligerent; and fifth, those who have formed with the
enemy, even before hostilities have commenced, a real
league or society of war. All such are associates in the war.
But if the defensive alliance is general in its character,
leaving it doubtful when the casus fcederis will take place,
or if it has not been made particularly against me, nor con-
cluded at a time when I was openly preparing for war or
had already begun it, or if the allies have only stipulated
in it, that each of them shall furnish a stated succour to
him who shall be first attacked, such allies are not necessarily
associates in the war. If auxiliaries are furnished to my
enemy, they are enemies, but the nation that furnishes them
are not such of necessity. By attacking such nations for
that reason, says Vattel, ‘ I should increase the number of
my enemies, and instead of a slender succour which they
furnished against me, should draw on myself the united
force of those nations.’ 1
§ 21. As a general rule, it is not necessary to make a
declaration of war against the associates of the enemy before-
treating them as belligerents. The nature of their obliga-
tions, or the character of their acts, makes them public
enemies, and puts them in the same position towards us as
if they were principals in the war. Our belligerent rights
against them commence, in some cases, with the war, and
in others, with their first act of hostility against us.2 The
existence of the alliance, with the acknowledgment of its
obligation, and a preparation for carrying on the war, would
make them public enemies, even before they actually take
part in the military operations, as was the case between
France and Great Britain in 1778.3
1 Vattel, Droit des Gens, liv. iii. ch. vi. § 96 ; Bynkershoek,
Queest. fur. Pub. lib. i. 0. ix ; Bello, Dereeho; Internaoional,‘ pt. ii.
ch. ix. § 1.
2 See Ann. Reg. 1779, p. 58 et seq.
3 Wheaton, Elem. Int. Law, pt. iii. ch. ii. § 15 ; Phillimore, On I nt.
Law, vol. iii. § 60 ; Hefiter, D'roit International, § 120.
on’. xix
THE ENEMY AND HIS ALLIES I3
§ 22. But, in modern times, there are very few alliances
between States which so bind them together as necessarily
to make them associates in a war ; it is, therefore, in general,
a matter of prudence to seek to disarm the enemy’s allies by
treating them as friends. It is a cheap and honourable
means of weakening an opponent’s power, and may save
the effusion of much innocent blood. The contrary course
is not only impolitic on our part, but tends to prolong the
war by making it more general, and by involving new
elements of discord, and more complicated and conflicting
interests. Neutrality may be absolute or qualified : absolute
when the neutral is bound to neither belligerent by a treaty
which may affect the other, and qualified, when the execution
of a treaty with one would affect the other. The relation
of the United States to France and Great Britain, at the
beginning of the war of 1793, is an example of such qualified
neutrality. There is an obvious difference between an
alliance and such neutrality, although it is sometimes difficult
to draw the line of separation.
Policy of
treating
enemy’s
allies as
friends
14 INTERNATIONAL LAW
CH. XX
General
rights as
to enemy’ 8
person
CHAPTER XX
RIGHTS OF WAR AS TO ENEMY’S PERSON
I. General rights of war as to enemy’s person—2. Limitation of the
right to take life—3. Convention of Geneva, 1864, and Conven-
tions of the Hague 1899-4. When exemption of non—combatants
ceases— 5. Is limited in particular cases—6. When quarter may
be refused—7. Treatment due to prisoners of war—8. Made
slaves in ancient times—9. Ransom and exchange—Io. Moral
obligation of the State towards its own subjects—1 1. Release on
parole—12. Conditions which may be imposed—13. Delays in
effecting exchange—14. Duties‘of a State to support its subjects
in the hands of the enemy—15. Where exchanges cannot be
effected—16. Historical example—~17. Extent of support to be
rendered—18. Where no probability of an exchange—19. May
prisoners of war be put to death P—zo. Useless defence of a
place—21 . Sacking a captured town—22. Remarks of Napier—-
2 3. Deserters found among prisoners of wan—24. Rule of
reciprocity—2 5. Limits to this rule—26. Limits as to time
of punishment.
§ I. IT has already been shown that war places all the
subjects of one belligerent State in a hostile attitude towards
all the subjects of the other belligerent ; 1 and although, in
order to justify us at the tribunal of conscience and in the
estimation of the world, it is necessary that we should have
just cause of war, and justifiable reasons for undertaking it,
yet, as the justness or unjustness of a war is usually a matter
of controversy between the contending parties, and not
always easy to be determined, it has become an established
principle of international jurisprudence that a war in form
shall, in its legal effects, be considered as just on both sides,
1 Talleyrand writing to Napoleon (November 20, 1806) says,
‘ According to the maxim that war is not a relation between a man
and another, but between State and State, in which private persons
are only accidental enemies, not such as men, nor even as members
or subjects, of the State, but simply as its defenders, the law of
nations does not allow that the right of war and of conquest thence
derived should be applied to peaceable, unarmed citizens, to private
dwellings and properties, to the merchandise of commerce, to the
magazines which contain it, to the vehicles which transport it,
to unarmed ships which convey it on streams and seas, in one word,
to the person and the goods of private individuals.’
CH. XX
RIGHTS OF WAR AS TO ENEMY’S PERSON I5
and that whatever is permitted to one of the, belligerents
shall also be permitted to the other. The law of nations
makes no distinction, in this respect, between a just and an
unjust war, both of the belligerent parties being entitled to
all the rights of war as against the other, and with respect
to neutrals. Each party may employ force, not only to
resist the violence of the other, but also to secure the objects
for which the war is undertaken. The first and most im-
portant of these rights, which the state of war has conferred
upon the belligerents, is that of taking human life. This
right, in its full extent, authorises the individuals of the one
party to kill and destroy those of the other, whenever milder
means are insufficient to conquer them or bring them to
terms.1
§ 2. But this extreme right of war, with respect to the
enemy’s person, has been modified and limited by the
usages and practices of modern warfare. We may law-
fully kill those who are actually in arms and continue to
resist. The Germans, during the last Franco-Prussian war,
on taking the town of St. Ménehould, threatened death to
any inhabitant who should conceal firearms. But we may
not take the lives of those who are not in arms, or who,
being in arms, cease their resistance and surrender them-
selves into our power. The just ends of the war may be
attained by making them our prisoners, or by compelling
them to give security for their future conduct. Force and
severity can be used only so far as may be necessary to
accomplish the objects for which the war was declared?
1 Hautefeuille, Des N azfz'ons Neutres, tit. vii. oh. i. ; Vattel, Droz't
ales Gens, liv. iii. ch. viii. §§ I 36, I 37, I38 ; Wheaton, Elem. Int.
Law, pt. iv. ch. ii. § I ; Phillimore, On Int. Law, vol. § 50.
2 Cornu v. Blackburne; 2 Dougl. 644; the ‘ Fladoyen,’ I Rob.
I34. ‘ In I 780 Lord Cornwallis, commanding the British forces,
complained to the American Major—General Gates, that the officers
and men taken at King’s Mountain were treated with an inhumanity
scarcely credible. Also he writes to Sir Henry Clinton, “ However
provoked by the horrid outrages and cruelties of the enemy in this
district, I have always endeavoured to soften the horrors of war,
and received the acknowledgment of General Gates and the principal
officers of the enemy’s army for the tenderness and attention shown
to their wounded and prisoners. I will not hurt your excellency’s
feelings by attempting to describe the shocking tortures and inhuman
murders which are every day committed by the enemy, not only
on those who have taken part with us, but on many who refuse to
join them.” ’-_-—Comwallz's, vol. i.
Limita-
tion of
right to
take life
16 INTERNATIONAL LAW CH. xx
Conven-
tion of
Geneva
and Con-
ventions
of the
Hague
There are certain‘ persons in every State who, as already
stated in chapter xviii., are exempt from the direct opera-
tions of war. Feeble old men, women, and children, and
sick persons, come under the general description of enemies,
and we have certain rights over them as members of the
community with which we are at war; but, as they are
enemies who make no resistance, we have no right to mal-
treat their persons, or to use any violence toward them,
much less to take their lives.1 This is so plain a maxim of
justice and humanity, that every nation in the least degree
civilised acquiesces in it. And modern practice has applied
the same rule to ministers of religion, to men of science and
letters, to professional men, artists, merchants, mechanics,
agriculturists, labourers—in fine, to all non-combatants, or
persons who take no part in the war, and make no resistance
to our arms.
§ 3. The Convention of Geneva, 1864, established certain
rules, for hospitals, ambulances, and protection of wounded
soldiers in time of war ; 2 ratifications have been exchanged
1 It has passed into French history, that in 1870, the Bavarians
having been fired on by some civilians in the uniform of National
Guards, set Bazeilles on fire, and drove back into the flames the
inhabitants—old, young, women, and children—as they were
endeavouring to escape. An eye-witness, ‘ M.P.,’ writing to the
Times (Sept. 8), denies this. Bazeilles certainly was on fire in many
places, from shells, during the battle of Sedan, and the Bavarians
did their best to burn out French soldiers who were attacking them
from houses, and who refused to surrender. The same eye-witness
speaks of some armed civilians, taken with arms in their hands on
that occasion, and says that, far from being burnt alive, they were
reserved for the rope the next morning (Edwards, The Germans in
France). After the first occupation of Amiens, the Prussians
marched out, leaving their wounded behind. The mayor, having
no armed force with which to protect them, and serious fears being
entertained for their safety, wrote over the doors of the hospitals,
‘ Honneur d’Amiens ! Respect aux blesses ! ’ This act restrained
the excited townspeople (ibid.).
2 During the Franco-Prussian war, 18 70, French medical officers,
protected by the badge of Geneva, attended their own wounded at
Soulz les Foréts after the battle of Woerth. Even irregular workers
under the Geneva badge, although arrested, were not detained by
either side. It was reported by the German commandant at Lichten-
berg that the French had fired on the Geneva badge, and that Turcos
had cut off an officer’s head and killed some wounded men. The
Crown Prince remarked that the Geneva flag had been fired on several
times. The not unfrequent reports of one or other belligerent
having fired on the Red Cross officials, is doubtless correct, and to be
explained by the fact of these officials wearing a military or other
uniform, which fails to distinguish them at short range from fighting
CH xx RIGHTS OF WAR AS TO ENEMY’S PERSON 17
between the principal civilised States. In 1868 additional
Articles were proposed for extending the scope of the
original Articles to hospital-ships, but they were not ratified.1
In 1899 an International Convention with respect to the
laws and customs of war by land was signed at the Hague,
men. It is most desirable that a universal, international, non-
combatant uniform should be agreed on, which could be recognised
at any reasonable distance, with minor distinctive decorative
features which would denote the wearers’ nationality. The most
stupid soldiery could not plead ignorance of a Red Cross OffiClal,
as they would have been thoroughly accustomed to the dress worn
by their own non-fighting men in their own camps.
The Prussians, during their occupation of Versailles, required a
bulletin of the health of the wounded Frenchmen, lying in the hospital
of that town, to be sent to the commanding general every morning.
The convalescents received an immediate order to leave for Germany
as prisoners of war. Their departure from the hospital was watched
by armed soldiers. The chief physician protested against their
removal, as contrary to the fifth additional article of the above
Convention, but in vain (Delerot, Versailles, 1870). On December 21,
1870, a German official gave notice, in writing, to the International
French Society of Versailles, that it was dissolved, and that the
members of ambulances, who were not native of Versailles, were to
leave, for the adjoining departments, within the space of two days.
It is unknown from whose authority this order emanated, but the
Prussian commanding general annulled it, and requested the society
to continue their duties (z'bz'd). At Rouen the Geneva flag was
employed by the French to protect a hearse. (Edwards, The
Germans in France).
The examples of Cyrus, and of the Emperor Aurelian, in ancient
history are not wanting to illustrate compassion for the sick and
wounded in war. During the middle ages, the members of the
Teutonic Order of Knighthood devoted themselves to the service
of sick and wounded soldiers. This Order was founded in 1190,
during the siege of Acre, by some Bremen merchants, who being
moved with compassion at the sight of the miseries which the
besiegers suffered, erected a hospital, where they gave constant
attendance to all who had recourse to their charity. Their dress
was a white mantle, with a black cross on it (Raymondz' Duellz'z' H 2'st.
Ord. Tent.) In more modern times we read of the agreement between
Louis XV. of France with Frederick the Great, that those persons
who might attend on the sick and wounded during war should
be treated as neutrals. Napoleon 111., after the battle of Monte-
bello (1859), restored to the enemy all wounded prisoners, without
requiring any exchange.
1 The articles were proposed and signed at Geneva on October 20,
1868, on behalf of Great Britain, Austria, Baden, Bavaria, Belgium,
Denmark, France, Italy, Netherlands, North Germany, Sweden
and Norway, Switzerland, Turkey and Wiirtemberg. On July 22,
1870, it was stated by the Swiss Government that the Federal
Council of Switzerland had proposed to the North German Con-
federation and to France to recognise the additional articles during
the war which had just' broken out (the Franco-German war, 1870),
as a modus zn'vendz', and that those Powers had readily acceded to the
proposal.
VOL. II C
18 INTERNATIONAL LAW CH. xx
and afterwards ratified. At the same time and place another
Convention was signed for the purpose of adapting to
maritime warfare the principles of the Geneva Convention,
1864, and it was subsequently ratified by most States.
How far the spirit of these Conventions will be maintained
in time of war is very uncertain. It appears to be very
rash for the rulers of the world to content themselves with
the hope that these Conventions will everywhere and under
all circumstances be observed. The ferocity of war in
actual practice will not suffer itself to be tied‘ by hard and
fast rules. We fear that these Conventions are more likely
to be honoured in the breach than in the observance.l
They will be found in the appendix to this chapter.
1 It is interesting to study the opposite opinions of the late Count
von Moltke, Field Marshal General, and of the late Dr. Bluntschli,
Privy Councillor and Professor of Law, on the subject of rules for war-
fare. The discussion arose on the publication of the ‘Manual of the
Laws of War by Land ’ by the Institut de Droit International in 1880.
A copy of that work having been sent to Count von Moltke, he wrote
as follows: ‘ Berlin, December 11, 1880. You have been so good
as to forward to me the Manual published by the Institut de Droit
International, and you hope for my approval of it. In the first
place, I fully appreciate the philanthropic effort to soften the coils
which result from war. Perpetual peace is a dream, and it is not
even a beautiful dream. War is an element in the order of the
world ordained by God. In it the noblest virtues of mankind are
developed; courage and abnegation of self, faithfulness to duty,
and the spirit of sacrifice ; the soldier gives his life. Without war the
world would stagnate, and lose itself in materialism. I agree
entirely with the proposition contained in the introduction that a
gradual softening of manner ought to be reflected also in the mode
of making war. But I go further, and think the softening of manners
can alone bring about this result, which cannot be attained by a
codification of the law of war. Every law presupposes an authority
to superintend and ‘direct its execution, and international conven-
tions are supported by no such authority. Whatneutral States
would ever take up arms for the sole reason that two Powers being
at war the “ laws of war ” had been violated by one or both of the
belligerents P ,For offences of that sort there is no earthly judge.
Success can come only from the religious, moral education of indi-
viduals, and from the feeling of honour and sense of justice of
commanders who enforce the law and conform to it, so far as the
exceptional circumstances of war permit. This being so, it is neces-
sary to recognise also that increased humanity in the mode of making
war has in reality followed upon the gradual softening of manners.
Only compare the horrors of the Thirty Years’ War with the struggles
of modern times. A great step has been made in our own day
by the establishment of compulsory military service, which intro-
duces the educated classes into armies. The brutal and violent
element is, of course, still there, but it is no longer alone, as once it
was. Again, Governments have two powerful means of preventing
the worst kind of excesses—strict discipline maintained in time of
0H. xx RIGHTS OF WAR AS TO ENEMY’S PERSON 19
It was the received opinion in ancient Rome, in the times
of Cato and Cicero, that one who was not regularly enrolled
peace so that the soldier has become habituated to it, and care on the
part of the department which provides for the subsistence of troops
in the field. If that care fails, discipline can only be imperfectly
maintained. It is impossible for the soldier who endures sufferings,
hardships, fatigues, who meets danger to take only “ in proportion
to the resources of the country.” He must take whatever is need-
ful for his existence. We cannot ask him for what is superhuman.
‘ The greatest kindness in war is to bring it to a speedy conclusion.
It should be allowable with that view to employ all methods save
those which are absolutely objectionable. I can by no means
profess agreement with the Declaration of St. Petersburg when it
asserts that “ the weakening of the military forces of the enemy ”
is the only lawful procedure in war. No, you must attack all the
resources of the enemy’s Government—its finances, its railways,
its stores, and even its prestige. Thus energetically, and yet with
a moderation previously unknown, was the late war against France
conducted. The issue of the campaign was decided in two months,
and the fighting did not become embittered till a revolutionary
Government, unfortunately for the country, prolonged the war
for four more months. I am glad to see that the Manual, in clear
and precise articles, pays more attention to the necessities of war
than has been paid by previous attempts. But for Governments
to recognise these rules will not be enough to insure that they shall
be observed. It has long been a universally recognised custom of
warfare that a flag of truce must not be fired on, and yet we have
seen that rule violated on several occasions during the late war.
Never will an article learnt by rote persuade soldiers to see a regular
enemy (Sections 2—4) in the unorganised population which takes
up arms “ spontaneously ” and puts them in danger of their life
at every moment of day and night. Certain requirements of the
Manual might be impossible of realisation—for instance, the identifi-
cation of the slain a ter a great battle. Other requirements would
be open to criticism did not the intercalation of such words as “ if
circumstances permit,” “if possible,” “if it can be done,” “if
necessary,” give them an elasticity, but for which the bonds they
impose must be broken by inexorable reality. I am of opinion that
in war, where everything must be individual, the only Articles
which will prove efficacious are those which are addressed specifically
to commanders. Such are the rules of the Manual relating to the
wounded, the sick, the surgeons, and medical appliances. The
general recognition of the principles, and of those also which relate
to prisoners, would mark a distinct step of progress toward the
goal pursued with so honourable a persistency by the Institut de
Droz't I nte-rnatz'onaL—CoUNr VON MoL'rKE.’
To this letter Dr. Bluntschli replied :—
‘ Christmas, 18.80.-—I am very grateful for your Excellency’s
detailed and kind statement of opinion as to the Manual of the Laws
of War. This statement invites serious reflections. I see in it
a testimony of the highest value, of historical importance; and
I shall communicate it forthwith to the members of the I nstz'tut de
Droz't International. For the present I do not think that I can better
prove my gratitude to your Excellency than by sketching the
reasons whieh have guided our members, and so indicating the
nature of the different views which prevail upon the subject. It
c 2
20 INTERNATIONAL LAW CH. xx
as a soldier could not lawfully kill an enemy. But after-
wards in Italy, and more particularly during the lawless
is needless to say that the same facts present themselves in a different
light and give a different impression as they are looked at from the
military or the legal point of view. The difference is diminished,
but not removed, when an illustrious general from his elevated
position takes also into consideration the great moral and political
duties of States, and when, on the other hand, the representatives
of the science of international law, set themselves to bring legal
principles into relation with military necessities. For the man of
arms the interest of the safety and success of the army will always
take precedence of that of the inoffensive population, while the
jurist, convinced that law is the safeguard of all, and especially of
the weak against the strong, will ever feel it a duty to secure for
private individuals in districts occupied by an enemy the indispens-
able protection of law. There may be members of the Institut who
do not give up the hope that some day, thanks to the progress of
civilisation, humanity will succeed in substituting an organised
international justice for the wars which nowadays take place between
sovereign States. But the body of the Institut, as a whole, well
knows that that hope has no chance of being realised in our time,
and limits its action in this matter to two principal objects the
attainment of which is possible :—
‘ 1. To open and facilitate the settlement of trifling disputes
between nations by judicial methods, war being unquestionably
a method out of all proportion in such cases.
‘ 2. To aid in elucidating and strengthening legal order even
in time of war.
‘ I acknowledge unreservedly that the customs of warfare have
improved since the establishment of standing armies, a circum-
stance which has rendered possible a stricter discipline, and has
necessitated a greater care for the provisionment of troops. I also
acknowledge unreservedly that the chief credit for this improvement
is due to military commanders. Brutal and barbarous pillage
was prohibited by generals before jurists were convinced of its
illegality. If in our own day a law recognised by the civilised world
forbids, in a general way, the soldier to make booty in warfare on
land, we have here a great advance in civilisation, and the jurists
have had their share in bringing it about. Since compulsory
service has turned standing armies into national armies, war also
has become national. Laws of war are consequently more than
ever important and necessary, since, in the differences of culture
and opinion which prevail between individuals and classes, law is
almost the only moral power the force of which is acknowledged
by all, and which binds all together under common rules. This
pleasing and cheering circumstance is one which constantly meets us
in the Institut de Droit International. We see a general legal
persuasion ever in process of more and more distinct formation
uniting all civilised peoples. Men of nations readily disunited and
opposed—Germans and French, English and Prussians, Spaniards
and Dutchmen, Italians and Austrians—are, as a rule, all of one
mind as to the principles of International Law. This is what
makes it possible to proclaim an international law of war, approved
by the legal conscience of all civilised peoples ; and when a principle
is thus generally accepted it exerts an authority over minds and
manners which curbs sensual appetites and triumphs over barbarism-
on. xx RIGHTS OF WAR AS 10 ENEMY’S PERSON 21
' confusion of the feudal ages, hostilities were carried on by
all classes of persons, and everyone capable of being a
soldier was regarded as such, and all the rights of war
attached to his person. But as wars are now carried on by
regular troops, or, at least, by forces regularly organised,
the peasants, merchants, manufacturers, agriculturists, and,
We are well aware of the imperfect means of causing its decrees
to be respected and carried out which are at the disposal of the law
of nations. We know also that war, which moves nations so deeply,
raises to exceptional activity the good qualities as well as the evil
instincts of human nature. It is for this very reason that the
jurist is impelled to present the legal principles, of the need for which
he is convinced, in a clear and precise form, to the feeling of justice
of the masses, and to the legal conscience of those who guide them.
He is persuaded that his declaration will find a hearing in the con-
science of those whom it principally concerns and a powerful echo
in the public opinion of all countries. The duty of seeing that
International Law is obeyed and of punishing violations of it belongs,
in the first instance, to States each within the limits of its own
supremacy. The administration of the law of war ought, therefore,
to be intrusted primarily to the State which wields the public power
in the place where an offence is committed. No State will
lightly, and without unpleasantness and danger, expose itself to a
just charge of having neglected its international duties ; it will not
do so even when it knows that it runs no risk of war on the part of
neutral States. Every State, even the most powerful, will gain
sensibly in honour with God and man if it is found to be faithful
and sincere in respect and obedience to the law of nations. Should
we be deceiving ourselves if we admitted that a belief in the law of
nations, as in a sacred and necessary authority, ought to facilitate
the enforcement of discipline in the Army and help to prevent many
faults and many harmful excesses ? I, for ,my own part, am con-
vinced that the error, which has been handed down to us from
antiquity, according to which all law is suspended during war and
everything is allowable against the enemy nation—that this abomin-
able error can but increase the unavoidable sufferings and evils of
war without necessity, and without utility from the point of view
of that energetic way of making war which I also think is the right
wa .
X With reference to several rules being stated with the qualifica-
tions “if possible,” “ according to circumstances,” we look on this
as a safety-valve, intended to preserve the inflexible rule of law
from giving way when‘men’s minds are overheated in a struggle
against all sorts of dangers, and so to insure the application of the
rules in many other instances. Sad experience teaches us that
in every war there are numerous violations of law which must
unavoidably remain unpunished, but this will not cause the jurist
to abandon the authoritative principle which has been violated.
Quite the reverse. If, for instance, a flag of truce has been fired
upon, in contravention of the law of nations, the jurist will uphold
and proclaim more strongly than ever the rule that a flag of truce
is inviolable. I trust that your Excellency will receive indulgently
this sincere statement of my views, and will regard it as an expression
of my gratitude, as well as of my high personal esteem and of my
respectful consideration—DR. BLUN'rscHLL’
22 INTERNATIONAL LAW on. xx
Exemp-
tion may
be
forfeited
Exemp-
tion is
limited
generally, all public and private persons, who are engaged
in the ordinary pursuits of life, and take no part in military
operations, have nothing to fear from the sword of the
enemy. So long as they refrain from all hostilities, pay the
military contributions which may be imposed on them and
quietly submit to the authority of the belligerent who may
happen to be in the military possession of their country,
they are allowed to continue in the enjoyment of their
property, and in the pursuit of their ordinary avocations.
This system has greatly mitigated the evils of war, and if the '
general, in military occupation of hostile territory, keeps
his soldiery in proper discipline, and protects the country
people in their labours, allowing them to come freely to his
camp to sell their provisions, he usually has no difficulty
in procuring subsistence for his army, and avoids many of
the dangers incident to a position in a hostile territory.l
§ 4. But this exemption of the enemy’s persons from
the extreme rights of war is strictly confined to non-com-
batants, or such as refrain from all acts of hostility. If the
peasantry and common people of a country use force, or
commit acts in violation of the milder rules of modern
warfare, they subject themselves to the common fate of
military men, and sometimes to a still harsher treatment.
And if ministers of religion and females so far forget their
profession and sex as to take up arms, or to incite others
to do so, they are no longer exempted from the rights of
war, although always within the rules of humanity, honour,
and chivalry. And even if a portion of the non-combatant
inhabitants of a particular place become active participants
in the hostile operations, the entire community are some-
times subjected to the more rigid rules of war.
§ 5. Moreover, in some cases, even where no opposition
is made by the non—combatant inhabitants of a particular
place, the exemption properly extends no further than to
the sparing’ of their lives; for if the commander of the
belligerent forces has good reason to mistrust the inhabitants
1 Lord Wellington writing of the dastardly conduct of the
Spanish troops, says that they had become odious to their country.
The peaceable inhabitants, much as they detested and suffered from
the French, almost wished for the establishment of joseph Bona~
parte’s government, to be protected from the outrages of their
own troops.
on. xx RIGHTS OF WAR AS TO ENEMY’S PERSON
23
to secure the just objects of the war.
of any place, he has a right to disarm them, and to require
security for their good conduct. He may lawfully retain
them as prisoners, either with a view to prevent them from
taking up arms, or for the purpose of weakening the enemy.
Even women and children may be held in confinement, if
circumstances render such a measure necessary, in order
But if the general,
without reason, and from mere caprice, refuses women and
children their liberty, he will be taxed with harshness and
brutality, and will be justly censured for not conforming
to a custom established by humanity. When, however, he
has good and sufficient reasons for disregarding, in this
particular, the rules of politeness and the suggestions of
pity, he may do so without being justly accused of violating
the laws of war. The presumption, however, is against
him, and, if he wishes to preserve a fair fame, he must give
good and satisfactory reasons for conduct so unusual.I
§ 6. As the right to kill an enemy in war is applicable
only to such public enemies as make forcible resistance,
this right necessarily ceases so soon as the enemy lays
down his arms and surrenders his person or asks for quarter.
‘ Qui merci prie, merci doit avoir,’ is an old maxim. After
such surrender, the opposing belligerent has no power over
his life, unless new rights are given by some new attempt
at resistance. By the present rules of international law,
quarter can be refused the enemy only in cases where those
asking it have forfeited their lives by some crime against
the conqueror under the laws and usages of war.
1 Vattel, Droz't des Gens, liv. iii. ch. viii. §§ 147, I48 ; Phillimore,
On Int. Law, vol. iii. §§ 94, 95.
By order of the War Department, a circular was issued to the
army of the United States, in February 1866, that copies of such
newspapers as were published in the several military departments,
and which contained sentiments of hostility to the Government,
should be sent to headquarters, and that it should be stated whether
such papers were habitual in the utterance of such sentiments;
the persistent publication of articles calculated to keep up hostility
of feeling between the people of different parts of the United States
could not be tolerated.
Letters of advice, correspondence, and intelligence, from an
English subject in England, to the enemy to enable the latter to
cause annoyance or to defend themselves, written and sent in, in
order to be delivered to them, are, though intercepted, overt acts
of treason. R. v. Hensey, I Burr. R. 650 ; R. 1). Stone, 6 D. and E.
527~
Prisoners
entitled to
quarter.
24 INTERNATIONAL LAW on. xx
Treatment
of
prisoners
of war
§ 7. Although the practice of putting to death prisoners
of war has become obsolete among all civilised nations—for
we deem the killing of wounded French and English soldiers,
helpless on the battlefield, by the Russians in the Crimean
war of 1854 to have been a sad exception—~yet it is to be
entirely attributed to the clemency of the victor ; the right
remains, and might still be exercised in cases of dire neces-
sity. The garrison of El Arish, near Gaza, having capituJ
lated to Buonaparte, during the time of the campaign in
Egypt, he set it free on the condition that it should proceed
to Bagdad, and not serve against the French for a year.
Having arrived at Jaffa, he found it necessary to make an
assault before his troops could take possession of it, on which
occasion three thousand prisoners were taken, who turned
out to be, for the most part, those very soldiers whose lives
and liberty had been spared upon conditions which they had
immediately violated. To restore these prisoners a second
time to liberty was, in fact, to send fresh recruits to the
Turks ; to forward them to Egypt under escort was to lessen
the strength of an army already too weak. The law of
necessity decided their fate; they were treated, in conse-
quence of such an act of perjury, in the same manner as they
had treated the French wounded after a battle, whose heads
they cut off on the spot. By the milder rules of modern
warfare, prisoners of war cannot be treated harshly, but the
captor may, nevertheless, take all proper measures for their
security, and, if there be reason to apprehend that they will
rise on their captors, or make their escape, he may put them
in confinement and even fetter them. But extreme measures
should never be resorted to except in cases of absolute
necessity. Persons who escape from, and are retaken by
the enemy, or even who are recaptured in battle, do not
deserve any punishment, for they have only obeyed their
love of liberty.
Self-security is the first law of the conqueror, and the
laws of war justify the use of means necessary to that end,
but, beyond that, no harshness or severity is allowable.
Each particular case, as it arises, must be judged by the
attending circumstances, the means employed, and the
danger they were designed to guard against. The respon-
sibility of a commanding officer is always very great, and
on. xx RIGHTS OF WAR AS TO ENEMY’S PERSON 25
his‘ conduct should not be hastily condemned, as it may be
induced by circumstances not generally known, or easily
explained. Too much leniency is often as fatal to his plans
as an unjust severity to his reputation for humanity. He
should be judged by his general course and character, rather
than by a single act, the motives of which are so easily
misunderstood, and so often misconstrued.l
_ ‘Vattel is evidently of opinion that cases may occur
where the putting of prisoners of war to death may be
justifiable. ‘ But,’ he says, ‘to justify us in coolly and
deliberately putting to death a great number of prisoners,
the following conditions are indispensable: 1st, That no
promise has been made to spare their lives ; and 2nd, That
we be perfectly assured that our own safety demands such
a sacrifice. If it is at all consistent with prudence, either
to trust to their parole, or to disregard their perfidy, a
generous enemy will rather listen to the voice of humanity
than to that of timid circumspection. Charles XII., being
encumbered with his prisoners after the battle of N arva,
only disarmed them, and set them at liberty ; but his enemy,
still impressed with the apprehensions which his warlike
and formidable opponents had excited in his mind, sent
into Siberia all the prisoners he took at Pultowa. The
Swedish hero confided too much in his own generosity:
the sagacious monarch of Russia united, perhaps, too great
a degree of severity with his prudence. When Admiral
Anson took the rich Acapulco galleon, near Manilla, he
found that the prisoners outnumbered his whole ship’s
company; he was, therefore, under the necessity of con-
fining them in the hold, where they suffered cruel distress.
But, had he exposed himself to the risk of being carried
away a prisoner, with his prize and his own ship together,
would the humanity of his conduct have justified the im-
prudence of it? Henry V., King of England, after his
victory in the battle of Agincourt, was reduced, or thought
1 Wheaton, Elem. Inst. Law, pt. iv. ch. § 2 ; Vattel, Drott des
Gens, liv. iii. ch. viii. §§ 149, 150, 152 ;Phillimore, On Int. Law, vol. iii.
§ 95 ; Martens, Pre’oz's du Droz't des Gens, § 275 ; Speech of Lord
]. Russell, House of Commons, December 1854.
During the Peninsular war the people of Talavera, and Spanish
soldiers, beat out the brains of wounded Frenchmen lying on the
battlefield in the neighbourhood. The English, in every case,
checked these inhuman perpetrators. (Nap. Pen. vol. ii.)
26
INTERNATIONAL LAW CH. xx
Made
slaves in
ancient
times
Ransom
and
exchange
himself reduced, to the cruel necessity of sacrificing the
prisoners to his own safety.’ ‘ Nothing,’ continues Vattel,
‘ short of the greatest necessity, can justify so terrible an
execution; and the general whose situation requires it
is greatly to be pitied.’ At the present day, the conduct
of any general who should deliberately put his prisoners
to death would probably be declared infamous.1
§ 8. To the ancient practice of putting prisoners of war
to death succeeded that of making them slaves, and it was
exercised for many ages. It had not become extinct in
England in I628,2 so far as detention of prisoners by private
persons is concerned. The Dutch used to sell to the
Spaniards, as slaves, the Algerines whom they had taken
prisoners in the Atlantic or Mediterranean. In the year
1664 the States-General gave orders to their admiral to sell
as slaves all the pirates he should take. But the custom of
making slaves of prisoners of war has fallen into disuse
among Christians, although the right remains. It was on
this principle that Buonaparte was sent to Elba and St.
Helena by the British Government at the beginning of this
century, and that Arabi Pasha was exiled to Ceylon by the
Egyptian Government at the close of 1882.
§ 9. The practice of slavery gradually gave way to that
of ransoming, which continued through the feudal wars of
the middle ages. By a cartel of March 12, I780, between
France and England, the ransom in the case of a field-
marshal of France, or an English field-marshal, or captain-
general, was fixed at sixty pounds sterling. And even as
late as the treaty of Amiens, in 1802, between Great Britain
and the French and Batavian republics, it was deemed
necessary to stipulate that the prisoners on both sides
should be restored without ransom. The present usage, of
exchanging prisoners without any ransom, was early
introduced among the more polished nations, and was
pretty firmly established in Europe before the end of the
seventeenth century. But this usage is not, even now,
considered obligatory upon those who do not choose to
1 Vattel, Droit ales Gens, liv. iii. ch. viii. § 151 ; Manning, Law
of Nations, p. 165. Rutherforth, Institutes, book ii. ch. ix. § 17;
Phillimore, On Int. Law, vol. iii. § 95 ; Burke, Works, vol. iv. p. 127.
2 Rymer Foedera, 8,§ii.l§27o. - _
cu. xx RIGHTS or WAR AS To ENEMY’S PERSON
27
enter into a cartel for that purpose. If a nation finds a
considerable advantage in leaving its soldiers prisoners with
the enemy during the war, rather than exchange them,
it may certainly, unless bound by cartel, act as is most
agreeable to its interests. This would be the case of a State
abounding in men, and at war with a nation more formidable
by the courage than the number of its soldiers. It would
have been of little advantage to the czar, Peter the Great,
to restore the Swedes his prisoners for an equal number of
Russians. In 1810 Great Britain had, confined in prisons,
hulks, and guard-ships, about fifty thousand French prisoners
of war, while Napoleon had a much less number of English,
but probably enough Spanish and Portuguese prisoners
(allies of England) to more than make up the equality of
numbers. He offered to exchange the whole against the
whole, or one thousand English and two thousand Spanish
and Portuguese for three thousand French. But the British
negotiators at first insisted upon the exchange being con-
fined to French and English; they, however, afterward
consented to a general exchange, beginning with the English
for an equal number of Frenchmen. Napoleon would not
agree to this, because, he said, as soon as the English got
back their own countrymen, they would find some excuse
for not carrying the exchange further, and retain the re—
mainder of the French in the hulks for ever. The negotia-
tions were, therefore, broken off. That both parties had
a legal right to decline the exchange cannot be denied.
Napoleon’s proposition was in accordance with the usages
of war in such cases, and not unreasonable in itself ; while
England was bound to provide for the exchange of her allies
who had been made prisoners in the common cause. But
if she believed that she would, by the proposed arrangement,
lose more than she gained in relative power, she had an
undoubted right to decline its acceptance.1
§ IO. But while no State is obliged, by the positive rules
of international law, to enter into a cartel for the exchange”,
1 Las Cases, Me’inoires ale Sainte-He’lene, t. vii. pp. 39, 40 ;
Alison, Hist 0}‘ Europe, vol. iii. pp. 394, 395 ; Annual Register, 1811,
p. 76 ; Parliamentary Debates, vol. xx. pp. 62 3—691. /
Wheaton, Hist. Law of Nations, pp. 162—4 ; Burlamaqui, Dr/oit de
la Nat. et des Gens, t. v. pt. iv. ch. vi; Phillimore, On IntQ' Law,
vol. iii. § 95 ; Heffter, Droit International, §§ 126-9. > /
No posi-
tive obli-
gation to
exchange
28 INTERNATIONAL LAW 011. xx
Release
on parole
Conditions
imposed
on
release
of prisoners of war, there is a strong moral duty imposed
upon the Government of every State to provide for the
release of such of its citizens and allies as have fallen into
the hands of the enemy. They have fallen into this mis-
fortune only by acting in its service, and in the support of
its cause. This is a care which the State owes to those who
have exposed themselves in her defence.
§ 11. Sometimes prisoners of war are permitted to
resume their liberty, upon the condition that they will not
again take up arms against their captors, either for a limited
time, or during the continuance of the war, or until duly
exchanged. Ofiicers are very frequently released upon their
parole, subject to the same conditions. Such agreements
made by officers for themselves, or by a commander for his
troops, are valid, and cannot be annulled by the State to
which they belong. Agreements of this kind come within
the necessary limits of the implied powers of the commander,
and are obligatory upon the State. Good faith and
humanity ought to preside over the execution of these
compacts, which are designed to mitigate the evils of war,
without defeating its legitimate purposes.
§ 12. There are certain limits to the conditions which
the captor may impose on the release of prisoners of war,
and to the stipulations which an officer is authorised to
enter into, either for himself or for his troops. The captor
may impose the condition that the prisoners shall not take
up arms against him, either for a limited period or during
the war; but he cannot require them to renounce for ever
the right to bear arms against him ; nor can they, on their
part, enter into any engagements inconsistent with their
character and duties as citizens and subjects. Such en-
gagements made by them would not be binding upon their
sovereign or State. The reason of this limitation is obvious ;
the captor has the absolute right to keep his prisoners in
confinement till the termination of the war; but on the
conclusion of peace he would no longer have any reasons
for detaining them. They, therefore, have the right to
stipulate for their conduct during' that period, but not
beyond the time when they would have been released had
no ‘agreement been entered into. Nor can the captor
generally impose conditions which extend beyond the
CH. XX
RIGHTS OF WAR As TO ENEMY’S PERSON 29
period when the prisoners would necessarily be entitled
to their liberty. Beyond this, their services are due to,
and at the disposition of, the State to which they owe
allegiance, and they have no right to limit them by con-
tracts with a foreign power.1 The following answer was
directed by General Halleck (the author of this work) to be
returned to the general commanding the Confederate forces,
who had complained that many citizens of the United States,
engaged in peaceful avocations, had been imprisoned
because they refused to take the oath of allegiance to the
United States, while others per duress had been required
to take an oath not to bear arms against that Government :
‘ August 13, I862. The Government of the United States
has never authorised any extortion of oaths of allegiance or
military paroles, and has forbidden any measures to be re-
sorted to tending to that end. Instead of extorting oaths
of allegiance and paroles it has refused the application of
several thousand prisoners to be permitted to take them,
and return to their homes in the rebel States. At the same
time this Government claims and will exercise the right to
arrest, imprison, or place beyond its military lines any
persons suspected of giving aid and information to its
enemies, or of any other treasonable act. And if persons
so arrested voluntarily take the oath of allegiance, or give
their military parole, and afterwards violate their plighted
faith, they will be punished according to the laws and usages
of war. You will assure General Lee that no unseemly
threats of retaliation on his part will deter this Government
from exercising its lawful rights over both prisoners and
property of whatever name or character.’
§ 13. By the modern usage of nations, commissaries are
permitted to reside in the respective belligerent countries,
for the purpose of negotiating and carrying into effect the
necessary arrangements for the support, as well as the
release and exchange of prisoners of war, but difficulties
sometimes occur in arranging the terms of such agreements,
and it not unfrequently happens that a considerable length
of time will elapse after their capture before they can be
exchanged or released. Moreover, by the conditions of
‘.I'Bello, Dereeho Internaez'onal, pt. 0. iii. § 5 ; De Cussy, Droz't
Marztznze, liv. i. tit. iii. § 32.
Delay in
making
exchange
30
INTERNATIONAL LAW
CH. XX
General
rule for
support of
prisoners
their parole, they are sometimes required to remain in the
captor’s country for a fixed term after their release. During
these periods they must be subsisted either by the captor
or by their own Government, and it sometimes becomes a
question to which this duty properly belongs.1
§ 14. The duty of a State to support its subjects, while
prisoners in the hands of an enemy, is the same as its duty
to provide for their ransom and release. Indeed, a neglect,
or refusal to do so, would seem to be even more criminal
than a neglect or refusal to provide for their exchange ; for
the exigencies of the war may make it the temporary policy
of the State to decline an exchange, but nothing can excuse
it in leaving its subjects to suffer in an enemy’s country,
without any fault of their own, when the State has the
means of relieving them from the misfortune in which they
are involved, by acting in its service and by supporting its
cause. It follows, therefore, that although a State may
properly, under certain circumstances, refuse to exchange
its prisoners, it cannot, without a violation of moral duty,
neglect to make the proper and necessary arrangement for
their support while they are thus retained, by a captor
who is willing to exchange them. It is stated that, in the
wars of Napoleon, the British authorities regularly remitted
the whole cost of the support of English prisoners, in France,
to the French Government, but that the latter failed to
make any provision whatever for the support of its subjects
in the hands of the English, leaving them to starvation,
or the charity of their enemies. The Earl of Liverpool,
referring in 1814 to the large sum of money then due from
the French to the British Government for the maintenance
of prisoners of war, remarks that an Article to liquidate
such debts has usually been inserted in treaties of peace,
but that he did not believe in the present case such an
Article would be likely to give the British Government the
money, and that it certainly could not give it Without
material pressure and inconvenience to the French Govern-
ment; that it occurred to him, therefore, there might be
some grace in abandoning it, and that the honour of the
French Government might perhaps be saved, on some
1 Wheaton, Elem. Int. Law, pt. iv. ch. ii. § 3 ; Phillimore, On Int.
Law, vol. iii. § 95.
CH. XX
RIGHTs or WAR AS To ENEMY’S PERSON 31
other points, by a formal relinquishment of the claim in an
Article of the treaty, and that he was sincerely desirous
to see the credit of the French upheld, as far as the English
Government could contribute to it without sacrifice of its
public principles.1
§ I5. It not unfrequently happens in a war, that,
although both parties are willing to make an exchange of
prisoners, much delay occurs in agreeing upon the terms
of the cartel. This sometimes results from a want of good
Where
exchanges
cannot be
effected
faith on both sides, the parties entering into negotiations .
with no intention of coming to an agreement. Again, when
the cartel has been negotiated, it is sometimes impossible to
carry it into effect immediately, the peculiar circumstances
of the war and the character of the military operations
interrupting, or preventing, its execution. Such delays
are the more frequent in great wars, which embrace several
countries and seas, within the theatre of their operations.
In all cases where the circumstances prevent an exchange
of prisoners of war, or render it impossible for them to
receive the means of support from their own State, it is the
duty of the captor to furnish them with subsistence; for
humanity would forbid his allowing them to suffer or starve.
But if their own Government should refuse to make arrange-
ments for their support, exchange, or release, and if the
captor should give them sufficient liberty to enable them to
earn their own support, his responsibility ceases, and what-
ever sufferings may result, are justly chargeable upon their
own Government. Under ordinary circumstances, prisoners
of war are not required to labour beyond the usual police
duty of camp and garrison; but where their own State
refuses, or wilfully neglects to provide for their release or
support, it is not unreasonable in the captor to require them
to pay with their labour for the subsistence which he fur-
nishes them. But this can be done only in extreme cases,
and even then they should be treated kindly and with
mildness, and no degrading or very onerous labour should
1 Alison, Hist. 0]‘ Europe, vol. iii. pp. 394, 395 ; Hansard, Parlia-
mentary Debates, vol. xx. pp. 634, 694; Hardenburg, Me’rnoires
d’un Homrne d’Etat, t. ii. p. 438 ; t. ix. p. 105 ; Las Cases,
Me’inoires de Sainte-He’lene, t. vii. pp. 39, 40; Annual Register, 1811,
p. 76.
32 INTERNATIONAL LAW
CH. XX
Historical
example
be imposed on them. All harshness and unnecessary severity
would be contrary to the modern laws of war.1
§ 16. But, sometimes the captor refuses to enter into
any cartel for the exchange of his prisoners, or even to
release them on parole. He may, for reasons satisfactory
to himself, persist in retaining in confinement the prisoners
whom he has taken from the enemy, at the same time
leaving the enemy to keep and provide for those of his own
people, which the latter may have captured. In such a
case he cannot expect the opposing belligerent to provide
for the support of prisoners thus retained, and the laws of
war as well as of humanity require that he himself shall
provide, in a proper manner, for their subsistence. In
1809 the Spaniards had sent thousands of prisoners of War
to the Balearic Isles without any order for their subsistence,
and the Junta, when remonstrated with, cast 7,000 ashore
on the little desert rock of Cabrera. At Majorca numbers
had been massacred by the inhabitants in the most cowardly
and brutal manner, but those left on Cabrera suffered
miseries that can scarcely be described. Afflicted with
hunger, thirst, and nakedness, they lived like wild beasts.
Less than 2,000 remained to tell the tale of this inhumanity.
After the fall of Tarragona in 1811, Suchet, the French
commander, offered to exchange his Catalonian prisoners,
the best soldiers in Spain, for the French prisoners confined
at Cabrera, men utterly ruined in constitution by their
cruel captivity. Cuesta, the Spanish general, was disposed
to accede to the proposition, but the Regency, at the request
of Wellesley, the British envoy, peremptorily forbad the
exchange; and the French prisoners therefore remained,
says Napier, ‘ a disgrace to Spain, and to England, for if
her envoy interfered to prevent their release, she was bound
to insist that thousands of men, whose prolonged captivity
was the result of her interference, should not be exposed
on a barren rock, naked as they were born, and fighting for
each other’s» miserable rations, to prolong an existence
inconceivably wretched.’ 2
1 Wildman, Int. Law, vol. p. 26; Scott, United States Army
Reg. 1825, §§ 709-716 ; the ‘St. Juan,’ 5 Rob. Rep. p. 39; Heffter,
Droit International, § 129.
2 Napier, Hist. Peninsular War, vol. ii. p. 409.
GK. XX
RIGHTS or WAR AS 10 ENEMY’S PERSON 33
§ 17. Where circumstances render it obligatory upon the
captor to support the prisoners whom he has taken, this
support is usually limited to the regular provision ration,
and such clothing and fuel as may be absolutely necessary
to prevent suffering. Officers and other persons who have
the means of paying for their support cannot require any
assistance from the captor. But such as have no money,
are certainly entitled to an allowance sufficient for personal
comfort; and modern custom and military usage require
that it should be proportioned to the rank, dignity, and
character of the prisoner. It, however, can never properly
be required for any considerable length of time, as prisoners
of this description are bound to provide for their own support
as soon as they can procure the means of doing so. The
moneys expended for the support of prisoners of war may
constitute a just demand for reimbursement; and such
amounts are either settled by commissioners during the
war, or become subjects of stipulations in a treaty of peace.1
§ 18. As there is usually no very great disparity of num-
bers in the prisoners taken by the opposing belligerents in
the course of the war, it is the more modern custom for each
captor to support those who may fall into his hands till an
exchange can be effected, and a cartel for this purpose is
usually negotiated at the earliest possible opportunity. It,
however, sometimes happens that so very large a number
are taken by one party, as to leave no probability of an
immediate exchange. The captor is then left the alternative
to support them or to release them on parole. But should
they refuse to give their parole, or should their own Govern-
ment forbid their doing so ? In the first case they must
suffer the consequences of their own obstinacy; and, in
the second case, their own Government has no right to forbid
their release on parole, unless at the same time it provides
the means for their support during their imprisonment.
Attempts have sometimes been made to annul such engage~
ments, and to force released prisoners of war to take up
arms again in the same campaign, in direct violation of
their parole. Such an act on the part of a belligerent
_ 1 Wildman, Int. Law, vol. p. 26 ; Garden, De la Dz'plomat-t'e,
11vé v1. § 9 ; Scott, United States Army Regulations of 1825, §§ 709,
71 . ;
VOL. II. D
Character
of support
to be
given
Where no
proba-
bility of
an
exchange
34
INTERNATIONAL LAW on. xx
Government is utterly futile as a protection to soldiers
who may thus be made to violate their parole, and is an
evidence of ignorance or semi-barbarism of the Government
making such a declaration. In the war between the United
States and the republic of Mexico the Mexican authorities
not only attempted by proclamation to induce such of their
soldiers as had been released by the Americans on parole
to regard that obligation as null and void, but in some
cases their. unexchanged prisoners were actually forced to
re-enter the ranks and fight. Many others, under the
promise of plunder, were induced to organise themselves
into guerrilla bands under robber chiefs, who were furnished
with military commissions from the Government. Such
attempts to violate the ordinary rules of war not only
justify, but require prompt and severe punishment.
‘Accordingly, General Scott announced his intention to hang
everyone who should be retaken after thus violating his
parole of honour. In making further releases on parole,
he required, in addition to the ordinary military pledge,
the sanctity of a religious oath, administered by the Mexican
' clergy.l
May he
kill them
in certain
cases '4
§19. Cases have sometimes occurred where a general
has taken so large a number of prisoners that he cannot
keep them with safety, or cannot supply them with food,
and is satisfied that, if released on their parole, they would
not respect it. If he has not the means of keeping his
prisoners, and can safely put them on parole, he is, of course,
bound to release them. But the question arises, if he
cannot safely do this, and has no means to subsist them,
what is he to do P Must he release them, to the imminent
danger of his own security, or to his certain destruction, or,
will the law of self-defence justify him in putting them to
death P If his own safety is incompatible with that of an
enemy—even of an enemy who has submitted—will his
duty to his own State justify him in destroying that enemy P
The extreme case here supposed can seldom, if ever, happen ;
the answer must be elicited from the arguments in para-
graph 7.
1 Cong. Doc. 30 Cong. 1 Sess. H. R. Ex. Doc. No. 56, p. 245 ;
Grotius, De jure Bell. ac Pac. lib. iii. c. xxiii. §§ 6-10 ; Riquelme,
Derecho PzZb. Int. lib. i. tit. i. c. xii. ,
on. xx RIGHTS OF WAR AS TO ENEMY’S PERSON
35
§20.~ It was an ancient maxim of war, that a weak
garrison forfeit all claim to mercy on the part of the con-
queror, when, with more courage than prudence, they
obstinately persevere in defending an ill-fortified place
against a large army, and when, refusing to accept of
reasonable conditions offered to them, they undertake to
arrest the progress of a power which they are unable to
resist. Pursuant to this maxim, Caesar answered the
Aduatici that he would spare their town, if they surrendered
before the battering-ram touched their walls. But, though
sometimes practised in modern warfare, it is generally
condemned as contrary to humanity and inconsistent with’
the principles which, among civilised and Christian nations,
form the basis of the laws of war. It is sometimes said,
that where a garrison makes an obstinate defence of a
weak place against an overwhelming force, it only causes
useless effusion of human blood, and that, therefore, the
authors of such a sacrifice should be severely punished.
But who can say beforehand that such a defence may not
save the State by delaying the operations of the enemy P
There are numerous instances, in ancient as well as modern
times, where courage has supplied the defects of fortifica-
tions, and where places generally regarded as untenable
have been defended by a brave and determined garrison
till the enemy consumed, his strength in the operation of
the siege, and wasted the most favourable season for con-
ducting the campaign. In 1760 General Landolm, on
appearing before Breslau to besiege that place, informed
the governor (inter alia) that in case of obstinacy he could
expect no reasonable terms ; that the place was a mercantile
town, not a fortress ; and that he could not defend it with-
out contravening the laws of war- The governor, Count
Tavenzien, respected these laws, but did not the less defend
the place. He replied that, being surrounded with works
and wet ditches, it was to be considered a place of strength,
and notmerely a mercantile town, that the king had ordered
him to defend it to the last extremity, and that he was not
frightened at the general’s threats to destroy the town, for he
was not entrusted with the care of the houses but of the
fortifications. The town was most bravely defended, and
Landolm eventually was forced to withdraw. In case a
Useless
defence of
a place
D 2
36
' INTERNATIONAL LAW on. xx
Seeking a
captured
town
place is closely besieged it is customary for the besieging
general to offer to the garrison honourable terms of capitula-
tion ; and if they refuse these terms, and the place is carried
by force, they maybe compelled to surrender at discretion,
and the captor may treat such prisoners with all the severity
of the law of war. But that law, ‘says Vattel, can never
extend so far as to give a right to take away the life of an
enemy who lays down his arms, unless he has been guilty
of some crime against the conqueror. Where, however,
the resistance" is not only evidently fruitless and without
any reasonable object, but springs from obstinacy instead
of firmness oflvalour, the officer so resisting is guilty of; one
of the greatest of. crimes—the useless sacrifice of human
life ; and not only does he deserve to be treated’with extreme
severity by the captor, but also his own Government should
see that he be justly dealt with for so serious an offence.
But the resistance in such a case must be obviously useless,
and-known to be such when itv is made. If there is any
probability of success he is justifiable in holding out to the
last extremity.1 ' _
§ 21. We do not, atthe present day, often hear, when a
town is carried by assault, that the garrison is put to the
sword in cold blood, on the plea that it has no right to
quarter. Such things are no longer approved or coun-
tenanced by civilised nations. But we sometimes hear of a
captured town being sacked, and the houses of the inhabit-
ants being plundered, on the plea that. it was impossible
for the general to restrain his soldiery in the confusion and
excitement of storming the place; and, under that safer
name of plunder, it has sometimes been attempted to veil
all crimes which man, in his worst excesses, can ‘commit;
horrors so atrocious that their very atrocity preserves
them from our full execration, because it makes it impossible
to describe them? It is true that soldiers sometimes
2 1 Vattel, Droit des Gens, liv. iii. ch. viii. § 143 ; Bynkershoek,
Queest. fur. Pub. lib. i. c. iii. ; Grotius, De jure Bell. ao Pao. lib. iii.
c.iv.§13; c.xi.§16. -
2 Sir Arthur Wellesley, writing to Lord Castlereagh in 1809,
remarks that it is impossible to describe the irregularities and
outrages committed by the British troops. He considers that there
ought to be in the army a regularprovost establishment. All the
foreign armies have such an establishment. The French gendarmerie
nationale are to the amount of forty or fifty with each corps. The
CH. XX
RIGHTS or WAR As 10 ENEMY’S PERSON 37
commit excesses which their officers cannot prevent; but,
in general a commanding officer is responsible for the acts of
those under his orders. Unless he can control his soldiers
he is unfit to command them. The most atrocious crimes
in. war, however, are usually committed by militia, and
volunteers, suddenly raised from the population of large
cities, and sent into the field before the general has time or
opportunity to reduce them to order and discipline. In
such cases the responsibility of their crimes rests upon
the State which employs them, rather than upon the general
who is, perhaps, unwillingly, obliged to use them.1 _
§22. The truth of these remarks is illustrated by the
war of the Spanish Peninsula. None of the generals in that
war pretended, for a moment, that the garrisons and inhabit-
ants of places taken by assault were not entitled to quarter,
or that any rule of modern warfare justified the sacking
of captured fortresses, and the pillage and murder of their
inhabitants. And yet it would be difficult to find in the
history of the most barbarous ages, scenes of drunkenness,
lust, rapine, plunder, cruelty, murder, and ' ferocity equal
to those which followed the captures of Ciudad Rodrigo,
Badajos, and San Sebastian. The only excuse offered for
these horrible atrocities was : ‘ The soldiers were not to be
controlled!’ Napier, the English historian of that War,
says, in plain terms, ‘That excuse will not suffice; for a
young colonel of energetic spirit did constrain his men at
Spaniards have their police militia to a still larger amount. ‘ While
we,’ says he, ‘ who require such an aid more, I am sorry to say, than
any other. nation of Europe, have nothing of the kind.’ But now,
by the Army Act, 1881 (s. 74), for the prompt repression of all offences
which may be committed abroad, provost marshals with assistants
may from time to time be appointed by the general order of the
general officer commanding a body of forces. A provost marshal,
or his assistants, may at any time arrest and detain for trial persons
subject to military law committing offences, and may also carry
into execution any punishments to be inflicted in pursuance of a
court martial, but shall not inflict any punishment of his or their
own authority. These marshals are distinct from the regimental or
garrison police. As to the old law on this subject, see ante, vol. i.
ch. xvii. § 27.
1 Kent, Com. on Am. Law, vol. i. pp. 92, 93 ; Pinheiro Ferreira,
Notes sur Martens, t. ii. note 77'; Riquelme, Dereeho Pub. Int.
lib. 'i. tit. i. c. xii. Organised looting was permitted by some of
the European armies (notably the French) after the relief of the
legaltéons in‘ China in 1900, to the great scandal of the civilised
wor . I .
Remarks
of Napier
38 INTERNATIONAL LAW on. xx
Deserters
increasing tumult.’
‘ that no soldier can be restrained after storming a town,"
Ciudad Rodrigo, to keep their ranks for a long time after
the disorder commenced ; but as no previous general measures
had been taken, and no organised efforts made by higher
authorities, the men were finally carried away in ' the
‘ It is said,’ remarks the same author,
and a British soldier least of all, because he is brutish and
insensible of honour! Shame on such calumnies! . . .
Undoubtedly, if soldiers hear and read that it is impossible
to restrain their violence, they will not be ‘restrained. But
let the plunder of a town, after an assault, be expressly
made criminal by the articles of war, with a due punishment
attached; let it be constantly impressed upon the troops
that such conduct is as much opposed to military honour
and discipline as it is to morality; . . . let instantaneous
punishment—death if necessary—~be inflicted for such
offences. With such regulations, the storming of towns
would not produce more military disorders than the gaining
of battles in the field.’ 1
§ 23. Deserters, found by the victor among his enemies,
are guilty of a crime against him, and he has an undoubted
right to punish them, and even to put them to death. They
are not properly considered as military enemies, nor can they
claim to be treated as such; they are perfidious- citizens,
who have committed an offence against the State; their
enlistment with the enemy cannot obliterate that character,
nor exempt them from the punishment they have deserved,
and they are generally punished under some municipal
law. They are not protected by any compact of war, as
a ‘truce, capitulation, cartel, -&c., unless specially and
particularly mentioned and provided for. They are not
military enemies in the general meaning of that term,
nor are they entitled to the rights of ordinary prisoners
of war, either under the law of nations, or by the general
terms of a special compact or agreement. But when
stipulations of amnesty are introduced into such com-
‘ Napier, Peninsular War, book xxii. ch. ii. ; Jomini, Vie Politique
.et Mil. dejNapole’on, ch. xiv. xvii. ; Alison, Hist. of Europe, vol. iii.
pp. 464, 470; vol. iv. p. 240; Southey,tPeninsula_r War, vol. vii.
p.§24o‘§; Belmas, Sieges, &c. t. iv.'pp. 279, 469, app. ; Jones, War in
Spain, vol. ‘ii. pp. 64, 76, 80 ; Thiers, Le Consulat et Z’Empire, t. xiii.
PP‘ 35.5, 37 5 ~ .
cH. xx RIGHTS or WAR AS To ENEMY’S PERSON
39
pacts, in such terms as to include such deserters, by fair
and proper intendment, good faith requires that all promises
of this kind be honestly and fairly carried into effect. A
violation of such agreements is infamous. Amnesties of
this character are very common where the principal war is
accompanied with insurrections and civil commotions,
involving questions of personal duty and allegiance.1
§24. In the operations of a war, the belligerent States
not unfrequently adopt the rule of reciprocity, both with
respect to the person and property of the enemy. Moreover,
the same rule, as will be shown hereafter, is extended to
neutrals. There is much justice and good sense in this
rule, if confined within proper limits. As already remarked,
modern usage has restricted many of the extreme rights of
war, or at least limited their exercise and application.
But this usage has not yet assumed the character of a
positive law, and a belligerent will sometimes refuse to
acknowledge its doctrines as fully established, or its rules
as obligatory. In such a case, the opposing belligerent
applies the rule of reciprocity, and metes out to his enemy
the same measure of justice which he receives from him.
Thus, if his enemy releases, on parole, prisoners of war,
he does the same; if his enemy levies heavy contributions
upon the conquered, he does the same; and if the enemy,
exercising the extreme rights of war, seizes and destroys,
or converts to his own use, public and private property,
he retaliates by measures of the same character.2
§ 25. There is, however, a limit to this rule of reciprocity.
If the enemy refuses to shape his conduct by the milder
usages of war, and‘adopts the extreme and rigorous principles
of former ages, we may do the same; but if he exceeds
1 Vattel, Droit des Gens, liv. iii. ch. viii. § 144; Hefi’ter, Droit
International, § 126 ; Riquelme, Dereeho PzZb. Int. lib. i. tit. i. c. xiv.
The Duke of Wellington writing to Sir H. Wellesley, 1810, says,
‘ Since I have commanded the troops in this country I have always
treated the French ofiicers and soldiers who have been made prisoners
with the utmost humanity and attention ; and in numerous instances
I have saved their lives. . . . I must do the French the justice to
say that our officers and soldiers who fell into their hands have been
universally well treated, and in recent instances the wounded
prisoners of the British army have been taken care of before the
wounded of the Frencharmy.’
2 Garden, De la Diplomatie, liv. vi. § 9 ; the ‘ Santa Cruz,’ i. Rob.
Rep. p. 64. . .
Rule of re‘
ciprocity
Limita-
tion of
the rule
40 I NTERNATIONAL LAW
CH. XX
these extreme rights, and becomes barbarous and cruel
in his conduct, we cannot, as a general thing, follow and
retort upon his subjects, by treating them in like manner.
We cannot go beyond the limits prescribed by international
law to the rights of belligerents. The seizure andcon-
demnation of French vessels by Great Britain, in 1803,
was an exercise of an ancient and severe rule of war, for
which Napoleon retaliated by the exercise of a still more
extreme right, contrary to the milder rules of modern
usage, by seizing all English travellers in French territory.
This was regarded by the British Government as a return
to barbarism, and they refused to regard the de’tenus as
prisoners lawfully captured. However, in 1811, the British
Government determined that all military and naval prisoners
should be first exchanged, and, as there would remain a
great surplus of French prisoners, it seemed a dictate of
humanity to relieve the de’tenus by continuing the cartel
for them, it being vain to urge the practice of modern
warfare on the then French Government. If an enemy
should massacre all prisoners of war, this would not afford
a sufficient justification for the opposing belligerent to do
the same. Suppose our enemy should use poisoned weapons,
or poison springs and food, the rule of reciprocity would
not justify us in resorting to the same means of retaliation.
A savage enemy might kill alike old men, women, and
children, but no civilised power would resort to similar
measures of cruelty and barbarism, under the plea that they
were justified by the law of retaliation.1
§26. There is a law of limitation applicable to the
punishment of military offences which resembles in a
manner that which applies to crimes at the Civil law. The
criminality of some military offences ceases with the com-
pletion of the act and the return of the perpetrator to the
jurisdiction of the opposing belligerent, while others are
punishable at any and all times, at least so long as the war
continues. To the latter class belong those offences which
are assimilated to capital crimes at the Civil law, such as
Limita-
tion as to
the time of
punishing
military
ofiences
1 Wheaton, Elem. Int. Law, pt. iv. ch. i. § 2; Alison, Hist. of
Europe, vol. ii. p. 270; Thiers, Le Consulat et l’Empire, liv. xvii. ;
Las Cases, Mémoires de Napoleon, vol. vii. pp. 32, 33; Martens,
N ouveau Recueil, t. ii. p. 16 ; Garden, De la Diplomatie, liv. vi. § 9.
CH. xx RIGHTS OF WAR AS TO ENEMY’S PERSON 41
military surrenders and assassinations, poisonings, inhuman
treatment of prisoners, and acts ofmilitary perfidy. For
example, the taking of life by guerrilla bands, or other un-
authorised belligerents, is a military murder, which is as
subversive of civilised society as a murder in time of peace.
Hence the crime is considered to adhere to the actor, and
the penalty continues to attach to the offence. On the
other hand, the act of spying is an offence only under the
laws and usages of war ; it is no crime against society in time
of peace. '

APPENDIX
THE CONVENTION OF GENEVA, 1864
This Convention was signed on behalf of Switzerland, Baden,
Belgium, Denmark, Spain, France, Hesse-Darmstadt, Italy, N ether-
lands, Portugal, Prussia, and Wiirtemberg, August 22, 1864, and
is now in full force. The following Powers have also acceded to it :—
Argentine Republic, 1879 ; Austria, 1866 ; Bavaria, 1866 ; Bolivia,
1879; Bulgaria, 1884; Chili, 1879; Great Britain, 1865 ; Greece,
1865 ; japan, 1887 ; Mecklenburg-Schwerin, 1865 '; Montenegro,
1875 ; Persia, 1874; Peru, 1880; Roumania, 1874; Russia, 1867 ;
Salvador, 1874; Saxony, 1866 ; Servia, 1876; Sweden and Norway,
1864 ;Turkey, 1865 ;United States, 1882.
The Articles are as follows :—
ART. I.-—Ambulances and military hospitals shall be acknow-
ledged 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, com-
prising the staff for superintendence, medical service, administration,
transport of wounded, as well as chaplains, shall participate in the
benefit of neutrality, whilst so employed, and so long as there
remain any wounded to bring in or to succour.
ART. III.--The persons designated in the preceding article may,
even after occupation by the enemy, continue to fulfil 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
contrary, 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 inhabi-
tants of the appeal addressed to their humanity, and of the neutrality
which will be the consequence of it.
42 INTERNATIONAL LAW on. xx
Any wounded man entertained and taken care of in a house
shall be considered as a protection thereto. Any inhabitant who
shall have entertained wounded men in his house shall be exempted
from the quartering of troops, as well as from a part of the contri-
butions ofwar which may be imposed.
ART. VI.-—Wounded or sick soldiers shall be entertained and
taken care of, to whatever nation they may belong. '
Commanders-in-chief shall have the power to deliver immediately
to the outposts of 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 recognised, after their wounds are healed, as
incapable of serving, shall be sent back to their 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 directions
they 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 neutralised, but the delivery
thereof shall be left to military authority.
The flag and the arm badge shall bear a red cross on a white
ground. [Turkey uses a red crescent]
ART. VIII.—-The details of execution of the present convention
shall be regulated by the commanders-in-chief of belligerent armies,
according to the instructions of their respective Governments, and
in conformity with the general principles laid down in this con-
vention.
ART. IX.-The High Contracting Powers have agreed to com-
municate the present convention to those Governments which have
not found it convenient to send plenipotentiaries to the International
Conference 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
ratifications shall be exchanged at Berne in four months, or sooner
if possible. '
INTERNATIONAL CONVENTION WITH RESPECT TO
THE LAWS AND CUSTOMS OF WAR BY LAND,
Signed at the Hague, july 29, 1899, and subsequently
ratified by the following States :
Date of » ' Date of
country Ratification country Ratification
Great Britain . Sept. 4, 1900 Luxemburg . . july 12, 1901
Germany . ,, 4, ,, Montenegro . . Oct. 16, 1900
Austria—Hungary. ,, 4, ,, Netherlands . Sept 4, ,,
Belgium . ,, 4, ,, Persia . . . ,, 4, ,.
Denmark . . ,, 4, ,, Portugal ,, 4, ,, ‘
Spain ' . ,, 4, ,, Roumania . ,, 4, ,,
Mexico . . . Apr. 17, 1901 Russia . . . ,, 4, ,,
France . . . Sept. 4, 1900 Servia . . . May 11, 1901
Greece . . . Apr. 4, 1901 Siam . . . Sept 4, 1900
Italy . . . Sept. 4, 1900 Bulgaria . . ,, 4, ,,
japan . ' . . Oct. 6, ,,

The above-mentioned High Contracting Parties, considering that,
while seeking means to preserve peace and prevent armed conflicts
cn. xx RIGHTS or WAR AS To E'NEMY’S PERSON 43
among nations, it is likewise necessary to have regard to cases where
an appeal to arms may be caused by events which their solicitude
could not avert ; '
Animated by the desire to serve, even in this extreme hypothesis,
the interests of humanity and the ever-increasing requirements of
civilisation ;
Thinking it im ortant, with this object, to revise the laws and
general customs 0 war, either with the view of defining them more
precisely, or of laying down certain limits for the purpose of modi-
fying their severity as far as possible ;
Inspired by these views which are enjoined at the present day,
‘as they were twenty-five years ago at the time of the Brussels
Conference in I874,1 by a wise and generous foresight ;
Have, in this spirit, adopted a great number of provisions, the
object of which is to define and govern the usages of war on land ;
In the view of the High Contracting Parties, these provisions,
the wording of which has been inspired by the desire to diminish
the evils of war so far as military necessities permit, are destined
to serve as general rules of conduct for belligerents in their relations
with each other and with populations ;
It has not, however, been possible to agree forthwith on pro-
visions embracing all the circumstances which occur in practice ;
On the other hand, it could not be intended by the High Con-
tracting Parties that the cases not provided for should, for want
of a written provision, be left to the arbitrary judgment of the
military Commanders ;
Until a more complete code of the laws of war is issued, the
High Contracting Parties think it right to declare that in cases not
included in the Regulations adopted by them, populations and
belligerents remain under the protection and empire of the prin-
ciples of international law, as they result from the usages esta-
blished between civilised nations, from the laws of humanity, and
they requirements of the public conscience ; '
They declare that it is in this sense especially that Articles I
and II of the Regulations adopted must be understood.
ARTIcLE I
The High Contracting Parties shall issue instructions to their
armed land forces, which shall be in conformity with the ‘ Regula-
tions respecting the Laws and Customs of War on Land ’ annexed
to the present Convention.
ARTICLE II
The provisions contained in the Regulations mentioned in
Article I are only binding on the Contracting Powers, in case of
war between two or more of them. ,
These provisions shall cease to be binding from the time when,
in a war between Contracting Powers, a non-Contracting Power
joins one of the belligerents.
ARTICLE III
The present Convention shall be ratified as speedily as possible.
The ratifications shall be deposited at the Hague.
A traces-verbal shall be drawn up recording the receipt of each

' These proposed Rules were not adopted‘by any State.
44 INTERNATIONAL ‘LAW on. xx
ratification, and a copy, duly certified, shall be sent through the
diplomatic channel, to all the Contracting Powers. .
ARTICLE IV
Non-Signatory Powers are allowed to accede to the present
Convention. '
For this purpose they must make their accession known to, the
Contracting Powers. by means of a written notification addressed
to the Netherland Government, and by it communicated to all the
other Contracting Powers.
ARTICLE V
In the event of one of the High Contracting Parties denouncing
the present Convention, such denunciation would not take effect
until a year after the written notification made to the N etherland
Government, and by it at once communicated to all the other
Contracting Powers.
This denunciation shall affect only the notifying Power.
REGULATIONS RESPECTING THE LAWS AND CUSTOMS
OF. WAR ON LAND
SECTION I.--0n Belligerents
Chapter I.-On the Qualifications of Belligerents
ART. I.-—The laws, rights, and duties of war apply not only
to armies, but also to militia and volunteer corps, fulfilling the
following conditions :— '
1. To be commanded by a person responsible for his subordi-
nates ;
2. To have a fixed distinctive emblem recognisable at a distance ;
3. To carry arms openly; and - '
4. To conduct their operations in accordance with the laws and
customs of war.
In countries where militia or volunteer corps constitute the
army, or form part of it, they are included under the denomination
‘ army.’ ,
ART. 11.—The population of a territory which has not been
occupied who, on the enemy’s approach, spontaneously take up
arms to resist the invading troops without having time to organise
themselves in accordance with Article I, shall be regarded as belli-
gerent, if they respect the laws and customs of war.
ART. III—The armed forces of the belligerent parties may con-
sist of combatants and non-combatants. In case of capture by the
enemy both have a right to be treated as prisoners of war.
Chapter 11.—On Prisoners of War
ART. IV.--Prisoners of war are in the power of the hostile
Government, but not in that of the individuals or corps who cap-
tured them. -
They must be humanely treated. -
All their personal belongings, except arms, horses, and. military
papers, remain their property. ‘
ART. V.-Prisoners of war may be interned in a town, fortress,
camp, or any other locality, and bound not to go beyond certain
on. xx RIGHTS OF WAR As TO ENEMY’S PERSON 45
fixed limits ; but they can only be confined as an indispensable
measure of safety.
ART. VI.-The State may utilise the labourof prisoners of war
according to their rank and aptitude. Their tasks shall not be
excessive, and shall have nothing to do with the military operations.
Prisoners may be authorised to work for the Public Service, for
private persons, or on their own account.
Work done for the State shall be paid for according to the tariffs
in force for soldiers of the national army employed on similar tasks.
When the work is for other branches of the Public Service or
for private persons, the conditions shall be settled in agreement
with the military authorities.
The wages of the prisoners shall go towards improving their
position, and the balance shall be paid them at the time of their
release, after deducting the cost of theirmaintenance.
ART. VII.--The Government into whose hands prisoners of war
have fallen is bound to maintain them.
Failing a special agreement between the belligerents, prisoners
of war shall be treated, as regards food, quarters, and clothing, on
the same footing as the troops of the Government which has captured
them.
ART. VIII.--Prisoners of war shall be subject to the laws, regula~
tions, and orders in force in the army of the State into whose hands
they have fallen.
Any act of insubordination warrants the adoption, as regards
them, of such measures of severity as may be necessary.
Escaped prisoners, recaptured before they have succeeded in
rejoining their army, or before quitting the territory occupied by
the army that captured them, are liable to disciplinary punish-
ment.
Prisoners who, after succeeding in escaping, are again taken
prisoners, are not liable to any punishment for the previous flight.
ART. IX.--Every prisoner of war, if questioned, is bound to
declare his true name and rank, and if he disregards this rule, he
is liable to a curtailment of the advantages accorded to the prisoners
of war of his class.
ART. X.-—Prisoners of war may be set at liberty on parole if
the laws of their country authorise it, and, in such a case, they
are bound, on their personal honour, scrupulously to fulfil, both
as regards their own Government and the Government by whom
they were made prisoners, the engagements they have contracted.
In such cases, their own Government shall not require of nor
accept from them any service incompatible with the parole given.
ART. XL—A prisoner of war cannot be forced to accept his
liberty on parole ; similarly the hostile Government is not obliged
to assent to the prisoner’s request to be set at liberty on parole.
ART. XII.—Any prisoner of war, who is liberated on parole and
recaptured, bearing arms against the Government to whom he had
pledged his honour, or against the allies of that Government, forfeits
his right to be treated as a prisoner of war, and can be broughtbefore
the Courts. ,
ART. XIIL—Individuals who follow an army without directly
belonging to it, such as newspaper correspondents and reporters,
sutlers, contractors, who fall into the enemy’s hands, and whom
the latter think fit to'detain, have a right to be treated as prisoners
of war, provided they can produce a certificate from the military
authorities of the army they were accompanying.
ART. XIV.-—A Bureau for information relative to prisoners of
46 INTERNATIONAL LAW 011. xx
war is instituted, on the commencement of hostilities, in each of the
belligerent States and, when necessary, in the neutral countries on
whose territory _ belligerents have been received. This Bureau is
intended to answer all inquiries about prisoners of war, and is
furnished by the various services concerned with all the necessary
information to enable it to keep an individual return for each
prisoner of war. It is kept informed of internments and changes,
as well as of admissions into hospital and deaths.
It is also the duty of the Information Bureau to receive and
collect all objects of personal use, valuables, letters, &c., found on
the battlefields or left by prisoners who have died in hospital or~
ambulance, and to transmit them to those interested.
ART. XV.-Relief Societies for prisoners of war, which are regu-
larly constituted in accordance with the law of the country with the
object of serving as the intermediary for charity, shall receive
from the belligerents for themselves and their duly accredited
agents every. facility, within the bounds of military requirements
and Administrative Regulations, for, the effective accomplishment
of their humane task. Delegates of these Societies may be ad-
mitted to the places of internment for the distribution of relief, as
also to the halting places of repatriated prisoners, if furnished with a
personal permit by the military authorities, and on giving an en-
gagement in writing to comply with all their Regulations for order
and police.
ART. XVI.--The Information Bureau shall have the privilege
of free postage. Letters, money orders, and valuables, as well as
postal parcels destined for the prisoners of war or dispatched by
them, shall be free of all postal duties, both in the countries of origin
and destination, as well as in those they pass through.
Gifts and relief in kind for prisoners of war shall be admitted
free of all duties of entry and others, as well as of payments for
carriage by the Government railways.
ART. XVII.-—Officers taken prisoners may receive, if necessary,
the full pay allowed them in this position by their country’s regula—
tions, the amount to be repaid by their Government.
ART. XVIII.--Prisoners of war shall enjoy every latitude in the
exercise of their religion, including attendance at their own church
services, provided only they comply with the regulations for order
and police issued by the military authorities.
ART. XIX.—T he wills of prisoners of war are received or drawn u
on the same conditions as for soldiers of the national army. '
The same rules shall be observed regarding death certificates, ‘as
well as for the burial of prisoners of war, due regard being paid ‘to
their grade and rank.
ART. XX.-—After the conclusion of peace, the repatriation of
prisoners of war shall take place as speedily as possible.
Chapter III.--On the Sick andv Wounded
ART. XXL—The obligations of belligerents with regard -to the
sick and wounded are governed by the Geneva Convention of the
22nd August, 1864, subject to any modifications which may be
1ntroduced into it.
SECTION 11.—On Hostilities
Chapter I.--On Means of I nju'ring the Enemy, Sieges and '
‘ Bombardments .
ART. XXlL—The right of belligerents to adopt means of injuring
the enemy is not unlimited.
0H. xx RIGHTS oF WAR As. To ENEMY’S PERSON 47
ART. XXIIL—Besid-es the prohibitions provided by special
Conventions, it is especially prohibited :—
(a) To employ poison or poisoned arms ;
(b) To kill or wound treacherously individuals belonging to the
hostile nation or army ;
- (e) To kill or wound an enemy who, having laid down arms, or
having no longer means of defence, has surrendered at discretion ;
(cl) T o declare that no. quarter will be given ;
(e) To employ arms, projectiles, or material of a nature to cause
superfluous injury ;
(f) To make improper use of a flag of truce, the national flag,
or military ensigns and the enemy’s uniform, as well as the dis—
tinctive badges of the Geneva Convention ;
(g) To destroy or seize the enemy’s property, unless such destruc—
tion or seizure be imperatively demanded by the necessities of war.
. ART.- XXIV.—-Ruses of war and the employment of methods
necessary to obtain information about the enemy and the country,
are considered allowable. -
ART. XXV.—The attack or bombardment of towns, villages,
habitations, or buildings which are not defended, is prohibited.
ART. XXVI.—-The Commander of an attacking force, before com-
mencing a bombardment, except in the case of an assault, should
do all he can to warn the authorities.
ART. XXVII.--In sieges and bombardments all necessary steps
should be taken to spare as far as possible edifices devoted to religion,
art, science, and charity, hospitals, and places where the sick and
wounded are collected, provided they are not used at the same time
for military purposes.
The besieged should indicate these buildings or places by some
particular and visible signs, which should previously be notified
to the assailants.
ART. XXVIII.—The pillage of a town or place, even when taken
by assault, is prohibited.
‘ Chapter 11.—On Spies
ART. XXIX.——An individual can only be considered a spy if,
acting clandestinely, or on false pretences, he obtains, or seeks to
obtain, information in the zone of operations of a belligerent, with the
intention of communicating it to the hostile party.
Thus, soldiers not in disguise who have penetrated into the
zone of operations of a hostile army to obtain information are not
considered spies. Similarly, the following are not considered spies :
soldiers or civilians, carrying out their mission openly, charged
with the delivery of despatches destined either for their own army
or for that of the enemy. To this class belong likewise individuals
sent in balloons to deliver despatches, and generally to maintain
communication between the various parts of an army or a territory.
ART. XXX.-—A spy taken in the act cannot be punished without
previous trial.
ART. XXXL—A spy who, after rejoining the army to which he
belongs, is subsequently captured by the enemy, is treated as a
prisoner of war, and incurs no responsibility for his previous acts
of espionage. ,
Chapter III .—-On Flags 0]‘ Trace
ART. XXXIL—An individual is considered as bearing a ‘flag of
truce who is authorised by one of the belligerents to enter into
communication with the other, and who carries a white flag. He
48 INTERNATIONAL LAW ' ' on. xx
has a. right to inviolability, as well as the trumpeter, bugler, or
drummer, the flag-bearer, and the interpreterwho may accompany
him.
ART. XXXIII.--The Chief to whom a flag of truce is sent is not
obliged to receive it in all circumstances. ' ‘
He can take all steps necessary to prevent the envoy taking
advantage of his mission to obtain information.
In case of abuse, he has the right to detain the envoy tem-
porarily. -
ART. XXXIV.—-The envoy loses his rights of inviolability if it is
proved beyond doubt that he has taken advantage of his privileged
position to provoke or commit an act of treachery.
Chapter IV.-—On Capitulations
ART. XXXV.—Capitulations agreed on between the Contracting
Parties must be in accordance with the rules of military honour.
When once settled, they must be scrupulously observed by both
the parties.
Chapter V.-.-On Armistioes
ART. 'XXXVL—An armistice suspends military operations by
mutual agreement between the belligerent parties. If its duration
is not fixed, the belligerent partiesv can resume operations at any
time, provided always the enemy is warned within the time agreed
upon, in accordance with the terms of the armistice.
ART. XXXVII.---An armistice may be general or local. The
first suspends all military operations of the belligerent States ; the
second, only those between certain fractions of the belligerent
armies and in a fixed radius.
ART. XXXVIII.-—An armistice must be notified officially, and in
good time, to the competent authorities and the troops. Hostilities
are suspended immediately after the notification, or at a fixed
date.
ART. XXXIX.--It is for the Contracting Parties to settle, in the
terms of the armistice, what communications may be held, on the
theatre of war, with the population and with each other.
ART. XL.—-Any serious violation of the armistice by one of the
parties gives the other party the right to denounce it, and even, in
case of urgency, to recommence hostilities at once.
ART. XLI.—-A violation of the terms of the armistice by private
individuals acting on their own initiative only confers‘ the right
of demanding the punishment of the offenders, and, if necessary,
indemnity for the losses sustained.
SECTION TIL—On Military Authority over Hostile Territory
ART. XLII.-Territory is considered occupied when it is actually
placed under the authority of the'hostile army.
The occupation applies only to the territory where such authority
is established, and in a position to assert itself.
ART. XLIII.-—The authority of the legitimate power having
actually passed into the hands of the occupant, the latter shall take
all steps in his power to re-establish and insure, as far as possible,
public order and safety, while respecting, unless absolutely pre-
vented, the laws in force in the country.
ART. XLIV.-—-Any compulsion of the population of occupied
territory to take part in military operations against its own country
is prohibited.
on. xx Rrcnrs OF wAR AS TO ENEMY’S PERSON 49
ART. XLV.-—Any pressure on the population of occupied territory
to take the oath to the hostile Power is prohibited.
ART. XLVI.--Family honours and rights, individual lives, and
private property, as well as religious convictions and liberty, must
e respected.
Private property cannot be confiscated.
ART. XLVIL—Pillage is formally prohibited.
ART. XLVIII.--If, in the territory occupied, the occupant
collects the taxes, dues, and tolls imposed for the benefit of the State,
he shall do it, as far as possible, in accordance with the rules in
existence and the assessment in force, and will in consequence be
bound to defray the expenses of the administration of the occupied
territory on the same scale as that by which the legitimate Govern-
ment was bound.
ART. XLIX.—If, besides the taxes mentioned in the preceding
Article, the occupant levies other money taxes in the occupied
territory, this can only be for military necessities or the administra-
tion of such territory.
ART. L.—-No general penalty, pecuniary or otherwise, can be
inflicted on the population on account of the acts of individuals
for which it cannot be regarded as collectively responsible.
ART. LIL—No tax shall be collected except under a written order
and on the responsibility of a Commander~in-chief.
This collection shall only take place, as far as possible, in accord-
pnc'e with the rules in existence and the assessment of taxes in
orce.
For every payment a receipt shall be given to the taxpayer.
ART. LIL—Neither requisitions in kind nor services can be
demanded from communes or inhabitants except for the necessities
of the army of occupation. They must be in proportion to the
resources of the country, and of such a nature as not to involve
the population in the obligation of taking part in military opera-
tions against their country.
These requisitions and services shall only be demanded on the
authority of the Commander in the locality occupied.
The contributions in kind shall, as far as possible, be paid for
in ready money ; if not, their receipt shall be acknowledged.
ART. LIIL—An army of occupation can only take possession of
the cash, funds, and property liable to requisition belonging strictly
to the State, depots of arms, means of transport, stores and supplies,
and, generally, all movable property of the State which may be
used for military operations.
Railway plant, land telegraphs, telephones, steamers, and
other ships, apart from cases governed by maritime law, as well as
depots of arms, and, generally, all kinds of war material, even
though belonging to Companies or to private persons, are likewise
material which may serve for military operations, but they must
b; restored at the conclusion of peace, and indemnities paid for
t em.
ART. LIV.--The plant of railways coming from neutral States,
whether the property of those States, or of Companies, or of private
persons, shall be sent back to them as soon as possible.
ART. LV.—The occupying State shall only be regarded as ad-
ministrator and usufructuary of the public buildings, real pro erty,
forests, and agricultural works belonging to the hostile IState,
and situated in the occupied country. It must protect the capital
of ghese properties, and administer it according to the rules of
usu ruct.
VOL. II. E
50 INTERNATIONAL LAW ca. xx
ART. LVI.--The property of the communes, that of religious,
charitable, and educational institutions, and those of arts and
science, even when State property, shall be treated as private
property. .
All seizure of, and destruction, or intentional damage done
to such institutions, to historical monuments, works of art or science,
is prohibited, and should be made the subject of proceedings.
SECTION IV.--On the I'ntemment of Bellz'gerents and the Care 0]‘ the
Wounded in N eutral Countries.
ART. LVII.-——A neutral State which receives in its territory troops
belonging to the belligerent armies shall intern them, as far as
possible, at a distance from the theatre of war.
It can keep them in camps, and even confine them in fortresses
or localities assigned for this urpose. ' -
It shall decide whether 0 cers may be left at liberty on giving
their parole that they will not leave the neutral territory without
authorisation.
ART. LVIII.--Failing a special Convention, the neutral State
shall supply the interned with the food, clothing, and relief required
by humanity.
At the conclusion of peace, the expenses caused by the intern-
ment shall be made good.
ART. LIX.——A neutral State may authorise the passage through
its territory of wounded or sick belonging to theibelligerent armies,
on condition that the trains bringing them shall carry neither
combatants nor war material. In such a case, the neutral State is
bound to adopt such measures of safety and control as may be
necessary for the purpose. -
Wounded and sick brought under these conditions into neutra
territory by one of the belligerents, and belonging to the hostile
party, must be guarded by the neutral State, so as to insure their
not taking part again in the military operations. -The same duty
shall devolve on the neutral State with regard to wounded or sick
of the other army who may be committed to its care.
ART. LX.~—The Geneva \Convention applies to sick and wounded
interned in neutral territory.1
‘ Three Declarations—to which the United Kingdom was not a party—were
also signed at the Hague Conference, viz. :—--
‘ I. To prohibit the launching of projectiles and explosives from balloons or
by other similar new methods.
‘ 2. To prohibit the use of projectiles, the only object of which is the diffusion
of asphyxiating or deleterious gases.
‘ 3. To prohibit the use of bullets which expand or flatten easily in the
human body, such as bullets with a hard envelope, of which the envelope does
not entirely cover the core, or is pierced with incisions.”
The texts of these Declarations will be found in Parliamentary Paper,
‘ Miscellaneous, No. I, 1899.’ C. 9534.
on. xx RIGHTS or WAR As‘ To ENEMY’S PERSON 51
INTERNATIONAL CONVENTION FOR ADAPTING TO
MARITIME WARFARE THE PRINCIPLES OF THE
GENEVA CONVENTION OF AUGUST 22, 1864.v
Signed at the Hague, July 29, 1899, and ratified by the
following countries z-----
. Country Il‘ltfiilfii‘ifiif ‘ Country trailer:
Great Britain . Sept. 4, 1900 Montenegro . . Oct. 16, 1900
Germany . . ,, 4, ,, Netherlands . Sept 4, ,,
Austria-Hungary. ,, 4, ,, Persia . . ,, 4, ,,
Belgium . . ,, 4, ,, Portugal . . ,, 4, ,,
Denmark . . ,, 4, ,, Roumania. . . ,, 4, ,,
Spain‘ . . . ,, 4, ,, Russia . ,, 4, ,,
United States . ,, 4, ,, Servia . . . May 11, 1901
Mexico . . . Apr. 17,1901 Siam . . . Sept 4, 1900
France . . . Sept. 4, 1900 Sweden and
Greece . . . Apr. 4, 1901 Norway. ,, 4, ,,
Italy . . . Sept. 4, 1900 Switzerland . . Dec. 29, ,,
Japan . . . Oct. 6, ,, Bulgaria . . Sept. 4, ,,
Luxemburg . .‘ july 12, 1901

These countries alike animated by the desire to diminish, as far
as depends on them, the evils inseparable from warfare, and wishing
with this object to adapt to maritime warfare the principles of the
Geneva Convention ofAugust 22, 1864, have decided to conclude a.
Convention to this effect : . '
ARTICLE I
Military hospital-ships, that is to say, ships constructed or
assigned by States specially and solely for the purpose of assisting
the wounded, sick, or shipwrecked, and the names of which shall
have been communicated to the belligerent Powers at the com-
mencement or during the course of hostilities, and in any case
before they are employed, shall be respected and cannot be captured
while hostilities last. '
These ships, moreover, are not on the same footing as men-of-
war as regards their stay in a neutral port.
ARTIcLn II
Hospital-ships, equipped wholly or in part at the cost of private
individuals or officially-recognised Relief Societies, shall likewise.
be respected and exempt from capture, provided the belligerent
Power to whom they belong has given them an oflicial commission
and has notified their names to the hostile Power at the commence-
ment of or during hostilities, and in any case before they are
employed.
These ships should be furnished with a certificate from_ the
competent authorities, declaring that they had been under their
control while fitting out and on final departure. ‘
ARTICLE III: ,
Hospital-ships, equipped wholly or in part ‘at the cost of private
individuals or officially-recognised Societies of neutral countries,
E 2
52 INTERNATIONAL LAW on. xx
shall be respected and exempt from capture, if the neutral Power
to whom they belong has given them an official commission and
notified their names to the belligerent Powers at the Commence-
ment of or during hostilities, and in any case before they are em-
ployed. H
ARTICLE IV
The ships mentioned in Articles I, II, and III shall afford relief
and assistance to the wounded, sick, and shipwrecked of the belli-
gerents independently of their nationality.
The Governments engage not to use these ships for any military
purpose.
These ships must not in any way hamper the movements of
the combatants.
During and after an engagement they will act at their own risk
and peril.
The belligerents will have the right to control and visit them ;
they can refuse to help them, order them off, make them take a
certain course, and put a Commissioner on board ; they can even
detain them, if important circumstances require it.
As far as possible the . belligerents shall inscribe in the sailing
papers of the hospital-ships the orders they give them.
ARTICLE V
The military hospital-ships shall be distinguished by being
painted white outside with a horizontal band of green about a
metre and a half in breadth.
The ships mentioned in Articles II and III shall be distin-
guished by being painted white outside with a horizontal band of
red about a metre and a-half in breadth.
The boats of the ships above mentioned, as also small craft
which may be used for hospital work, shall be distinguished by
7 similar painting.
All hospital-ships shall make themselves known by hoisting,
together with their national flag, the white flag with a red cross
provided by the Geneva Convention.
ARTICLE VI
Neutral merchantmen, yachts, or vessels, having, or taking on
board, sick, wounded, or shipwrecked of the belligerents, cannot
be captured for so doing, but ‘they are liable to capture for any
violation of neutrality they may have committed.
ARTICLE VII
The religious, medical, or hospital staff of any captured ship is
inviolable, and its members cannot be made prisoners of war. On
leaving the ship they. take with them the objects and surgical
instruments which are their own private property.
This staff shall continue to discharge its duties while necessary,
and can afterwards leave when the Commander-in-Chief considers
it possible. > v - ~
The belligerents must guarantee to the staff that has fallen
into their hands the enjoyment oftheir salaries intact.
ARTICLE VIII
Sailors and soldiers who'are taken on board when sick or wounded,
‘to whatever nation they belong, shall be protected and looked after
by the captors.
RIGHTS OF WAR AS TO ENEMY’S PERSON 53A
FURTHER CONVENTIONS OF THE HAGUE, 1907.
A Second Conference met at The Hague on June 15, 1907. It
was attended by delegates from the following States :--

Argentina Mexico
Austria-Hungary Montenegro
Belgium Nicaragua
Bolivia Norway
Brazils Panama
Bulgaria Paraguay
Chili Holland
China Peru
Colombia Persia
Cuba Portugal
Denmark Roumania
Republic of Dominica Russia
Ecuador Salvador
France Servia
Germany Siam
Great Britain , Spain
Greece , Sweden
Guatemala 5 Switzerland
Haiti ; Turkey
Italy - Uruguay
Japan Venezuela
Luxemburg 5 United States of America
The Conference sat for over four months, and submitted thirteen
Conventions and one Declaration for the approval of the delegates,
and, consequently, for the ultimate ratification of the various States
represented at the Conference. The whole of these documents
bear date October 19, 1907. They may be signed at any time
until June 30, 1908. Moreover, even if signed, they may never
be ratified by all or some of the various States.
The subjects of the Conventions and Declaration are as follows :—
1. Convention for the pacific settlement of international con-
flicts.
2. Convention relative to the recovery by force of contractual
debts.
3. Convention relative to the beginning of hostilities.
4. Convention concerning the laws and customs of war on land.
5. Convention concerning the rights and duties of neutral
Powers and persons in land warfare.
6. Convention regarding the enemy’s ships of commerce at the
beginning of hostilities.
7. Convention regarding the transformation of merchantmen
into warships.
8. Convention with regard to the placing of submarine mines.
9. Convention concerning bombardment by naval forces in
wartime.
10. Convention for the adaptation of the principles of the
Geneva Convention to maritime war.
1 1. Convention with regard to certain restrictions upon the right
of capture in maritime war.
12. Convention regarding the establishment of an International
Prize Court.
53B ' INTERNATIONAL LAW
13. Convention concerning the rights and duties of neutral
Powers in maritime war.
I4. Declaration regarding the prohibition of throwing projectiles
and explosives from balloons.
The Conference, moreover, as the Second Peace Conference of
The Hague, confirmed a Resolution adopted by the First Peace
Conference of The Hague in I 899 with regard to the limits of military
taxes, and deemed that it is desirable to consider seriously this
question, seeing that the taxes in that behalf had, in nearly every
country, considerably increased since 1899.
The Conference further recommended the meeting of the various
Powers at a Third Peace Conference, to be held at some future
time.1
1 The foundation-stone of a Palace of Peace, which will be erected by the
generosity of Mr. Andrew Carnegie as a permanent home for the Hague Inter-
national Tribunal, was laid July 30, 1907, on land given by the Dutch Government.
CH. xx RIGHTS OF WAR AS TO ENEMY’S PERSON
ARTICLE IX
The shipwrecked, wounded, or sick of one of the belligerents
who fall into the hands of the other, are prisoners of war. The
captor must decide, according to circumstances, if it is best to
keep them or send them to a port of his own country, to a neutral
port, or even to a hostile port. In the last case, prisoners thus
repatriated cannot serve as long as the war lasts.
ARTICLE X
[Excluded] 1
ARTICLE XI
The rules contained in the above Articles are binding only on
the Contracting Powers, in case of war between two or more of
them. I
The said rules shall cease to be binding from the time when, in
a war between the Contracting Powers, one of the belligerents is
joined by a non-Contracting Power.
ARTICLE XII *1 '
The present Convention shall be ratified as soon as possible.
- The ratifications shall be deposited at the Hague.
On the receipt of each ratification a proees-verbal shall be drawn
up, a copy of which, duly certified, shall be sent through the diplo-
matic channel to all the Contracting Powers.
ARTICLE XIII
The non-signatory Powers who accepted the Geneva Convention
of August 22, 1864, are allowed to adhere to the present Convention.
For this purpose they must make their adhesion known to the
Contracting Powers by‘ means of a written notification addressed
to the N etherland Government, and by it communicated to all the
other Contracting Powers.
ARTICLE XIV
In the event of one of the High Contracting Parties denouncing
the present Convention, such denunciation shall not take effect
until. a year after the notification made in writing to the Nether-
land Government, and forthwith communicated by .it to all the
other Contracting Powers.
This denunciation shall only affect the notifying Power.
1 The excluded Article is as follows :—
‘The shipwrecked, wounded, or sick, who are landed at a neutral port with
the consent of the local authorities, must, failing a contrary arrangement between
the neutral State and the belligerents, be guarded by the neutral State, so that
they may not be again able to take part in the military operations.
‘ The expenses of entertainment and internment shall be borne by the State to
which the shipwrecked, wounded, or sick belong.’

54 INTERNATIONAL LAW CH’. xx
INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF
THE UNITED STATES IN THE FIELD.1
General Orders, WAR DEPARTMENT,
No. 100. Adjutant-General’s Office, Washington.
April 24, 1863.
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. By order of the Secretary of War.
‘ E. D. TowNsEND,
Assistant Adj utant-General.
SECTIoN I
Martial Law-Military jurisdiction—Military Neoessi ty—Retali ati on
I. A place, district, or country occupied by an enemy stands, in
Consequence of the occupation, under the martial law of the invading
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 consequence
of occupation or conquest.
The presence of a hostile army proclaims its martial law.
2. Martial law does not cease during the hostile occupation,
except 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 Continues beyond the
conclusion of peace as one of the conditions of the same. '
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 the
military necessity requires this suspension, substitution, or dictation.
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 authority.
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,
honour, 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
1 These instructions, of course, only apply to the United States, but, being
valuable, are inserted here.
on. xx RIGHTS OF WAR AS TO ENEMY’S PERSON 55
allowed—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 other considerations.
. 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 character,
cease under martial law, or continue only with the sanction, or, if
deemed necessary, the participation, of the occupier or invader.
7.. Martial law extends to property, and to persons, whether they
are subjects of the enemy or aliens to that government.
8. Consuls, among American and European nations, are not
diplomatic agents. Nevertheless, their offices and persons will be
su jected to martial law in cases of urgent necessity only ; their
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 misplaced government; but the con—
quering or occupying power usually recognises them as temporarily
accredited to itself.
IO. 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 efficiency of
the army, its safety, and the safety of its operations.
I I. 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
belligerents in time of peace, and avowedly intended to remain in
force in case of war between the contracting parties.
It disclaims all extortions and other transactions for individual
gain; all acts of private revenge, or connivance at such acts.
Offences to the contrary shall be severely punished, and especially
so if committed by officers.
- 12. Whenever feasible, martial law is carried out in cases of
individual 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.
I 3. Military jurisdiction is of two kinds : first, that which is con-
ferred and defined by statute ; second, that which is derived from the
common law of war. Military offences under the statute law must
be tried in the manner therein directed ; but military offences 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
Articles of War,’ or the jurisdiction conferred by statute on courts-
martial, are tried by military commissions.
14. Military necessity, as understood by modern civilised nations,
consists in the necessity of those measures which are indispensable
56 ' ' INTERNATIONAL LAW cH. xx
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 allows
of the capturing of every armed enemy, and every enemy of import—
ance 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 with-
holding of sustenance or means of life from the enemy ; of the appro-:
priation 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, regarding
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
infliction 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
unnecessarily 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
intention to bombard a place, so that the non-combatants, and
especially 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
necessity.
20. Public war is a state of armed hostility between sovereign
nations or governments. It is a law and requisite of civilised exist-
ence that men live in political, continuous societies, forming organised
units, called states or nations, whose constituents bear, enjoy, 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 civilisation 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 un-
armed citizen is to be spared in person, property, and honour as
much as the exigencies of war will admit. i
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.
on. xx moms or WAR AS TO ENEMY’S PERSON 57
24. The almost universal rule in remote times was, and continues
to be with barbarous armies, that the private individual of the hostile
country is destined to suffer every privation of liberty and protec-
tion, and every disruption of family ties. Protection was, and still
is with uncivilised people, the exception.
2 5 . In modern regular wars of the Europeans, and their de-
scendants 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.
26. Commanding generals may cause the magistrates and civil
officers of the hostile country to take the oath of temporary allegi-
ance 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 OffiCGI'S owe
strict obedience to them as long as they hold sway over the district
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 civilised
nations acknowledge retaliation as the sternest feature of war. A
reckless enemy often leaves to his opponent no other means of
securing 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 occurrence,
and the character of the misdeeds that may demand retribution.
Unjust or inconsiderate retaliation removes the belligerents
further and further 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
existence, at one and the same time, of many nations and great
governments related to one another in close intercourse.
Peace is their normal condition ; war is the exception. The
ultimate object of all modern war is a renewed state of peace.
The more vigorously wars are pursued, the better it is for
humanity. 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 defence 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 honour.
SECTION II
Public and Private Property of the Enemy—Protection of Persons, and
especially Women ; of Religion, the Arts and Seienees—Pnnish~
ment of Crimes against the Inhabitants of Hostile Countries
31. A victorious army appropriates all publicmoney, seizes all
public movable property until further direction by its government,
and sequester-s 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 power inherent in the same,
may suspend, change, or abolish, as far as the martial power extends,
58 INTERNATIONAL LAW on. xx
the relations which arise from the service, due, according to the
existing laws of the invaded country, from one citizen, subject, or
native of the same to another. _ 3
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
character, to establishments of education, or foundations for the
promotion 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
precious instruments, such as astronomical telescopes, as well as
hospitals, 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
belonging 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 appro-
priated, or wantonly destroyed or injured.
37. The United States acknowledge and protect, in hostile
countries occupied by them, religion and morality; strictly private
property ; 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
sup ort or other benefit of the army or of the Unlted States.
f the owner has not fled, the commanding officer will cause
receipts 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.
on. xx RIGHTS OF WAR AS TO ENEMY’S PERSON 59
41. All municipal law of the ground on which the armies stand,
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 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 acknowledged
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 belli-
gerent 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 immediately
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 postliminy, no belligerent 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
authorised officer, all robbery, all pillage or sacking, even after taking
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. ‘
46. Neither officers nor soldiers are allowed to make use of their
position or power in the hostile country for private gain, not even
or commercial transactions otherwise legitimate. Offences to the
contrary committed by commissioned ofiicers 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 codes, 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 Battlefield
48. Deserters from the American army, having entered the
service 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
60 , INTERNATIONAL LAW on. xx
American army ; and if a deserter from the enemy, having taken
service 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 err masse of the hostile country ; all those who are attached
to the army for its efficiency and promote directly the object of the
war, except such as are hereinafter provided for ; all disabled men or
officers on the field or elsewhere, if captured ; all enemies 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.
50. Moreover, citizens who accompany an army for whatever
purpose, such as sutlers, editors, or reporters of journals, or con-
tractors, 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
approach of a hostile army, rise, under a duly authorised levy, en
masse 1 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
reason 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 fulfilment
of an agreement concluded between belligerents during the war, or in
consequence of a war. Hostages are rare in the present age.
5 5. 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
1 ‘The Prussian military code,’ says Edwards (Germans in France), ‘if it
really exists in a separate and complete form, is inaccessible to the public; but
may be studied all the same in the American Instructions. Mark out of them
the article which under certain conditions sanctions a levy en masse, and substan-
tially the two codes are identical. Incendiarism was practised in America during
the civil war as a punishment, so it was also by the Prussians in 1871, but both
nations seem to have a strong suspicion that the punishment is a barbarous one.
It is not mentioned in the American Instructions, nor was it alluded to in the
minatory proclamations put forth by the Prussians.’
on. xx RIGHTS or WAR AS TO ENEMY’S PERSON 61
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,
colour, or condition, when properly organised as soldiers, will not be
treated by him as public enemies.
58. The law of nations knows of no distinction of colour, 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
nations.
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
authorities.
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
already 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
emblem of nationality, for the purpose of deceiving the enemy in
battle, is an act of perfidy by which they lose all claim to the pro-
tection 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-
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.
62 INTERNATIONAL LAW ‘ CH. xx
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 effect.
70. The use of poison in any manner, be it to poison wells, or
food, orv 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
enemy already wholly disabled, or‘ kills such an enemy, or who
orders or encourages soldiers to do so, shall suffer death, if duly con-
victed, 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
appropriation of such valuables or money is considered dishonourable,
and is prohibited.
Nevertheless,if large sums are found upon the persons of prisoners,
or in their possession, they shall be taken from them, and the surplus,
after providing for their own su port, appropriated for the use of the
army, under the direction 0 the commander, unless otherwise
ordered by the Government. Nor can prisoners claim as private
property large sums found and captured in their train, although they
had been placed in the private luggage of the prisoners.
73. All officers, when captured, must surrender their side-arms
to the captor. They may be restored to the prisoner in marked
cases, by the commander, to signalise admiration of his distinguished
bravery, or approbation of his humane treatment of prisoners 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 command.
The government alone releases captives according to rules prescribed
by itself.
7 5. 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
government, 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 security
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 punished,
even with death ; and capital punishment may also be inflicted upon
prisoners of war discovered to have plotted rebellion against the
authorities of the captors, whether in union with the fellow prisoners
or other persons.
78. If prisoners of war, having given no pledge, nor made any
promise on their honour, forcibly or otherwise escape, and are
captured again in battle, after having rejoined their own army,
on. xx RIGHTS or WAR AS TO ENEMY’S PERSON , 63
they shall not be punished for their escape, but shall be treated as
simple prisoners 0 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.
'80. Honourable 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 prisoners,
in order to extort the desired information, or to punish them for
having given false information.
SECTION IV
Partisans—~14 rmed Ehemz'es not belonging to the H oslz'le 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 ofmaking inroads into the territory occupied
by the enemy. If captured, they are entitled to all the privileges
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 organised
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 appearance of soldiers—
such men, or squads or men, are not public enemies, and therefore,
if captured, are not entitled to the privileges of prisoners of war,
but shall be treated summarily as highway robbers or pirates.
‘ 8 3’. Scouts or single soldiers, if disguised in the dress of the
country, or in the uniform of the army hostile to their own, employed
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 persons of the enemy’s territory, who steal within the lines of the
hostile 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 con uering army, or against the
authorities established by the same. f captured, they may sufi’er
death, whether they rise singly, 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 rising,
or to armed violence.
SECTION V
,Safe-oonduct—Spz'es—-War Traitors—Captured M essengers—
Abuse of the Flag of Truce
86. All intercourse between the territories occupied by belligerent
armies, whether by traflic, 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
64 INTERNATIONAL LAW QB’. xx
from one territory into the other, can take place only according 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 ofiicers.
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 succeed 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 suffer death.
90. A traitor under the law of war, or a war traitor, is a person
in a place or district under martial law who, unauthorised 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 condition,
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
conquered 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.
9 5. 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. 9 .
96. A citizen serving voluntarily as a guide against his own
country commits treason, and will be dealt with according to the law
of his country.
97. Guides, when it is clearly proved that vthey have misled
intentionally, may be put to death. _
98. All unauthorised 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-despatches or verbal messages
from one ortion 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.
on. xx RIGHTS or WAR AS TO ENEMY’S PERSON 65
If not in uniform, nor a soldier, the circumstances connected 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
circumstances of the case.‘
i 101. While deception in war is admitted as a just and necessary
means of hostility, and is consistent with honourable 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
offences, makes no difference on account of the difference of sexes,
concerning the spy, the war traitor, or the war rebel.
103. Spies, war traitors, and war rebels are not exchanged accord-
ing to the common law of war. The exchange of such persons would
require a. special cartel, authorised 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
punishment 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
eriod.
P 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
\ ‘f the government, or of the commander of the army in the field.
Q\ 107. A prisoner of war is in honour 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
higheifirank, for the purpose of obtaining better treatment.
Offen‘oes to the ‘contrary have been justly punished by the com-
manders o‘f 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 hasttaken place is sometimes released either for the payment
of a stipulated sum of money, or, in urgent cases, of provision,
clothing, or other necessaries. .
Such arrangement, however, requires the sanction of the hlghest
authority. ‘
" '" 10*». , exchange of prisoners of war is an act of convenience to
both belligerents. If no general cartel has been concluded, it cannot
be 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 com-
plete capture, after an accurate account of them, and a list of
the captured officers, has been taken.
1 1 1. The bearer of a flag of truce cannot insist upon being
II. F
66 INTERNATIONAL LAW on. xx
admitted. He must always be admitted with great caution. Un-
necessary frequency is carefully to be avoided.
I 1 2. If the bearer of a flag of truce offer himself during an engage-
ment, 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.
I I 3. If the bearer of a flag of truce, presenting himself during an
engagement, is killed or wounded, it furnishes no ground of complaint
whatever. ~
I 14. If it be discovered, and fairly proved, that a flag of truce has
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
sacredness, that while its abuse is an especially heinous offence, great
caution is requisite, on the other hand, in convicting the bearer of
a flag of truce as a spy.
I I 5. 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. Honourable belligerents often request that the hospitals
within the territory of the enemy may be designated, so that they
may be spared.
An honourable belligerent allows himself to be guided by flags or
signals of protection as much as the. contingencies and the necessities
of the fight will permit.
II 7. 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.
I 18. The besieging belligerent has sometimes requested the
besieged to designate the buildings containing collections of works
of art, scientific museums, astronomical observatories, or precious
libraries, so that their destruction may be avoided as much as
possible.
SECTION VII
The Parole
I 19. Prisoners of war may be released from captivity by exchange
and, under certain circumstances, also by parole. J,’ '
120. The term parole designates the pledge of individual good
faith and honour 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. I.’
121. The pledge of the parole is always an individr'ual, but not a
private, act.
122. The parole applies chiefly to prisoners of w'ar whom the
captor allows to return to their country, or to live in gre ter freedom
within the captor’s country or territory, on conditions Ated in the
arole. ~
p 123. Release of prisoners of war by exchange is the general rule ;
release by parole is the exception. _ '
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
on. xx RIGHTS OF WAR AS TO ENEMY’S PERSON 67
exchange 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 individuals giving them to
the punishment of death as deserters. The only admissible excep-
tion is where individuals, properly separated from their commands,
have suffered long confinement without the possibility of being
paroled through an officer.
128. No paroling on the battlefield ; 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 fortified
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.
1 30. 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
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.
I 3 3. 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 ofiicers, 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 VIII
Armistice—Capitulation
1 3 5. An armistice is the cessation of active hostilities for a period
agreed upon between belligerents. It must be agreed upon in
writing, and duly ratified by the highest authorities of the contending
arties. .
p 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,
F 2
68 INTERNATIONAL LAW 01!. xx
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.
I 38. The motives which induce the one or the other belligerent to
conclude an armistice, whether it be expected to be preliminary 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.
13.9. ' 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.
14o. 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 armi-
stice is not ratified, even if a certain time for the elapsing between
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
inhabitants 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.
I42. An armistice is not a partial or temporary peace ; it is only
the suspension of military operations to the extent agreed upon by
the parties.
14 3. 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
ammunition in his possession, during the time which elapses between
the signing and the execution of the capitulation, unless otherwise
stipulated in the same.
145. When an armistice is clearly broken by one of the parties,
the other party is released from all obligation 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.
I47. 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
cu. xx RIGHTS or WAR As TO ENEMY’S PERSON 69
armistice; in the latter case the war is carried on without any
abatement.
Sncrron IX
A ssassination
148. The law of war does not allow proclaiming either an indi-
vidual belonging to the hostile army, or a citizen, or a subject of the
hostile government, 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.
Civilised nations look with horror upon offers of rewards for the
assassination of enemies as relapses into barbarism.
SECTION X
I nsurreetion—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 officer or ofiicers of the government. It may be confined
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 a war of rebellion, when the rebellious provinces or
portions of the State are contiguous to those containing the seat
of government.
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.
I 52. When humanity induces the adoption of the rules of regular
war towards 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 people
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 officers 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 demanded
by the law and usages of public war between sovereign belligerents,
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
beyond 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
70 INTERNATIONAL LAW 011. xx
treason, and from treating them accordingly, unless they are included
in a general amnesty.
155. All enemies in regular war are divided into two general
classes; that is to say, into combatants and non-combatants, or
unarmed 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
sympathise with the rebellion, without positively aiding it, and those
who, without taking up arms, give positive aid and comfort to the
rebellious enemy, without being bodily forced thereto.
I 56. Common justice and plain expediency require that the
military 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—com-
batant enemies have to suffer in regular war ; and if he deems it
appropriate, or if his government demands of him that every citizen
shall, by an oath of allegiance, or by some other manifest act, declare
his fidelity to the legitimate government, he may expel, transfer,
imprison, or fine the revolted citizens who refuse to pledge themselves
anew as citizens obedient to the law and loyal to the government.
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.
I57. 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.

INSTRUCTIONS OF THE COMMANDER-IN-CHIEF OF THE
ARMIES OF THE UNITED STATES (GENERAL HENRY
WAGER HALLECK) TO THE COMMANDING OFFICER
IN TENNESSEE, UNDER DATE OF MARCH 5, 1863
The suggestions of General Reynolds and General Thomas, in
regard to the more rigid treatment of all disloyal persons within the
lines of your army, are approved. N 0 additional instructions from
these headquarters are deemed necessary. You have already been
urged to procure your subsistence, forage, and means of transporta-
tion, so far as is possible, in the country occupied. This you had
the right to do without any instructions. As the commanding
general in the field, you have the power to enforce all the laws and
usages of war, however rigid and severe these may be, unless there
be some act of Congress, regulation, order, or instruction forbidding
or restricting such enforcement. As a general rule, you must be the
judge where it is best to rigidly apply these laws, and where a more
lenient course is of greater advantage to our cause. Distinctions,
however, should always be made in regard to the character of the
people in the district of country which is militarily occupied or passed
over. The people of the country in which you are likely to operate
may be divided into three classes :—-
First, the truly loyal, who neither aid nor assist the rebels except
under compulsion, but who favour or assist the Union forces. Where
on. xx RIGHTS OF WAR AS TO ENEMY’S PERSON 71
it can possibly be avoided, this class of persons should not be sub-
jected to military requisitions, but should receive the protection
of our arms. It may, however, sometimes be necessary to take their
property, either for our own use, or to prevent its falling into the
hands of the enemy. They will be paid, at the time, the value
of such property, or, if that be impracticable, they will hereafter
be fully indemnified. Receipts should be given for all property so
taken without being paid for.
Second, those who take no active part in the war, but belong to
the class known in military law as non-combatants. In a civil war
like that now waged, this class is supposed to sympathise with the
rebellion rather than with the Government. There can be no such
thing as neutrality in a rebellion. This term is applicable only to
foreign powers. Such persons, so long as they commit no hostile
act, and confine themselves to their private avocations, are not to
be molested by military forces ; nor is their property to be seized,
except as a military necessity. They are, however, subject to forced
loans and military requisitions, and their houses to be let for soldiers,
quarters, and to appropriation for other temporary military uses.
Subject to these impositions the non-combatant inhabitants of a
district of country militarily occupied by one of the belligerents
are entitled to the military protection of the occupying forces ; but
while entitled to such protection they incur very serious obligations—-
obligations differing in some degree from those of civil allegiance,
but equally binding. For example, those who rise in arms against
the occupying army, or against the authority established by the
same, are rebels or military traitors, and incur the penalty of death.
They are not entitled to be considered as prisoners of war when
captured ; their property is subject to military seizure and military
confiscation. Military treason of this kind is broadly distinguished
from the treason defined in the Constitutional and Statutory laws,
and made punishable by the civil courts. Military treason is a mili-
tary offence, punishable by the common laws of war. Again, persons
belonging to such occupied territory and within the military lines
of the occupying forces can give no information to the enemy of the
occupying force without proper authority. To do so the party not
only forfeits all claim to protection, but subjects himself, or herself,
to be punished either as a spy or a military traitor, according to the
character of the particular offence. Our treatment of such offences
and such ofi’enders has hitherto been altogether too lenient. A more
strict enforcement of the laws of war in this respect is recommended.
Such offenders should be made to understand the penalties they
incur, and to know that those penalties will be rigidly enforced.
Third, those who are openly and avowedly hostile to the occupy-
ing army, but who do not bear arms against such forces. In other
words, while claiming to be non-combatants, they repudiate the
obligations tacitly or impliedly incurred by the other inhabitants of
the occupied territory. Such persons not only incur all the obliga-
tions imposed upon other non-combatant inhabitants of the same
territory, and are liable to the same punishments for offences com—
mitted, but they may be treated as prisoners of war, and be subjected
to the rigours of confinement or expulsion, as non-combatant enemies.
I am of opinion that such persons should not, as a general rule, be
permitted to go at large within our lines. To force those capable
of bearing arms to go within the lines of the enemy adds to his
effective force. To place them in confinement will require guards
for their safe keeping, and this necessarily diminishes our efiective
forces in the field You must determine in each particular case which
72 INTERNATIONAL LAW 011. xx
course will be most advantageous. We have suffered very severely
from this class, and it is time that the laws of war should be more
rigorously enforced against them. A broad line of distinction must be
drawn between the friends and enemies, between the loyal and
disloyal.
The foregoing remarks have reference only to military statutes and
to military offences under the laws of war. They are not applicable
to civil offences under the Constitution and general laws of the land.
The laws and usages of civilised war must be your guide in the
treatment of all classes of persons of the country in which your
army may operate, or which it may occupy, and you will be per-
mitted to decide for yourself where it is best to act with rigour and
where best to be more lenient. You will not be trammelled with
minute instructions.

For the Declaration of St. Petersburg, 1868 (explosive bullets), see vol. i.
ch. xviii. § 12.
CH. XXI
73
CHAPTER XXI
ENEMY’S PROPERTY ON LAND
1. General right of war as to enemy’s property—2. Distinction
between movables and immovables—g. Alienation of the
‘public domain—4. Title to property acquired during war-—
5 . Who may become purchasers—6. Purchase by neutral Govern—
ments—7. Movable property—8. Documentary evidence of
debts—9. Public archives—Io. Public libraries and works of art
—-1 1.. Civil structures and monuments--12. Private property
on land—13. Exceptions to rule of exemption—~14. Penalty for
illegal acts—15. Military contributions—16. Of hostile popu—
lations—-17. Property taken on field of battle or in a siege-—
18. Useless destruction of enemy’s property—19. The right to
private property—20. Captures in war—21. All booty belongs
primarily to the State-722. Rule of moderation--23. Laying
waste a country—24. Admiral’s court—2 5. The English Prize
Court—26. English law respecting booty.
§ I. IT has already been stated that war, when duly de—
clared, or officially recognised, makes legal enemies of all the
individual members of the hostile States ; that it also extends
to property, and gives to one belligerent the right to deprive
the other of everything which might add to his strength,
and enable him to carry on hostilities. But this general
right is subject to numerous modifications and limitations
which have been introduced by custom and the positive
law of nations. Thus, although by the extreme right of
war all property of an enemy is deemed hostile and subject
to seizure, it by no means follows that all such property
is subject to appropriation or condemnation, for the positive
law of nations distinguishes not only between the property
of the State and that of its individual subjects, but also
between that of different classes of subjects, and between
‘different kinds of property of the same subject; and par-
ticular rules, derived from usage and the practice of nations,
have been established with respect to each. We shall con-
fine our remarks, in this chapter, to enemy’s property on
land.1
1 Grotius, De jure Bell. ae Pao. lib. iii. 0. iv. § 8 ; Vattel, Droit
General
right of
capture
in war
74 INTERNATIONAL LAW on. xx!
Ditinc-
tion
between
movables
and im-
movables
Aliena~
tion of the
public
domain
§ 2. The captor’s title to mobilz'a, or movable property,
captured on land, vests in him so soon as the property is in
his firm possession ; but the possession of irrnnobilia, or real
property, only gives him a prz'rna faez'e right to its use and
products. His title or dominion over it is not complete until
his conquest is confirmed, in some one of the modes pre-
scribed by international law ; meanwhile the original owner
is entitled to the benefit of postliminy, which, as will be
explained in chapter XXXV., obtains in some events to
mobilz'a also.
§ 3. It has been asserted that war being but a tem-
porary relation of nations, real property must remain in
slain gno until after the termination of the war, when such
property may revert to its former owner by the {as post-
lr'rnz'nz'z', and therefore such property can never properly
be alienated by the conqueror, so long as the war continues.
But this argument is erroneous. The right of a conqueror
is to use or alienate the public domain of the conquered
Government. This principle is recognised and sustained by
the general law of nations.1
§ 4. It must not, however, be inferred that the title
des Gens, liv. iii. ch. ix. § 163 ; Wheaton, Elem. Int. Law, pt. iv.
ch. § 5 ; Polson, Law of N atz'ons, sec. 6 ; Wildman, Int. Law, vol. ii.
p. 9; Manning, Law 0]‘ Nations, pp. 132 et seq. ; Bello, Dereeho
Internaez'onal, pt. 0. iv. §i.; Merlin, Repertoire, verb. ‘ Déclara-
tion de Guerre ’ ; Heffter, Droit International, §§ 130, 131 ; Haute-
feuille, Des Nations Nentres, tit. vii. oh. i. ; Kent, Corn. on Am. Law,
vol. i. pp. 110, 111.
The Germans in the war of 1870 seem to have regulated their
conduct towards the French by German historical precedents, such
as the invasions of 1792 and of 1814. If the campaign of 1870 was
less harsh, it is to be accounted for not from any modification of the
German laws of war, but by the general softening of manners during
the last half-century. The war from a military point of view was
conducted with all possible severity. Thus fortified towns—except
in the case of Strasburg, where the attempt failed, and of Metz,
where the system was impracticable--were reduced by the bom-
bardment, not of the fortifications, but of the town itself. French
writers before the war had declared that it would be the duty of
French commanders to bombard the civil and commercial quarters
of the fortified towns (Le Speetateur Mz'lz'taz're, July 1867), and the
French themselves followed the example by bombarding Paris
during the Commune, 1871 (Edwards, Germans in France).
1 Kluber, Droz't des Gens M 0a’. §§ 2 50—3 ;Martens, Pre’ez's dn Droit
des Gens, §§ 279-282; Bynkershoek, Qucesl. jar. Pub. lib. i. ca . vi. ;
Phillimore, 0n Int. Law, vol. iii. § 90 ; Riquelme, Dereeho P228. Int.
lib. i. tit. i. c. xii.; Isambert, Annales Pol. et Dip. introd. p. 115 ;
Kampts, Literatur des Vb'lkerreehts, § 307.
011. XX! ENEMY’S PROPERTY 0N LAND
75
which the purchaser acquires to the two species of property
is the same. On the contrary, it is essentially different. The
purchaser of movable property captured on land acquires a
perfect title as soon as the property is in the firm possession
of the captor;1 but the purchaser of any portion of the
national domain of a conquered country, takes it at the risk
of being evicted by the original sovereign owner, if he should
be restored to the possession of his dominions. If such
restoration should not take place, and the title of the con-
queror should be confirmed by some one of the modes recog—
nised by international law, the title of the purchaser is then
made perfect. It was, before, a good and valid title against
all, except the original sovereign owner under the ins
postlz'mz'm'i, whose right is completely extinguished by a
confirmation of the conquest. The conqueror cannot, of
course, deny his own act, and attempt the recovery of
property which he has already alienated, on the ground that
the formal cession or confirmation gives him a new title.
He sold the title which he acquired by the rights of conquest ;
a treaty of peace gives him no other title ; it simply confirms "
that which he already had, by depriving the former sovereign
owner of the benefit of postliminy, and thus extinguishing
an older adverse outstanding title.
§ 5. A question here arises as to who may become the
purchasers of immovable property, alienated by the con-
queror during military occupation, and prior to the confirma-
tion of the conquest. The object of such alienation is, as
already stated, to weaken the enemy, and to supply ourselves
with the means of carrying on the war. It is evident,
therefore, that the subjects of the conquered or displaced
Government cannot, consistently with their duties to their
own sovereign, become such purchasers. They have no right
to voluntarily supply us with means for carrying on war
against the Government to which they owe allegiance. By
making such purchases they not only risk the loss of their
1 Where property of a citizen of an insurgent State was seized as
an act of war by the officer commanding the troops of the United
States in that State, and the captor, after acquiring firm possession
of the property, sold it to a third person, it was held that the title of
the hostile owner was extinct, at least as against the purchaser.
Coolidge v. Gutthrie, 8 Am. L. Reg. U.S. 22. Capture as prize of war
overrides all previous claims (the ‘ Battle,’ 6 Wall. 498).
Title to
property
Who may
purchase
76
INTERNATIONAL LAW CH. xxr
Purchase
by a
neutral
State
purchase money on the restoration of the original sovereign
to his dominions, but they expose themselves to be punished
by their own Government for voluntarily furnishing the
enemy with the means of prolonging the war. After the
Franco-German war of 1870, the French Government tried
some of their subjects for this offence. If, however, the
purchasers are inhabitants of the conquered territory, and
their allegiance should be transferred to the new Govern-
ment by the confirmation of the conquest, their title would
thereby be made valid, and they themselves be free from
the risk of punishment for having paid the purchase money.
Subjects of the conqueror may become purchasers with no
other risk than that of being evicted by the original owner
on the restoration or recapture of the real property so
alienated. The same may be said of foreigners, or the
subjects of a neutral State. Such purchase might, however,
in some cases be deemed a hostile act, and not within the
limits of legitimate trade, and not consistent with the
character of neutrality, and, therefore, attach to the pur-
chaser the character of an enemy to the displaced or con-
quered Power, in so much as pecuniary assistance is rendered
by the purchase money paid.
§ 6. Whether a neutral may make such purchases and
not become a party to the war, will depend upon the cha—
racter of the assistance which, by the purchase, is afforded
to the conqueror, to the injury of the opposing belligerent.
It is certain that if he should attempt to possess himself,
during the continuance of the war, of the lands so purchased,
or to maintain the title so acquired, after the restoration or
recapture of the property so alienated, he would assume a
hostile attitude toward the original sovereign owner and
make himself a party to the war. He cannot safely purchase
a conquered town or province, till the sovereign, from whom
it was taken, has renounced it by a treaty of peace, or has
been irretrievably subdued, or has lost his sovereignty. The
original proprietor cannot forfeit his rights by the act of a
third party ; and if the purchaser be determined to maintain
his purchase, he will find himself involved in the war. Thus,
the King of Prussia became a party with the enemies of
Sweden, by receiving Stettin from the hands of the King of
Poland and the Czar, under the title of sequestration. But
on. xxr ENEMY’S PROPERTY 0N LAND
77
when a sovereign has, by a definitive treaty of peace, ceded
a country to a conqueror, he has relinquished all the right
which he had to it ; and it would be absurd for him to be
allowed to demand the restitution from a subsequent con—
queror who wrests it from the former, or from any other
prince who has purchased it, or received it in exchange, or
acquired it by any title whatsoever.1
§ 7. All implements of war, military and naval stores,
and all public movable property, belonging to the hostile
State, is subject to be seized and appropriated to the use
of the captor. And the title to such personal or movable
property is considered as lost to the original State, as soon
as the captor has acquired a firm possession, which, as a
general rule, is considered as taking place after the lapse
of twenty-four hours ; so that, immediately after the
expiration of that time, it may be alienated to neutrals as
indefeasible property. .
§ 8. We have discussed in chapter xvii. the right of a
belligerent State to confiscate, on the declaration of war,
debts owing by its Government, or by its subjects, to subjects
of the enemy. We will now consider the right to capture
them as the property of the enemy, found in hostile territory,
by capturing the documents which constitute the evidence of
such debts. It will be observed that this question is entirely
distinct from the right to confiscate a debt, ipso‘facto, by the
declaration of war. We have an example from classical
history. When Alexander took the city of Thebes, he found
an instrument by which it was shown that the Thessalians,
who served with him, owed the Thebans a hundred talents.
This instrument he gave to the Thessalians as a cancellation
of their debt. On the restoration of the Thebans, they
demanded the payment of the debt as still due and owing
them. The case was referred to the Amphictyonic Council,
and their decision is understood to have been in favour of
the Thessalians. Quintilian makes a number of objections
to the validity of the gift by Alexander, and offers some
important arguments in favour of the demand of the Thebans.
To all of these objections and arguments, Puffendorf suggests
answers, and opposes the demand, on the following grounds :
Movables
1 Vattel, Droit des Gens, liv. iii. ch. xiii. § 198 ; Treaty of Schwedt,
October 6, 1713.
Docu-
mentary
evidence
of debts
78 INTERNATIONAL LAW on. xxx
1st, that the seizure, being made in solemn war, was a just
one ; and, that the right acquired by war, to a thing taken in
war, is a valid title, and must be so regarded in Civil law ;
3rd, that the restoration not being provided for in the treaty
of peace, everything is left to the possessor as his own ; 4th,
that in capturing Thebes, Alexander captured the action of
debt due to Thebes, which he might either retain himself or
transfer to another; 5th, that the conquest destroyed the
former body politic of Thebes, and the new commonwealth
established by Cassander did not succeed to the rights of the
one destroyed by Alexander ; and 6th, that the Thessalians
had obtained the instrument in no unjust manner, it having
been given to them by one who had obtained it by the right
of conquest. jurists have generally sustained the supposed
decision of the Amphictyons, on the ground of the complete
conquest of Thebes, and that Alexander became the universal
successor of the conquered State, but not on the ground
of the mere capture of the documentary evidence of the
debt. The instruments cannot be regarded as the debt,
because a creditor may recover his debt, though the instru-
ments, be lost or destroyed ; they are means, but not the only
means of proving that it exists. It is, therefore, held that the
mere fact of the conqueror possessing himself of the docu-
ments, relating to incorporeal rights, does not give to him
the possession of the rights themselves ; and as his rights, as
derived from military force, are simply those of possession,
it is not competent for him to bestow upon, or transfer to
another, what he cannot physically take possession of
himself.1
Public § 9. There is one species of movable property belonging
fifhms’ to a belligerent State which is exempt, not only from plunder
and destruction, but also from capture and conversion, viz.
State papers, public archives, historical records, judicial and
legal documents, and land titles. While the enemy is in
possession of a town or province, he has a right to hold
such papers and records, and to use them in regulating the
1 Quintilian, Inst. Oral. lib. v. cap. x. ; Puffendorf, De jar. Nat.
et Gent. lib. viii. cap. vi. § 23 ; Pfeiffer, Das Reeht der Krz'egserobernng,
pp. 165-180 ; Brumleger, Dz'ss. de Oeenpatz'one Bellzea, . 38 ; Philli-
more, On Int. Law, vol. iii. §§ 561, 562 ; Heffter, Droz't nternatzonal,
§ 134 ; Schweikart, N apoleon and die Knr, pp. 74, 82 ;Tittman, Ueber
den Band der Arnp. p. 135. .
cu. m ENEMY’S PROPERTY ON LAND 79
government of his conquest ; but if this conquest is recovered
by the original owner during the war, or surrendered to him
by the treaty of peace, they should be returned to the
authorities from whom they were taken, or to their suc-
cessors. Such documents adhere to the Government of the
place or territory to which they belong, and should always
be transferred with it. None but a barbarous and un-
civilised enemy would ever think of destroying or withholding
them. The reasons of this rule are manifest. Their destruc-
tion would not operate to promote, in any respect, the object
of the war, but, on the contrary, would produce an animosity
and irritation which would extend beyond the war. It
would inflict an unnecessary injury upon the conquered
without any benefit to the conqueror. Moreover, such
archives, records, and papers often constitute the basis and
evidence of private property, and their destruction would be
a useless destruction of private property, and beyond the
necessity of war. The same reasons apply to carrying them
off and withholding them from their proper owners and
legitimate use.1
‘ Real, Science the Goiwernemenl, t. v. ch. ; Lieber, Political
Ethics, p. § 25 ; Bello, Derecho Inlernaoional, pt. 0. iv. § 6.
In the British House of Commons (February 20, 1816), Sir Samuel
Romilly, speaking incidentally of this proceeding, stated _that ‘it
was not true that the works of art, deposited in the museum of the
Louvre, had all been carried away as the spoils of war ; many, and
the most valuable of them, had become the property of France, by
express treaty stipulations ; and it was no answer to say that these
treaties had been made necessary by unjust aggressions and un-
principled wars, because there would be an end of all faith between
nations, if treaties were to be held not to be binding, because the
wars out of which they arose were unjust. especially as there could be
no competent judge to decide upon the justice of the war, but the
nation itself. By whom, too, was it that this supposed act of
justice, and this “ great moral lesson,” as it was called, had been read?
By the very Powers who had, at different times, abetted France
in these, her unjust wars ! Among other articles carried from Paris,
under the pretence of restoring them to their rightful owners, were
the celebrated Corinthian Horses which had been brought from
Venice ; but how strange an act of justice was this to give them
back their statues, but not to restore to them those far more valuable
possessions, their territory and their republic, which were, at the
same time, wrested from the Venetians ! But the reason of this
was obvious : the city and territory of Venice had been transferred
to Austria by the treaty of Campo F ormio, but the horses had
remained the trophy of France ; and Austria, whilst she was thus
hypocritically reading this moral lesson to nations, not only quietly
retained the rich and unjust spfoils she had got, but restored these
splendid works of art, not to enice, which had been despoiled of
8o INTERNATIoNAL LAW
on. xxx ‘
Works of
art, &0.
§ IO. Some have contended that the same rule applies to
public libraries and to all monuments of art and models of
taste. Certainly no belligerent would be justified in
destroying them, except so far as their destruction might
be the accidental or necessary result of military operations.
But may he not seize and appropriate to his own use such
public works of genius and taste as are of a movable cha-
racter P This was done by the French armies in the wars
which followed the revolution of I789, but the practice was
condemned by the English writers of that, age. The
acquisitions of the Parisian galleries and museums from
the conquest of Italy were generally obtained by means
of treaty stipulations, or forced contributions levied by
Napoleon on the Italian princes. They are equally con-
demned by the English historians. It should, however,
be remembered that but few of the masterpieces taken
from Italy were in their original places, or in the possession
of their original owners. We need hardly mention the
Apollo Belvidere, the Dying Gladiator, the Venus, the
Laocoon, the Bronze Horses. Major Henry Lee, an American
Writer of great ability, discusses this question in his ‘ Life
of Napoleon,’ and deems these forced contributions as not
only justifiable by the laws of war, but as highly creditable
to the‘conqueror, as adding grace and refinement to the
warfare, and as reflecting lustre on the French arms, by
harmonising the rudeness of military fame with the softer
glories of taste and imagination. On the invasion of France,
in 1815, the pictures, statues, and other monuments of art,
collected from other countries, as spoils of war, or acquired
under treaties, were seized and distributed among the allies.
These objects were not the fruit of French industry, nor
were they originally the property of the French nation.
The allied armies entered Paris under a military conven-
tion (july 3, 1815) which they had concluded with officers
of the existing Government. Article II of that convention
determines that ‘ les propriétés publiques, a l’exception de
celles qui ont rapport a la guerre, soit qu’elles appartiennent
them, the ancient, independent, republican Venice, but to Austrian
Venice—to that country which, in defiance of all the principles which
she pretended to be acting on, she still retained as a part of her own
dominions.’ .
on. xx! ENEMY’S PROPERTY on LAND
81
au Gouvernement, soit qu’elles dependent de l’autorité
municipale, seront respectées, et les Puissances alliées
n’interviendront en aucune maniere dans leur administra-
tion et gestion.’ I The Duke of Wellington says (Disp.
July 1815), ‘ I positively deny that this Article referred at
all to the museums or galleries of pictures.’ The French
commissioners in the original draft had proposed to provide
for this description of property, but Prince Bliicher would
not consent to it, as he said there were pictures in the gallery
which had been taken from Prussia. It was finally agreed
between all parties that the question of the museums and
objects of art should be reserved for the decision of the
allied monarchs when they should arrive in Paris. The
Duke of Wellington refers to this; writing to Bliicher to
prevent the destruction of the Bridge of Jena, contem-
plated by the latter, he says, ‘ Considering the bridge as a
monument, I beg leave to observe that its immediate
destruction is inconsistent with the promise made to the
commissioners, during the negotiations of the convention,
viz. that the monuments, museums, &c., should be reserved
for the decision of the allied sovereigns.’ Evidently the
commissioners considered that the allied army had a right to
the contents of the museum, and they made an attempt to
save them by an Article in the convention. The claim of
the allies, through the rejection of the Article, was broadly
advanced. No works of native industry were demanded or
seized by them.
§ 11. But whatever may be the decision of the question
respecting the right of the conqueror to seize or levy upon
such works of art and taste, belonging to the hostile State,
as come under the denomination of movable or personal pro-
perty, it is the modern usage, and one which has acquired
the force of law, that such works cannot be wantonly, or
unnecessarily destroyed, and that all structures of a civil
character, all public edifices, devoted to civil purposes only,
all temples of religion, monuments of art, and repositories
of science, are to be exempt from the operations of war,
‘ If the conqueror,’ says Kent, ‘ makes war upon monuments
of art and models of taste, he violates the modern usages of
war, and is sure to meet with indignant resentment, and to
be held up to the general scorn and detestation of the world.’
voL. 11. G
Civil
structures
and monu-
ments
82 INTERNATIONAL LAW 0H. xxx
Private
property
on land
As examples under this head, we may refer to the conduct
of the British forces, in 1814, in destroying the Capitol,
President’s house, and other civil public buildings, and the
naval monument at Washington,1 and that of Bliicher, in
1815, in destroying the ornamental trees of Paris, and
planning 2 the destruction of the Bridge of Jena and the
Pillar of Austerlitz.3
But in I870, the Prussians considering that the operations
of a siege could not fail to occupy some weeks, essayed the
plan of ‘ simple bombardment ’ on Strasburg, a rich and
populous city, with a feeble garrison ;~knowing that it would
have to defend itself on the ramparts in open batteries, they
thought that such a bombardment might force the inhabi—
tants to induce the Commandant to surrender. A bombard-
ment was kept up relentlessly for two days, during which
time the famous Library and Picture Gallery and other
public buildings were destroyed. The roof of the Cathedral
was burnt, and the cross on the tower struck by a shell.
But as this bombardment did not have the expected result,
the Prussians commenced the regular siege operations,
and thereupon spared the town itself as much as possible.
Even then they shelled one of the towers of the Cathedral,
on which the French had established an observatory.
§ 12. Private property on land is now, as a general rule of
war, exempt from seizure or confiscation ; and this general
exemption extends even to cases of absolute and unqualified
1 The naval arsenal, and a house (whence the British troops
were fired upon, after they were supposed to be in quiet_ pos~
session of the city) were destroyed, and such destruction is justi-
fiable ; but the destruction of the civil public buildings can only be
defended (if at all) on the ground of reprisal, the Americans having
in the middle of December set fire to a town in Canada, and driven
the inhabitants into the open country amidst all the severities of
a Canadian winter, and having, on another occasion, when York,
the capital of Upper Canada, was in their occupation, burnt the
public buildings and taken possession of the private property of the
governor. -
2 The demolition of the Bridge of Jena was stopped by order of
the Emperor Alexander, after the Duke of Wellington had in vain
interposed. _
3 Polson, Law 0]‘ N attons, sec. 6 ; Kent, Corn. on Am. Law, vol._ ‘1.
p. 93 ; American State Papers, vol. iii. pp. 693, 694 ; Hansard, Parlza-
mentary Debates, vol. xxx. pp. 526, 527; Alison, Hzst. 0)‘ Enrope,
vol. iv. p. 544; Riquelme, Dereeho vPzZb. Int. lib. i. tit. i. 0. x11. In
1 815 the British soldiers were forbidden to cut the trees which formed
the avenues in the Bois de Boulogne, or even to tie their horses to
them. (Wellington, Dispatches.)
on. m ENEMY’S PROPERTY ON LAND
8?.
conquest. Even where the conquest of a country is con-
firmed by the unconditional relinquishment of sovereignty
by the former owner, there can be no general or partial
transmutation of private property, in virtue of any rights of
conquest. That which belonged to the Government of the
vanquished, passes to the victorious State, which also takes
the place of the former sovereign, in respect to the right of
eminent domain ; but private rights, and private property,
both movable and immovable, are, in general, unaffected
by the operations of a war, whether such operations be
limited to mere military occupation, or extend to complete
conquest. Some modern text—writers—Hautefeuille, . for
example—contend for the ancient rule, that private property
on land is subject to seizure and confiscation. They are
undoubtedly correct with respect to the general abstract
right, as deduced from the law of nature and ancient prac-
tice; but while the general right continues, modern usage,
and the opinions of modern text-writers of the highest
authority, have limited this right by establishing the rule
of general exemption. The private property of a sovereign
is considered in the same light as that of any other indi-
vidual.1
§ 13. But it must also be remembered that there are
many exceptions to this rule, or rather, that the rule itself
is not, by any means, absolute or universal. The general
theory of war is, as heretofore stated, that all private pro-
perty may be taken by the conqueror, and such was the
ancient practice. But the modern usage is, not to touch
private property on land, without making compensation,
except in certain specified cases. These exceptions may
be stated under three general heads: Ist, confiscations or
1 Puffendorf, De jut/e Nat. et Gent. lib. viii. ch. vi. § 20 ; Heffter,
Droit International, § I33 ; Martens, Pre’ois dn Droit des Gens, § 282 ;
Hautefeuille, Des N ations N eutres, tit. vii. oh. i. The Franco-Austrian
campaign, 18 59, affords an example of the manner in which war
may be carried on without causing ruin to the surrounding country.
‘Preserve,’ said Napoleon 111., when addressing his troops, ‘that
strict discipline which is the honour of the army. Here—forget it not
-there are no other enemies than those who fight against you in
battle ’ ; and well was that order obeyed. On the other hand, during
the American Civil War, General Sherman on his memorable march
to the sea, through the Gulf States in 1864, seized private property
as booty, and devastated the whole country through which he passed,
but this act doubtlessly accelerated peace in a very material degree.
General
excep-
tions to
rule of ex-
emption
G2
84 INTERNATIONAL LAW CH. x
Penalty
for
offences
Military
contribu-
tions
seizures by way of penalty for military offences ; and, forced
contributions for the support of the invading armies, or as
an indemnity for the expenses of maintaining order, and
affording protection to the conquered inhabitants ; and
3rd, property taken on the field of battle, or in storming
a fortress or town.
§ 14. In the first place, we may seize upon private pro-
perty, by way of penalty for the illegal acts of individuals, or
of the community to which they belong. Thus, if an in-
dividual be guilty of conduct in violation of the laws of war,
we may seize and confiscate the private property of the
offender. So, also, if the offence attach itself to a particular
community or town, all the individuals of that community or
town are liable to punishment, and we may either seize upon
their property, or levy upon them a retaliatory contribution,
by way of penalty. Where, however, we can discover and
secure the individuals so offending, it is more just to inflict
the punishment upon them only ; but it is a general law of
war, that communities are accountable for the acts of their
individual members. This makes it the interest of all to
discover the guilty persons, and to deliver them up to justice.
But if these individuals are not given up, or cannot be dis-
covered, it is usual to impose a contribution upon the civil
authorities of the place where the offence is committed, and
these authorities raise the amount of the contribution by a
tax levied upon their constituents.1
§ I5. In the second place we have a right to make the
enemy’s country contribute to the expenses of the war.
Troops, in the enemy’s country, may be subsisted either by
regular magazines, by forced requisitions, or by authorised
pillage. It is not always politic, or even possible, to provide
regular magazines for the entire supplies of an army during
1 In 1870 the Germans levied contributions in money on many
towns of France, the principle adopted by them, apparently, being
that towns offering resistance, or throwing obstacles in the way of
the invaders, were heavily fined, while eaceful towns were held
exempt. Thus Dieppe was fined 2,0001. or a few shots fired from
a French steamer at some Prussians. Nevertheless, some towns
which had offered resistance, but which had been severely bom-
barded, such as Stra‘sburg and Péronne, were spared (Edwards,
Germans in France). There is no doubt but that the Germans were
justified in levying a fine on Dieppe, but the principle of punishing
an invaded town for its resistance (if the conclusion of the above
writer be correct) is inconsistent with the rules of civilisation.
cx.xx1 ENEMY’S PROPERTY ON LAND
35
the active operations of a campaign. Where this cannot be
done, the general is obliged either to resort to military re-
quisitions, or to entrust their subsistence to the troops them-
selves. The inevitable consequences of the latter system are
universal pillage, and a total relaxation of discipline; the
loss of private property, and the violation of individual
rights, are usually followed by the massacre of straggling
parties, and the ordinary peaceful and non-combatant in-
habitants are converted into bitter and implacable enemies.
The system is therefore regarded as both impolitic and
unjust, and is coming into general disuse among the most
civilised nations—at least for the support of the main army.
In case of small detachments, where great rapidity of motion
is requisite, it sometimes becomes necessary for the troops
to procure their subsistence wherever they can. In such a
case, the seizure of private property becomes a necessary
consequence of the military operations, and is, therefore,
unavoidable. Other cases, of similar character, might be
mentioned. But even in most of these special and extreme
cases, provisions might be made for subsequently com-
pensating the owners for the loss of their property.1
§ 16. In the invasion of the Spanish peninsula, Napoleon
had to choose between methodical operations, with provi—
sions carried in the train of his army, or purchased of the
inhabitants, and regularly paid for, and irregular warfare,
supplying his troops by forced requisitions and pillage. The
former plan was adopted for some of the main armies,
moving on prescribed lines, and the latter for the more active
masses. Soult and Suchet, in favourable parts of the
country, succeeded for a considerable length of time in
procuring regular supplies for their armies, but most of the
French generals obtained subsistence for their troops mainly
by pillage. Napoleon, at St. Helena, attributed most of his
disasters to the animosities thus created among the Spanish
people. The Duke of Wellington, on the other hand, was
adverse to requisitions, both when he was in the Peninsula
and when he was in France, although they could not always
be avoided. After the battle of Waterloo his army received
1 Jomini, Tableau Analytique, ch. ii. sec. 1, art. xiii. ; Halleck,
Elem. Mil. Art and Science, ch. iv. pp. 90, 91 ; Scott, General Orders,
No. 358, November 25, 1847 ; ibid. No. 395, December 31, 1847.
Of hostile
popula-
tions
86 INTERNATIONAL LAW on. an
Capture
on the
battle-
field
their provisions and forage by requisition on the country,
but in every case upon regular receipts by the commissioners
attached to his troops; this was done, not with the view
of paying for what had been received, but in order to avoid
abuse and plunder, and to restrict the requisition to food
and forage only—both strict necessaries.1
§ I7. Upon the invasion of Mexico by the armies of the
United States, in I846, the commanding generals were, at
first, instructed to abstain from appropriating private pro-
perty to the public use without purchase at a fair price ; but
subsequently instructions of a severer character were issued.
It was said by the American Secretary of War (Mr. Marcy)
that an invading army had the unquestionable right to draw
its supplies from the enemy without paying for them, and to
require contributions for its support, and to make the enemy
feel the weight of the war. He further observed, that upon
the liberal principles of civilised Warfare, either of three
modes might be pursued to obtain supplies from the enemy :
first, to purchase them in open market at such prices as
the inhabitants of the country might choose to exact ;
second, to pay the owners a fair price, without regard to
what they themselves might demand on account of the
enhanced value resulting from the presence of a foreign army ;
and, third, to require them, as contributions, without paying
or engaging to pay therefor? The last mode was, thereafter,
to be adopted, if the general was satisfied that in that way
he could get abundant supplies for his forces. There can
be no doubt of the correctness of the rules of war, as here
announced by the American secretary, but the resort to
forced contributions for the support of armies in a country
like Mexico, under the particular circumstances of the war,
would have been, at least, impolitic, if not unjust, and
the American generals very properly declined to adopt,
except to a very limited extent, the mode indicated. It
would undoubtedly have led to innumerable insurrections
1 Napoleon, M emoz'rs of St. Helena. Wellington’s Dispatches,
1815.
2 Buonaparte tried to save France from fresh taxes by making
large requisitions on the enemy. In 1806, after the battle of Jena,
he caused Prussia to ay upwards of a hundred million francs. After
Suchet’s conquest o? Valencia in 1812 that country was forced to
pay fifty thousand francs, together with an additional two hundred
million francs for the use of the army.
CH. 111
ENEMY’s PROPERTY ON LAND 87
and massacres, without any corresponding advantages in
obtaining supplies for the American forces. General Scott
Wrote as follows, May 20, 1847: ‘If it be expected at
Washington, as is now apprehended, that the army is to
support itself by forced contributions levied upon the
country, we may ruin and exasperate the inhabitants and
starve ourselves : for it is certain they would sooner remove
or destroy the products of their farms than allow them to
fall into our hands without compensation. Not a ration
for man or horse would be brought in except by the bayonet,
which would oblige the troops to spread themselves out
many leagues to the right and left in search of subsistence,
and to stop all military operations.’
§ I8. The evils resulting from irregular requisitions and
foraging for the ordinary supplies of an army are so very
great, and so generally admitted, that it has become a recog-
nised maxim of war, that the commanding officer who per-
mits indiscriminate pillage, and allows the taking of private
property Without a strict accountability, whether he be en~
gaged in offensive or defensive operations, fails in his duty
to his own Government, and violates the usages of modern
warfare. It is sometimes alleged, in excuse for such con-
duct, that the general is unable to restrain his troops ; but
in the eyes of the law, there is no excuse ; for he who cannot
preserve order in his army, has no right to command it.
Inv collecting military contributions, trustworthy troops
should always be sent with the foragers, to prevent them
from engaging in irregular and unauthorised pillage; and
the party should always be accompanied by officers of the
staff and administrative corps to see to the proper execution
of the orders, and to report any irregularities on the part of
the troops. In case any corps should engage in unauthorised
pillage, due restitution should be made to the inhabitants,
and the expenses of such restitution deducted from the pay
and allowances of the corps by which such excess is com-
‘mitted. A few examples of such summary justice soon
restores discipline to the army, and pacifies the inhabitants
of the country or territory so occupied. But modify and
restrict it as you will, the system of subsisting armies on the
private property of an enemy’s subjects, without compen-
sation, is very objectionable, and almost inevitably leads
Useless
destruc-
tion of
enemy’ s
property
88 INTERNATIoNAL LAW CH. xxr
to cruel and disastrous results. There is, therefore, very
seldom a sufficient excuse for resorting to it. If, however,
the general be left without the means of support, or if
the nature of his operations prevent his carrying subsistence
in the train of his army, or purchasing it in the country
passed over, his conduct becomes the result of necessity, and
the responsibility of his acts rests upon the Government of
his State, which has failed to make proper provisions for
the support of his troops, or which has required of him
services which cannot be performed without injury and
oppression to the inhabitants of the hostile country.1
1 Manning, Law of Nations, p. I 36 ; Vattel, Droit des Gens, liv. iii.
ch. ix. § 165 ; Moser, Beitra'ge, &c., b. § 256 ; Isambert, Annalee
Pol. et Dip. Int. p. 115 ; Kent, Corn. on Am. Law, vol. i. p. 92 ; Mr.
Marcy’s Letter to Gen. Taylor, Sept. 22, I846 ; to Gen. Scott, April 3,
1847 ; Cong. D00. 30 Cong. 1 Sess. Senate Ex. Doc. No. 1, p. 563 ;
‘ Scott to Marcy, May 20, I847 ; Cong. Doc. 30 Cong. 1 Sess. H. R. Ex.
Doc. No. 60, p. 963 ; Mason to Gen. Scott, Sept. 1, I847 ; Marcy to
Gen. Scott, Oct. 6, 1847; Cong. D00. 30 Cong. 1 Sess. H. R. Ex. Doc.
No. 56, pp. 195-7 ; Scott, Gen. Orders, No. 358, Nov. 25, I847 ; ibid.
No. 395, Dec. 31, 1847.
During the occupation of Versailles by the Germans in 1870, the
French mayor made frequent complaints to the Prussian Command—
ing General that many acts of violence were committed by the
German soldiers, such as breaking into private houses and plundering
or destroying the furniture, especially the clocks. In the populous
part of the town order was tolerably well maintained, but not so in
the outskirts. These complaints do not appear to have obtained
any favourable results (Delerot, Versailles). During this war the
French sometimes took away the municipal papers of a town, in
order that, should the town fall into the hands of the enemy, the
latter might not be able to ascertain the taxation, or, consequently,
be able to know how large a requisition the town might bear (Russell,
Diary of Last War). The Prussians on entering French towns or
villages billeted their troops on the inhabitants, writing in chalk
on the door of each house the number of soldiers to be provided for
within. When there was time for doing things in an orderly manner,
requisitions were addressed to the mayor, and by him. given out
to private individuals ; it was for the person executing the requisi-
tions to obtain payment from the mayor, who generally did pay in
whole or in part out of the local funds, looking, on behalf of his
commune, to the State for future indemnification. Requisitions were
issued for every imaginable thing. Horseshoes were constantly the
object of requisitions, and on the great lines of march blacksmiths
were everywhere impressed into the Prussian service.
_ Although, according to Bluntschli, invaders are entitled to claim
from the invaded lodging, food, and drink, fuel, clothing, and
carriage, the Prussians did not, as a rule, call upon the enemy to
provide clothing for them; a quantity of cloth was requisitionled
at Elboeuf, Louviers, and other towns ; boots and socks were some-
times requisitioned, and late in the campaign, horses were very
frequently demanded. In theory nothing was taken for which a
receipt was not given, but this rule often broke down in practice.
CH. XII
ENEMY’S PROPERTY ON LAND 89
§ 19. In the third place, private property taken from
the enemy on the field of battle, in the operations of a
siege, or in the storming of a place which refuses to capitulate,
is usually regarded as legitimate spoils of war. The right
to private property, taken in such cases, must be distin-
guished from the right to permit the unrestricted sacking
of private houses, the promiscuous pillage of private
property, and the murder of unresisting inhabitants. In
other words, we must distinguish between the title to property
acquired by the laws of war, and the accidental circumstances
accompanying the acquisition. Thus, the right of prize
in maritime captures, and of land in conquests, may be
good and valid titles, although such acquisitions are some-
times attended with cruelty and outrage on the part of
the captors and conquerors. So with respect to the right
of booty acquired in battle or assault ; the acquisition may
An idea got abroad that the Germans would, on the conclusion of
peace, redeem the requisition papers. This supposition may have
had its origin in the fact that during the invasion of 1792 the re-
quisitions issued by the Duke of Brunswick were in the name of
Louis XVI. and not, as during the above war, in that of German
generals, or of commanders of detached corps. These officials alone
possessed the right to issue requisitions (Edwards, Germans in France).
The requisitions, made daily, by the Germans, While in occupation
of Versailles, were as follows :—120,ooo loaves of bread, 80,000
pounds of meat, 90,000 pounds of oats, 27,000 pounds of rice,
7,000 pounds of roasted coffee, 4,000 pounds of salt, 20,000 litres
of wine, and 500,000 cigars. Other requisitions were made as
required. In theory none was to be made unless the demand
was in writing, but the French complain that verbal requisitions
were often made. Further, they say that although every written
demand should have borne the visa of the German general com-
manding the place, the visa was not placed on by him, but at his
office, by under-officers or soldiers. These granted it to the first
comer, and thereby a great disadvantage was caused to the invaded,
for every refusal to comply with a requisition became, not a refusal
to the bearer, but a refusal to the Commander-in-Chief (Delerot,
Versailles). Requisitions were also levied by the French troops
on their own countrymen. Edwards (Germans in France) gives
an example of this. Five places in the Department of the Orne
claimed 11,000 francs for requisitions levied on them by francs-
tireurs in a regular manner, and 16,000 francs for requisitions levied
in an ‘ irregular ’ manner.
In a march of twenty-two miles in an enemy’s territory in the
Ile de la Passe, the British, under Captain Willoughby, abstained
from pillaging the least article of property. Even the sugar and
coffee laid aside for exportation, and usually considered as legitimate
objects of seizure, remained untouched ;and the invaders, when they
quitted the shore for their ship, left behind them not merely a high
character for gallantry but also for rigid adherence to promises
(James, Nav. Hist. vol. v. 278).
The right
to private
property
90
‘ INTERNATIONAL LAW on. xxx
Captures
in war
All booty
belongs
primarily
to the
State
be valid by the laws of war although other laws of the same
code may have been violated by the general or his soldiers
in the operations of the campaign or siege. .
§20. Towns, forts, lands, and all immovable property
taken from an enemy are called conquests; captures made
on the high seas are called prize ; movables taken on land
are called booty. All captures in war, whether conquests,
prize, or booty, naturally belong to the State in whose name
and by whose authority they are made. It alone has such
claims against the enemy as will authorise the seizure and
conversion of his property; the forces who make the seizures
are merely the instruments of the State, employed for this
purpose ; they do not act on their individual responsibility,
or for their individual benefit. They, therefore, have no
other claim to the booty or prize which they may take
than their Government may see fit to allow them. The
amount of this allowance is fixed by the municipal laws of
each State, and is different in different countries.‘
§2I. Among the Romans, the soldier was obliged to
bring into the public stock all the booty he had taken.
This the general caused to be sold, and after distributing a
part of the produce of such sale among the soldiers according
to their rank, he consigned the residue to the public treasury.
It is the general practice in modern times, under the laws
and ordinances of the belligerent Governments, to dis-
tribute the proceeds, or at least a part of the proceeds, of
captured property among the captors, as a reward for
bravery and a stimulus to exertion. In France the prize
ordinances fully provide for such distribution. Thev Naval
Prize Act, I864 (27 and 28 Vict. c. 25),2 regulates prize in
1 Bello, Derecho Internacional, pt. ii. 0. iv. § 4; Heffter, Droit
International, §§ 135, 136 ; Kent, Corn. on Am. Law. vol. i. p. 101 ;
Home 11. Earl Camden, 2 H. Black. Rep. p. 533.
2 This expressly declares that nothing therein shall give to the
officers and men of any of her Majesty’s ships of war, any right or
claim in or to any ship or goods taken as prize, or the proceeds thereof,
it being the intent of that Act that such officers and crew shall con-
tinue to take only such interest (if any) in the proceeds of prizes as
may be from time to time granted to them by the Crown. A royal
proclamation usually directs that the net produce of every prize
taken by vessels of war (except when acting in conjunction with the
army, in which case the distribution is reserved to the Crown) shall
be for the entire benefit of the officers and crew making such capture,
after the same shall have been adjudged lawful prize. The Crown
formerly used to reserve to itself a share in all prizes made by
on. m ENEMY’s PROPERTY ON LAND
91
Great Britain, while the Act of Congress 1 of June 30, 1864,
c. 174, provides similarly in the United States. When
captures are not granted away, they accrue to the use of the
Government. This is the principle of International Law,
with regard both to booty and to prize ; but in some States
the Municipal law creates a difference.2
§22. While there is some uncertainty as to the exact
limit, fixed by the voluntary law of nations, to our right to
appropriate to our own use the property of an enemy, or to
subject it to military contributions, there is no doubt what-
ever respecting its waste and useless destruction. This is
forbidden alike by the law of nature and the rules of war.
But if such destruction is necessary in order to cripple the
operations of the enemy,‘or to insure our own success, it is
justifiable. Thus, if we cannot bring off a captured vessel,
we may sink or burn it in order to prevent its falling into the
enemy’s hands; but we cannot do this in mere wanton-
ness. We may destroy provisions and forage, in order to
cut off the enemy’s subsistence; but we cannot destroy
vines and cut down fruit trees, without being looked upon as
savage barbarians. We may demolish fortresses, ramparts,
and all structures solely devoted to the purposes of war;
but, as already stated, we cannot destroy public or private
edifices of a civil character, temples of religion, and monu-
ments of art, unless their destruction should become neces-
sary in the operations of a siege, or in order to prevent their
affording a lodgment or protection to the enemy.3
privateers. The Prize Act (55 Geo. III. c. 160, now expired) con-
ferred on the owners of privateers all prizes made by them.
1 This directs that the net proceeds of all property condemned
as prize shall, when the prize is of superior or equal force to the
vessel or vessels making the capture, be decreed to the captors ; and
that when of inferior force, one half shall be decreed to the United
States and the other half to the captors. Provided that in case of
privateers and letters of marque the whole shall be decreed to the
captors, unless it shall be otherwise provided in the commissions
issued to such vessels.
2 Brymer o. Atkins, 1 H. Blacks. Rep. pp. 189-91 ; Cross et al. v.
Harrison, 16 H award Rep. p. 164 ; Cross, Military Laws, p. 116.
3 Burlamaqui, Droit de la Nat. et des Gens, t. v. pt. iv. ch. ;
Riquelme, Dereoho PzZb. Int. lib. i. tit. ii. c. xii. In 1799 General
Brune declared to the Duke of York that it would be contrary to the
laws of war for the latter to destroy the dykes in Holland and
inundate that country, if such act would not be beneficial to his own
forces or detrimental to those of the enemy.
Rule of
mode-
ration
92 INTERNATIONAL LAW
CH. XXI
Laying
waste a
country
The
Admiral’ s
Court
§ 23. There are numerous instances in military "history
where whole districts of country have been totally ravaged
and laid waste. Such operations have sometimes been
defended on the ground of necessity, or as a means of pre-
venting greater evils. It was on this ground that Italy and
Spain justified their destruction of the maritime towns
on the coast of Africa, which had become mere nests of
pirates. But the sacking of towns and villages, and deliver-
ing them up to be a prey to fire and the sword, are terrible
remedies, which are often worse than the evil to be removed.
‘ Dreadful extremities,’ says Vattel, ‘ even when we are
forced into them; savage and monstrous excesses, when
committed without necessity.’ Another excuse for ravaging
a district of country is to render it a barrier against the
advance of an enemy. Thus, the Czar, Peter the Great,
laid waste an extent of fourscore leagues of his own territory,
to check the advance of Charles XII., of Sweden. The
victory of Pultowa was claimed as the result of this sacrifice.
Again, in 1812, the Russians laid waste a vast extent of
country, and burnt their capital, to prevent its affording
a shelter to the French from the rigours of a Polar winter.
The disastrous retreat from Moscow was claimed as the
fruit of this circumspection. Such violent remedies are
to be sparingly applied; there must be reasons of suitable
importance to justify the use of them. A prince who
should, without necessity, imitate the Czar’s conduct, would
be guilty of a crime against his people ; and he who does the
like in an enemy’s country, when impelled by no necessity,
or induced by feeble reasons, becomes the scourge of man-
kind. Cicero condemns the conduct of his countrymen in
destroying Corinth, to avenge the unworthy treatment
offered to the Roman ambassadors, because Rome was
able to assert the dignity of her ministers without pro—
ceeding to such extreme rigour.1
§24. An English Court of Admiralty does not, merely
of its own inherent powers, exercise jurisdiction of questions
of booty, or of captures made on land by military forces,
1 Vattel, Droit des Gens, liv. iii. ch. viii. § I42 ; ch. ix. §§ 166-72 ;
Martens, Pre’eis du Droit des Gens, § 280 ; Kluber, Droit des Gens Mod.
§§ 262-65 ;Phillimore, 0n Int. Law, vol. iii. § 50 ;Wheaton, Elem. Int.
Law, pt. iv. ch. ii. § 6.
011.1111 ENEMY’S PROPERTY ON LAND
93
without the presence and co-operation of ships or their crews.
The Federal courts of the United States have never decided
directly upon their jurisdiction of such a question, but from
the similarity of English and American admiralty and prize
jurisdictions, and the opinion of the court in the case of
the ‘ Emulous,’ there is little doubt but that their prize
courts are limited, in this respect, the same as those of
England. It has also been decided in England that a
municipal court has no jurisdiction of cases of hostile
seizure ; moreover, that the circumstance of the place where
the seizure was made being in the undisputed possession
of British power, with a provisional government and
organised courts of justice, did not alter the character of
the transaction. Wildman remarks : ‘ There is no instance
in history or law, ancient or modern, of any question,
before any legal judicature, ever having existed about it
[booty] in this kingdom. It is often given to the soldiers
on the spot, or wrongfully taken by them, contrary to
discipline. If there is any dispute it is regulated by the
commander-inxchief.’ As such questions do not come
within the jurisdiction of either courts of Admiralty or of
law, they must be taken cognisance of by the military tri-
bunals, and be governed by military laws and regulations,
and by the laws of war.1
§25. In speaking of the constitution, authority, and
functions of the English prize court, and of the wisely
formed and admirably developed code of Admiralty juris-
diction and rules of procedure, Sir Robert Phillimore
remarks : ‘ It is not surprising that, in great maritime king-
doms, the jurisdiction of the Admiral’s court should have
thrown into the shade the tribunal of the general. But,
that the latter should have left such faint traces of its
origin and mode of procedure, and should so soon have
fallen into desuetude, is a very remarkable fact in the
history of jurisprudence.’ ,Mr. Knapp, in a learned note
to his report of the great case of the Army of the Deccan,
argued before the Privy Council, in 1833, has shown the
error of the dicta of Lord Mansfield, in Lindo v. Rodney
repeated in the foregoing extract from Wildman, that,
1 Le Caux v. Eden, 2 Doug. Rep. p. 594 ; ‘ The Two Friends,’ 1 Rob.
Rep. p. 225 ;the ‘ Emulous,’ 1 Gallis Rep. p. 563.
The
English
Prize
Court
94 INTERNATIONAL LAW CH. xx
English
law re-
specting
booty
‘ there is no instance in history or law, ancient or modern, of
any question ever having existed respecting booty taken
in a continental land war, before any legal judicature in
this kingdom.’ It appears from this note of Mr. Knapp,
that in very early times, in England, causes respecting
booty were determined in the court of chivalry, before the
constable and marshal.‘
§26. As no action can be maintained in an English
court of municipal law with respect to booty, and as courts
of admiralty had no jurisdiction of the matter, the inquiry
arises, what became of this jurisdiction when it ceased
to be exercised by the court of the constable and marshal ? 2
All booty, as before remarked, belongs to the Crown, and
is captured under the authority of the Crown. The Crown
must, therefore, ultimately decide upon the legality of the
capture and the distribution of the booty. The mode in
which it now exercises this jurisdiction is to refer the claims
of those who petition for a share in the distribution to the
Lords of the Treasury, who lay down the principles which
are to govern the case, and a board of trustees are appointed
under the royal sign-manual warrant to ascertain, collect,
and distribute the booty according to the scheme which
‘ Phillimore, On Int. Law, vol. iii. § 127; Lindo 11. Rodney,
Douglas Rep. p. 59 3 ; Army of the Deccan, 2 Knapp Rep. pp. 149-5 I ;
Oldis v. Donmille, Show. Parl. Cas. p. 58 ; Banda and Kirwee Booty,
1 Law R. (Adm.), 109 ; Sir James Scarlett, Attorney-General,
I Knapp Rep. p. 357 ; Elphinstone v. Bedreechund, 1 Knapp Rep.
pp. 360-1 ; the ‘Buenos Aires,’ I Dod. Rep. p. 29 ; and see supra,
vol. i. p. 600. "
2 Lord Hale says ‘ that there is no evidence on record of any
Admiralty jurisdiction till the time of Edward 111., and asks where
the jurisdiction in matters maritime was exercised during all this
intermission of Admiralty courts. He answers to this question, ‘ A
very great part thereof, especially touching capture of ships and
goods arrested and taken by way of reprisal, was transacted corarn
consilio regis and in Chancery ’ (Hargraoe Manuscripts, No. 137,
ff. 1 18—26). It is certain that original jurisdiction was exercised by
the Privy Council in a case which arose out of the captures at Toulon ‘
by land and sea forces in 179 3 ; a grant had been made to the navy,
but the army concerned in the expedition presented a- memorial
to the King that the warrant might be recalled, and another issued
granting them a share for their co-operation. This memorial was
referred to a committee of the Privy Council, who heard the case
argued before them by counsel for the army and navy, and finally
advised the King not to recall his warrant. Similar jurisdiction
was exercised by the Privy Council in the case of the captures at
Seringapatam. _
en. xx: ENEMY’s PROPERTY ON LAND 95
has been approved and sanctioned by the Crown.1 By
3 and 4 Will. IV. c. 41 (1833), the Privy Council were
authorised to hear or consider any matter referred to
them by the Crown, and to advise thereon ; and 3 and 4
Vict. c. 65 (1840), and 24 and 25 Vict. c. IO (1861), extended
the jurisdiction of the High Court of Admiralty to all
matters and questions concerning booty of war, or the
distribution thereof, which it shall please the Crown, by the
advice of the Privy Council, to refer to the judgment of the
said court, and in all matters so referred the court shall
proceed as in the case of prize of war, and the judgment
of the court shall be binding upon all parties concerned.
It“ therefore appears that, although an English prize court,
as such, has no jurisdiction of cases of booty, the High
Court of Admiralty may decide such matters and questions
concerning booty as shall be referred to it by the Crown
with the advice of the Privy Council.
1 The ‘Elsebe,’ 5 Rob. 173 ; Nicholl o. Goodhall, IO Ves. 156;
Alexander 11. Duke of Wellington, 2 Russ. and Mylne, 3 5. The
warrant for distribution is a mere direction from the Crown, like the
order from a customer to his banker ; it vests no property in the
objects of the Crown’s bounty until the money has been actually
paid to them under it.
INTERNATIONAL LAW (:11. 1x11
No relaxa-
tion of
ancient
rules as to
maritime
captures
CHAPTER XXII
ENEMv’s PROPERTY ON THE HIGH sEAs
I. Distinction between enemy’s property on land and on the high
seas—2. Opinions of Mably and others—3. Difficulties in its
application—4. Ownership at time of capture— 5. Rule as to
consignee—6. Doctrine in the United States Courts—7. Con-
tract and shipment made in contemplation of war—8. Con-
tract made in peace and shipment in war—9. If both be made
in time of peace—Io. Shipment, with risk on neutral consignee
-—II. If neutral consignor become an enemy during voyage——
12. Acceptance in transitu by neutral consignee—13. Change
of ownership by stoppage in transitu—I4. National character
of goods—I 5. Transfer of enemy’s ships to neutrals—I6. Rules
of such transfer—I7. Character of ships and goods, how de-
duced—18. Effect of secret liens—I9. Documentary proofs of
ownership—20. Laws of different States—21. Decisions of
French prize courts—~22. Exemption of vessels of discovery—-
23. Of fishing boats—24. In case of shipwreck, &c.-—25. Dis—
tinction between reprisals and privateering—26. Privateers not
used in recent wars—27. Declaration of the Conference of
Paris, 1856—28. How received by other States—29. Privateers,
by whom commissioned—3o. Treaty stipulations respecting
privateers.
§ I. WHILE ‘ the progress of civilisation has slowly but
constantly tended to soften the extreme severity of the
operations of war by land,’ says Wheaton, ‘it still remains
unrelaxed in respect to maritime warfare, in which the
private property of the enemy, taken at sea or afloat in
port, is indiscriminately liable to capture and confiscation.
This inequality in the operation of the laws of war, by land
and by sea, has been justified by alleging the usage of
considering private property, when captured in cities
taken by storm, as booty; and the well-known fact that
contributions are levied upon territories occupied by a
hostile army, in lieu of a general confiscation of the property
belonging to the inhabitants ; and that the object of wars
by land being conquest, or the acquisition of territory to
be exchanged as an equivalent for other territory lost, the
regard of the victor for those who are to be his subjects,
CH. XXII
ENEMY’s PROPERTY ON THE HIGH SEAS 97
naturally restrains him from the exercise of his extreme
rights in this particular; whereas the object of maritime
war is the destruction of the enemy’s commerce and navi-
gation, the sources and sinews of his naval power, which
object can only be attained by the capture and confiscation
of private property.’ 1
§.z. _ Several of the ablest Continental writers oppose
this distinction on principle. The Abbé Mably 2 advocated
an entire freedom of commercial intercourse in war, even
between the subjects of the belligerent powers ; and Emeri-
gon, yielding to the arguments of the Abbé, expresses an
earnest desire that the laws of war may be modified or
changed accordingly. Others, again, think that the change
should extend only to the adoption of the principle that
private property on the high seas should be subject to
the same rules in war as private property on land ; without
any modification of the law of war respecting the commer-
cial intercourse of subjects of the belligerent powers. N apo-
leon I., in his ‘ Mémoires,’ dictated at St. Helena, says:
‘ Il est a désirer qu’un temps vienne, ou les memes idées
libérales s’étendent sur la guerre de mer, et que les armées
navales de deux puissances puissent se battre sans donner
lieu a la confiscation des navires marchands, et sans faire
constituer prisonniers de guerre de simples matelots de
commerce.’ The great advantages which England, by
means of her naval superiority, has derived from the capture
of private property upon the high seas, have tended very
much to the maintenance of the rigour of the ancient rule
of commercial warfare. The contrary theory has been
advocated by the United States, who proposed to add to
the first article of the ‘ Declaration concerning maritime
law,’ made by the Conference of Paris, April 16, 1856, the
following words : ‘ and the private property of the subjects
or citizens of a belligerent on the high seas shall be exempted
from seizure by public armed vessels of the other belligerent,
1 Wheaton, Elem. Int. Lavv, pt. iv. ch. § 7. Property cap-
tured on land by a naval force of the United States is not a ‘ mari-
time prize,’ even though it may have been a proper subject of
capture generally. Alexander’s Cotton (2 Wall. 404), and see Act
of March 3, 1863, 12 Stat. at L. 820; Act of July 2, 1864, 13 Stat.
at L5 ifaihy, Dion Public, ch. p. 308; Napoleon, Me'moires,
t. ch. vi.
VOL. 11.
H
Attempts
to modify
it
98 INTERNATIONAL LAW on. n11
except it be contraband.’ This proposition,1 although
favourably received, was not adopted by the powers repre-
sented at that conference, Russia alone excepted. Mr.
Fish made a similar suggestion to Baron Gerolt in 1870.
Italy in 1865, Austria and Prussia in 1866, and Prussia,
again, in I870, showed themselves to be in favour of this
doctrine; but there is no good reason why the right of
capture of private property at sea should ever be aban—
doned. It may therefore be stated as the existing and
established law of nations, that, when two powers are at
war, they have a right to make prize of the ships, goods,
and effects of each other upon the high seas ; and that this
right of capture includes not only government property,
but also the private property of all citizens and subjects
of the belligerent powers, and of their allies. Whatever
bears the character of enemy’s property (with a few excep-
tions to be hereafter noticed), if found upon the ocean, or
afloat in port, is liable to capture as a lawful prize by the
opposite belligerent.2
1 This proposition can be well illustrated by assuming the
accomplishment of the proposed change, the realisation of the
ideal which the reformers have conceived ; that is, contest between
combatants alone, while all else in the State goes on as usual. A
war is declared between two powerful maritime nations. It pro—
duces no direct change in the peaceful avocations of life ; agricul-
ture, manufactures, commerce, flourish as before. The people are
not hindered in their productions and exchanges, and are thus
enabled to respond to the demands of the Government, and to
furnish all the material supplies necessary to sustain the struggle.
It is true that producers are withdrawn from time to time from
the orderly activities of life and are converted into military non—-
producers. But the vacancy thus made is not felt, because the
articles which were before produced at home are now brought
from abroad, by means of the free commerce which is thus quickened
into extraordinary activity. Under these circumstances the war
is reduced to a mere duel between hostile armies. The nation has
only to furnish men, and the contest will be continued until one
country has been swept of its able-bodied citizens. That nation
will certainly be victorious which can bring forward and sacrifice
the greatest number of soldiers. This is not an imaginary picture.
The essential fact was shown to be true in the history of the Con-
federacy. Levy after levy was made, army after army took the
field; but as soon as Sherman ravaged the sources of supply in
Georgia and Carolina, the whole- hostile array collapsed—North
American Review, No. 235, p. 405.
2 Pistoye et Duverdy, Des Prises, tit. i. oh. i. ; Hautefeuille,
Des Nations Nentres, tit. vii. oh. i. ; Wheaton, On Captures, App.
P_- 317 ; Polson, Law of Nations, § 6 ; Riquelme, Derecho PzZb. I nr'.
11b. i. tit. ii. c. xii. xiii. ; Martens, Precis dn Droit des Gens,, § 28 ;
CH. XXII
ENEMY’S PROPERTY ON THE HIGH SEAS
'§ 3. War establishes very different relations between
parties, from those which exist in the ordinary transactions
of trade and pacific intercourse, and from those new rela-
tions arise new duties and new obligations. Hence the
rules which govern the decisions of prize courts, under the
law of nations, with respect to the ownership of property,
widely differ, in many respects, from those which obtain
in time of peace in the courts of civil or common law. This
renders necessary a special examination of the law of prizes,
and the investigation of many nice and refined distinctions
in the application of that law.1
§ 4. For example, the legality or illegality of the cap-
ture of goods upon the high seas, will frequently turn upon
the question of ownership at the time of capture ; for when
property is shipped from a neutral country to an enemy’s,
or from an enemy’s country to a neutral, the question of its
national character, whether it is neutral or hostile, can only
be determined by ascertaining whether the right of property,
at the time of shipment, was vested in the shipper or in the
consignee. If, in order to determine this question, we were
to refer only to the rules established by courts of civil and
common law, we should be liable to form an erroneous con-
clusion, as these rules differ in some respects from those
which govern courts of prize, while, in others, they are
precisely the same in all courts?
Ortolan, Diplomatic ale la M er, liv. ch. ii. ; Jouffroy, Droit M ari-
time, p. 57 et seq.; Pando, Derecho PzZb. Int. p. 412; Wildman,
Int. Law, vol. ii. p. 118 et seq. ; Manning, Law of Nations, p. 136 ;
Dalloz, Repertoire, verb. ‘ Prises Maritimes ; ’ Azuni, Droit M'ari-
time, t. ii. ch. iv. ; Marcy, Letter to Count Sartiges, July 28,
18 56; De Cussy, Pre'cis Historique, ch. xi1.; Gardner, Institutes, -
ch. xv.
1 Duer, On Insurance, vol. i. pp. 420, 421 ; Kent, Com. on Am.
Law, vol, i. p. 74; Bello, Derecho Internacional, pt. ii. 0. v. § 1 ;
Heffter, Droit International, § 139 ; Merlin, Repertoire, verb. ‘ Prise
Maritime ’ ; Massé, Droit Commercial, liv.
2 It was determined, by the Privy Council, in 18 5 7, that the
sale of a ship, absolutely and bona fide, by an enemy to a neutral
imminente bello, or even flagrante bello, is not illegal. A Russian
subject, immediately before the war between Russia and England,
18 54, sold, absolutely and bona fide, a ship, the ‘Ariel,’ to a subject
of a neutral State. Part only of the purchase money was paid at
the time of the purchase, the remainder being agreed to be paid
out of the earnings of the ship. Before all the stipulated price was
paid, the ship
condemned, by the High Court of Admiralty, on the ground that
the enemy’s interest in the ship was not divested, as the residue of
f 1 Iyi H 2
was seized, in a British port, as a prize; and was‘
Dificul-
ties in its
appli-
cation
Owner-
ship at
time of
capture
100 INTERNATIONAL LAW on. xxn
Rule as to
consignee
§ 5. The general rule of law, both international and civil,
or common, is, that goods in the course of transportation
from one place to another, if they are shipped on account
and at the risk of the consignee, in consequence of a prior
order or purchase are considered as his goods during the
voyage. The master of a ship, who receives goods, that,
by the bill of lading, are expressed to be, and, in fact, are,
shipped on account ‘of the consignee, becomes, by the very
act the agent of that consignee, so that the delivery to him
has the same effect in vesting the property, as a delivery to
his principal. Hence, goods in transitu from a neutral
country to a belligerent, if they are to be delivered to and to
. become the property of a belligerent immediatelyon their
arrival, are considered as his goods during the voyage, in
itinere, and subject to capture and confiscation.1 This
the purchase money was to be paid out of the earnings. This
condemnation was reversed by the Privy Council, because the non-
payment of part of the purchase money did not create a lien on the
freight and ship, in favour of the seller, so as to render the ship, in
possession of a neutral owner, liable to seizure by a belligerent.
Liens, whether in favour of a neutral on an enemy’s ship, or in favour
of an enemy on a neutral ship, are equally to be disregarded in a
British Prize Court. There were six other vessels seized, all belong-
ing to the same appellant. After the delivery of the above judg-
ment, the Crown officers restored these vessels, with the exception
of one, the ‘ Bellica,’ which they retained on the ground that the
sale of that ship was distinguishable from the others, her sale having
taken place in transitu. On appeal, again, to the Privy Council,
that court decided that the sale, though in transitu, was valid, as
the transitus had ceased when the vessel had come into possession
of the purchaser, which took place before the seizure, and that
no distinction could be made between the case of that vessel and
the case of the ‘ Ariel.’ (Sorensen 1). Reg. 11 Moore, Privy Council
Cas. I 19.) In the case of the ‘ Minerva ’ (6 Rob. 396), Sir William
Scott held that the purchase of a ship of war from the enemy,
whilst lying in a neutral port, to which it had fled for refuge, was
invalid. The same principle was adopted in the United States in
the case of the ‘ Georgia ’ (7 Wall. 32).
1 In 1793 an American ship, the ‘ Sally,’ shipped a cargo of
corn of a firm at Baltimore, ostensibly for the account and risk
of a firm of Philadelphia (but in reality for the use of the French
Republic), and consigned to them or their assigns, and to be de-
livered at Havre. The form of contract was framed directly for
the purpose of obviating the danger apprehended from approaching
hostilities between France and England. On the ship being cap—
tured by the English, the master, instead of supporting the con-
tents of his bill of lading, deposed ‘ that on arrival, the goods would
become the property of the French Government,’ and concealed
papers strongly supporting his testimony. It was held that as the
corn was to become the property of the enemy on delivery, capture
might be considered, as delivery. Captors by the right of war
011. mm ENEMY’s PROPERTY ON THE HIGH SEAS 101
general rule, as to the effect of a delivery of goods, to the
master, for a foreign purchaser, may, both by the civil and
common law, be varied by an express stipulation between
theparties, or by the usage of a particular trade. If the
parties agree that the payment for the goods shall be con-
tingent upon their actual delivery at the foreign port,
the whole risk of the voyage being cast upon the shipper,
and the contract of sale, until a delivery, being incomplete
and executory, the goods, during the voyage, in judgment
of law, remain the property of the shipper. So if the
prevailing usage of a particular trade casts the risk upon
the consignor, the delivery to the master is not regarded,
in law, as a delivery to the consignee ; for such a usage pre-
supposes the general agreement of the merchants engaged
in the trade to which it refers. But neither of these excep-
tions to the general rule, that the delivery to the master,
as the agent of the consignee, is a delivery to the principal,
is admitted in courts of prize, for the very conclusive
reason, that, to permit goods, in time of war, to be con-
sidered the property of the neutral consignor, instead of the
enemy consignee, merely on the ground that the former
had assumed the risk of transportation, would at once put
an end to captures of enemy’s property on the high seas.
On every contemplation of a war, in the consignments of
goods from neutral ports to an enemy’s country, the risk
of transportation would be laid on the consignor, and the
right of capture would be completely frustrated. Hence,
says Sir William Scott, that part of the contract laying the
risk of transportation, in time of war, upon the neutral
stand in the place of the enemy, and are entitled to a condemna-
tion of goods passing under such a contract, as if they were enemy’s
property. (The ‘ Sally,’ 3 Rob. 300, note. See, also, the ‘ Anna
Catharina,’ 4 Rob. 107; and the ‘ Carl Walter,’ ibid. 207.) Con-
demnation was also made in the case of the property of British
merchants, shipped before the war with Spain, but in a Spanish
character and in a trade so exclusively peculiar to Spanish sub-
jects as that no foreign name could appear in it (the Princesa
Zavala,’ 2 Rob. 52), and further in that of an asserted American
merchant, who, having gone to France to collect outstanding debts,
had invested part of the money so received in sending a cargo of
butter to Lisbon. The peculiar circumstances in each case were
such as to invest the consignors with an enemy national character
pro hac vice. (The ‘ Drie Gebroeders,’ 4 Rob. 232.)
As against captors the ownership of property cannot be changed
while it is in transitu. (The ‘ Sally Magee,’ 3 Wall. 451.)
102 INTERNATIONAL LAW on. xxn
Doctrine
in the
United
States
Courts
consignor, is invalid; or rather as the captor has all the
rights which belong to the enemy, his taking possession
is considered equivalent to an actual delivery to the enemy
consignee. The foregoing rule of the prize courts of Eng-
land, that property consigned to, and to become the pro-v
perty of an enemy, upon arrival, cannot be protected by
the neutrality of the shipper, has been explicitly recognised
and acted upon by the prize courts of the United States,
and approved by American writers of the highest authority.
§ 6. No case directly in point has yet been decided by the
Supreme Court of the United States, but the doctrine has‘
been affirmed in analogous cases, resting substantially on
the same grounds; and Mr. Justice Story, in the United
States circuit court, says, ‘ that in time of war property
shall not ‘be permitted to change character in its transit,
nor shall property consigned to become the property of an
enemy upon its arrival, be protected by the neutrality of
the shipper. Such contracts, however valid in time of
peace, are considered, if made in war, or in contemplation
of war, as infringements of belligerent rights, and cal-
culated to introduce the grossest frauds. In fact, if they
could prevail, not a single bale of enemy’s goods would ever
be found upon the ocean.’ Chancellor Kent, in his com-
mentaries, says, that ‘ property shipped from a neutral
to the enemy’s country, under a contract to become the
property of the enemy on arrival, may be taken, in transitn,
as enemy’s property ; for capture is considered as delivery.
The captor, by the rights of war, stands in the place of the
enemy. The prize courts will not allow the neutral and
belligerent, by a special agreement, to change the ordinary
rule of peace, by which goods ordered and delivered to the
master, are considered as delivered to the consignee. All
such agreements are held to be constitutionally fraudulent,
and, if they would operate, they would go to cover all belli--
gerent property while passing between a belligerent and a
neutral country; since the risk of capture would be laid
alternately on the consignor or consignee, as the neutral
factor should happen to stand in one or other of these
relations.’ A contrary doctrine has been held by the courts
of the State of New York, but as the decisions of State
courts are not of authority in questions of prize, the rule,
on. 1211 ENEMY’S PROPERTY ON THE HIGH SEAS 103
as decided by Justice Story, must be regarded as established
in the United States.1
§ 7. This rule is not confined to cases where the contract
and shipment are made in time of actual war. If they are
made in time of peace, but in contemplation of war, and with
the manifest intention of protecting the property from
hostile capture, they are equally a fraud upon the belli—
gerent power to which the right of capture belongs ; and the
reasons for the rule of the prize courts, in cases of contract
made in time of actual war, given by Sir William Scott
and Justice Story, in their decisions, and by Chancellor Kent,
in his commentaries, are equally applicable to contracts
made in time of peace, but in contemplation of war. We do
not, however, find any decision directly on this point ; but
the view of this question taken by Mr. Duer seems to be fully
sustained by the reasoning of the courts in the cases to which
reference is made in the foregoing paragraph. If goods
contracted for, and shipped in time of actual war, are liable
to capture on the ground of fraud upon the rights of a
belligerent, assuredly the same would, for the same reason,
apply to the same transactions made with the same inten—
tion, in contemplation of war.2
§ 8. And if the contract is made during a peace, and not
in contemplation of war, but the shipment be made after
hostilities have commenced, and with a knowledge of the
war, the private agreement of the parties, by which the
neutral consignor assumes the risk of delivery, will not be
permitted to affect the rights of the capturing belligerent.
For it was the duty of the consignor, and within his power
in this case, equally as in the former, to guard himself from
a contingent loss arising from capture, by requiring a proper
security from the consignee. Without such security, he
was not bound to make the shipment at all, since, as the
contract was not made in expectation of a war, so material
1 Kent, Com. on Am. Law, vol. i. pp. 86, 87 ; the ‘ Ann Green,’
I Gallz's R. 291 ; the ‘ Francis,’ r Gallz's R. 450 ; Ludlow v. Browne,
johns. R. I; De Wolf 11. N.Y. Ins. Co., 20 johns. R. 214; the
‘Venus,’ 8 Cranoh. 253, 275; the‘ ‘Merrimack,’ 8 Cranoh. 317,
327; the ‘Mary and Susan,’ I Wheaton R. 25; the ‘San Jose
Indiano,’ I Wheaton R. 208, 212; the ‘Francis,’ 8 Cranoh. r83;
Ils‘ley o. Stubbs, 9 Mass. R. 65 ; Chandler v. Sprague, 5 Met. R. 306.
2 Duer, On Insurance, vol. i. p. 478.
Contract
and
shipment
made
in contem-
plation of
war
Contract
made in
peace and
a shipment
in war
104 INTERNATIONAL LAW on. Kim
If both be
made in
time of
peace
a change in its risks, as contemplated by the parties in
making the contract, would absolve him from its execution.1
§ 9. But where the shipment of the goods, as well as the
contract, laying the risk on the neutral consignor, are both
made in time of peace, and not in contemplation of war,
the legal ownership which was in the consignor, at the
inception of the voyage, remains in him until its termina-
tion. The property of the consignor is not divested in
favour of a belligerent, by the breaking out of the war, before
the arrival of the goods, by which the foreign consignee
becomes an enemy. The same rule applies where the
consignor, at whose risk the shipment was made, is a subject
of the belligerent captor, the reason of the exemption
being equally applicable to his case. Again, if the contract
and shipment be made in time of peace, and. not in con-
templation of war, and the risk be' laid on the neutral
consignee, the property being in the consignee, not only
by the rules of the civil and common laws, but also by the
law of nations, the goods are exempt from capture. So,
also, if the consignee be a subject of the belligerent captor,
for the delivery to the carrier is regarded as the delivery to
the consignee, and the goods are neither enemy’s goods,
nor goods in unlawful trade with _the enemy. Both the
contract and shipment were lawfully made, and no rule
of war being violated by the subject in acquiring the owner-
ship of the property, or in their removal from the country,
then friendly but now hostile, the character of the goods
is not changed during the voyage, and they are, therefore,
not liable to condemnation.’
§ IO. And, again, where the goods are shipped by an
enemy consignor, during the war, and under a prior sale,
or an unconditional contract of sale, the property so shipped
vests absolutely in the neutral consignee, by delivery to
the master, and, if otherwise innocent, and the title remains
unchanged, it is exempted from capture during the voyage.
The reason is obvious : the neutral violates no duties toward
one belligerent by trade, otherwise lawful, with the oppos-
Shipment
at risk of
neutral
consignee
1 Wildman, Int. Law, vol. ii. p. 99; the ‘Packet de Bilboa,’
2 Rob. 13 3.
2 Wildman, Int. Law. vol. pp. 99, 100; the ‘ Atlas,’ 3 Rob.
299.
CH. XXII ENEMY’S PROPERTY ON THE HIGH SEAS 105
ing belligerent; and the only question is that of ownership,
which, by the supposition, is in the neutral consignee. But,
as a neutral cover is the common device by which belli-
‘ gerent interests are sought to be protected, shipments of
this character are watched with peculiar jealousy, and the
clearest evidence of ownership in the consignee is not
unreasonably required. ‘ It is not sufficient,’ says Mr. Duer,
‘ to establish the title, that the bills of lading and the
invoice are in the name of the consignee, and express the
shipment to be made on his account and risk; for these
documents are indispensable to give even the appearance
of neutral ownership. It must be shown by what means
the title was acquired. If it is alleged that the goods had
been paid for, the payment must be proved. If the goods
are claimed under a contract of sale, containing provisions
for future payment, or- under an order for their shipment,
the contract, or order, must be produced, and must appear
to be absolute and unconditional, so as to bind the consignee
positively to the acceptance of the goods, and to take
from the consignor any right or power to reclaim them
(unless in the sole event of the insolvency of the consignee)
previous to their arrival. If any election is given to the
consignee, or any power of direction or control is retained
by the consignor, the goods continue, in the judgment
of law, the property of the consignor, and, as such, are
liable to capture during the voyage. This doctrine has
been clearly established in the British Courts of Admiralty,
and affirmed by the Supreme Court of the United States.
It may be well to illustrate this doctrine by particular cases.
Thus, where an American merchant had ordered certain
goods from Holland, then at war with England, and the
Dutch merchant, instead of sending the goods to him
directly, shipped them on his own account to a third person,
and directed his correspondent not to deliver over the bill of
lading unless payment was provided for in a satisfactory
manner, it was held that the goods, which were captured
' on the voyage, remained the property of the consignor, and
as such were liable to condemnation. So, where the goods
were shipped under a positive order from the claimant, but
the shippers, with a view to their own security, had the bill
of lading altered so as to be transferable to their own order,
106 INTERNATIONAL LAW on. 111111
If neutral
consignor
become an
enemy
during
voyage
Sir William Scott held that the goods, being still under
the dominion of the shipper, and subject to his control,
the ownership was not legally changed, and upon this
ground condemned the cargo as the property of the enemy
shipper.‘
§ 11. The same considerations apply where the ship-
ment is made in time of peace by a neutral consignor who
becomes an enemy before the completion of the voyage,
although there does not, perhaps, exist the same grounds of
suspicion as when the consignor is an enemy at the time
of shipment. Nevertheless, the courts, even in this case,
require the clearest evidence of neutral ownership. This is
illustrated by the case of the ‘ Francis.’ 2 Shortly previous
to the breaking out of the war between Great Britain and
the United States, in 1812, a merchant in Glasgow shipped
several bales of goods to certain merchants in New York,
and both the bill of lading and the invoice were in the
names of the latter, and expressed the shipment to be on
their account and risk. It appeared, however, by a letter
found on board, that the consignor, in making the shipment,
had exceeded the order, so that the consignees were in
effect released from any obligation to accept the goods,
and by this letter he gave them an election to take the
whole of the shipment, or none, as they pleased. The goods
were captured on the voyage, after war had been declared,
by an American privateer, and were condemned as enemy’s
property. In another case of the same kind, during the
same war, the bill of lading expressed the goods to be
shipped by a house in Liverpool, unto and on account of
certain merchants in New York, and the invoice, signed by
a manufacturer in Manchester, described the goods to be
consigned to the claimants, but did not specify on whose
account and risk. And in a letter to the consignees enclosing
the invoice, he said ‘ the goods are to be sold on joint
account, or on mine alone.’ The goods were accordingly
condemned as the property of the shipper.
1 Duer, On Insurance, vol. i. pp. 427, 428 ; the ‘ Aurora,’ 4 Rob.
219 ; the ‘Noydt Gedacht,’ 2 Rob. 13, note ; the ‘ Jose hine,’
4 Rob. 25 ; the ‘Carolina,’ 1 Rob. 304; the ‘Merrimack,’ 8 ranch.
328 ; the ‘ Venus,’ 8 Cranch. 275.
2 8 Cranch 354. I
08. 1x11 ENEMY’S PROPERTY ON THE HIGH SEAS 107
§'IZ. Where goods are shipped by an enemy consignor
to a neutral consignee, not under a prior order,‘ but with the
expectation that they will be received on the terms proposed,
if they are in fact accepted by the consignee previous to the
capture, it was held, by Sir William Scott, that his accept-
ance vests and perfects his title, and that, upon proof of the
fact, the property will be restored. To exempt the property
from capture, however, the. acceptance must be absolute
and unconditional. The transaction is then construed in
the same manner as if the goods had been originally shipped
on his account and at his risk. The same point had pre-
viously been raised in the Supreme Court of the United
States, but as the acceptance in the case decided was
partial and conditional, the Court expressly declined to
consider what would have been the effect had the acceptance
been absolute.1L
§ I3. Every consignor, not only at common law, but by
a rule of the general mercantile law, has, in certain cases, a
control over the shipment, which is technically called a right
of stoppage in transz'zfa: that is, a right to countermand the
bill of lading, and repossess himself of the goods, at any time
after their shipment and before their arrival at their destined
port. The only case in which this right of stoppage in
transita can be legally exercised, under the laws of war, is,
in the expectation, confirmed by the event, of the insolvency
of the consignee. If the consignee, previous to the arrival
of the goods, communicate to the consignor his determina-
tion not to receive or pay for the goods, these facts are
deemed equivalent to actual insolvency. But a revocation
of the consignment, from fears of the insolvency of the
consignee, which are not confirmed by the event, is not
deemed sufficient to change the ownership. The effect of
this right, when duly exercised, is to save the property from
its liability to capture, where the consignment is made
from a neutral to an enemy; and to incur that liability,
where the consignment is made from an enemy to a neutral.2
1 Kent, Com. on Am. Law, vol. i. p. 87 ; the ‘ Cousine Marianne,’
1 Edie. Rep. p. 346. .
2 Emerigon, Trazte’ des Assurances, ch. xi. § 3 ;the ‘ Constancia,’
.6 Rob. 324, 333 ; ‘ Twende Venner,’ 6 Rob. 326, note ; Ellis 1). Hunt, 3
Term R. 469 ; Oppenheim 11. Russell, 3 Bos. and Pull. 484 ; Dutton v.
Soloman, .3 Bos. and Pull. 582 ;Coxe v. Harden, 4 East, 21 I.
Accept-
ance in
traneitu
by neutral
consignee
Change of
ownership
by step-
page in
transitu
108 INTERNATIONAL LAW on. ma
National
character
of goods
changed.’
§ I4. But these cases are properly exceptions to the
general and Well-settled rule of the English Admiralty, that,
in time of war, the national character of property cannot be
changed by a transfer to a neutral during the transporta-
tion. That which was enemy’s property at the commence-
ment of the voyage, remains liable to capture, until its
arrival at the port of destination. Nor is the application
of the rule confined to a transfer in actual war. If it appear
that the immediate motive of the transfer, although made
in time of peace, was the expectation of war, and that this
fact was known to the purchaser, the contract is held to be
equally invalid, as against the belligerent whose right of
capture was meant to be evaded.’ ‘ There exists, however,’
says Mr. Duer, ‘ an apparent difference in the mode of
applying the rule in these cases. In the latter, positive
evidence of the intentions of the parties is plainly required ;
but, in the first, the fact of a transfer is regarded as conclu~
sive proof of the intended fraud.’ This doctrine seems to
have been adopted in its full extent by the Supreme Court of
the United States. The rule of Admiralty, in these and
other cases which we have mentioned, is different from that
of common law, and its vindication is rested on the ground
that its adoption is necessary to the prevention of fraud.
A change in the national character of the owner, during the
voyage, is not allowed to change the hostile character of
property in transitu. If he was an enemy at the commence-
ment of the voyage, the property is condemned, notwith~
standing he may have become a subject of the capturing
power previous to the capture. A Dutch ship, owned and
claimed by merchants residing at the Cape of Good Hope,
was captured on a voyage from Batavia to Holland, nearly
two months after the inhabitants of the Cape of Good Hope,
under the capitulation, had sworn allegiance to the British
Crown, and had become British subjects. Their ship was
condemned, on the sole ground that, ‘ having sailed as a
Dutch ship, her character during the voyage could not be
The propriety of this decision has been seriously
questioned. Although the character of property is not per-
mitted to be varied in transitu, from hostile to friendly, or
neutral, so as to exempt it from capture and confiscation,
nevertheless, if it be neutral or friendly at the commence-
on. xx11 ENEMY’s PROPERTY oN THE HIGH SEAS 109
‘ment of the voyage, its character may be so effectually
altered before its termination as to ensure its condemnation.
As a general rule, no matter what its character at the com-
mencement of the voyage, if its owner is an enemy at the
time of the capture, the seizure is lawful and confiscation
a necessary consequence. Its fate is determined by the
real or constructive character of its ownership at the time
of seizure; by its real character, if hostile at the time of cap-
ture, and by its constructive character, if neutral or friendly
when seized, but hostile at the commencement of the voyage.
The rights‘ of the captors are vested at the time of the
seizure, and cannot be divested by any subsequent change in
the national character of the owner. Previous to adjudica~
tion, the owner may have become a neutral, an ally, or a
subject, but in neither capacity can he claim exemption
from confiscation of property seized while he was an enemy.
Nor, to warrant a condemnation, is it in all cases necessary
that the owner should be an actual enemy at the time of
capture. If the seizure is provisionally made in contem-
plation of hostilities, a subsequent declaration of war has a
retroactive effect, converting the neutral or friendly owner
into a public enemy, and the precautionary seizure into an
act of war. ‘ The seizure is at first regarded as provisional,
or rather an act of an equivocal character, to be determined
by subsequent events. If, in the language of Sir William
Scott, the dispute terminates in a reconciliation, the seizure
is regarded as a mere civil embargo ; but if war follow, it
impresses upon the original seizure a direct hostile character.1
But this particular point has been discussed in chapter xvii.
§ 15. The transfer, in time of war, of the vessel of an
enemy to a neutral, is a transaction, from its very nature,
liable to strong suspicion, and consequently is examined
with a jealous and sharp vigilance, and subjected to rules of
a peculiar strictness in the prize court of the opposite bel-
ligerent. Nevertheless, neutrals have a right to make such
purchases of merchant vessels, when they act with good
faith, and, consequently, the belligerent powers are not
justified, by'the law of nations, in attempting to prohibit
1 The ‘ Danckebaar Africaan,’ 1 Rob. 107 ; Duer, On Insurance,
vol. i. pp. 432-444 ; Phillimore, On Int. Law, vol. iii. § 21 ; Wheaton,
Elem. Int. Law, pt. iv. ch. i. §4; the ‘ Bodes Lust,’ 5 Rob. 233-250 ;
the ‘ Diana,’ 5 Rob. 60; Wildman, Int. Law, vol. pp. 101, 102.
Transfer
of enemy’s
ship to
neutrals
I IO INTERNATIONAL LAW OH. xxII
such transfers by a sweeping interdiction, as was done in
former years by both the French and English governments.
Ordinances of this character form no part of the law of nations,
and, consequently, are not binding upon the prize courts,
even‘ of the country by which they are issued. Neverthe-
less, where the sale is claimed to have been made by an
enemy to a neutral, in time of war, it is not unreasonable
that its motives, nature, and terms should be an object of
the most searching inquiry. The temptation to fraud, in
such cases, is so great that the entire transaction should be
most strictly examined, otherwise the opposing belligerent
might be deprived of his just rights of capture. Hence
courts of admiralty have established very severe rules
respecting such transfers.1
‘ Abreu, Tratado de las Presas, c. v. § 3 ; Pouget, Droit Mari-
time, t. i. p. 459 ; Wheaton, On Captures, appen. p. 386; Haute-
feuille, Droit des Nations Neutres, tit. xi. ch. ii. ; Cushing, Opinions
of U.S. Attys.-Genl. vol. vi. p. 638. An enemy’s vessel ostensibly
transferred to a neutral, but continuing in the enemy’s trade,
manned by subjects of the enemy, and sailing from and to an enemy’s
port, was condemned. (The ‘ Embden,’ I Rob. 13.) The sale of a
ship of the enemy’s to a neutral must be absolute and bona fide.
Any equity of redemption or other defeasance will be considered
to keep the title still in the enemy. (The ‘ Sechs Gesohwistern,’ 4
Rob. 100.) A vessel purchased in the enemy’s. country continually
employed in the trade of that country during war, and evidently
on account of the war, was deemed to be a ship of that country.
(The ‘ Vigilantia,’ 1 Rob. 13.) In the case of the purchase of an
enemy’s vessel by a neutral, it appearing that the asserted neutral
was a person then resident in the enemy’s country, it was held that
the presumption was that he was there anirno manendi, and that the
proof lay on the claimant to explain it (the ‘ Bernon,’ I Rob. 102).
A vessel, sold in a blockaded port by a neutral, who had himself
purchased of the enemy since the commencement of hostilities, was
taken coming out of that port, and was condemned (the ‘ Vigilantia,’
Reyt. 6 Rob. 122). A British ship was fictitiously transferred to
Russian merchants, to prevent her seizure by the Russian authorities,
while lying ice—bound in a Russian port, at the outbreak of the
Crimean war, 18 54. She was seized as Russian property, by the
customs officers, on her arrival at Leith. The Prize Court was of
opinion, that the case presented very considerable difficulties, of a
perfectly novel character, for if the vessel was not restored to the
claimants, there was no alternative but to condemn her to the
Crown. And how? not as taken by a non-commissioned captor,
but—following the case of ‘ Etrusco ’ (Lords of Appeal, 11 August,
I8o3)-—to the Crown, for a violation of the British law. This the
Court could not do : Ist, because there was no proof of a violation
of British law which, by British law, would entail a condemna—
tion; 2ndly, because there had been no intention to commit a
mala fide act, in violation of British law ; lastly, because the whole
transaction'was a deception on the British Customs for the purpose
cH. xxn ENEMY’S PROPERTY ON THE HIGH SEAS III
§ 16. These rules may be briefly stated as follows : the
sale of an enemy’s vessel to a neutral purchaser, to be valid,
must, in all cases, be absolute and unconditional. The
title and interest of the vendor must be completely and
absolutely‘ divested. If there is any covenant, condition,
agreement, or even tacit understanding, by which he
retains any portion of his interest, the entire contract is
vitiated, and, in international law, regarded as void. Thus,
if the vendee is bound by a condition to restore the vessel
at the conclusion of the war; or, if the vendor retains a
lien upon the vessel, for the whole or a part of the purchase
money, the transfer is held to be colourable and void.
Even where the sale is ostensibly absolute, if the vessel
continues under the control and management of her former
owner, and in the same trade and navigation in which she
was previously employed, these circumstances are deemed
conclusive evidence of a fraudulent intent to cover, under the
name of a neutral, the property of an enemy, and the con-
tract is necessarily adjudged to be invalid.1 So, also, if the
of protecting British property, not for the purpose of deceiving
British authorities, nor with the intention of violating British law,
but for rescuing property supposed to be in the grasp of the enemy.
The Court, however, expressed considerable doubt whether this
course of proceeding 'on the part of the claimant even for a laudable
purpose, was quite correct. (The ‘Ocean Bride,’ Spinks, Pm‘. Cas.
66.) See also the ‘ Benedict,’ Spinks, Pm’. Gas. 314, a case of the
bona fide transfer fram an enemy to a neutral, and Sorensen 21. Reg.
snpza, § 4. The interest or expectancy of creditors in enemy property
arrested as prize, even though amounting to a lien upon it, does not
(Exempt it from capture as prize. (The ‘ Mary Clifton,’ Blatohf. Pr.
as. 5 56.)
1 A vessel, belonging to a Russian, sailed from Cronstadt with a
cargo of wheat on May I 7, I8 54, bound to Leith, where she arrived
in June, and was there seized by the customs oficers. She was said
to have been transferred, by virtue of a power of attorney, to a Dane
atMessina, then resold by virtue of another power of attorney to
her master while at Copenhagen, in the course of her voyage. She
was condemned by the English Prize Court as never having been
bona fide transferred. It was held, that the Court looks rather for
the natural evidence of a transaction, such as correspondence, than
for formal documents, and that the Court can restore to the claimant
only in the character in which he claims, and that the onus of full
and complete proof lies upon such claimant. The master had made
an aflidavit, after the capture, stating that he had taken on board
his cargo on May I4 ; this he had done with the evident intention
‘of bringing his vessel within the protection of a certain Order in
Council, which would not have protected him had he named the
real date. Dr. Lushington observed that, not only had the claimant
failed to prove his claim, but that even if the proof of ownership had
Rules of
such
transfer
IIZ INTERNATIONAL LAW on. x111
neutral vendee, although residing himself in a neutral
country, continues to employ the vessel constantly in the
trade of the country to which she belonged, she is as
thoroughly incorporated in a hostile commerce, as if she had
never been transferred. The inference from these circum-
stances is not to be resisted, that the sole object of the
transfer was to enable the vessel to carry on the enemy’s
trade without a liability, and, consequently, that the sale
was collusive, and a meditated fraud upon belligerent rights.
But, in these cases, condemnation would follow from the
hostile character impressed upon the vessel by the trade in
which she is employed, even if the transfer were to be con-
sidered as in itself valid. If, says Lord Stowell, a neutral
chooses to engage himself in the trade of a belligerent
nation, he must be content to bear all the consequences of
the speculation; if he confines himself exclusively to the
trade and navigation of an enemy’s country, he is liable
to be considered an enemy, in respect to the vessel so em-
ployed. If a merchant vessel of an enemy sheltersitself
from hostile pursuit in a neutral port, and, on account of
the difficulty or impossibility of escape, is there sold, it has
been contended that such sale is a violation of belligerent
rights; but the purchase of a neutral, under such circum-
stances, if bona fide, is considered valid, and sustained by
courts of prize. But not'so with respect to the purchase
of an enemy’s ship of war, under like circumstances, for it is
held that neutrals cannot purchase ships of war from
either of the belligerents. It has been held by the British
courts of prize, that a ship cannot change her character in
transitu, and that a transfer to a neutral, notwithstanding the
bona fides of the transaction, will not exempt her from cap—
ture and condemnation. This doctrine is sustained by the
dicta of Mr. Justice Story, in the ‘ Ann Green ’ and the
been more stringent, he was not satisfied that he could have restored
the property to the master, as entitled to a Danish character.
If a man chooses to clothe himself fictitiously with a Danish character,
and attempts to get restitution under that pretence, and is detected
by the Court, it is not very consistent with law or justice, that he
should then be entitled to turn round, and say, ‘ I played the rogue ;
I tried to persuade you I was a Dane, but I am in reality a Russian.
Give me the benefit of that Order in Council which I should have
been entitled to, if I had acted as an honest man.’ (The ‘ Soglasie,’
2 Spinks, IoI.)
on. xxu ENEMY’S PROPERTY ON THE HIGH SEAS n3
‘ Francis,’ but the question has not been directly decided in
our courts. It therefore remains a debatable point with us.
Such is a summary of the rules adopted by the British prize
courts with respect to the transfer of ships during the war,
from one of the belligerents to a neutral. So far as they
conform to the rules of evidence and logical proof, established
by the practice and consent of the nations of Christendom,
they are obligatory, and can neither be resisted nor disputed.
But, beyond this, they have no force as rules of international
‘ law. For no belligerent nation can impose upon a neutral
its regulations, nor dictate to such neutral unusual rules of
evidence, orarbitrary means of proof. In other words, if
a neutral, who has purchased a vessel from a belligerent,
holds such vessel by a title valid by the law of nations, he
cannot be deprived of it by a prize court, because he does
not prove his ownership according to the arbitrary and
unusual rules of evidence which that court may adopt. If
the sale be valid, it cannot be annulled by any rules which a
belligerent nation may see fit to prescribe for itself, but
which, by the law of nations, are not obligatory upon
neutrals?
§ I7. It follows, from the rules of decision heretofore
announced, that the character of property on the high seas,
whether vessels or goods, results, as a general rule, from the
character of their owners, or those who are regarded in inter-
national law as the owners. If such owners are hostile,
friendly or neutral, according to the particular rules of law
applicable to the state of war, their property is, in general,
to be considered hostile, friendly or neutral, and, as such, is
subject to, or exempt from, capture? The laws of war
1 The ‘ Ann Green,’ I Gal. 289 ;Wildman, Int. Law, vol. pp. 84
et seq. ; Phillimore, On I nt. Law, vol. p. 448 ; Duer, On I nsumnce,
vol. i. pp. 446-448 ; Kluber, Droz't des Gem, § 234 ; Rayneval, Droz't de
la N at. et des Gens, liv. iii. chs. xiv. xv. ;the ‘ Noydt Gedacht,’ 2 Rob.
137, note ; the ‘ Sechs Geschwistern,’ 4 Rob. IOO ; the ‘ Vigilantia,’
I Rob. I ; the ‘ Embden,’ I Rob. 16 ; the ‘ Jemmy,’ 4 Rob. 31 ; the
‘ Argo,’ I Rob. I63 ; the ‘Vrow Hermina,’ I Rob. I63 ; the ‘En-
draught,’ I Rob. 18, 19 ; the ‘ Minerva,’ 6 Rob. 396, 399 ; the ‘ Omni-
bus,’ 6'Rob. 71 ; the ‘ Packet de Bilboa,’ 2 Rob. I 3 3.
2 A cargo was purchased and shipped in Holland, when at war
with Great Britain, on board a neutral vessel ; on it being proved
by the bill of lading and other papers to be the property of a merchant
in Hamburg, then in neutrality, it was held not liable to condemna-
tion as prize. O’Neale, v. Cordes and Gronemeyer (I805), I3 F. c.
221.
VOL. 11. i I
General
rule as to
character
of ships
and goods
I14 INTERNATIONAL LAW 011. xxn
applicable to ownership are, as before remarked, different
from those which apply in time of peace, and hence what, by
the latter, would be considered the property of a neutral,
will not unfrequently, by the former, be regarded as the
property of an enemy. But there are numerous exceptions
to this general rule, that the character of property on the
high seas results from that of its owner, for the property of
neutrals, subjects, and allies, is not unfrequently impressed
with a hostile character from the circumstances of its
locality, use, &c. Thus, ships are deemed to belong to the
country under whose flag and pass they sail ; at least, this
circumstance is conclusive, as against the party who takes
the benefit of them, although they do not bind other parties,
as against him. So, a ship belonging to a neutral owner
may acquire a hostile character from the trade in which she
engages, or some particular act which she may do. The
same may be said with respect to proprietary interests in
cargoes, although, in general, goods have the same national
character as their owners ; yet they sometimes have impressed
on them a hostile character while their owners are friendly
or neutral, sometimes from their origin, character, or use,
and sometimes from the acts of their owners, of the ship in
which they are carried, or of the master in charge of them.‘
These questions were discussed in chapter xii.
If a British ship, captured by an enemy, is afterwards purchased
by a British subject, she is still, in the contemplation of the law of
England, the property of the person from whom she was captured
(Woodward v. Larking, 3 B519. 286; the ‘ Reward,’ Hay and Mar.
197). The 55 Geo. III. c. 160, § 5, now expired, enacted that if any
British ship, taken as prize by the enemy, be set forth for war by the
enemy, it shall, on being recaptured by British subjects, be con-
demned as prize to the recaptors. See cases, the ‘ Horatio,’ 6 Rob.
32o ; ‘L’Actif,’ Edwards, 18 5 ; the ‘ Ceylon,’ I Dads. 114 ; the
‘ Georgiana,’ ibid. 401.
. 1 The ‘ Vrow Anna Catharina,’ 5 Rob. I61 ; the ‘ Magnus,’ 1 Rob.
31 ; the ‘ Fortuna,’ I Dod. R. 87 ; the ‘ Success,’ 1 Dad. R. 131 ; the
‘ Princesa,’ 2 Rob. 49 ;the ‘ Anna Catharina,’ 4 Rob. 107 ;the ‘ Rends-
borg,’ 4 Rob. 121 ;the ‘Commercen,’ 1 Wheaton R. 382 ;the ‘ Phoenix,’
5 Rob. 20; the ‘Drie Gebroeders,’ 4 Rob. 232; the ‘ Industrie,’
Stinks R. 444.
A great distinction has always been made, by the nations of
Europe, between ships and goods. Some countries went so far as to
make the flag and pass of a ship conclusive on the cargo also, but the
Courts of Great Britain never carried the principle to that extent.
They held the ship to be bound by the character imposed on it, by
the authority of that Government from which all the documents
issue, but that goods, which have no such dependence upon the‘
on. xxu ENEMY’s PROPERTY ON THE HIGH SEAS 115
§ 18. In determining the national character of property,
courts of prize generally look only to the legal title; and
when, from the papers, the right of property in a captured
ship or cargo appears to be vested in an enemy, no equitable
or secret liens of a neutral or a subject can be made the
foundation of a claim to defeat or vary the rights of the cap-
tors. The only exception to this rule, is where the lien is
immediately and visibly incumbent upon the property, and
consequently, is one which the party claiming its benefit has
the means of enforcing without resort to legal process. Of
such a nature is the freight due to the owner of the ship, for
the ship-owner has the cargo in his possession, subject to his
demand of freight money, by the general law, independent of
any contract. The distinction between the two classes of
liens is properly expressed in the language of the civil law,
by regarding one as a jas ad rem, and the other as a fits
in re.1
§ 19. It is stated by Wheaton that a certificate of registry 2
is the proof naturally to be looked to for the national
character of the ship in addition to the following proofs :—
let, the Passport, or Sea Letter. This is a permission from
the neutral State to the master of the vessel to proceed on the
intended voyage, and usually contains his name and resi-
dence, the name, description, and destination of the vessel,
with such other matter as the local law and practice require.
2nd, the Master Roll, or Ré’le d’Egaipage, containing the
names, ages, quality, and national character of every one
of the ship’s company. 3rd, the Charter Party ; if the vessel
has been let to hire. 4th, the Bills of Lading, by which the
master acknowledges the receipt of the goods specified
therein, and promises to deliver to the consignee or his
order. 5th, the I nvoioes, which contain the particulars
authority of the State, may be differently considered. As to
whether the Courts will make the separation, it may be said, that in
time of peace such separations will generally be made, but in time
of war a more strict principle may become necessary. See the
‘ Elizabeth ’ (5 Rob. 2), and post. ch. xxiii. § 19, the distinction
drawn by the Supreme Court of the US. between that case and the
‘ Julia ’ (8 Cranoh. 181).
1 The ‘ San José Indiano,’ 2 Gallis R. 284; the ‘ Frances,’ 18
Cranch. 418 ;the ‘ Tobago,’ 5 Rob. 218 ;the ‘ Marianna,’ 6 Rob. 24.
i 2 The case of Le Cheminant '0. Pearson, 4 Taunt. 367, decides that
‘ a register is not a document recognised by the law of nations.
Effect of
liens
Docu-
mentary
proofs of
ownership
12
116 INTERNATIoNAL LAW on. xxu
and prices of each parcel of the goods, with a statement of the
charges thereon. 6th, the Log-book, or ship’s journal,
which contains an accurate account of the vessel’s course,
with a short history of the occurrences during the voyage.
’‘ As the whole of these papers may be fabricated,’ says
Wheaton, their ‘ presence does not necessarily imply a fair
case; neither does the absence of any of them furnish a
conclusive ground of condemnation, as has been most un-
justly provided by the ordinances of certain belligerent
powers. As they furnish presumptive evidence only of the
property in the vessel and cargo belonging to those to
whom it purports to belong; so, on the other hand, their
absence 1 affords only presumptive evidence of the existence
of enemy interests, which may be rebutted by other proof
of a positive nature, accounting for the want of them, and
supplying their place, according to the circumstances of
each particular case.’ At one period it was customary for
the United States to issue sea letters and certificates of
ownership to vessels owned by American citizens, whether
entitled or not to registry and enrolment. But, since the
Acts of March 26 and june 30, 1810, these particular docu-
ments were not often issued. With respect to ships which
have been transferred abroad, a bill of sale is the proper
evidence of ownership. ‘ A bill of sale,’ says Lord Stowell,
‘is the proper title to which the maritime courts of all
countries would look. It is the universal instrument of
the transfer of ships in the usage of all maritime countries.’ 2
A Bill of Health, or certificate properly authenticated,
that the ship comes from a place where no contagious dis-
1 If it be clearly evident that a vessel, although without papers,
is neutral, her detention by a ship of war is not justifiable, but in the
absence of that clear evidence, a ship of war is justified in detaining
a ship when the more important papers of the latter are wanting ;
the same, if those papers are irregular or inconsistent with each
other, or with the statements of the master (the ‘ Sarah,’ 3 Rob. 3 30 ;
the ‘ Anna,’ 5 Rob. 383 ; ‘ Nuestra Signora de Piedale,’ 6 Rob. 43.
As to regularity of papers, false papers, and spoliation, see post.
ch. xxiii. and xxvii. ; as to endorsement of a ship’s papers, see the
‘ Hendrick and Maria,’ 1 Rob. 82, and 4 Rob. 53 ; as to marking of load
line on British ships, see 57 and 58 Vict. c. 60, ss. 437, 438, and
6 Edw. c. 48, s. 1.
2 Kent, Com. on Am. LawJvoLfifp. 130:;11Wheat0n, 0n Captures,
pp. 65, 66 ; Duer, 0n Insurance, vol. Lipp. 550, 551 ; the ‘ Sisters,’ 5
ob. 155 ; the ‘ Pizarro/E2 Wheaton R. 2271,"; the ‘ Amiable Isabella,’
6 Wheaton R. I ; the,‘ N ereide,’ 9 Cranch,f388.
on. xxu ENEMY’S PROPERTY ON THE HIGH SEAS II7
temper prevails, and that none of the crew, at the time of
her departure, were infected with such distemper, is to be
found among the papers of the ships of many nations.1
The following list, extracted from the ‘ Manual of Naval
Prize Law,’ compiled by Sir Godfrey Lushington, K.C.B.,
specifies what are the various papers in addition to the
custom house clearance, the manifest of cargo, and the bills
of lading which may usually, although not necessarily, be
found on board the vessels of the principal Maritime States,
viz. z—Austm'z—Scontrino ministeriale (certificate of regis-
try). Patente sovrana (royal license). Giornale di naviga-
zione (official log-book). Scartafaccio, giornale di naviga-
zione cotidiano (ship’s log-book). Charter party, if vessel is
chartered. Ruolo dell’ equipaggio (list of crew). Bill of
health. Denmark—Royal passport, in Latin, with transla-
1 In the treaties which were from time to time made with the
different States of Barbary (see vol. i. pp. 272-294), it was agreed that
the subjects of Great Britain should pass the seas unmolested by
the corsairs of those States ; and for ascertaining what ships belonged
to British subjects it was provided that they should produce a pass
under the seal of the Admiralty of Great Britain. In pursuance
of these treaties passes were made out at the Admiralty in the
following form :--‘ By the Commissioners for executing the office
of Lord High Admiral of the United Kingdom of Great Britain
and Ireland, &c. Suffer the [schooner “ Perseverance,” of Exeter,
as described in the annexed certificate of registry] to pass with her
company, passengers, goods, and merchandise, without any let,
hindrance, seizure, or molestation, the said ship appearing unto
us by good testimony to belong to the subjects of his Majesty.
Given under our hands and the seal of office of Admiralty the
[twenty-fourth] day of [September] in the year of our Lord one
thousand eight hundred [and thirty-three]. To all persons whom
these may concern. By command of their Lordships, [signed]
John Barrow.’ It will be noticed that the pass contains very few
words. It was written on parchment, with ornaments at the top,
through which a scolloped indenture was made. The scolloped
tops were sent to Barbary, and, being put into the hands of the
corsairs, the commanders of them were instructed to suffer all
persons to pass who had passes that would fit these scolloped tops.
These passes Were used in the trade to the East Indies, Africa,
the Levant, Spain, Italy, and to every part of the Mediterranean ;
from the particular need of them in the latter they obtained the
name of M etlflefl’mean passes. They were granted to none but to
British-built Ships, or ships made free, navigated with a master and
three-fourths of the mariners British subjects, or foreign Protestants
ade denizens. Each pass bore an impressed five-shilling stamp.
R les to govern Mediterranean passes were made by Order in
Council in {722. They are referred to in 6 Geo. IV. 0. I 10, s. 36, and
1 3and'4 Will. 1v. 0. 55,8. 6. By4Geo. II. c. 18, it is felony to forge
or counterfeit a Mediterranean pass.
118 INTERNATIONAL LAW on. xxu
tion (available only for the voyage for which it is issued,
unless renewed by attestation). Certificate of ownership.
Build brief. Admeasurement brief. Burgher brief (certifi-
cate that the master is a Danish subject). Charter party (if
vessel is chartered). Muster roll. Finland.-~Materbref
(certificate of measurement). Belbref (certificate of build).
Journalen (ship’s log-book). Charter party (if vessel is
chartered). Folkpass (crew list). France.-—L’acte de fran-
cisation (i.e. certificate of nationality). Le congé (sailing
license). Le journal timbre (stamped log-book signed by
consul on clearance of vessel). Le journal du bord (ship’s
log-book). National flag. Charter party (if vessel is
chartered). Le Idle d’équipage (list of crew). Bill of
health. Germany.—Messbrief (certificate of measurement).
Beilbrief (builder’s' certificate). Seepass (sailing license).
Journal (ship’s log-book). Charter party (if vessel is char-
tered). Musterrolle (muster roll). Great Britain.—-—-Certifi-
cate of registry.‘ Official log-book. Ship’s log-book.
National flag and code of signals. Code of signals and
numeral flags. Charter party (if vessel is chartered).
Shipping articles. Muster roll. Bill of Health. Holland——
Meetbrief (certificate of tonnage). Bijlbrief (certificate of
ownership). Zeebrief (sailing license). _ Journal (ship’s log-
book). National flag. Charter party (if vessel is char.-
tered). Monster-r01 (muster 1011). Bill of health. I taly.--
Scontrino ministeriale (certificate of registry). Patente
sovrana (royal license). Giornale di navigazione (official
log-book). Scartafaccio, giomale di navigazione cotidiano
(ship’s log—book). Charter party (if vessel is chartered).
Ruolo dell’ equipaggio (list of crew). Bill of health. 'Nor-
way.-—Biilbrev (certificate of build). Maalebrev (certificate
1 Where a vessel, not on the register, becomes ata foreign port
the property of persons qualified to be owners of a British vessel,
the British consular officer there may grant a provisional Certificate,
to be in force for six months or until she arrives at Some pert Where
there is a British registrar; and this certificate is to Contain the
name of the vessel, the time and place of her purchase, and the
names of her purchasers, the name of her master, and the best
particulars as to her tonnage, build, and description that he is able ,
to obtain. (57 and 58 Vict. c. 60, sec. 22.) _
A pass with the force of a certificate within the time and limf ‘‘
mentioned therein, may be granted in the case of a Bntishe’vessjej
before registry to proceed from any one port or place to any othm,
both being in her Majesty's dominions. (I bid. sec. 23.)
CIL- XXII
ENEMY’S PROPERTYION THE HIGH SEAS 119
of measurement). N ationalitetsbreviis (certificate of nation-
ality). Journale (ship’s log-book). Charter party (if the
vessel is chartered). Muster roll or mandskabsliste, or
volkelist (list of crew). Vessels purchased by Norwegian
subjects in foreign ports are permitted for two years to sail
without a biilbrev or maalebrev. Rassia.-——L’acte de con-
struction ou d’acquisition du navire (builder’s certificate).
La patente portant autorisation d’arborer le pavillon mar-
chand russe (certificate of nationality). journal du capi-
taine (ship’s log-book). Charter party (if vessel is chartered).
Le role d’équipage (crew list). Spain—La patente real
(royal license). El diario de navegacion (ship’s log-book).
National flag. Charter party (if vessel is chartered). El rol
(list of crew). Bill of health. Sweden—A passport from
the chief magistrate or commissioner of customs. Bilbref
(builder’s certificate). M'atebref (certificate of measure-
ment). Fribref (certificate of registry). journalen (ship’s
log-book). Charter party (if vessel is chartered). Folkpass
or sjemansrubla (muster roll). Vessels purchased by
Swedish subjects in foreign ports are permitted, on appli-
cation to the Board of Commerce, to sail for one year with-
out a fribref. United States—Certificate of registry. Sea
letter, or certificate of ownership. Ship’s log-book. National
flag. Charter party (if the vessel is chartered). Shipping
articles. Muster roll. Bill of health.
§ 20. There seems to be some difference in the laws of
different States, as well as in the decisions of their courts
and in the opinions of their text-writers, with respect to
the character of the documents requisite to prove the
neutrality of a vessel, and with respect to the effect of
those documents even when their genuineness is unim-
peached. Bello is of opinion that the passport, or sea-
letter, is absolutely indispensable for the security of the
vessel. Art. 2 of the French Ordonnance of July 26, 1778,
required neutral vessels to prove their neutral character
Laws of
different
States
by ‘ passeports, connaissernents, factares et antres pieces ‘
d’abord, l’ane desquelles ail rnoins constatera la proprie’te
neatre.’ Art. 6 of the Ordonnance of 1861, says: ‘ Seront
encore de bonne prise les oaisseaux, aoec lenr ohargement,
dans lesqaels il ne sera tronve’ chartes-parties, connaissements,
ni factares.’ Abreu was of opinion that these words were
120 INTERNATIONAL LAW cH. xxII
Decisions
of French
prize
courts
to be taken collectively and not distributively. But this
is evidently erroneous, for another provision of the ‘Ordon-
nance is (Art. 13) that no friendly or neutral vessel is to
be made prize, if the captain produces the ‘ charte-partie
on police de chargement,’ which latter word signifies the
same as connaissement. Massé seems to think that the
absence of a passport is a necessary cause of confiscation,
and that it cannot be replaced by any other document.
But Hautefeuille, Pistoye and Duverdy, and others, do not
consider it as indispensable, and such has been the decision
of the French courts. According to English and American
decisions, the neutral character of a vessel may be sus-
tained without her having on board either register or
passport; although, in the absence of both, the presump-
tion would be against her. Si aliquid ex solemnibus deficiat,
cum wquitas poscit, suboeniendum est. As already stated,
the presence of all the usual documents would not be con-
clusive in her favour.1
§ ZI. As the French decisions on this subject have
differed, in some respects, from our own, we will give a
synopsis of a few of the most important. In the case of
‘ Le Nisus ’ c. ‘ Le Mansouré of Le Rouge,’ it was held
that a merchant coasting vessel, without documents aboard,
was not a good prize, where not required by the laws and
usages of its own government; but in the ‘ Mistick Grec ’
c. ‘ La junon,’ where such vessel was armed, it was con-
demned as good prize. In the case of ‘La Notre-Dame du
Pilier,’ it was held that the evidence of the crew, as to the
hostile character of the vessel, must prevail over the neutral
character of the papers found aboard. The same decision
was confirmed in ‘Le Munster ’ 0. ‘Le Brave,’ and ~‘La
Nancy ’ c. ‘ L’Enjoleur.’ In ‘ Le Saint-Antoine ’ et al. c.
‘ L’Audacieux,’ where the vessels were furnished with double
documents, French and belligerent, further evidence was
resorted to, which evidence established their hostile cha-
racter, and they were condemned. In ‘ La Molly ’ c.
‘ L’Ecole,’ notwithstanding the neutral and regular character
of the documents found aboard, the vessel was condemned
1 Massé, Droit Commercial, liv. ii. tit. i. § 342 ; Hautefeuille, Des
Nations N eutres, tit. xii. ;Merlin, Repertoire, verb. ‘ Prises Maritimes,’
§ 3 ;Abreu, Traite' des Prises, pt. i. ch. ii. § 17. '
on. xxn ‘ ENEMY’S PROPERTY ON THE HIGH SEAS I21
as hostile on other evidence. In the case of ‘ Le Winyan ’
c. ‘ L’Ariege,’ regular neutral papers were shown, but others
showing the hostile character of the vessel were also found
aboard, and she was condemned. In the case of ‘ Le
Reysiger ’ c. ‘ Le Courageux,’ two neutral passports were
found aboard, one for coasting and the other for a certain
destination; it being shown that the second was to be
used only on the expiration of the first, the vessel was
restored. In the case of ‘ La Fredricka ’ it was held, that
the effect of documents was not to be determined by their
title, but by their contents, and that, where the instruc-
tion dn propm'e'tairel to the captain contained everything
that the charter party, invoice, bill of lading, and manifest
usually contain, it would serve as a substitute for them all.
The character of the vessel, as friendly or neutral, must,
as a general rule, be determined by the documents found
aboard and the testimony of the captors, but in case of
French vessels having simulated enemy papers aboard for
the purpose of deceiving the enemy, papers not on board
have been admitted as evidence to exempt such vessels
from confiscation, as was decided in the cases of ‘ Le
Censor ’ c. ‘ L’Entreprise ’ and ‘ Les Deux Charlottes ’ c.
‘ Le Flibustier.’ In the case of ‘ Le Jonge Cornelis ’ c.
‘ L’Actif ’ at al. the vessel of an ally was allowed to prove
her nationality by documents not on board at the time
of capture. In the case of the Swedish vessel ‘ L’Eleonora ’
it was held that lettres de franchise were a good substitute
for the passport; and in the case of ‘ La Carolina Wilhel—
mina ’ c. ‘ Le Dragon ’ it was held that, in the Baltic, a
certificate of ownership would serve the same purpose. In
‘ Le Christiern-Swerin ’ and ‘ La Paix ’ c. ‘ Le Général
Moreau " it was held that a neutral passport, to be avail-
able, must be renewed as often as the vessel returns to
ports of her own country ; but (in ‘ Le Quintus ’ c. ‘ L’Eper-
vier ’ and ‘ La Bagatelle ’ c. ‘ Le Basque ’) this rule does
not apply to coasting vessels or Levant traders. In the
1 It is a master’s .duty to produce all his papers, and least of all
to withhold his instructions, which are very important papers. (The
‘ Concordia,’ 1 Rob. 120.) To make a voyage fairly alternative
it should appear on the papers to be so ; for otherwise it must mis-
leaiéi Zhe crqisers of the belligerent countries. (The ‘ Jufirau Anna,’
I 0 . 124.
122 r . INTERNATIONAL LAW 011. xxn
case of ‘ La Constance ’ c. ‘ Les Deux Amis,’ where the‘
passport was found to be null and void, the neutrality of
the vessel was determined by other documents found
aboard. Passports to vessels absent from the country at
the time of their issue are not in general available; vide
‘ Le Haabet ’ c. ‘ L’Heureux,’ ‘ Le Munster Doris ’ c. ‘ Le
Brave,’ ‘ La Constance ’ c. ‘ Les DeuX Amis,’ ‘ La Famille,’
‘ Le Zénodore ’ c. ‘ La Charitas.’ But vessels purchased by
one neutral, in the ports of another neutral power, are
exceptions to this rule; vide ‘ L’Engel-Elisabeth ’ c. ‘ Le
Bon Ordre ’ et aL, and ‘ L’Attention ’ c. ‘ Le Deucalion.’
Other special exceptions were made in the cases of ‘ La
Notre-Dame de Bon Conseil ’ c. ‘ Le Coureur,’ and ‘ L’Amitié ’
c. ‘ Le Camus.’ A passport issued by a public officer of a
neutral state, residing in an enemy country, he being part
owner, was held, in ‘ Le Wikilladge ’ c. ‘ L’Emilie,’ to be
null, and the vessel a good prize. A passport from America
to Africa and back is not available for trading voyages
between Africa and Europe, and a passport for a neutral
port is not good for an enemy’s port ; vide ‘ Le Frédéric ’
c. ‘ L’Ariege,’ and ‘ L’Ami de Boston ’ c. ‘ La Bellone.’ A
neutral vessel with a neutral passport, but commanded by
a captain born in the enemy’s country, is a good prize,
although he has been naturalised a neutral after the de-
claration of war ; this is especially so when he has not been
domiciled in neutral country, but when he has long resided
in neutral country he is regarded as neutral and the ship
is safe; vide ‘ L’Actéonr’ c. ‘ Le Friendship,’ ‘ L’Arms ’ c.
‘ La Mascarade,’ and ‘ Le Ruby ’ c. ‘ Le Bougainville.’
Bills of lading signed by the shippers, but not by the cap-
tain, are available to prove the neutral character of goods,
if the captain has signed the duplicate, delivered to the
shippers; vide ‘ La Constance ’ c. ‘ Les Deux Amis,’ ‘ La
Louise-Auguste ’ c. ‘ Le Bonaparte,’ and ‘ L’Anna.’ It was,
also, held, in the same cases, that the want of the captain’s
signature to the duplicates in his own hands was no cause
of capture, as he could have signed them at any time.
Where the charter party does not contain a manifest of the
cargo, the bills of lading are necessary to prove its neutral
character; vide ‘ L’Anna.’ Where there is no particular
bill of lading for a part of the cargo, but the manifest has
CH. xxn ENEMY’S PROPERTY ON THE HIGH SEAS 123
all the formalities required for bills of lading, it is to be
regarded as a general bill of lading, and is sufficient to cover
the whole cargo ; vide ‘ Le Wilhelm ’ c. ‘ Le Juste.’ 1
§ 22. Vessels of discovery, or of expeditions of explora-
tion and survey, sent for the examination of the Arctic
regions, unknown seas, islands, and coasts, are, by general
consent, exempt from the contingencies of war, and there-
fore not liable to capture. Like the sacred vessel which
the Athenians sent with their annual offerings to the temple
of Delos, they are respected by all nations, because their
labours are intended for the benefit of all mankind.2 Thus,
when Captain Cook sailed from Plymouth, in I776, in the
ship ‘ Resolution,’ accompanied by the ‘ Discovery,’ M. de
Sartine, the French Minister of Marine, despatched a letter
to the Admiralties and Chambers of Commerce throughout
the kingdom, to be communicated to the owners and
captains of vessels cruising as privateers or otherwise,
directing them, in case they met at sea, to treat him and
his vessels as neutrals and friends, provided that he, on
his side, abstained from all hostility. This praiseworthy
example has since been followed by all civilised powers
towards vessels similarly employed. It is, however, usual
and proper for the Government sending out such expedi-
tions, to give formal notice to other powers, describing the
character and object of the expedition, the number of vessels
employed, the. nature of their armament, &c., in order
that they may issue the proper instructions to their own
vessels on the high seas. Such expeditions must confine
1 Pistoye et Duverdy, Des Prises, tit. vi. ch. ii. § 4; Dalloz,
Repertoire, verb. ‘ Prises Maritimes,’ § 3 ; Pouget, Droit Maritime,
t. i. p. 423 et seq.
2 On the same principle the Vice-Admiralty Court of Halifax
restored to the Academy of Arts in Philadelphia a case of Italian
paintings and prints, captured on their passage to the United
tates by a British ship of war in I 812, ‘ in conformity to the law of
nations, as practised by all civilised countries, and because the
arts and sciences are admitted to form an exception to the severe
rights of warfare ’ (the ‘ Marquis de Somerueles,’ Stewart, Vice-Ad.
R. of Nova Scotia, 482). A case of books taken on board a prize
vessel was restored by the United States to a literary institution of
the hostile State, on the ground that it was not the subject of a
commercial adventure (the ‘ Amelia,’ 4 Phil. 412). Lord Howe
considered that the custom of nations at war with each other did
not justify an officer in wantonly throwing a casket of public money
into the sea (Lord Howe’s Life, p. 479).
Vessels of
discovery
124 INTERNATIoNAL LAW on. nu
Fishing
boats
as in time of peace.
themselves most strictly to the object in view; if they
commit any act of hostility they forfeit their exemption
from capture.1
§ 23. Fishing boats have also, as a general rule, been
exempt from the effects of hostilities. Henry VI. issued
orders on the subject of fishing vessels in 1403 and 1406.
In 1521, while War was raging between Charles V. and
Francis, ambassadors from these two sovereigns met at
Calais, then English, and agreed that, whereas the herring
fishery was about to commence, the subjects of both belli-
gerents engaged in this pursuit should be safe and un-
molested by the other party, and should have leave to fish
In the war of 1800, the British and
French Governments issued formal instructions exempting
the fishing boats of each other’s subjects from seizure.
This order was subsequently rescinded by the British
Government, on the ground that some French fishing boats
were equipped as gun-boats (it being intended by the
French to form a flotilla of some 500 or 600 of them to
employ against England), and that some French fisher-
men, who had been prisoners in England, had violated
their parole, and had gone to join the French fleet at Brest.
The British restriction was afterwards withdrawn, and
the freedom of fishing was again allowed on both sides.
Emerigon refers to ordinances of France and Holland, in
favour of the protection of fishermen during war.2 Fisher—
men were included in the treaty between the United States
and Prussia in 1785, as a class of non-combatants not to
be molested by either side. French writers consider this
exemption as an established principle of the modern law of
war ; it has been so recognised in the French courts, which
have restored such vessels when captured by French
1 In 1793 vessels carrying mails for the English or French Post
Office authorities were permitted to convey the mails between
the ports of Great Britain and France, notwithstanding the war
between those countries. By the Postal Convention of 1843,
between France and England, in case of war, the mail packets
between Dover and Calais (now extended to all mail packets of
either Government by Convention of September 24, 18 56) shall
continue their navigation until notification be made by either
Government, in which case they shall be permitted to return freely to
their respective ports.
2 Emerigon, Traite’ des Assurances, ch. iv. § 9, and oh. xii. § 19.
on. xxn ENEMY’S PROPERTY ON THE HIGH SEAS 125
cruisers,1 and the French Government, for the last forty
years, has absolutely prohibited their capture. The United
States made a like prohibition during the Mexican war.
The doctrine, however, of the English Courts is that such
exceptions form a rule of comity only; for fishing vessels
fall under the description of ships employed in the enemy’s
trade, and as such may be condemned as prize?
§ 24. Some have contended that the rule of exemption
ought to extend to cases of shipwreck on a belligerent
coast, to cases of forced refuge in a belligerent harbour by
stress of weather, or want of provisions, and even to cases
of entering such ports from ignorance of the war. There
are exceptional cases where such exemption has been
granted. Thus, when the English man-of-war the ‘ Eliza-
beth ’ had been forced by stress of weather, in I746, to take
refuge in the belligerent port of Havana, the captain offered
to surrender himself to the Spanish governor as prisoner,
and his vessel as a prize, but the latter refused to take
advantage of his distress ; on the contrary, he offered him
every facility for repairing his vessel, and, on leaving,
gave him a safe-conduct as far as the Bermudas. Again,
in 1780, an English captain entered the Spanish port of
San Fernando de Omoa, in Honduras, without knowing
that it was belligerent. The Spanish commandant refused
to take advantage of his ignorance, but permitted him to
provision his ship and to sail unmolested to Jamaica. On
the other hand, the French squadron which entered Louis-
burg, in the Island of Cape Breton, in 1745, ignorant of its
hostile character, was captured as prize, and its oflicers
and crews retained as prisoners of war. The French cap-
tain Nalin entered the port of Granada, in the Antilles, in
the war of 1780, ignorant of its hostile character. He was
immediately seized as a prisoner of war, and his vessel as
a good prize. In 1799 a Prussian vessel, ‘ La Diana,’
forced to take refuge in the port of Dunkirk, was restored
by the French Tribunal on the principle of res sacra rniseria ;
but in the analogous case of ‘ Maria Arendz,’ in I800, the
1 Wildman, Law of Nations, p. 152 ; Martens, Recneil, &c. t.
vi. pp. 503, 515 ; De Cussy, Droit Maritime, liv. i. tit. iii. § 36;
11v. ch. xx. ;Massé, Droit Commercial, liv. ii. tit. i. § 333.
2 The ‘ Young Jacob,’ I Rob. 20.
Cases of
shipwreck
126
INTERNATIONAL LAW 011 xxII
Distinc-
tions
between
reprisals
and pri-
vateering
Court condemned, in strict conformity with the French
ordonnances. A court may be compelled by a sense of
duty to condemn in such cases, but the sovereign power of
the State might well exercise its sense of humanity and
generosity by restoring even after condemnation. Not~
withstanding the plea raised by French writers in such
cases that le malheur opere de plein droit une treve, the
principle is neither admitted by the general law of nations,
nor by the maritime ordonnances of France, nor by her
practice during the Revolution.‘
§ 25. Letters of marque, or mart, are extraordinary com-
missions granted by the Admiralty to commanders of
merchant ships for reprisals, in order to make reparation
for those damages they have sustained, or the goods they
have been despoiled of, by aliens at sea, or to cruise against
and make prize of an enemy’s ships either at sea or in his
harbours. There are two species of letters of marque——
1st, those which are special, for the reparation of injuries
sustained by individuals at sea, after all attempts to pro-
cure legal redress have failed ; 2 and 2nd, those which are
1 Pistoye et Duverdy, Des Prises, vol. i. pp. 114, 122 ; Ordon-
nance de 1681 ; Ordonnance de 1696, May 12 ; Reglement de 1778,
July 26, Arts. 14, I5 ; Arrété de 1800, March 27, Arts. 19, 20;
Declaration de 18 54, March 29. .
2 Extract from letters of reprisal :—‘ Now know ye that for a
full restitution to be made to him for his ships, goods, and merchan-
dises of which the said A. B. was so despoiled as aforesaid, with all
such costs and charges as he shall be at for the recovery of the same,
we, by the advice of our Privy Council, have thought fit and by
these presents do grant license and authorise under our great seal
of England our said subject, A. B., his executors, administrators, and
assigns for and on behalf of himself to equip, vi‘ctual, furnish, and
set to sea from time to time such and so many ships and pinnaces as
he shall think fit . . . and with the ships and pinnaces by force
of arms to set upon, take, and apprehend any of the ships, goods,
moneys, and merchandises of the kingdom of -—--, or any of the
subjects inhabiting within any of its dominions or territories,
wheresoever the same shall be found, and not in any port or harbour
in England or Ireland, unless it be the ships and goods of the parties
who did the wrong. And the said ships and goods, moneys and
merchandises being so taken and brought into some port of our
realms and dominions, an inventory thereof shall be taken by
authority of our Court of Admiralty . . . and upon proof . . . they
shall be judged lawful prize of the said A. B., his executors, adminis-
trators, and assigns, to retain and keep in his or their possessions and
to make sale and dispose thereof in open market or however else to
his and every of their best advantage and benefit‘ In as ample
manner as at any time heretofore hath been accustomed by way of
reprisal.’_ '
on. xxu ENEMY’s PROPERTY ON THE HIGH SEAS 127
general, they being issued by the government of one State
against all the subjects of another upon an open rupture
between them. Letters of marque are always joined to
letters 0/ reprisal, when it is for the reparation of a private
injury; but when the hurt of an enemy is solely intended,
as it is in time of war, letters of marque are generally
granted alone, without letters of reprisal, and these con-
stitute the commission of the privateer.1
A subject cannot for his own benefit make a reprisal
without a commission ; and if he should do so, the ship he
might capture would be a droit of admiralty and belong to
the sovereign or his grantee. Letters of reprisal are ordinary
and extraordinary ; the ordinary are either within or with-
out the realm, and are always granted by the law of Eng-
land to English merchants who have suffered in their
persons or effects by aliens abroad, and cannot upon suit,
or the sovereign demanding justice from abroad, obtain
redress; in such case the injured person proving that he
has prosecuted the offenders in legal course, and has had
‘ justice delayed or denied him, shall have a writ, out of
Chancery, to arrest the merchant strangers of the offending
nation, or their goods, here in England. This writ is
granted to the oppressed subject as a matter of right, not
of favour, by the Lord Chancellor. Ordinary reprisals can-
not be revoked. Extraordinary reprisals are granted by
any Secretary of State, but are only during the good plea-
sure of the sovereign, and are for the purpose of weakening
the enemy in time of War. They may be revoked at any
time.
It is lawful for every subject to seize upon the men,
goods or ships of the enemy after war has been proclaimed,
but such goods or ships are droits 0]‘ Admiralty. All
civilised nations, therefore, are accustomed to grant com-
missions to individuals authorising them in a special manner
to attack and despoil the enemy. This is the case with
officers in the army or navy, who take pay, and are under
orders, and are liable to punishment for disobedience.
Others receive no pay, but go to war at their own charges,
providing ships and provisions, to attack or despoil the
1 See IO Hen. VI. 0. 3 ; 14 Hen. VI. 0. 7 ;and 33 Geo. III. c. 66,
ss. 14 and 20. ~ ‘
128 INTERNATIONAL LAW 0H. m:
enemy. This is the case with privateers, to whom, instead
of pay, leave is granted to keep what they may take from
the enemy, when the same has been adjudged lawful prize.1
Kent, speaking of the hostilities of private subjects on
the high seas, says :" Vessels are now fitted out and equipped
by private adventurers, at their own expense, to cruise
against the commerce of the enemy. They are duly com-
missioned, and it is said not to be lawful to cruise without
a regular commission. Sir Matthew Hale held it to be a
depredation in a subject to attack the enemy’s vessel,
except in his own defence, without a commission. The
subject has been repeatedly discussed in the Supreme
Court of the United States, and the doctrine of the law of
nations is considered to be, that private citizens cannot
acquire a title to hostile property, unless seized under a
commission, but they may still lawfully seize hostile pro-
perty in their own defence. If they depredate upon the
enemy, without a commission, they act upon their peril,
and are liable to be punished by their‘ own sovereign ; but
the enemy is not warranted to consider them as criminals, '
and as respects the enemy, they violate no rights by cap-
ture. Such hostilities, without a commission, are, how—
ever, contrary to usage, and exceedingly irregular and
dangerous, ‘and they would probably expose the party to
1 Extract from letters of marque for a privateer :—-‘ Whereas
we have declared war against the kingdom of ——, and whereas
our commissioners for executing the office of our High Admiral
have thought A. B. fitly qualified, who has equipped, furnished,
and victualled a ship called the “ Rose,” of the burthen of . tons,
whereof he is commander; and whereas the said A. B. has given
sufficient bail, with sureties, to us in our said High Court of Admiralty
according to the effect and form set down in our instructions, a
copy whereof is given to the said captain : Know ye therefore that
we do by these presents grant commission to and do license the
said A. B. to set forth in warlike manner the said ship called the
“ Rose,” under his own command, and therewith by force of arms
to apprehend, seize, and take the ships, vessels, and goods belong-
ing to the kingdom of -—--, or the vessels and subjects of the King
of -——-, or others inhabiting within his country, territories, and
dominions, and to bring the same to such ports as shall be most
convenient, in order to have them legally adjudged in our said
High Court of Admiralty of England . . . which being condemned
it shall and may be lawful for the said A. B. to sell and dispose of
such ships, vessels, and goods . . . And we pray and desire all
Kings, Princes, Potentates, States, and Republics being our friends
and allies, and all others to whom it shall appertain, to give the
said A. B. all aid, assistance, and succour in their ports.’

on. xxn ENEMY’S PROPERTY oN HIGH SEAS 129
the unchecked severity of the enemy; but they are not
acts of piracy, unless committed in time of peace.’ 1 Vattel,
indeed, says, that private ships of war, without a regular
commission, are not entitled to be treated like captives
‘. made in a formal war. The observation is rather loose,
and the weight of authority undoubtedly is, that non-
commissioned vessels of a belligerent nation may at all
times capture hostile ships, without being deemed, by the
law of nations, pirates, although they may be, by the law
of a particular State. They are lawful combatants, but
they have no interest in the prizes they may take, and the
property will remain subject to condemnation in favour of
the Government of the captor, as droits of the Admiralty.
It is said, however, that in the United States, the property
is not strictly and technically condemned upon that prin-
ciple, but fare reipnblicae ; and it is the settled law of the
United States that all captures by non-commissioned
captors are made for the Government. Wheaton, and some
other modern writers, express similar views, but we know
of -no English or American decision which sustains them;
the cases to which they refer consider the lawfulness of
such captures with respect to the Government of the
captors, but not with respect to the right of the opposing
belligerent to punish the act as against him. The doctrine
is sustained in the dissenting opinion of Mr. Justice Story
in the ‘ Nereide,’ but it was neither involved in the case
nor decided by the Court. The continental publicists
generally do not admit the distinction attempted to be
drawn by Kent. Hautefeuille is clearly wrong when he
says: ‘ It is admitted by all nations that, in maritime
wars, every individual who commits acts of hostility, with-
out having received a regular commission from his sove-
reign, however regularly he may make war, is regarded
and treated as guilty of piracy.’ By the British naval
regulations of 1787, 1826, and 1861, if any ship or vessel
shall be taken, acting as a ship of war or privateer, with-
out having a commission duly authorising her to do so,
her crew shall be considered as pirates, and treated accord-
ingly; but this is municipal, not international, law. A
capture made by such vessel from an enemy is regarded as
1 Kent, Comm. on Amer. Law, vol. i. pp. 94-96.
VOL. 11. K
I30 INTERNATIONAL LAW on. 111111
Privateers
not used
in recent
wars
good prize, and condemned as a droit of Admiralty.‘ All
agree that defensive hostilities on the high seas, as well as
on land, without a commission or public authority, are
not criminal acts, but acts fully authorised by the laws of
war.2
§ 26. Since about the beginning of the fifteenth century,
a public license or commission has been considered neces-
sary in order to authorise private vessels to cruise against
the enemy.3 These commissions are otherwise known as
pignoratio, clarigatio, and androlepsia. A privateer is some-
, 1 The same where vessels, commissioned against one power, seize
the property of another with whom war has subsequently broken
out ; and the same if the capture be made by a tender to a man-of-
war, if it be without an authority or a commission, although it be
manned by some of the man-of-war’s crew (the ‘ Charlotte,’ 5 Rob.
Adm. R. 280). But contra as to a ship’s boats and authorised
tenders (the ‘ Carl,’ 2 Sp. Adm. R. 261). Non-commissioned
persons have no right to any part of the capture they may have
made, but the English prize courts often award a recompense,
even the whole value of the prize, to the captors. Although in
the United States there are in strictness no droits of Admiralty, a
prize taken under the above circumstances is condemned to the
Government, and if the capture has been made in self-defence,
the captor on sending the prize into port for adjudication has a
claim for salvage." Query whether in England by the Common Law
the ‘whole seizure should not go to the captors P See Murrough v.
Comyns, I Wils. 213 ; Home 11. Lord Camden, 1 H. Bl. 476, and
2 ibid. 533.
2 Vattel, Droit des Gens, liv. iii. ch. xv. § 226 ; Martens, Essai
sur les Armateurs, oh. i. §§ 5-7 ; Heffter, Droit International, § 124 ;
Hautefeuille, Des Nations N eutres, tit. iii. ch. ii. ; Massé, Droit Com-
mercial, liv. ii. tit. i. ch. ii. ; Wheaton, Elem. Int. Law, pt. iv. ch. ii.
§ 9; Robinson, Collectanea, p. 21 ; Sparks, Dip. Correspondence,
vol. i. p. 443 ; journals of Congress, vol. vii. p. 187 ; the ‘ Georgiana,’
1 Dad. Rep. p. 397 ; the ‘Dos Hermanos,’ 19 Wheaton Rep. p. 306 ;
the ‘ Nereide,’ 9 Cranch. Rep. p. 449; the ‘ Amiable Isabella,’ 6
Wheaton Rep. p. i ; Brown v. the U.S., 8 Cranch. Rep. p. 132.
3 In the Act passed by the British Parliament during the
American revolution, to authorise privateers against the Colonists,
the words letters of permission were employed, not letters of marque,
as the latter term applies to a foreign enemy only (Annual Regis.
1777, p. 53). With reference to the origin of letters of reprisal, it
appears that if a foreign prince or State seized or spoiled the goods
of subjects in England, the king made reprisals upon the goods of
the other’s subjects within the realm, or enabled the party to whom
the wrong was done, by letters of marque and reprisals, the goods of
other subjects of the same State mercare retinere et appropriare
quousque restitutio facta sit. (See 2 Rol. 114, 17 5, l. 20, per Coke,
1 Rol. I 7 5 ; 4 Corn. Dig. 428.) But a subject of the king cannot
take the goods of the subjects of a prince in amity with the king
by force of letters of another sovereign or State (2 Ver. 592 ; 4 Com.
Dig. 428); As to the grant of letters of marque, see introduction to
“ Godolphin’s Adm. fur.
on. xxn ENEMY’s PROPERTY ON THE HIGH SEAS 131
times called a caper, the only difference being that the
latter is a smaller vessel. Its name is probably derived
from its practice of hovering about capes. A privateer is
generally deemed to be a private ship of war, but only of
a temporary character; many, indeed, esteem it but one
remove from a pirate. A privateer is less honourable than
a merchant ship with letters of reprisal. In order to
encourage ;brivateering, it is usual to allow the owners of
such vessels to appropriate to themselves a portion, at
least, of the property they may capture; and, as a neces-
sary precaution against abuse, such owners are required
to give adequate security that they will conduct the cruise
according to the laws and usages of war, and bring their
prizes in for adjudication. But this depends upon the
municipal regulations of each particular State, and the
instructions of the particular Government which issues the
commission or license.1 All commercial States have deemed
1 55 Geo. III. c. 160, which was enacted to expire with the last
French war, contained provisions with reference to letters of marque.
Security was always taken on the grant of letters of marque for
the due observance of the conditions thereof, and this security
became forfeited on their transgression (R. v. Ferguson, Edw. 84).
Letters of marque may be vacated by the Court of Chancery (R. v.
Carew, 3 Swan. 669; 1 Vern. 54). Cruelty, such as firing into a
prize and killing a man after she has struck, has been held to forfeit
letters of marque under the provisions of the above statute (the
‘Marianne,’ 5 Rob. Adrn. R. 9), but this seems no more than a
formal declaration of the ancient law of the Admiralty. Instruc-
tions for the commanders of vessels, having letters of marque
and reprisal against the Ligurian and Roman Republics, were
issued by the British Government, September 29, 1798, and enacted
(inter alia) that these privateers should succour any British ship
in distress, set on or taken by the enemy ; should keep up a corre-
spondence with the Admiralty; should not wear any jack, pennant,
or other ensign usually borne by ships of war, but that they should,
besides the colours usually borne by merchant ships, wear a red
jack with the union jack described in the canton at the upper corner
thereof ; should not ransom or set at liberty any captured ship, or
cargo, or any prisoners; and should find bail for good behaviour in
the sum of 3,oool., or, if the vessel carried less than 1 50 men, 1,5ool.
A proclamation, given at St. james’s, january 1, 1801, after ordering
that no ships or vessels should wear any flags, jacks, pendants,
or. colours in imitation of those of the Government, and that those
ships having letters of marque and reprisal should wear the merchant
colours, with the red jack as above mentioned, but that no one else
should presume to wear those distinctions, enjoins the Admiralty
to punish all offenders against this proclamation. In pursuance of
the Ist Article of Union between England and Scotland there was a
similar proclamation. The United States Government, in 1812,
issued the following instructions to commanders of American priva-
K 2
132 INTERNATIONAL LAW on. xxn
checks of this kind essential to their own character and
safety, as well as for the protection of the rights of neutrals.
teers : -—‘ The high seas referred to in your commission you will
understand generally to refer to low-water mark; but with the
exception of the space within one league, or three miles, from the
shore of countries at peace both with Great Britain and the United
States. You may nevertheless execute your commission within
that distance of ‘the shore of a nation at war with Great Britain,
and even on the waters within the jurisdiction of such nation, if
permitted so to do. You are to pay the strictest regard to the
rights of neutral Powers and the usages of civilised nations ; and
in all your proceedings towards neutral vessels you are to give them
as little molestation or interruption as will consist with the right of
ascertaining their neutral character, and of detaining and bringing
them in for regular adjudication in the proper cases. You are
particularly to avoid even the appearance of using force or seduction,
with a view to deprive such vessels of their crew or of their passengers,
other than persons in the military service of the enemy. Towards
enemy’s vessels and their crews you are to proceed, in exercising
the rights of war, with all the justice and humanity which characterise
the nation of which you are members. The master and one or
more of the principal persons belonging to the captured vessels are
to be sent, as soon after the capture as may be, to the judge, or
judges, of the proper court in the United States, to be examined
upon oath touching the interest or property of the captured vessel
and her lading ; and at the same time are to be delivered to the
judge, or judges, all passes, charter parties, bills of lading, invoices
letters, and other documents and writings found on board; the
said papers to be proved by affidavit of the commander of the
capturing vessel, or some other person present at the capture,
to be produced as they were received, without fraud, addition, sub-
duction or embezzlement.’
See, on instructions to privateers of the United States, the
‘Mary and Susan,’ 1 Wheat. 46.
In 1814, during the war between the United States and Great
Britain, the Legislature of New York passed an Act, to constitute
every association of five or more persons embarking in the trade
of privateering a body politic and corporate, with corporate powers,
on their complying with certain formalities.
Return of letters of marque and reprisal issued by the Admiralty
of Great Britain in the following years :—Against the French
Republic, from‘ May 1803 to May 1804, 680 vessels, 27,960 men;
ditto, Batavian Republic, from June 1803 to June 1804, 670 vessels,
28,758 men; ditto, Spain, from January 1805 to January 1806,
540 vessels, 25,718 men. Those taken out against France and
Batavia were nearly for the same ships; of those against Spain,
about a fourth are contained in the other two.
The following proclamations were issued by the British Govern-
ment, on the seizure of some English vessels and goods by the
French, without declaration of war by that nation. Proclamation
issued February 4, I793 : ‘ Whereas his Majesty has received
intelligence that some ships belonging to his Majesty’s subjects
have been and are detained in the French ports . . . it is hereby
ordered that no ships or vessels belonging to any of his Majesty’s
subjects be permitted to enter and clear out for any of the ports
of France . . . and that a general embargo or stop be made of all
on. xxn ENEMY’S PROPERTY ON THE HIGH SEAS I33
But even with these precautions, privateering is usually
accompanied by abuses and enormous excesses. The
general opinion of text-writers is, that privateering, though
contrary to national policy and the more enlightened spirit
of the present age, is, nevertheless, allowable under the
general rules of international law. It leads to the worst
excesses and crimes, and has a most corrupting influence
upon all who engage in it, but cannot be punished as a
breach of the law of nations. The enlightened opinion of
the world is most decidedly in favour of abolishing it, and
recent events lead to the hope that all the commercial
nations of both hemispheres will unite in no longer re—
sorting, in time of war, to so barbarous a practice. Never-
theless, it being generally supposed that privateers furnish
to the smaller maritime powers a powerful instrument of
war against the military marine of an enemy, it is not easy
French ships or vessels whatsoever now within or which hereafter
shall come into any of the ports, harbours, or roads within the
kingdom of Great Britain, together with all persons and effects on
board the said ships and vessels, but that the utmost care be taken
for the preservation of all and every part of the cargoes on board
any of the said ships, so that no damage or embezzlement what-
ever be sustained. And the Right Honourable the Commissioners
of his Maj esty’s Treasury, the Lords Commissioners of the Admiralty,
and the Lord Warden of the Cinque Ports are to give the necessary
directions herein as to them may respectively appertain.’
Proclamation issued February II, I 793 : ‘ Whereas divers in-
j urious proceedings . . . and several unjust seizures have been
there made of the ships and goods of his Maj esty’s subjects, contrary
to the law of nations and to the faith of treaties, and whereas the .
said acts of unprovoked hostility have been followed by an open
declaration of war against his Majesty and his ally the Republick
of the United Provinces . . . his Majesty is pleased to order that
general reprisals be granted against the ships, goods, and subjects
of France, so that as well his Majesty’s fleet and ships, as also all
other ships and vessels that shall be commissioned by letters of
marque or general reprisals or otherwise by his Majesty’s Com-
missioners for executing the ofiice of Lord High Admiral of Great
Britain shall and may lawfully seize all ships, vessels, and goods
belonging to France, or to any persons being subjects of France
or inhabiting within any of the territories of France, and bring the
same to judgment in any of the Courts of Admiralty within his
Majesty’s dominions; and to that end his Majesty's Advocate-
General, with the Advocate of the Admiralty, are forthwith to
prepare the draught of a commission . . . to issue forth and grant
letters of marque and reprisal to any of his Majesty’s subjects or
others, whom the said Commissioners shall deem fitly qualified
in that behalf, and . . . also another draught of instructions for
such ships as shall be commissionated for the purposes afore-
mentioned.’
I34 INTERNATIONAL LAW ' on. xxu
to obtain their consent to its entire abolition.1 The efforts,
however, which Wheaton says ‘ have been made by humane
and enlightened individuals to suppress privateering, as
inconsistent with the liberal spirit of the age,’ have already
produced their effects upon the conduct of belligerent
nations, although they have not yet been able to change
the law which tolerates it. During the war between the
United States and Mexico, no letters. of marque, it is be-
lieved, were issued by either party; Mexico offered com-
missions for privateers, but neutral States forbade their
subjects to accept them. In the war of 1854 between
Russia and Turkey, France, England, and Sardinia, the
A1 Emerigon, Traite’ des Assur. ch. xii. sec. 35 ; Edinburgh Review,
vol. viii. pp. 13—15; N. American Review, N.S. vol. ii. p. 166;
Ortolan, Diplom. de la M er, t. ii. lib. iii. oh. i. ; Pistoye et Duverdy,
Traite des Prises, tit; iv. ch. ii. sec. I ; Franklin’s Works, vol. ii. pp. 13,
I5, 447 et seq. ; Hautefeuille, Droit Maritime, liv. i. tit. ii. § 29;
Valin, Com. sur l’Ord. liv. iii. tit. ix. ; Encyc. Americana, verb.
‘ Privateering.’
Lord Nelson, writing to the Minister Plenipotentiary at the Court
of Sardinia in 1804, says: ‘ With respect to the history about the
French privateers from Ancona, and the conduct of the English
privateers at Fiumesino, I believe you are correct, but our enemies
never adhere to it. They go in and out of the Spanish and Sicilian
ports at all times night and day—in short, to examine all vessels
passing. > But all privateers are very incorrect, and I sincerely
wish there were no such vessels allowed. They are only one degree
removed from pirates ; but I believe an English armed vessel never
yet trusted its cause to any court but an English Court of Admiralty.
However, I have no power over them. But certainly if the custom
of the government of Fiumesino has invariably been not to allow
any corsair to sail out of the port until the 24 hours after the sailing
of a neutral, then our privateer ought to have been forced to con-
form. But I dare say the French go in and out of Ancona as they
please, and if so, the Court of Rome has no great cause of com-
plaint. I can only again repeat that over privateers I have no
control.’ '
Sir John Barrow, writing in 1838, says: ‘ There is, however,
another and more serious drain of seamen, in time of war, by which
they are protected from the impress, and abstracted from the naval
service; this is the privateer system, which is carried on to an
enormous extent. The great number of letters of marque and
reprisal, granted to ships armed and manned, more for the sake of
getting to an early market and avoiding convoy than fighting the
enemy, occasion a heavy drawback from the entry of men in ships
of war." (Barrow, Life of Lord Anson, p. 466.)
In the case of the ‘Jonge Vrow Wilhelmina ’ (not reported)
Sir W. Scott, on March 7, 1801, finding that an English privateer
had entrapped an innocent neutral master of a vessel into con-
fessing that he was engaged in a contraband trade, said he feared
such practices were too prevalent, and that it was a species of conduct
disgraceful to the British flag.
CH. XXII
ENEMY’s PROPERTY ON THE HIGH SEAS
I35
allied powers resolved to issue no letters of marque, and
the other States of Europe strictly prohibited their subjects
from any participation, by accepting letters of marque, or
otherwise, in aiding the belligerents. An Austrian decree
of May 25,’ 1854, prohibits the subjects of his Imperial
Majesty from using letters of marque, or any participation
in the armament of a vessel, no matter under what flag,
and if they infringe that order they will not only be deprived
of the protection of the Austrian Government, and liable
to be punished by another State, but will also be proceeded
against in the criminal courts of Austria. The entry of
foreign privateers into Austrian ports is forbidden. An
almost simultaneous order, issued by the Queen of Spain,
prohibited proprietors, masters, or captains of Spanish
vessels from taking letters of marque from any foreign
power, or giving them aid, unless in the cause of humanity,
in the case of fire or shipwreck. Denmark and Sweden
and Norway gave notice to all friendly powers that, during
the existing contest, privateers would not be admitted into
their ports, nor tolerated in the anchorage of their respec-
tive States. Other Governments issued similar orders with
respect to their own subjects engaging (either directly or
indirectly) in privateering against the shipping or com-
merce of any of the belligerents, and the Secretary of State
of the United States, in reply to the notes of the English
and French ministers, communicating the resolutions of
the two allied powers not to authorise privateering, said :.
‘ The laws of this country impose severe restrictions, not
only upon its own citizens, but upon all persons who may
be residents within any of the territories of the United
States, against equipping privateers, receiving commissions,
or enlisting men therein, for the purpose of taking part
in any foreign war.’ 1 '
§ 27. On April 16, 1856, at the Conference of Paris, the
plenipotentiaries of Great Britain, France, Austria, Russia,
Prussia, Sardinia, and Turkey adopted the now famous
‘ declaration concerning maritime law,’ containing the
following principles, which were made indivisible : ‘ I. Priva—
1 Wheaton, Eleni. Int. Law, pt. ii. ch. ii. § 10, note ; Congfi’Doo.
33 Cong. I Sess. H. Rep. Ex. Doc. No. 103 ;Martens, Pre'cis dn Droit
des Gens, § 289. I I
Declara-
tion of the
Confer-
ence of
Paris,
1856
136 INTERNATIoNAL LAW 011. m1
flooring 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 an 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 coasts of the enemy.’ This Declara-
tion was not to be ‘ binding, except between those Powers
which have acceded to, or shall accede to it; ’ 1 but it was
1 Protocols, Nos. 23 and 24, Congress of Paris, 1856 ; President's
Message, August 12, I856; Phillimore, On Int. Law, vol. iii. app.
p. 850; Ortolan, Diplomatie de la Mer, t. ii. app. special, pp.
516-518.
The Declaration of Great Britain made at the commencement of
the Crimean war (18 54) clearly evinces that at that period Great
Britain had retained all her belligerent rights on this subject unim-
paired. What may be her policy in a future war is a matter of
conjecture; but she has no alternative so long as she adheres to the
Declaration of Paris.
Professor de Martens, writing to the Russian Golos, in November,
1876, concerning the suggestion that Russia should issue letters of
marque, to enable privateers to act against British commerce in
case of war, in defiance of the Declaration of Paris, says, that while
rendering justice to the patriotic motives which inspired such
counsels, he considers it a duty to point out their danger and injustice.
On the other hand, it is argued that the abolition of privateering
has guaranteed England against the only danger she had to fear in
the event of war—that is, the ruin of her commerce--that it is the
only weapon that can be used by a Continental power against
England, that it is a terrible one, furnishing, to the antagonist
of the United Kingdom, the means of injuring the latter far more
than England, with all her maritime supremacy, could do on her
side. As to the argument that the abrogation of‘ the article of
the Declaration of 18 56, abolishing privateering, would involve
that of the other articles stipulating‘ that a flag covers merchandise,
that an enemy’s property cannot be seized in neutral bottoms, and
that a blockade must be effectual, and that England could, there-
fore, revert to her old policy of declaring on paper all her enemies’
ports in a state of blockade, and of searching neutral vessels for
enemy’s goods—the answer is that, under the existing maritime
code, England has sufficient vessels at her command to blockade
effectively all the ports, and could, therefore, practically ruin
the commerce of a country with which she was at war, as was the
case with Russia during the Crimean war.
During the Franco-German war, 1870, the Prussian Government
ordered the creation of a volunteer navy, the ships and the crews of
which were provided by private persons ; the officers received
temporary commissions, and sailed under the flag of the Royal
Navy, although not forming part of it. The French Government
considered this volunteer fleet to be an evasion of the Declaration of
Paris, 18 56, and drew the attention of the British Government to
it, whose law officers were of opinion that there was a substantial
difference between a volunteer navy and privateers. This opinion,
on. xxn ENEMY’S PROPERTY ON THE HIGH SEAS 137
also agreed, by the plenipotentiaries, that the Powers
which had or should agree to it, ‘ cannot hereafter enter
however, is open to much doubt. The Patriotic Society of Russia
in 1878 also formed a volunteer fleet for the purpose of avenging
‘ the diabolical machinations of Lord Beaconsfield.’ The avowed
object of the Society, in time of peace, was to maintain a nursery
of seamen for the Russian fleet ; hitherto these cruisers have been
manned by the Imperial marine.
In the course of the Russo-Japanese war, 1904, two vessels of
the Russian Volunteer Squadron, the ‘ Peterburg ’ and ‘ Smolensk,’
I passed through the Dardanelles from the Black Sea flying commercial
colours, but, on reaching the open sea, immediately assumed the
character of cruisers and commenced to exercise the right of visit and
search of and to detain neutral ships. On July 13, 1904, the
‘ Malacca,’ belonging to the Peninsular and Oriental Company,
carrying a cargo of, inter alia, 23 tons of munitions of war, destined
for the dockyards of Hong-kong and Singapore, was seized in the
Red Sea, her passengers and crew were landed at Port Said and
the ship was sent homewards flying the Russian flag and in charge
of a Russian prize crew. Similarly the German vessels the ‘ Prince
Heinrich,’ the ‘ Scandia,’ the ‘ Holsatia,’ and the British steamers
the ‘ Ardova, and the ‘ Formosa,’ were seized and detained in the
same neighbourhood by these cruisers. Strong pressure having
been brought to bear upon the Russian Government, all these
vessels were released subsequently, and instructions were issued to
the cruisers to desist from any further interference with neutral
commerce ;, the instructions were carried to the offending vessels
by a British man-of-war owing to the urgency of the matter.
The grounds of the British protest were, firstly, that it was a
breach of treaty obligations on the part of these Russian vessels to
assume the Russian war flag after passing out of the Black Sea
flying the commercial flag ; it scarcely needs to be stated that the
vessels could not have passed out flying the Russian war flag, as
by the treaties of 1841, 1856, 1871, and 1878, Great Britain and
Russia recognise that the straits are closed to ships of war, saving
certain exceptions. The case might have been different if the
vessels had returned to the Baltic and there been commissioned.
Furthermore it might well be that as against Japan, the vessels
were entitled to a public status, yet as against Great Britain, such
a status could not be recognised, when treaty rights had been
violated ; secondly, that in view of the position Russia took up as to
unconditional contraband of war, the exercise of the right of visit
and search and of detention was unreasonable in the neighbourhood
of the Red Sea, being thousands of miles from the theatre of war,
and resulting in the interference with the sailing of all neutral ships,
3. large proportion of which were not bound for Japan at all. (Parl.
Debates [fourth series] vol. 138, pp. 1434—1436 ; vol. cxl., pp. 154-
159.) Lord Lansdowne writes to Sir C. Hardinge, the British
Ambassador accredited to Russia : ‘ Russian vessels have been told
off for the purpose of searching for such contraband not only in
the proximity of the scene of war, but all over the world, selecting
for the purpose points at which neutral commerce can be most
effectually intercepted. His Majesty's Government have lately
become aware that a large addition is likely‘to be made to the
number of Russian cruisers employed in this manner, and we must,
therefore, contemplate the possibility that such vessels will shortly
138
INTERNATIONAL LAW on. 111111
Opinion of
other
States
into any arrangements in regard to the application of the
right of neutrals in time of war, which does not, at the
same time, rest on the four principles which are the objects
of the said Declaration.’ This Declaration does not affect
the right to issue letters of reprisal.
§ 28. This Declaration of the Paris Conference was com-
municated to other States, and all have now adhered to it,
with the exception of Spain, Mexico, Venezuela, and the
United States. Spain and Mexico adopted the last three
articles, but, on account of the first article, declined acced-
ing to the entire Declaration. The United States adopted
the second, third, and fourth propositions, independently
of the first, offering, however, to adopt that also, with the
following amendment, or additional clause : ‘ and the private
property of the subjects, or citizens of a belligerent on the high
seas, shall be exempted from seizure by public armed vessels
of the other belligerent, except it be contraband,’ which offer,
however, was not accepted. The abstract right, under the
law of nations, to use privateers, cannot be questioned;
and it must also be observed that the advantage to be
derived from the use of private armed vessels in case of
war would be much greater to the United States than to
any European power ; moreover, the European States, most
active in advocating the abolition of privateering, were its
strongest supporters when it was most conducive to their
own power. Unfortunately, nations, like individuals, are
more influenced by immediate self~interest, than by- the
progress of civilisation, the ultimate peace of the world,
and the happiness of the human race.‘
§ 29. It being established that a belligerent has a right
to commission and use private armed vessels in carrying on
the war, it remains to inquire by whose authority such
be found patrolling the narrow seas which lie on the route from
Great Britain to Japan in such a manner as to render it virtually
impossible for any neutral vessel to escape their attention. The effects
of such interference with neutral trade will be disastrous to legitimate
commerce passing from a. British Port in the United Kingdom to
a British Port in the Far East.’ (Parl. Papers, Cd. 2348 at p.12.)
In the case of the ‘ Malacca,’ of course, the seizure of the vessel
for carrying contraband of war was utterly illegal, as the munitions
of war were marked with the British Government's mark. (Paris
Debates [fourth series], vol. 138, p. 1434.)
1 Marcy, Letter to Count Sartiges, July 28, 18 56 ; the Paris
Moniteur, July 14, 18 58 ;Lawrence, Visitation and Search, p. 195.
OH. xxu ENEMY’S PROPERTY ON THE HIGH SEAS
I39
commissions may be issued, and who may use them. The
right to issue letters of marque is inherent in the Govern-
"ment of every independent State, and is a part of its war-
making power; but its own constitution, or internal laws,
must determine by what particular branch of the Govern-
ment this right is to be exercised.
In 1861 the revolted Confederate States of America
employed privateers against the Federal States, in conse-
quence of which a Bill was introduced into the Senate,
during the Session of 1861—2 (at the suggestion, it was
stated, of the Government, but failed to become law), to
authorise the President, during the continuance of the
insurrection, to grant letters of marque and reprisal, and
to revive in relation to all that part of the United States
where the inhabitants have been declared in a state of
insurrection, and the vessels and property to them be-
longing, the Acts passed on this subject during the war of
1812. It was opposed, because it was assumed that letters
of marque could only be granted against an independent
State, and that their issue might be regarded as a recogni-
tion of the Confederate States. Privateering, when
attempted by the Confederate States, was branded by the
President, and the public sentiment, of the North as piracy.l
By the second section of the Act of August 5, 1861, the
President might instruct the commanders of ‘ armed vessels
sailing under the authority of any letters of marque or
reprisal granted by the Congress of the United States, or
the commanders of any other suitable vessels,’ to subdue,
&c., vessels intended for piratical aggressions. The Secre-
tary of the Navy, in a note to the Secretary of State,
October I, 1861, says ‘ under the (above) clause, letters
permissive under proper restrictions, or guards against
abuse, might be granted. This would seem to be lawful,
and perhaps not liable to the objection of granting letters
of marque against our own citizens, and that, too, without
law or authority from the only constitutional power that
can give it.’ Early in 1863 a Bill was passed by Congress
empowering the President, during three years, to issue
letters of marque, but this power does not seem to have been
employed.
1 See Congressional Globe, 1861-62, p. 3325.
Priva-
teers,
by whom
com-
missioned
I40. INTERNATIONAL LAW 011. xxIr
When, in 1569, the Prince of Orange issued letters of
marque to the gentlemen and others who became so notorious
as the gueux de mer, many of them were punished as pirates ;
‘ not so much,’ says Martens, ‘ on account of their excesses,
as because it was not thought that the Prince of Orange
had power to grant such letters of marque.’ 1 The authority
which grants the commission determines what limits shall
be imposed upon the exercise by the privateer of belligerent
rights; and, if such vessel exceed the limits of its com-
mission, and commit acts of hostility not warranted by the
letter which it carries, if such acts be not in violation of
the laws of war, it is responsible to and punishable by the
State alone from which the commission was issued. A
vessel which takes a commission from both belligerents is
guilty of piracy, for one authority conflicts with the other.
But a nicer question has arisen with respect to a vessel
which sails under two or more commissions granted by
allied powers against a common enemy. The better opinion
seems to be, that such practice is irregular and inexpedient,
but does not carry with it the substance or name of piracy.
Kent does not make this distinction, but states the pro-
position in general terms, ‘ that a cruiser, furnished with
commissions from two different powers, is liable to be
treated as a pirate.’ Hautefeuille says, that if a privateer
receives commissions from two sovereigns, she is to be
1 It is an open question whether privateers, commissioned by
a deposed sovereign, are pirates or not. For arguments on the
subject see An Essay concerning the Laws of Nations and the Rights of
Sovereigns, by Matthew Tyndal, LL.D., London, I 7 34. This work
is quoted at some length by Sir R. Phillimore (Int. Law, i. 362), who
. inclines to the opinion that such ships are pirates.
Lord John Russell, writing to Lord Lyons, January 24, 1862,
says, respecting the letter of Judge Daly on the question whether
Southern privateers’ men can be regarded as pirates : ‘ Her Maj esty’s
Government are glad to find that the pretension has been so success-
fully combated. There can be no doubt, that men embarked on
board a man-of-war or privateer, having a commission, or of which
the commander has a commission, from the so called President Davis,
should be treated in the same way as officers and soldiers similarly
commissioned for operations on land. An insurrection extending
over nine States in space, and ten months in duration, can only
be considered as a civil war ; and persons taken prisoners on either
side should be regarded as prisoners of war. Reason, humanity,
and the practice of nations require that this should be the case.’
(See opinion of Judge Daly, ante, ch. iii. § 21, note.)
As to illegal capture by privateers, see ch xxxi. § 31.
on. m1 ENEMY’s PROPERTY oN THE HIGH SEAS 141
treated as a pirate, ‘ even where the letters of marque
emanate from two powers allied for a common war.’ Another
question to be noticed is, what is the character of a vessel
of‘ a neutral State, armed as a privateer, with a commission
from one of the belligerents P Phillimore says, ‘ that such
a vessel is guilty of a gross infraction of international law ;
that she is not entitled to the liberal treatment of a van-
quished enemy, is wholly unquestionable; but it would be
difficult to maintain that the character of piracy has been
stamped upon such a vessel by the decision of international
law.’ Kent is of opinion that the law of the United States,
which declares such an act a high misdemeanour, punish—
able by flne and imprisonment, is ‘in affirmance of the
law of nations.’ Ortolan thinks that such an act is not
piracy in international law, but that it ought to be made
so. Hautefeuille is of opinion that they are not to be
treated as pirates, unless made so by interior laws of treaty
stipulations of the neutral State. We have already alluded
to the instructions of European States on this question,
and will only add here, that by the law of Plymouth Colony,
in 1682, it was declared to be felony to commit hostilities
on the high seas, under the flag of any foreign power, upon
the subjects of another power in amity with England ; and
the same acts were declared to be felony by the law of the
Colony of New York in 1699.1
§ 30. Some States have covenanted, in their treaty
stipulations, that they will prevent their subjects, under
heavy penalties, from accepting commissions or letters of
marque from other States. Such was the character of the
treaty of September 26, 1786, between France and Eng-
land. In other treaties it is stipulated that no subject, or
citizen of either of the contracting powers, shall accept a
commission or letter of marque to assist an enemy in
hostilities against the other, under pain of being treated
as a pirate. Such is the character of the treaties entered
into between the United States and France,’ Holland,
1 Kent, Com. on Am. Law, vol. i. p. 100; Phillimore, On Int.
Law, vol. 1. § 358 ; Kluber, Droit des Gens, § 260 ; Ortolan, Dip. de
la Mer, liv. ii. ch. xi. ; Hautefeuille, Des Nations Neutres, tit. ch. ; Abreu, Tratado de las Presas, pt. ii. c. i. §§ 7, 8 ; Martens,
Essai sur les Armateurs, ch. ii. § 14 ; the ‘ Spitfire,’ ._2 Rob. 28 5.
2 The French Government, when In alhance wlth the American
Treaty
stipula-
tions
I42 INTERNATIONAL LAW 011. XXII
Sweden, Prussia, Great Britain, Spain, Columbia, Chili, &c.
Some of these treaties, however, have expired without this
provision being renewed in any subsequent treaty. It may
be remarked that, whatever be thought of the character, in
international war, of a neutral vessel taking a commission
from a belligerent, the other belligerent is justified in
‘treating-such vessel as a pirate, when it is so stipulated in a
treaty with the neutral State, or when the laws of the
neutral State declare such acts to be piracy. This case is
readily distinguishable from that in which the slave trade
is made piracy by the municipal law of a particular State,
for such trade is not considered as prohibited by the law of
nations.‘
States, in 1778, observed more than usual respect towards neutral
vessels, but in 1796 they changed their views, and seemed to think
that privateering could not be too much encouraged, and for some
years after privateering absorbed the whole naval energy of the
State. This was carried to such an unlimited and licentious degree,‘
that neutral vessels avoided the French coast, which entailed
much injury on the commerce of that country. Accordingly we
find a decree of Napoleon Buonaparte, annulling the decisions of
Merlin and others, and restoring the usages of 1 7 78.
1 Wheaton, Elem. Int. Law, pt. iv. oh. i. § 10, note a; ante,
vol. i. 248. '
OH; XXIII
I43
CHAPTER XXIII
TRADE WITH THE ENEMY
1. Property of subjects and allies engaged in trade with the enemy
liable to confiscation—2. Exceptions——3. Rule rigorously en-
forced—4. Cases of attempt to evade it— 5. Withdrawal from
enemy’s country at beginning --of war—6. Distinction between
cases of domicile and ‘mere residence—7. Necessity of a license
discussed—8. Decisions in the United States—9. Where order
of shipment cannot be countermanded—Io. Good faith or
mistake no defence—II. Trade through a neutral port—12.
Vessels’ liable to capture during continuous voyage—13. When
offence is completed—14. Share of partner in neutral house-—
15. Transfer of ships—I6. Regularity of papers not conclusive——
17. Trade by resident or domiciled stranger—18. Distinction
between native subject and domiciled stranger—19. Effect of
acceptance of a license from the enemy—20. Possessions and
colonies of the enemy—21. Rule of insurance.
§ 1. IT may be stated, as a general proposition, that the
property of a subject found engaged in trade or intercourse
with the ports, territories, or subjects of a public enemy is
liable to confiscation. This rule is not founded on any
peculiar criminality in the intentions of the party, or on
any direct loss or injury resulting to the State, but is the
necessary consequence of a state of war, which places the
citizens or subjects of the belligerent States in hostility to
each other, and prohibits all intercourse between them.
The protection of the interests and welfare of the State
makes the application of this rule especially necessary
to the merchant and trader, who, under the temptations
of an unlimited intercourse with the enemy, by artifice
or fraud, or from motives of cupidity, might be led to
Sacrifice those interests. The same rule is applicable to
the subjects of an ally. Where two or more States are
allied in a war, the relations of the subjects of the ally
towards the common enemy are precisely the same as
those of the subjects of the principal belligerent. In this
respect there is no distinction between the two; and if
Property
of subjects
engaged
in trade
with the
enemy
liable to
confisca-
tion
I44 INTERNATIONAL LAW 011. xxm
the courts of their own country do not enforce the rights
and duties of war, those of the principal or co-belligerent
may do so, for the tribunals of all have an equal right to
enforce the laws of war, and to punish any infractions,
whether committed by the subjects of their own govern-
ment or of that of an ally. As neither of the allies in a
common war can relax in favour of its own subjects, without
the consent of its co-belligerent, the general rule which
prohibits all commercial intercourse with the common
enemy, it is held that the subjects of one State cannot
plead in the prize courts of its ally the permission of their
own sovereign to engage in such prohibited trade, and that
such permission will not exempt from condemnation the
property so employed. This rule seems to be founded on
good and substantial reasons. We quote the remarks of
Sir William Scott on this point. ‘ It is of no importance,’ he
says, ‘ to other nations, how much a single belligerent chooses
to weaken and dilute his own rights. But it is otherwise
when allied nations are pursuing a common cause against
a common enemy. Between them it must be takenias an
implied, if not an express contract, that one State shall
not do anything to defeat the general object. If one State
permits its subjects to carry on an uninterrupted trade
with the enemy, the consequence may be that it will supply
that aid and comfort to the enemy, especially if it is an
enemy depending very materially on the resources of foreign
commerce, which may be very injurious to the prosecution
of the common cause, and the interests of its ally.’ He
therefore concludes, that it is not enough to say that one
State has given its permission, but that it should also
appear that the trade has the allowance of the confederate
State, or that it can, in no manner, interfere with the common
operations.
Excep- §2. There are but two exceptions to this general rule
:13“ ‘1° interdicting trade with the enemy : 1st, the mere exercise of
the rights of humanity; 2nd, the trade sanctioned by the
license or authority of the government. The first of these
exceptions would permit intercourse with the enemy, to
such a limited extent, and of so rare an occurrence, as to
require no particular discussion ; the second results from the
fact that on certain occasions it is highly expedient for the
on. 111111 TRADE WITH THE ENEMY
145
State to permit an intercourse with the enemy, by commerce
or otherwise ; but the State alone, and not individuals, must
determine when it shall be permitted, and under what
regulations. Without such direct permission of the State,
no commercial intercourse with the enemy is allowed to
subsist. 1
§ 3. The rule which prohibits every form of commercial
intercourse or trade with the enemy, whether by the subjects
of the belligerent or of his allies, is enforced in courts of
prize with a stern and inflexible rigour. ‘ No motives of
compassion or indulgence,’ says Mr. Duer, ‘ prompted by
the hardship of the particular case, nor any views of public
utility, derived from the innocent or beneficial nature of
the particular traffic, are ever allowed to suspend or mitigate
its application. Such considerations are not regarded as
legal distinctions that can operate to create an exception
from the general rule. They may influence properly the
discretion of the executive power, but must be rejected by
the judicial conscience.’ No matter how, or under what
circumstances, such trade may be carried on, or attempted
(with the single exception already mentioned), the same
penalty of confiscation will attach. It, therefore, is not
necessary that the ship in which the goods, engaged in such
illegal traffic, are transported, should also belong to a
subject of the belligerent whose rights are violated. The
vessel may be neutral, but the neutrality of the flag, where
the traflic is illegal, will afford no more protection to the
goods of a subject than to those of an enemy. It is by
means of neutral vessels that such illegal traffic is usually
carried on, as appears in most cases in which condemnation
has been pronounced. Any attempt by a subject to import
goods from the enemy’s country, without the license of his
own government, is a violation of duty on his part, and
involves his property so employed in the penalty of confisca-
tion It is not necessary that these goods should be the
l The ‘ Hoop,’ Rob. zoo ; Manning, Law of Nations, p. 122 ;
Chitty, Law of Nations, pp. 276, 277 ; Bynkershoek, Qucest. fur. Pub.
lib. i. 0. ix. and xv. ; Wheaton, Elem. Int. Law, pt. 4, oh. i. §§ 13, I4 ;
Phillimore, On I m‘. Law, vol. iii. §§ 69 et seq. ; Heffter, Droit I nter-
national, § 123 ; Duer, On Insurance, vol. i. pp. 555, 579; Wildman,
Int. Law, vol. ii. p. 245 ; Jacobsen, Seerecht, §§_719—7 31 ; the ‘ N61)-
tunus,’ 6 Rob. 406; the ‘Ceres,’ 3 Rob. 79; the ‘ Nayade,’ 4 Rob,
25 I ; as to licenses to trade see ch. xxx. post.
VOL. II. L
Rule ri-
gorously
enforced
146 INTERNATIONAL LAW I on. xxm
fruits of any purchase, barter, contract, or negotiation, in
the enemy’s country after hostilities had commenced.
The sailing of the vessel with the goods on board, after the
party had a knowledge of the war, completes the offence,
stamps the cargo with an illegal character, and subjects it,
during its transportation, to a rightful seizure. The pro-
priety of strictly adhering to this rule is vindicated by Judge
Story, with his usual ability, in the case of the ‘ Rapid,’ where
the question is fully discussed.‘
1 I Gall. R. 295 ; Duer, On Insurance, vol. i. pp. 556-559; the
‘ St. Philip,’ 8 Term. R. 5 56. As to a ship bound to a foreign port
with cargo, entering that port after rumours of war between her
country and the country of that port, see the ‘ Teutonia,’ L. R. 4 P. C.
171 ; and also the ‘ San Roman,’ L. R. 3 A. and E. 583 ; the ‘ Ex~
press,’ ibid. 597 ; the ‘Patria,’ ibid. 436. Where the claimant left
the enemy’s port, with the intent to withdraw from the enemy’s
country with his effects, and had for that purpose converted his
property into the vessel and cargo, and intending to give himself
up to the blockading squadron, it was held that the vessel and cargo
were not liable to capture as enemy’s property. (The ‘ General
Pinckney,’ Blatchf. Pr. Cas. 668.) Again, during the civil war,
some cotton which had been purchased by a loyal citizen of the
United States in Texas, the enemy’s country, was captured on a flat
boat, in the act of being exported during a blockade. It was con-
demned by the District Court of New York, but sentence was reversed
on appeal to the Circuit Court, on the ground that the claimant
had gone to Texas, before the war, to collect debts due to him, and
that this cotton was the proceeds ; moreover, that he had used all
diligence to collect his effects, with a view to leave the hostile country
after the breaking out of the war. (‘ Fifty-two Bales of Cotton,’
Blatchf. Pr. Cas. 644.)
A voyage from an enemy to a neutral port, but with directions to
put into a British port to obtain a license, the proof of such direc-
tions and consequent intention being clear, was held not to be
illegal, or a breach of a certain prohibitive Order in Council of
January 1807 ; restitution accordingly, with captors’ expenses.
(The ‘ Mercurius,’ Edwards, 5 3, and the ‘ Minna,’ therein cited.)
The conveyance of passengers for hire held equivalent to the
conveyance of goods for freight, and therefore to be a trading within
the prohibitions prescribed by the Orders in Council of April 26, 1809,
prohibiting all trade by neutrals with France. (The ‘ Rose in
Bloom,’ 1 Dodson, 58.) q
A resident in England cannot enter into an engagement to raise
money by way of loan to assist subjects of a foreign State to prose-
cute a war against a Government in alliance with England, without
the license of the Crown. (Demetrius de Wiitz v. Hendricks, 9
Moore C. P. Rep. 580.)
By Art. 77 of the French Penal Code, anyone who may engage in
schemes or enter into communication to supply the enemy with
money is punishable with death. For the opinion of the English
Courts see R. v. Hensey, I Burr. R. 6 50.
As to the punishment of holding correspondence with the Con-
federates by subjects of the United States, during the last Civil War,
see Act of February 25, I863, 12 Stat. at L. 696.
CH. XXIII
TRADE WITH THE ENEMY 147
§ 4. Numerous attempts have been made to evade this
rule by allegations of special exceptions. In cases of this
kind it has been alleged that the property in the specific
goods was acquired before the War, as in the case of the
‘Louisa Margaretha ’; or that the goods were actually
shipped as well as purchased before hostilities commenced,
as in the cases of the ‘ Eenigheid,’ the ‘ Fortuna,’ and the
‘Mary ’ ; or that the ship on which the goods were found
had been forcibly detained, as in the case of the ‘ Alexander ’ ;
or that the goods were the produce of funds in the
enemy’s country which the party had no other means of
withdrawing, as in the cases of the ‘ Lady Jane,’ the
‘ William,’ and the above-mentioned ‘ Rapid.’ It was
decided by the English Court of Common Pleas, in Potts
v. Bell, that goods might be lawfully exported from an
enemy’s country, although purchased during the war, where
the sole object of the purchase was to enable the parties to
remit to their own country their funds and effects, which
were in the enemy’s country when the war was declared ; but
this exception was subsequently overruled upon a writ of
error brought into the King’s Bench.1
A British subject resident in a neutral country may engage in
trade with the enemy of his own country, but not in articles of a
contraband nature, the duties of allegiance travelling with him so
as to restrain him to that extent. (The ‘ Neptunus,’ 6 Rob. 409 ; the
‘ Ann,’ I Dodson, 223 ;the ‘ Emanuel,’ I Rob. 302.)
A British-born subject domiciled in a neutral country is not
prevented from trading with a country inimical to his own. (Bell
v. Reid, and Bell v. Buller, I M. and S. 726 ;_ Marryatt v. Wilson,
I B. and P. 430.)
Commerce by a person resident in an enemy’s country, even as
representative of the Crown of England, is illegal and the subject of
prize, however beneficial to his country, unless authorised by license
(Ex parte Baglehole, 18 Ves. jun. 528 ; 1 Rose, 271). But a supply
of articles for the use of the British fleet was held to be an exception
to the rule. (The ‘ Madonna delle Gracie,’ 4 Rob. 19 5.) If an
English subject employ a neutral to trade for him, in the country
of the enemy, the neutral is considered to be a mere agent, and the
transaction is illegal. (The ‘ Samuel,’ 4 Rob. 284.)
For cases concerning the unlawfulness of various dealings with
residents of the insurgent States, during the American Civil War of
1861—65, see the ‘Reform,’ 3 Wall. 617 ; United States v. Weed,
5 ibid. 62 ; the ‘ Gray Jacket,’ ibid. 342 ; the ‘ Hampton,’ ibid. 372 ;
the ‘Sea Lion,’ ibid. 630 ; the Cotton Cases, 2 Ct. of C. C. R. (Nott
andrH.), 529 ; S. C. 6 Int. Rev. Rec. 21 ; Blakeley v. United States,
2 Ci. of C. C. R. (Nott and H.), 323 ;the ‘ David E. Wolf,’ 1 Int. Rev.
Rec. 194. _
1 The ‘Louisa Margaretha,’ I Rob. 20.3; 9 Cranch. 132; the
‘Eenigheid,’ 1 Rob. 210; the ‘ Fortuna,’ 1 Rob. 211 ; the ‘Mary,’
Cases of
attempt
to evade it
1. 2
I48 INTERNATIONAL LAW 011. 1111111
With-
drawal
from
enemy’s
country at
beginning
of war
Distinc-
tion be-
tween
cases of
domicile
and more
residence
§ 5. Vattel and Burlamaqui concur in the doctrine, that
both justice and humanity require that persons, who are
surprised by a war in an enemy’s country, should have a
reasonable time to withdraw their persons and effects, and
ought not to be treated as enemies, unless their departure
should be unreasonably delayed. This view is countenanced
by several eminent writers on public law, and the language
of Sir William Scott, on several occasions, seems to justify
the conclusion that a distinction in favour of persons thus
circumstanced would be admitted in the English Admiralty.1
‘It seems a necessary deduction,’ says Mr. Duer, ‘ from these
views, that, in the judgment of these writers, the property
of persons thus withdrawing themselves from the enemy’s
country would, in‘ the course of transportation, be entitled
to the protection of their own government; since, other—
wise, the very object of the lenity exercised toward them
might be defeated, and that which was granted a favour
would be converted into a snare. To confiscate the property
of subjects, in the act of returning to their allegiance, is
the extreme of injustice, as well as of impolicy. It is
to punish those Whom their country should desire to
reward.’ 2
§6. A distinction must be here noticed between the
property of a citizen resident in a foreign country, and that
of one domiciled in the belligerent State. The property
of a citizen domiciled in a foreign country, when that country
becomes involved in a war with that of his allegiance, is‘
at once liable to be condemned as that of an enemy. But
that of a citizen simply resident in the belligerent State,
if condemned on his attempt to withdraw it from the enemy’s
country, must be condemned as that of a citizen engaged in
an unlawful trade with the enemy. The Supreme Court of
1 Gall/is, 620 ; the ‘ Alexander,‘ 8 Cranch. I69 ; the ‘ Lady Jane,’ I
Rob. 202 ; the ‘ William,’ I Rob. 214 ;the ‘ Grey Jacket,’ 5 Wall. 342 ;
Potts v. Bell, 8 Term. R. 548.
1 This seems to have been denied in Potts v. Bell, supra—over-
ruling Bell v. Gilson (1 Bos. and Pull. 345) ; see, however, the ‘ Drie
Gebroeders,’ 4 Rob. 234.
2 Duer, 0n Insurance, vol i. pp. 561-563 ; Vattel, Droit des Gens,
liv. ii. ch. xviii. § 344 ; liv. iii. ch. iv. § 63 ; ch. v. §§ 73, 77 ; Bur-
lamaqui, Droit de la Nat. et des Gens, t. v. . iv. ch. 7 ; Brown v. the
US. 8 Cranch. 125 ; Riquelme, Derecho Pub. Int. lib. i. tit. i. c. x. ;
Bello, Derecho I nternacional, pt. ii. c. ii. § 2.
CH. XXIII
TRADE WITH THE ENEMY I49
the United States have decided that the property of
American citizens domiciled in an enemy’s country, although
shipped before a knowledge of the war, was, by that event,
irredeemably stamped with a hostile character, and the
goods were condemned as a lawful prize. But the case of
a citizen, merely resident in the enemy’s country, presents
a very different question.1
§7. If it be admitted that it is the duty of a govern-
ment to facilitate the withdrawal of its own citizens and
their property from an enemy’s country, the question next
to be considered is the propriety of requiring the citizens
to procure a license from their own government for the
transportation of such property. On this question Mr.
Duer remarks : ‘ It is, doubtless, right and necessary that
a merchant, not resident in an enemy’s country, who
desires, at the commencement of a war, to withdraw his
property and effects, should obtain a license from his own
government. He is guilty, otherwise, of a voluntary
trading. The good faith of a person who has the power
to apply for a license, and neglects the duty, is liable to
just suspicions ; and the express permission of the govern-
1 Wheaton, Elem. Int. Law, pt. iv. ch. i. § 17 ; the ‘ Venus,’ 8
Cranch. 2 5 3. Property belonging to a merchant residing and trading
at an enemy’s port is, if captured, liable to condemnation as enemy’s
property (the ‘ Delta,’ Blatchf. Pr. Gas. 133). But a citizen, tem-
porarily residing in an enemy’s country, is, at the breaking out of
war, entitled to a reasonable time to collect his effects, and to con-
vert them into available and manageable funds, so as- to enable him
to withdraw them from that country ; and in such case his effects
will not be treated as enemy’s property (the ‘ John Gilpin,’ Blalchf.
Pr. Gas. 661). Property captured at sea, and owned by persons
resident in an enemy’s country, is hostile, and subject to condemna-
tion without any evidence. Notwithstanding the individual opinion
or sympathies of the owner, and although he may be the subject of
a neutral nation, or of the capturing belligerent, and may have
expressed no disloyal sentiments towards his native country, never-
theless his residence in the enemy’s country impresses upon his
property, engaged in commerce and found on the high seas, a
hostile character, and subjects it to penalties as such. Thus, the
property belonging to a permanent resident of the Confederate
tates, and captured on the ocean, was held to a be a lawful prize.
Condemnation is not the infliction of personal punishment, but the
exercise of a belligerent policy for the destruction of the enemy’s
resources (the ‘ Amy Warwick,’ 2 Sprague, 143). A citizen of the
United States was held to be disqualified from appearing in a prize
court to question the legality of the seizure of his property acquired
during war in an enemy’s country, by trade with the enemy (the
‘ Napoleon,’ Blatchf. Pr. Gas. 296).
Necessity
of a
license of
with-
drawal
discussed
I50 INTERNATIONAL LAW 011. 1111111
Decisions
in the
United
States
ment is, in such cases, the only adequate security against
abuse and fraud. But the propriety of requiring a person,
who is seeking to escape from a hostile country, to continue
a residence that exposes his person to imprisonment, and
his property to seizure, until a license from his own govern-
ment can be obtained, so far from being evident, can, by
no means, be admitted. His ability to return—to save
himself and his property—may depend upon measures that,
to be effectual, must be immediate; and the necessary
delay in procuring a license would operate, in most cases,
to defeat the execution of the design.’ Mr. Duer, there-
fore, adopts the conclusion that a license is not in all cases
necessary, and ‘ that the property of subjects withdrawing
themselves, in good faith, from a hostile country, within a
reasonable time after knowledge of the war, is not stamped
with the illegal character of a trading with the enemy;
but it is to be considered, by a just exception from the
general rule, as exempt from confiscation. Such would
be the probable decision‘ of the question in the English
courts of prize; nor is it by any means certain that an
opposite determination would be made in those of the
United States. The exact question has not yet been
determined by the supreme tribunal; nor is its decision
involved as a necessary consequence in the cases that have
hitherto occurred.’ ‘
§8. The language ofMr. Justice Story, in the cases of
the ‘ Rapid ’ and the ‘ Mary,’ in the Circuit Court, amounts
to a clear denial of the existence of the right in question,
under any circumstances; although in the case of the
‘ St. Lawrence,’ subsequently decided in the Supreme
Court, where the opinion of the court was given by the same
distinguished judge, any direct decision of this question
was studiously avoided, and that case was decided on the
ground that the property had not been withdrawn from the
enemy’s country within reasonable time after the knowledge
of the war. This exact question, as already remarked,
has never been determined by the Supreme Court of the
United States, nor is its decision involved, as a necessary
consequence, in the cases which have been adjudicated
1 Duer, On Insurance, v01. i. pp. 564-566 ; the ‘ Madonna delle
Gracie,’ 4 Rob. 198.
011. 1111111 TRADE WITH THE ENEMY 151
before that tribunal. In a case decided in the Supreme Court
of the State of New York, it was held that a citizen of one
belligerent may withdraw his property from the country
of the other belligerent, provided he does it within a reason-
able time after the declaration of the war, and does not
himself go to the enemy’s country for that purpose. In.
delivering the opinion of the court in this case‘ (Amory v.
McGregor), Chief Justice Thompson remarks, that, from
the guarded and cautious manner in which the Supreme
Court of the United States had reserved itself upon this
particular question, there was reason to conclude that
when it should be distinctly presented, it would be con-
sidered as not coming within the policy of the rule that
renders all trading or intercourse with the enemy illegal.1
§ 9. The only well-established exception to the rule
which confiscates all goods imported from the enemy’s
country, during the war, is where it is shown that the
goods were purchased under an order given previous to the
commencement of hostilities, and that it was not in the
power of the owner, by any diligence, to countermand the
order in time to prevent the shipment. It must, however,
be clearly shown that all possible diligence was used, after
the first notice of hostilities, to countermand the voyage.2
§ 10. The good faith or mistake of the party affords no
protection to the ship or goods engaged in illegal trade with
an enemy. The entire absence of any intention to violate
the law, no matter how perfect the innocence of the intent
may have been, nor whether the act resulted from mistake
or ignorance, cannot avert the penalty of confiscation. In
the celebrated case of the ‘ Hoop,’ decided by Sir William
Scott, ‘the goods had been imported from an enemy’s
country with the express sanction of the commissioners of
the customs, under an erroneous interpretation of a special
provision of an Act of Parliament; but, while admitting
and lamenting the hardship of the case, the judge felt
himself compelled to pronounce a condemnation. He
1 Phillips, On Insurance, vol. i. p. 84 ; the ‘ Rapid,’ 1 Gallis. R.
304 ;the ‘ Mary,’ 1 Gallis. R. 621 ;the ‘ St. Lawrence,’ 9 Cranch. 124 ;
Amory v. McGregor, 15 johns. R. 24 ; Rush, Opinions of U.S. Attys.-
Genl. vol. i. p. 175.
2 The ‘ Jufirow Catharina,’ 5 Rob. 141 ; the ‘ Fortuna,’ 1 Rob.
211 ;the ‘ Freeden,’ 1 Rob. 212.
Where
order of
shipment
cannot be
counter-
manded
Good faith
or a mis-
take no
defence
I 52 INTERNATIONAL LAW 011. xx111
Trade
through a
neutral
port
referred, in his opinion, to numerous cases where the Lords
of appeal had rigorously enforced the rule, notwithstanding
the strongest mitigating circumstances.1
§ 11. The ulterior destination of the goods determines
the character of the trade, no matter how circuitous the
route by which they are to reach that destination.2 Even
where the ship in which the goods are embarked is destined
to a neutral port, and the goods are there to be unladen,
yet, if they are to be transported thence, whatever may be
the mode of conveyance, to an enemy’s port or territory,
they fall within the interdiction and penalty of the law.
The converse of this is also undoubtedly true; that is,
trade from an enemy’s country, through a neutral port, is
unlawful, and the goods so shipped through a neutral
territory, even though they may be unladen and trans-
shipped, are liable to condemnation. It is an attempt to
carry on trade with the enemy, by the circuitous route of
a neutral port, and thus evade the penalty of the law.
But the law will not countenance any such attempts to
violate its principles by a resort to the shelter of neutral
territory; any such voyage is illegal at its inception, and
the goods shipped are liable to seizure at the instant it
commences. A coasting or colonial trade, limited to the
ports of the enemy, so far from meriting any indulgence,
is regarded as peculiarly noxious, and the ship and goods so
1 The ‘ Hoop,’ 1 Rob. 196 ; the ‘ Angelique,’ 3 Rob. app. 9 ; the
‘ Nelly,’ 1 Rob. 219, note ; the ‘ Franklin," 6 Rob. 127 ; Griswald v.
Waddington, 16 johns. R. 4 38 ; Scolefield v. Eichelberger, 7 Peters R.
586.
In the case of the ‘ Hoop,’ reference is made to an authority, in
Rolle’s Abridgment, 173, showing that it was anciently deemed
illegal to trade with Scotland, when that country was at war with
England. Sir W. Scott observes thereon, that the rule against trade
with an enemy is just as weighty on land as on water, but that cases
had more frequently happened upon water, in consequence of the
insular situation of England. -
2 This doctrine is only settled in the American Courts. The
‘ Stephen Hart,’ 2 M arit. Cas. 73; the ‘ Commercen,’ 1 Wheat, 388 ;
Historicus, Addit. Letters, 43. The English Courts seem rather to
have inclined to the doctrine that it is the destination of the vessel
which determines the character of the trade, and not the destination
of the goods. The ‘Hendric and Alida,’ 1 Hay and Marr. 96;
Hobbs v. Henning, 5 New Rep. 406 ; the ‘ Diana,’ Lords of A ppeal,
March I, 1806. In the case of the ‘Exchange ’ (Edwards, 39), a
ship having been condemned for a deviation towards an enemy’s
port, the cargo was held to be involved, by such deviation, in the
fate of the ship.
cII. xxIII TRADE WITH THE ENEMY
I53
employed, with a knowledge of the war, cannot escape the
penalty of condemnation. ‘ The conduct of the citizen,’ says
Duer, ‘ who thus incorporates himself with the commerce
and interests of the enemy, admits of no palliation or
excuse ; it is not simply blamable, but highly crimina .’ 1
§12. A vessel engaged in unlawful trade with the
enemy is liable to capture and condemnation at any time
during the voyage in which the offence is committed, but
not after the voyage is completed. If, however, the voyage
is continuous and entire, although consisting of separable
parts, she is liable to capture while any portion of it remains
to be performed, even where the part in which the offence
was committed has been completed. This point has been
fully discussed and decided in the Supreme Court of the
United States.‘2
§ 13. Actual trading with the enemy is not necessary to
subject a ship or goods to confiscation. It is sufficient,
as a general rule, that they are engaged in a voyage with that
design, in order to complete the offence, and to incur the
penalty. So also a ship belonging to a subject, and pro-
ceeding to an enemy’s port in ballast, with no positive
intention of procuring a cargo, or returning therefrom
without any cargo, would be liable to capture both on her
outward and return voyage. It would be in vain to allege
that there was no act or intention of trading. But the
mere intention to trade with the enemy is not punishable,
if at the time of capture the execution of the intent is no
longer practicable. Where, from fortuitous circumstances,
whether known or unknown to the parties, the execution
of the design can no longer be effected, the intent does not
1 Kent, Com. on Am. Law, vol. i. p. 81 ; Wheaton, Elem. Int.
Law, pt. iv. ch. i. § 17 ; Duer, On Insurance, vol. i. pp. 569, 5 7o ; the
‘Diana,’ 2 Gallis. ‘R. 98; the ‘Wellington,’ 2 Gallis. R. 103 ; the
‘ Jonge Pieter,’ 4 Rob. 79 ; the ‘ William,’ 5 Rob. 393.
This trade, by a citizen, should not be confused with that carried
on by a neutral. Modern jurists consider that it is contrary to free
trade that a coasting or colonial trade should be denied the latter.
The right of a belligerent to prohibit such trade unquestionably
exists, but the present spirit and disposition of the European Powers
are such as to render it very doubtful whether, in case of war, this
right would be again enforced against neutrals.
2 Wildman, Int. Law, vol. ii. pp. 20—23 ; the ‘ Joseph,’ Crunch.
454, 455 ; the ‘Memphis,’ Blatchf. Pr. Cas. 26o ; and see ch. xxviii.
22.
Con-
tinuous
voyages
When
offence is
completed
154
INTERNATIONAL LAW 011. xxm
Share of
partner in
neutral
house
constitute the crime, for no crime could be committed. A
criminal intent is never punishable, if, before the design can
be executed, its execution becomes impossible. Thus, a
British ship bound to .a West India island—an enemy’s
country—but captured after the island had, in fact, sur—
rendered to the British forces, was restored by Sir William
Scott.‘ That particular case, however, was distinguished
from the general rule as laid down by Duer, which requires
the full sanction of judicial decisions?
§ 14. Where the property seized for illegal traflic with
the enemy belongs to a house of trade, established in a
neutral country, but of which one of the partners is a
resident subject of the belligerent country, his share, not-
withstanding the neutrality of the house, is condemned.
The rule is equally applicable, even where the belligerent
party is strictly dormant, and takes no part whatever in
the direction and management of the affairs of such trading
house. If he is a party interested in the property so con-
taminated, he must suffer the penalty of the offence. He
cannot engage as a partner in a transaction in which he
could not lawfully engage if alone.3
1 Sir W. Scott also restored a Dutch ship from Demerara (a
Dutch colony), which had been captured, at sea, several days after
that colony had capitulated to the British forces, one of the terms
of the capitulation being that the inhabitants were to be permitted
to export their own property, and to be treated in all respects like
British subjects (the ‘ N egotie en Zeevaart,’ 1 Rob. 3). But on
appeal the House of Lords reversed the decision on the ground that
property sailing after a declaration of hostilities, and taken on a
voyage, cannot be protected by an intermediate capitulation ; Lord
Camden observing, that ‘ the ship sailed as a Dutch ship, and could
not change her character in transitu.’
2 The ‘ Abbey,’ 5 Rob. 251 ; Wildman, Int. Law, vol. ii. p. 22 ;
the ‘ Imma,’ 3 Rob. I67 ; the ‘ Lisette,’ 6 Rob. 387 ; the ‘ Trende
Sostre,’ 6 Rob. 390, in notes. -
3 The ‘ Franklin,’ 6 Rob. 127 ; the ‘ Fortuna,’ 1 Rob. 211.
The liability of property (the product of an enemy’s country, and
coming from it during war) to seizure is irrespective of the status
domicilii, guilt or innocence of the owner. These principles apply
to property held, before the war, in partnership, as well as to that
held in severalty. The war dissolves the partnership. (The ‘ Dash-
wood,’ 5 Wall. 170; the ‘ Gray Jacket,’ ibid. 342; the ‘William .
Bagaley,’ ibid. 377.
p. 127.) _ . ‘
The property of a commercial house, established In the enemy’s
country, is subject to seizure and condemnation as prize, though
some of the partners may have a neutral domicile. (The ‘ Cheshire,’
3 Wall. 231.)
But see ‘ Fifty-two Bales of Cotton,’ supra,
0H.xx111 TRADE WITH THE ENEMY I55
§ 15. Courts of prize regard with extreme suspicion
and jealousy the transfer of ships from subjects to neutrals,
during the war. If such a ship is subsequently employed
in a trade with the enemy, very slight indicia of fraud would
cause her condemnation. Thus, an English vessel, asserted
to have been sold to a neutral, after hostilities had been
commenced between England and Holland, was captured
while engaged in trade between Guernsey and Amsterdam,
under the command of her former master, who had also been
the owner, and it was held by Sir William Scott, that the
transfer was colourable and void, and he condemned both
ship and cargo. If, however, the transfer be bona fide, and
the vessel becomes neutral property, it may be employed in
all trade in which neutrals may lawfully engage.1
§16. Regularity of papers, in such cases, is not con-
clusive evidence of ownership; for, as remarked by Sir
William Scott, in the case of the ‘ Odin,’ where there is an
intention to deceive, the regularity of the paper documents
is a necessary part of the apparatus and machinery of the
fraud. Although regular documents, if duly verified and
supported, are presumptive evidence, yet, if the circum-
stances and facts of the case lead justly to the conclusion
that these papers, however formal, are themselves false,
the court will not be bound by them. Where the papers
say one thing, and the facts of the case another, the court
will exercise a sound judgment as to which the preponderance
is due. It has already been stated that, although a vessel be
documented as a neutral vessel, it will not be protected by
its documents, if the domicile of its owner is hostile. ‘A
government may grant the privilege of a national character
to vessels for the purpose of its own navigation, but cannot
change its national character to the prejudice of third
parties. Consequently, if the real owner of the vessel
engaged in trade with the enemy be a subject of one of the
belligerents, its apparent neutral character will not save it
from condemnation.2
‘ Wildman,‘Int. Law, vol. ii. p. 83 ; the ‘ Omnibus,’ 6 Rob. 71 ;
the ‘ Jemmy,’ 4 Rob. 3 1. The transfer, during war, of a ship of war,
by an enemy to a neutral, is illegal (the ‘ Packet de Bilboa,’ 2 Rob.
133 ;the ‘ Georgia,’ 1 Low. 96).
' 2 The ‘ Odin,’ 1 Rob. 252, 253 ;the ‘ President,’ 5 Rob. 277 ;Tola'rd
v. Bell, 8 Term. R. 434 ; as to ships’ papers, see ch. xxii. § 19.
Transfer
of ships
Regu-
larity of
papers not
conclusive
I56 INTERNATIoNAL LAW. 011. xxm
Trade by
stranger
in enemy’s
country
Distinc-
tion as to
native
subject
§ 17. When the trading is from a port of the belligerent,
claiming the right of capture, the property is, as a general
rule, liable to confiscation, if the owner at the inception of
the voyage was a resident in the country, whether as a
native subject, a domiciled merchant, a mere stranger, or a
sojourner. Every person in a country (with the limited
exception of ambassadors, &0.), whether a native or stranger,
owes obedience to its laws, and the rule of international juris-
prudence, which forbids all intercourse and trade with the
public enemy, is just as obligatory upon him as the municipal
laws of revenue or regulations of police. We have already
stated under what circumstances the property of a resident
in an enemy’s country is to be deemed hostile; the same
circumstances, as a general rule, are sufficient to justify
that enemy to treat it as the property of his own subjects, and
to subject it to like penalties.1L
§18. There exists, however, an important distinction
between the case of a native subject and that of a domiciled
stranger or mere sojourner. ‘ The property of the subject,’
says Mr. Duer, ‘ where the trade was illegal in its origin and
intent, cannot be redeemed from its guilt and penalty
by any subsequent change of his own residence; but that
of the domiciled merchant or stranger will be restored, if,
previous to its capture, he had, in part, removed from the
belligerent country, with the intention of returning to his
own ; for, in this case, the illegality that arose solely from
his local and temporary allegiance, by the removal of its
cause, has ceased to exist.’ This distinction has been
established in a number of decisions, both in the United
States and in England. In the case of the ‘ Indian Chief,’
Mr. Johnson,.one of the claimants, was an American citizen
in his native character, but had resided and was engaged
in trade in England, and was still living there, when the
ship which he claimed as owner, and which was seized as
engaged in a trade with the enemy, commenced her voyage.
But as it was clearly proved that he had left England for
the United States, and with the bona fide intention of resum-
ing his native character, before the seizure, his claim was
allowed and the ship restored. Again, in the case of the
‘ Etrusco,’ the claimant was a Swiss by birth, but had been
1 Riquelme, Derecho PzZb. Int. lib. i. tit. ii. 0. xiv.
CH. xxm TRADE WITH THE ENEMY
I57
impressed by a French hostile character, by trading under
the protection of a French factory in China, and such was
his character when the goods were shipped; but he had
‘ fortunately quitted China before the capture, and upon
this ground the Lords of Admiralty decreed a restoration.
In the case of the ‘ Ocean,’ the only act upon which Sir
William Scott relied, as evidence of the intention of the
party, was, that he had made arrangements for withdrawing
himself as a partner from a house of trade in the hostile
country, and if he is able to show that the evidence on which
the captors rely, as fixing his character, had been changed
in fact, or in judgment of law, previous to capture, his
claim to restitution will be allowed. In the judgment
of Chief Justice Marshall, dissolution of partnership, dis-
continuance of trade in the enemy’s country, and other
arrangements obviously preparatory to a change of residence,
ought all to be considered overt acts, which, when performed
in good faith, entitle the claimant to restitution. This
seems an important exception to the general rule, that
the national character of property on the ocean cannot be
changed in transitu during the prosecution of the voyage.1
§19. If a vessel belonging to one of the belligerents
prosecutes a voyage, even to a neutral port, under a license
from the government of the enemy, both ship and cargo,
while they remain under the protection of such license,
are liable to capture and confiscation. Such condemnation
results from the presumption, not to be resisted, that the
license is granted by the enemy for the furtherance of his
own interests, and the citizen or subject who lends himself
to the promotion of that object, by accepting such license,
violates the plainest duties of his own allegiance. As has
already been stated, individual members, composing the
state or body politic, are prohibited from all commercial
intercourse with the public enemy, unless sanctioned by
the express authority of their own government. In the
words of Sir William Scott, no principle should be held
more sacred than that an intercourse with the enemy ought
not to be allowed to subsist on any other footing than that
1 Duer, On Insurance, vol. i. pp. 515—517, 544, 54 , 6; the
‘ Indian Chief,’ 3 Rob. 18—21 ;the ‘ Ocean,’ 5 Rob. 91 ;thrse ‘ Ezcrusco,’
3 Rob. 31 ;the ‘ Portland,’ 3 Rob. 41.
Accept-
ance of
licence
from
enemy
I 58 INTERNATIONAL LAW 011, xxm
of the direct permission of the State. The reasons of
this rule are fully set forth in the opinion of Mr. Justice
Story, in the case of the ‘ Julia,’ ‘ which opinion was adopted
in extenso ‘by the Supreme Court of the United States.
At the threshold of his opinion, he lays down the funda-
mental proposition that, in war, all intercourse between the
subjects and citizens of the belligerent countries is illegal,
unless sanctioned by the authority of the government, or
in the exercise of the rights of humanity ; that a personal
license from an enemy must be regarded as an implied agree-
ment with such enemy, that the holder of such license will
conduct himself in a neutral manner, and avoid any hostile
1 In 18 12 the brig ‘ Julia ’ and cargo, owned by American citizens,
was captured by the United States frigate ‘ Chesapeake.’ The
vessel had on board a license, from the English admiral at Halifax,
directing all his Majesty’s ships to suffer her to proceed without
unnecessary molestation, and reciting that she was well-inclined
towardstthe British interest, and was laden with provisions for the
use of the allied armies in the Peninsula. She was captured on her
return journey, having disposed of the provisions, and then bearing
a cargo of salt. Two questions were raised: 1st, whether the use
of an enemy’s license, or protection on a voyage to a neutral country
in alliance with the enemy, be illegal, so as to affect the property
with confiscation; 2nd, if not, whether the terms of the existing
license distinguish this case unfavourably from the general prin-
ciple. The Supreme Court of the United States distinguished this
case from that of the ‘ Elizabeth _’ (5 Rob. 2), inasmuch as the vessel
and cargo were documented as American, and not as British pro-
perty; further, it decided that the existence of a license affords
strong presumption of a concealed enemy’s interest ; that no argu-
ment in favour of a license can be drawn from the safe-conduct to
enemies’ fishing vessels in former times ; that it is not universally
true that a destination to a neutral port gives a bona fide character
to the voyage ; that if the property be ultimately destined for an
enemy’s port, or an enemy’s use, the interposition of a neutral port
would not save it from condemnation ; that if property be engaged
in an illegal traffic with the enemy, or even in an attempt to trade,
it is liable to confiscation as well on the return as on the outward
voyage ; and, that it may be assumed as a proposition liable to few,
if any, exceptions, that the property which Is rendered auxiliary or
subservient to enemy interests becomes tainted with forfeiture
~ (the ‘Julia,’ 8 Cranch. 181; I Gall. R. 601). Sailing under an
enemy’s license is legal cause for the forfeiture of a neutral vessel
(the ‘ Alliance,’ Blatchf. Pr. Cas. 262). But the fact that a vessel
carried a custom-house clearance and permit to pass fortifications,
issued by the Confederate Government in 1860, was held in the
courts of the United States not to be of itself a justifiable cause for
capture ; the papers did not profess to protect from arrest at sea,
nor were they calculated to mislead the captors (the ‘ Sarah Starr,’
Blatchf. Pr. Cas. 69). A neutral sailing under the flag of the enemy
is considered as enemy property, and is liable to confiscation 7'ure
belli (US. v. the ‘ Telegrafo,’ I Newb. 383).
CH. XXIII
TRADE WITH THE ENEMY 159
' acts towards such enemy; that it is, therefore, a violation
of the laws of war, and of his duties to his own govern-
ment.
§ 20. The unlawfulness of trade with the enemy extends
not only to every place within his dominions, and subject to
his government, but also to all places in his possession or
military occupation, even though such occupation has not
ripened into a conquest, or changed the national character
of the inhabitants. In each case there is the same
hazard to the State, and, if the hostile occupation is known
when the communication is attempted, there is the same
breach of duty on the part of the subject. The reasons
of public policy, which forbid such intercourse, apply as
fully in the one case as in the other. The same rule holds
even in the case of a revolted territory, or colony of the
enemy, which is known to have been for years in the hands
of the insurgents: courts of justice always regard such
revolted territory as belonging to the enemy, until, by
some public act of their own government, it is expressly
recognised as an independent and friendly power. Until
such express recognition, courts must regard the revolted
territory as a subsisting part of the parent State, with its
former relations unaltered?
§21. It may be stated, as a general rule, that any
insurance, on either vessel or cargo, engaged in illegal trade
with the enemy, is illegal, and whenever the goods or
vessel are liable to condemnation, the policy of insurance
will be declared void. Where the property insured is
justly liable to belligerent capture, whether the delicturn—
that is, the substantive cause of condemnation—exists at the
inception of the voyage, or occurs subsequently, but prior
to the time the policy attaches, it is considered to be illegal,
and is declared void. There are, however, on this question
conflicting opinions and decisions, the examination of
1 Phillips, On Insurance, vol. i. p. 82 ; the ‘ Manilla,’ 1 Edw. Ad.
Rep. 3; the ‘Pelican,’ 1 Edzv. Ad. Rep. Appen. D; Johnson v.
Greaves, 2 Fount. Rep. 344; Blackburne v. Thompson, 15 East.
81 ; Rose v. Himely, 4 Cranch. 272 ; Gelston v. Hoyt, I3 johns. R. ;
587; the ‘Phoenix,’ 5 Rob. 21; the ‘President,’ ibid. 277; the
‘ Indian Chief,’ 3 Rob. 12 ; the ‘ Fama,’ 5 Rob. 106 ; the ‘ Boletta,’
1 Edw. Rep. 171 ; Hagedorn v. Bell, 1 M aule and Sel. 45o ; Brornley
v. Hesseltine, 1 Camp. 75 ; Bentzon v. Boyle, 9 Cranch. 191.
Trade
with pos-
sessions
and
colonies of
enemy
Rule of
insurance
I60 INTERNATIoNAL LAW CH. mm
which does not come within the purpose and object of this
work.1
1 Arnould, On Insurance, pt. iii. oh. i. sec. 7 ; Bedarride, Droit
Maritime, §§ 1095 et seq. ;Wildman, Int. Law, vol. ii. p. 259 ; Philli-
more, On Int. Law, vol. iii. § 69 ; Duer, On Insurance, vol. i. p. 587 ;
the ‘Aurora,’ 8 Cranch. 441; the ‘Hiram,’ I Wheaton, R. 440;
the ‘ Ariadne,’ 2 Wheat. R. 143 ; Colquhoun v. N.Y. F. Insurance
Co., 15 johns. R. 357; Ogden v. Barker, johns. R. 87; Craig v.
US. Ins. Co. I Peter C. C. R. p. 410. There can be no return of the
premium of a maritime assurance to the assured, if the insurance
be illegal and the voyage performed, unless the assured did not
know of the illegality, or had rescinded the contract before the
voyage had commenced (Oom v. Bruce, 12 East, 225 ; Hentig v.
Staniforth, 5 M. and S. 122 ;Lowry v. Bourdien, Dougl. 468 ;Aubert
v. Walsh, 3 Taunt. 280 ; Palyart v. Leckie, 6 M. and S. 290). A
prospectus of the Société Réparatrice de l’Invasion, assuring against
requisitions, pillage, and incendiarism, was circulated in Normandy.
On the Prussian side, a syndicate of bankers was formed for advancing
money to towns unable to meet requisitions and contributions.
Four million francs were advanced to Nancy through this channel.
A policy of insurance which indemnifies an enemy against loss in
time of war is unlawful, and, where entered into before hostilities,
is abrogated when they occur (Tait v. N.Y. Life Ins. Co. 19 Int. Rev.
Rec. 14). See, further, some cases to the contrary: Seton v. Low,
1 johns. (N.Y.) Cases, 1, a neutral trading in contraband; the
‘ Helen,’ 1 L. R. (A dmir.), 1, the wages of a blockade-runner ; and
ex parte Chavasse, In re Grazebrook (34 L. j. N. S. Bank. 17), the
importation of contraband by neutral.
161
CHAPTER XXIV
RIGHTS AND DUTIES or NEUTRALS
I. Neutrality in war—2. Qualified neutrality—3. Advantages and
resulting duties of neutrality—4. Hostilities not allowed within
neutral jurisdiction—5. Passage‘ of troops through neutral
territory—6. Pretended exception to inviolability of neutral
territory—7. Opinions of publicists—8. Neutral ports and the
Suez Canal—9. Right of asylum—"Io. Presumptive right of
entry—II. Armed cruisers in neutral waters—I2. Belligerent
ships and troops in neutral ports and territory-13. The
‘ Alabama ’ case—14. Arming vessels and enlisting troops——
I 5. Loans of money by neutrals—I6. Pursuit of enemy from
neutral port—I7. Passage over neutral waters—I8. Municipal
laws in favour of neutrality—19. Laws of United States—2o.
Foreign Enlistment Act—21. Protection of neutral inviola-
bility—zz. Claim for restitution—2 3. If captured property
be in possession of a neutral—24. Decisions in the United
States—2 5. Purchasers in foreign ports—26. If condemned
in captor’s country—27. Illegal equipment—28. Case of
Arbuthnot and Ambrister.—29. The North Sea incident.
§ I. NEUTRALS in a war are those who take no part in it,
but remain the common friends of the belligerents, favouring
the arms of neither to the detriment of the others. ‘ The
neutral,’ says Phillimore, ‘is justly and happily designated
by the Latin expression in bello medias. It is of the essence
of his character that he so retain this central position as to
incline to neither belligerent. He has no ius bellicum him-
self, but he is entitled to the continuance of his ordinary
jus macis, with, as will presently be seen, certain curtail-
ments and modifications which flow from the altered state
of the general relations of all. countries in time of war.’
According to Bynkershoek, he has nothing to do with the
justice or injustice of the war, and can show no favours to
one party in preference to another. The error of Grotius,
copied by Vattel, in this respect, has not been followed by
subsequent writers. All independent sovereign States
have-the right to remain neutral in a war, unless otherwise
bound by treaties of alliance 5 previously entered into.
VOL. 11. M
Neutral-
ity in war
162 INTERNATIONAL LAW 011. xxrv
Qualified
neutrality
It is not necessary that they should make any proclamation
or public declaration of neutrality; the legal presumption
is, that their pacific status continues, unless they declare to
the contrary.‘
§ 2. There is, however, a qualified neutrality which
forms an exception to this definition ; it arises out of ante-
cedent engagements, by which the neutral State has bound
itself to one of the parties of the war, to furnish a limited--
succour, or to extend certain privileges. The fulfilment
of such an engagement, entered into prior to the commence-
ment of hostilities, does not necessarily forfeit the neutral
character of a State, nor render it the enemy of the other
belligerent party, because it does not render the neutral
the general associate of the belligerent to whom the succour
or privilege is due. Denmark, in consequence of a previous
treaty, furnished limited succours in ships and troops to
Russia, in 1788, against Sweden, and by the treaty of amity
and commerce between the United States and France, in
1778, the latter secured to herself the special privilege of the
admission for her privateers, with their prizes, into American
ports, to the exclusion of her enemies. To furnish succours
or auxiliaries, or to extend privilegesto one belligerent, to the
detriment of the other, is undoubtedly a violation of strict
neutrality, and, as such, is a just cause of complaint, if not
of war. The peculiarity of the position of Switzerland,
hemmed in on all sides by States having a direct interest in
maintaining her neutrality, has generally prevented com—
plaints against her for her former practice of furnishing a
limited number of troops to one or more of the parties to a
war. If she had been a commercial or maritime State,
says Massé, a different rule would undoubtedly have been
applied to this singular state of things. There can be no
question that her conduct, in this respect, was a violation of
her neutrality. But it would be pedantically rigid to con-
sider, as a violation of neutrality, the allowing prizes captured
by one belligerent to be brought into the neutral port,
especially in compliance with the provisions of a treaty
made antecedently to the war. How far a neutrality thus
qualified and limited may be tolerated by the belligerent
against whom the partiality is shown is a question of
1 See ch. xix. § 15.
on. xxrv RIGHTS AND DUTIES OF NEuTRALs 163
expediency rather than of right, and is generally governed
by political circumstances?
§3. States, not parties to a war, have not only the
right to remain neutral during its continuance, but to do so
conduces greatly to their advantage, as they thereby pre-
serve to their citizens the blessings of peace and commerce.
Moreover, the belligerents are interested in maintaining
the just rights of neutrals, as the trade and intercourse
kept up by them greatly contribute to mitigate the evils
of war. It has therefore become an established principle
of international law that neutrals shall be permitted to
carry on their accustomed trade, with such restrictions
only as are necessary for the security of the established
rights of the belligerents. Although the neutral State
is considered as continuing to occupy toward the belligerents
the same general position as before the war, its relations
with them are very different ; neutrality is not properly a
continuation of the former state of peace (‘la continuation
de l’e’tat ante’rieur de paix ’); for, to neutrals, War brings
certain advantages and disadvantages, and imposes upon
them new and peculiar duties. While, in some respects,
their trade and commerce may be increased in extent and
profit, it is restricted with respect to blockades and sieges,
and the carrying of contraband, and their merchant vessels
are subjected to the inconvenience and annoyance of visit
and search. Not only is a State obliged to maintain strict
impartiality towards the belligerents, but it is bound to
prevent or punish any violation of its rights of neutrality
by either of the parties at war with each other. These
duties of neutrality extend not only to preventing the
1 Phillimore, On Int. Law, vol. iii. §§ 136, 179; Grotius, De
jure Bell. ac Pac. lib. iii. c. xvii. ; Vattel, Droit des Gens, liv. ch. § 113; Massé, Droit Commercial, liv. tit. i. ch. § 2;
Heffter, Droit International, §§ 144-146 ; Waite, State Papers,
vol. i. pp. 140, 169-172 ; Hautefeuille, Des Nations Neutres, tit. iv.
oh. i. ; Eggers, Leben von Bernstorf, 2 ob. pp. 118—195 ; Bynkers-
hock, Queest. jur. Pub. lib. i. c. ix.
On the commencement of the Franco-Prussian War, 1870, the
Emperor Napoleon III. decided not to receive, either at the
Imperial headquarters or at the headquarters of the corps-d’armée,
any volunteer, foreign officer, or person not belonging to the army
(journal Ofiiciel, July 19, 1870) ; and the British Government
refused permission to an officer in her Majesty’s service to join the
Prussian army as correspondent to the Times.
Neutral-
ity must
be ob-
served and
enforced
M2
164 INTERNATIONAL LAW 011. xxiv
arming of cruisers in neutral ports, and the enlistment
of men in neutral territory, but also to the general sanctity
of neutral jurisdiction, by redressing all injuries which one
belligerent may commit upon the other Within its limits.1
1 See post, § 13 ; Hubner, De la Saisie des Bdtiments neutres,
pt. ii. ch. ii. § 2 ; Azuni, Droit Maritime, t. ii. pp. 53, 69; Tetens,
Sur les Droits, p. 34 ; Ortolan, Diplomatie de la Mer, t. ch. viii. ;
Riquelme, Derecho Pub. Int. lib. i. tit. ii. c. xiv. A neutral State
is not bound by the law of nations to impede or diminish its own
trade by municipal restrictions. A neutral merchant may. ship
goods prohibited 7'ure belli, and they may be rightfully seized and
condemned. It is one of the cases where two ‘ conflicting rights ’
exist which either party may exercise without charging the other
with doing wrong. As the transport is not prohibited by the laws
of the neutral sovereign, his subjects may lawfully be concerned
in it, and as the right of war lawfully authorises a belligerent power
to seize and condemn the goods, he may lawfully do it. Whatever
is not prohibited by the positive law of a country is lawful. Although
the law of nations is part of the municipal law of England, and it
may be said that by that law contraband trade is prohibited to
neutrals, and consequently unlawful, yet the law of nations does
not declare the trade to be unlawful. It only authorises the seizure
of the contraband articles by the belligerent powers. (The ‘ Helen,’
35 Law j. N.S. Adm. 2 ; compare with it the ‘ Santissima
Trinidad,’ 17 Wheat. Adm. R. 284; Richardson v. Marine Insu-
rance C0. 6 M assa R. 113 ; Seton and others v. Low, 1 johns. R.
Ex parte Chavasse, 34 Law j. N.S. Chane. 17.) -
With respect to the rights of neutral individuals residing in a
belligerent territory, in 1870, during the Franco-German War, the
British law officers were of opinion that British subjects having
property in France were not entitled to any special protection for
their property, or to exemption from military contributions to which
they might be liable in common with the inhabitants of the place
in which they resided, or in which their property might be situated.
On complaint made to Lord Granville in 1870 by a family of British
subjects, residing in the Commune of La Ferté Imbault, in France,
of having suffered pillage, menaces, and ill-treatment at the hands
of the Prussian troops, although they had hoisted the British flag
over the gate of their chateau, trusting that a neutral flag would
have protected their persons and property, his lordship replied that,
much as her Majesty’s Government regretted the inconvenience
and loss to which they had been subjected, it was out of their
power to obtain for them any redress, for reasons in conformity
with the above opinion. In the case of a complaint to Lord Gran-
ville by Lawrence Smith, of St. Ouen, that, though the English
flag was flying over his house, Prussian soldiers were quartered on
him, that‘he was robbed of all his provisions, that a volley was
wantonly fired into a cellar where his family had taken refuge, his
house set on fire, and his family driven away half dressed into a
wood in the snow, his lordship replied that her Majesty’s Govern-
ment did not consider in strict right they would be entitled to
claim compensation from the Prussian Government, but that it
appeared the destruction of the property was an act of wanton
violence on the part of the Prussian troops, resulting from lax
discipline. In such case he was of opinion that the facts might
on. XXIV RIGHTS AND DUTIES OF NEUTRALS I65
§4. The rights of war can be exercised only within
the territory of the belligerent powers, upon the high seas,
or in territory belonging to no one. Hostilities cannot
be lawfully exercised within the territorial jurisdiction of
the neutral State which is the common friend of both
parties.1 To grant any such right to one would be a detrl-
be brought officially to the notice of the German Government,
expressing the hope that they would think fit to direct an inquiry
to be made by the military authorities, and that they would, as
an act of justice, award com ensation for the injuries wantonly
inflicted. The British law 0 cers were of opinion that British
subjects residing in France had no just cause of complaint against
the French authorities in the event of their property being de-
stroyed by an invading army.
Upon the breaking out of war between the United States and
the Republic of Mexico, in 1845, the province or department of
Yucatan, belonging to Mexico, having assumed a flag of her own,
and having manifested a determination to remain neutral, a special
order was issued by the President of the United States exempting
her citizens from the operation of the laws of war. Under such
circumstances, no citizen or resident of Yucatan could with im-
punity violate her neutrality, by assuming for the purposes of trade .
the flag of the enemy. (United States v. the ‘ Telegrafo,’ I Newb.
383-)
1 The United States complained to the Peruvian Government,
in 1881, that the latter power, during the then war with Chili, had
made use of boats containing explosive materials, which had in
some instances been sent adrift on the chance of their being fallen
in with by some of the Chilian blockading squadrons, and con-
sidered that ‘ this practice must be fraught with danger to neutral
vessels entitled to protection under the law of nations, and that,
in case American vessels are injured thereby, this Government
can do no less than hold the Government of Peru responsible for
any damage which may be thus occasioned.’
In the Spanish—American War, 1897, Spain notified that the
entrance into certain of her naval ports at night by neutral vessels
was not permitted owing to the laying down therein of submarine
defences. See the sinking of the es. ‘ Hipsang,’ July 16, 1904
(Int. Law, Smith and Sibley, p. 94).
The following declaration was issued by the Commander-in-
Chief of the Military District of Odessa (published in the London
Gazette by order of the British Foreign Office, May 17, 1877):
(Translation) ‘The Commander of the troops of the Military Dis-
trict of Odessa, Chief of the Coast Defences of the District, General
Aide-de-Camp Séméka, has the honour of notifying that, in con-
sequence of the laying of torpedoes, ships of neutral States, re-
quested to withdraw in view of a bombardment, cannot do so
except on condition of being piloted by Russian officers through
the passages left between the torpedoes; but as this operation,
carried out in the face of the enemy, might point out to them the
position of these passages and enable them to make use of them,
thereby depriving the town of its most important line of defence,
General Aide-de-Camp Séméka, in view of a state of affairs new in
maritime warfare, and consequently not foreseen by international
law, has the honour to request the enemy’s ships of war to withdraw
No hos-
tilities to
be per-
mitted
within
neutral
jurisdic-
tion
166 ' INTERNATIONAL LAW 011. xxrv
ment to the other, and to extend the privilege to both would
necessarily make the neutral territory the theatre of hostile
operations, and involve the State in the consequences
of the war. Hence, every voluntary entrance into neutral
territory, with hostile purposes, is absolutely unlawful,
and the party so trespassing is liable to be treated as an
enemy, unless full satisfaction is made for such violation of
neutral rights.‘
out of sight for the time necessary for the removal of neutral ships
(namely, for - hours), warning them that, if they do not agree to
this demand, neutral ships will not be allowed out, and the Imperial
Russian Government declines all responsibility for the consequences.’
Notice sent to her Britannic Majesty’s Consul at T aganrog by
the Governor of that place, with the assurance that every assis-
tance would be afforded to foreign vessels of friendly neutral powers
on their passage at the respective ports, in order that trade might
not be impeded (published in the London Gazette by order of the
British Foreign Office, May 17, 18 77) : (Translation) ‘ Approved by
the Commander of the Odessa Military Department, April 12, 1877.
From the time of the declaration of war, 12-24 April, 1877, the
entrance of and departure of vessels from the port of Odessa, from
Liman of the Dnieper, and from the Boug, the Straits of Kertch,
and the Bay of Sebastopol, are only permitted subject to the
following conditions, which are not provided for by maritime
international law, but which must necessarily arise, now that
harbours are protected by barring them with mines, the passage
through which is kept absolutely secret :
‘ 1. Every vessel, on arriving, must stop outside the line of
mines. Russian officers with a crew will go and meet her; they
will assume command of the said vessel, and navigate her in the
harbour, after having satisfied themselves that the ship’s papers
are in regular order.
‘ 2. The captain of the said vessel shall engage, in writing, on
behalf of himself and his crew and passengers, that, while passing
through the line of torpedoes, no person shall remain on the bridge,
or watch through port~holes or other openings the course followed
by the ship.
‘ 3. The same rule shall be enforced when merchantmen quit
the harbour; that is to say, a Russian officer and crew shall, in
conformity with Articles I and 2, take command of the said vessels.
‘4. If a man-of-war should make its appearance at a spot
whence it would be possible to watch the entry and departure of
vessels, the Russian authorities will insist upon its retiring to a
certain distance during a period of time sufficient to navigate a
vessel in or out. Until this formality is complied with no vessel
will be allowed to enter or leave.’
1 The ‘Twee Gebroeders’ (3 Rob. 162); Wheaton, Elem. Int.
Law, pt. iv. ch. iii. § 7; Wolfius, jus Gentium, § 687; Martens,
Pre’cis du Droit des Gens, §§ 310, 311 ; Hautefeuille, Des Nations
N eutres, tit. vi. oh. i. Treaties were entered into, during the Franco-
German War, 1870, by and between England, France, and Prussia
for the purpose of preserving the neutrality of Belgium during
that war. These treaties were to last for twelve months after the
ratification of any treaty of peace.
cu. xxiv RIGHTs AND DUTIES OF NEUTRALS 167
§ 5. It was contended by some of the ancient publicists
that a belligerent had an absolute right of passage for his
troops through neutral territory, and that the neutral
could not refuse it without injustice. Vattel contends
that such innocent passage through neutral territory may be
granted or refused by a neutral power, at its discretion;
that, if refused, the applicant has no cause of complaint,
and if granted, the opposite party can only claim the same
privilege for his own troops. Many modern writers, and
the German publicists generally, have pronounced in
favour of the views of Vattel. But Heffter, Hautefeuille,
Manning, and others, express the opinion that to grant such
passage is a violation of neutral duty, and affords just cause
of complaint, if not of war, to the other belligerent. This
opinion seems most consonant with the general principles
of neutrality. But admitting the right of the neutral
State to make such agreement, it follows that if it grant or
refuse passage to one of the parties to the war, it is bound,
in like manner, to grant or refuse it to all the other parties,
unless the alteration of circumstances, or some special
reason, should of itself form a justification for acting other-
wise. Without solid and satisfactory reasons, to grant
passage to one belligerent and refuse it to another, would
be showing partiality, and receding from a position of
strict neutrality. The grant of passage includes all those
things without which the passage would not be practicable,
such as the liberty of carrying whatever may be necessary
for the passing army, and that of maintaining discipline
among the troops. Moreover, he who grants a passage is
bound, so far as lies in his power, to make it safe from
attack ; for, otherwise, it would be drawing those who pass
into a snare, which would be a breach of good faith. Whether
the troops are to pass with or without arms, and whether
they are to be permitted to purchase supplies in the country
passed over, or to carry their provisions with them, will,
in general, be specified in the grant of passage, and if not
If the position of China as a neutral State can be regarded as
normal, the Russo-Japanese War certainly witnessed many in-
fringements of the rule that neutral territory must not be the plain
of hostilities; exempli gratia, the battle of Chemulpo, February
1904, and the incident of the ‘ Reshitelni,’ August 1904 (Int. Law,
Smith and Sibley, pp. 113, 116).
Passage of
troops
through
neutral
territory
168 INTERNATIONAL LAW 011. xxlv
Pretended
exception
of Byn-
kershoek
specified such permission will be presumed. Troops, to
whom a passage is granted through a neutral territory,
are bound to observe the most exact discipline, to occasion
no damage to the country passed over, to keep the public
roads, and not to enter the houses or lands of private
persons, and to punctually pay for Whatever is purchased
of the inhabitants. The State to which the troops belong
is held strictly accountable for any damage to public or
private property. Moreover, they cannot make the neutral
border a shelter for making preparations to attack the
enemy, nor, when‘defeated, an asylum in which to lie by
and watch their opportunity for further contest. This
would be making the neutral country directly auxiliary to
the war, and to the comfort and support of one of the
belligerents. Such conduct would be good cause for the
neutral State to revoke the grant, and compel the offender
to immediately leave its territory.1
§6. Bynkershoek makes one exception to the general
inviolability of neutral territory, and contends that if a
belligerent should be attacked on hostile ground, or in the
open sea, and should flee within the jurisdiction of a neutral
State, the victor may pursue him dum fervet opus, and
seize his prize within the neutral State. He rests his opinion
entirely on the authority and practice of the Dutch, and
not on the usage of any other nation. Casaregis expresses
the same opinion, and, relying on the practice or law
1 Vattel, Droit des Gens, liv. iii. ch. vii. §§ 133, 134; Bello,
Derecho Internacional, pt. ii. 0. vii. §§ 5, 6; Moser, Versuch, &c.,
b. x. c. i. pp. 238 et seq. ; Manning, Law of Nations, pp. 182-186 ;
Heffter, Droit International, § 147 ; Hautefeuille, Des Nations
Neutres, tit. v. oh. i. During the struggle between France and
China in 188 5 the Chinese complained to England that Hong Kong
was used by the French as a base of operations. This caused
England to enforce the provisions of the Foreign Enlistment Act
against France. There had never been a declaration of war between
France and China ; the two nations had been belligerents in every-
thing but name ; but England considered the blockade of Formosa
tantamount to such a declaration.
It is said that during the ‘Russo-Japanese War, 1904, France
allowed the Russian Baltic Fleet to remain in French waters in the
neighbourhood of Madagascar from December 1904 till March
190 5. If this be so, it involved a breach of neutrality.
During the Franco-German War, in 1870, between 60,000 and
70,000 French troops crossed into Switzerland. They were dis-
armed and interned by order of the Swiss Government. The sick
and wounded among them were not sent back to the French army.
on. XXIV RIGHTS AND DUTIES or NEUTRALS 169
observed in the chase of animals, maintains that if a naval
fight has commenced on the high seas, a belligerent may
pursue and capture the ship of his enemy, even under the
cannon, and within the jurisdiction of a neutral power.
But, in a subsequent discourse, he adopts a contrary
opinion with respect to the protection afforded to belligerent
vessels in neutral ports.1
§ 7. But Bynkershoek is not supported by the practice
of nations. Some writers, on public law maintain the
sounder doctrine, that when the flying enemy has entered
neutral territory, he is placed immediately under the
protection of the neutral power, and that there is no excepe
tion to the rule that every voluntary entrance into neutral
territory, with hostile purposes, is absolutely unlawful.
The government of the United States has invariably claimed
the absolute inviolation of neutral territory. This question
was elaborately discussed in the case of the ‘ Caroline.’ 2
§8. A neutral State, by virtue of its general right of
police over its ports, harbours, and coasts, may impose
such restrictions upon belligerent vessels, which come
within its jurisdiction, as may be deemed necessary for its
own neutrality and peace, and so long as such restrictions are
impartially imposed upon all the belligerent powers, neither
can have any right to complain. This right is frequently
exercised in prohibiting all armed cruisers with prizes to
enter such neutral ports and waters, and, even without
prizes, to obtain provisions and supplies. This usage is
shown by marine ordinances and text-writers of different
nations.3 In 1877 M. de Lesseps, the engineer of the
Suez Canal, proposed to the British Government that this
1 Bynkershoek, Q. ]. Pub. lib. i. c. viii. ; Casaregis, De Com-
mercio, disc. xxiv. 11. ii. and disc. clxxiv. 11. xi. ;the ‘ Anna,’ 5 Rob. R.
. 48. 5 .
p 3'1 The case of the ‘Caroline,’ ch. xiv. § 20; Abreu, Sabre las
Presas, pt. 1. 0. iv. § 15 ; Valin, Traite’ des Prises, ch. iv. § 3 ; Azuni,
Droit M arilime, pt. i. 0. iv. § 1 ; Vattel, Droil des Gens, liv. iii. ch. vii.
§§ 132, 133 ; the ‘ Anna Catharina,’ 5 Rob. R. p. 15 ; Martens,
Pre’cis du Droit des Gens, §§ 310 et seq. ; Phillimore, On Int. Law,
vol. iii. § 154 ; Manning, Law 0]‘ Nations, pp. 186, 386.
3 Heffter, Droit International, §§ 146—150; Ortolan, Diplomatic
de la Mer, t. ii. ch. viii. ; Bello, Derecho Inlernacional, pt. c. vii.
§ 6 ; Hautefeuille, Des N alions Neuzfres, tit. vi. ch. ii.
As was the case in 1870, armed ships of either belligerent during
the Russo—Japanese War of 1904 and Spanish-American War of
1898 were not permitted to bring their prizes into any British
Opinions
of writers
on public
law
Neutral
ports and
the Suez
Canal
I70 INTERNATIONAL LAW 011. xxrv
canal should be neutralised ; but the project was not then
adopted. The matter was again considered in 11883,
and after considerable negotiations between Great Britain
and the various Powers a convention was approved on
behalf of Great Britain and France in 1887, and was sub-
sequently accepted by Austria, Germany, Italy, Russia,
Spain, the Netherlands, and Turkey in 1888.‘
port. See London Gazette, October 10, 1904, and the Revue de
Droit International (1903), p. 488.
1 This Convention (inter alia) declares: (Art. I) ‘The Suez
Maritime Canal shall always be free and open, in time of war as in
time of peace, to every vessel of commerce or of war, without dis-
tinction of flag. Consequently, the High Contracting Parties agree
not in any way to interfere with the free use of the Canal, in time
of war or in time of peace. The Canal shall never be subjected to
the exercise of the right of blockade. (Art. 2) The High Con-
tracting Parties, recognising that the F resh-Water Canal is indis-
pensable to the Maritime Canal, take note of the engagements of
his Highness the Khedive towards the Universal Suez Canal Com-
pany as regards the Fresh—Water Canal, which engagements are
stipulated in a Convention bearing the date March 18, 1863, con-
taining an expose’ and four articles. They undertake not to inter-
fere in any way with the security of that Canal and its. branches,
the working of which shall not be exposed to any attempt at obstruc-
tion. (Art. 3) The High Contracting Parties likewise undertake to
respect the plant, establishments, buildings, and works of the
Maritime Canal and of the Fresh-Water Canal. (Art. 4) The Mari—
time Canal remaining open in time of war as a free passage, even
to the ships of war of belligerents, according to the terms of
Article I of the present Treaty, the High Contracting Parties agree
that no right of war, no act of hostility, nor any act having for its
object to obstruct the free navigation of the Canal, shall be com-
mitted in the Canal and its ports of access, as well as within a
radius of three marine miles from those ports, even though the
Ottoman Empire should be one of the belligerent Powers. Vessels
of war of belligerents shall not revictual or take in stores in the
Canal and its ports of access, except in so far as may be strictly
necessary. The transit of the aforesaid vessels through the Canal
shall be effected with the least possible delay, in accordance with
the regulations in force, and without any other intermission than
that resulting from the necessities of the service. Their stay at
Port Said and in the roadstead of Suez shall not exceed twenty-
four hours, except in case of distress. In such case they shall be
bound to leave as soon as possible. An interval of twenty-four
hours shall always elapse between the sailing of a belligerent ship
from one of the ports of access and the departure of a ship belonging
to the hostile Power. (Art. 5) In time of war belligerent Powers
shall not disembark nor embark within the Canal and its ports of
access either troops, munitions, or materials of war; but, in case
of an accidental hindrance in the Canal, may be embarked or dis-
embarked at the ports of access by detachments not exceeding
1,000 men, with a corresponding amount of war material. (Art. 6)
Prizes shall be subjected, in all respects, to the same rules as the
vessels of war of belligerents.’
011. xxlv RIGHTS AND DUTIES OF NEUTRALS I71
§9. This restriction, imposed by neutrals upon the
vessels of belligerents which come into their ports, is never
extended to deny the rights of hospitality in case of
immediate danger and want. Armed cruisers, privateers,
and the prizes of either may anchor within a neutral port
as a shelter from the attacks of an enemy, to avoid the
dangers of a storm, or to supply themselves with water,
provisions, and other articles of pressing necessity. Asylum,
to this extent, is required by the common laws of humanity,
to be afforded in neutral ports. But beyond this, there is
no ‘right of asylum which the neutral may not withhold
equally from all belligerents. It may prevent any free
communication with the land,1 and, so soon as such vessels
have supplied their immediate wants, the neutral may
compel them to depart from its jurisdiction. Such restric-
tions were imposed by the Two Sicilies in 1740 and 1756,
and by Sardinia in 1778, and they are supported by
authority.2
§10. But while the neutral State may, by proclamation
or otherwise, prohibit belligerent vessels with prizes or
prisoners of war from entering its ports, the absence of
any such prohibition implies the right to enter for the
purposes indicated, and any vessel so entering neutral
waters, retains her right of extra-territoriality, both with
respect to her prisoners of war and her prizes. This question
was raised in the port of San Francisco, California, in the
case of the Russian vessel the ‘ Sitka,’ a prize of the British
navy, during the Crimean war.3
1 Great Britain refused to allow the United States to land a
cable at I-Iong Kong intended to be laid from Manila during the
course of the Spanish—American War, 1898.
2 Kent, Com. on Am. Law, vol. i. pp. 120, 121. Therefore,
although the United States may not have entered into any treaty
with either of two belligerents, to accord asylum to its vessels,
yet if they have not given any notice that they will not do so, the
ports of the United States are to be deemed open to such ships.
(7 0p. Att.-Gen. 122.)
In May 186 5 the United States declared that if, after a reason-
able time should have elapsed for the proclamation to become
known in the ports of nations claiming to be neutral, the insurgent
cruisers should continue to receive hospitality in such ports, the
Government would deem itself justified in refusing hospitality to
the public vessels of such nations in ports of the United States,
and in adopting such other measures as might be deemed advisable
for vindicating the national sovereignty.
a Cushing, Opinions of U..S‘. Attys.-Genl. vol. vii. p. 123 ;
Right of
asylum
When this
right is
presumed
172 INTERNATIONAL LAW 011. xxiv
Duties of
belli-
gerents
while in
neutral
waters
§ 11. The armed cruisers of belligerents, while within
the jurisdiction of a neutral State, are bound to abstain from
any acts of hostility towards the subjects, vessels, or other -
property of their enemies; they cannot increase their
guns or military stores, or augment their crews, not even
by the enrolment of their own countrymen; they can
employ neither force nor stratagem to recover prizes, or to
rescue prisoners in the possession of the enemy ; nor ‘can they
use a neutral port, or waters Within neutral jurisdiction,
either for the purpose of hindering the approach of vessels
of any nation whatever, or for the purpose of attacking
those which depart from the ports or shores of neutral
powers. No proximate acts of war, such as a ship station-
ing herself within the neutral line, and sending out her
boats on hostile enterprises, can, in any manner, be allowed
to originate in neutral territory; nor can any measure be
taken that will lead to immediate violence.1
Loccenius, De jure Maritimo, lib. ii. ch. iv. § 7; also see vol. 1.
ch. vii. § 24.
1 Chitty’s Com. Law, vol. i. pp. 441-444; ‘ Twee Gebroeders,’v
3 Rob. R. pp. 163-326; Vattel, Law of Nations (Chitty, 1834),
p. 344; Martens, Law of Nations, b. viii. c. 6, § 6; the ‘ Anna,’
5 Rob-373; the ‘Flad Oyen,’ 1 Rob. 115; Atcheson’s Rep. 8,
note 9; Havelock v. Rockwood, ibid. 33, 43 ; Martens, Pre’cis du
Droit des Gens (1831), 251 ; Azuni, Du Droit Maritime, an. vi. 323 ;
Ortolan, Regles Inter. et Diplo. (1845), 248 ;Manning, Law of Nations,
386 ; Cussy, Causes Celebres ; Abreu, Prises M aritimes (17 58), 64;
Hautefeuille, 474; Kent, Com. on Am. Law (1848), 123; ‘Regle~
ment par le Grand-Duo de Toscane,’ 1778, in Martens, t. iv. 205 ;
‘ Edit de la République de Genes,’ 1779, in ibid. t. iv. 245 ; ‘ Edit
de la République de Venise,’ 1779, in ibid. t. iv. 255 ; Treaty of
US. with Tripoli, 1796, Art. 8 ; ditto with Tunis, 1797 ; ditto with
Tripoli, 1805. —
n the Russo-Japanese War (1905), after a naval engagement
between the belligerents outside the harbour of Chemulpo, the
'neutral fleets received numbers of Russian sailors who had left
their dismantled ships. Japan demanded the delivery of these
men as prisoners of war, a demand which was resisted. In the
end the men were handed over to the Russian authorities on the
understanding that they should take no further part in the war.
A somewhat similar incident occurred after the sinking of the
British ss. ‘ Kowchung ’ in the Chino-Japanese War of 1894. ' -
In 1826 all belligerents were prohibited from bringing (except
in cases of distress) any prize, or any part of the cargo of prizes-
into Gibraltar, or from making that port a rendezvous for any
warlike purposes.
A belligerent within a neutral port may not give notice by
signals or guns to her consorts outside of the movements of an
enemy.
on. XXIV RIGHTS AND DUTIES OF NEUTRALS I73
\ vitch,’ ‘ Novik,’ at Kiao-Chau.
§ 12. Publicists make a marked distinction between the
duties of neutrals, with respect to the asylum which may be
afforded to belligerent ships, and that which may be afforded
to belligerent forces on land. This difference, says Heffter,
results from the immunity of the flag, and the principle that
ships are considered as a portion of the territory of the
nation to which they belong. Hence the allowable custom
of asylum in neutral waters, and the want of power in the
neutral to interfere with internal organisation of such vessels,
when not armed or equipped within its jurisdiction. On
the other hand, troops are not a part of the territory of the
nation to which they belong, nor has their flag any immunity
on neutral soil. While, therefore, individuals, as such,
are entitled, by the laws of humanity, to the right of asylum
in neutral territory, such asylum cannot be demanded by,
' nor can it be granted, without a violation of neutral duty,
to an army as a body. It is consequently the duty of the
neutral to order the immediate disarming of all belligerent
troops which enter neutral territory as an asylum, to cause
them to release all their prisoners, and to restore all booty
which they may bring with them. If he neglect to do this,
he makes his own territory the theatre of war, and justifies
the other belligerent in attacking such refugees within
such territory, which is no longer to be regarded as ‘neutral.’
In 1854 Spain prohibited the fitting out or admission into
Spanish ports of privateers under the Russian flag.
In the same year Portugal prohibited the entrance of privateers
and of prizes made by them or by a belligerent vessel into Portu-
guese ports, except in cases of distress. ‘
In 1861 both France and Spain in their respective Declarations
of Neutrality prohibited a belligerent vessel of war or privateer
to enter or stay with prizes in the ports or roadsteads for more
than twenty-four hours, except in cases of compulsory delay.
1 Heffter, Droit International, § 149; Kluber, Droit des Gens,
§ 208, note b; Ortolan, Diplomatic de la Mer, liv. iii. ch. viii.
Pistoye et Duverdy, Des Prises Maritimes, tit. i. oh. i. sec. 3;
Hautefeuille, Des Nations Neutres, tit. vi. ch. ; Wheaton, Elem.
Int. Law, pt. iv. ch. iii. §§ 6, 7; Pando, Derecho Internacional,
p. 465 ; Bello, Derecho Internacional, pt. ii. ch. vii. § 5 ; Riquelme,
Derecho Pub. Int. lib. i. tit. ii. c. _xvii.; De Steck, Versuch u'ber
Handel, p. 173 ; Putman, De jure recip. Hostes.
The following cases of internment of Russian vessels occurred
in the course of the Russo-Japanese War, 1904: ‘ Mandjur,’
‘ Grosroi,’ ‘Askold,’ at Shanghai; ‘ Diana,’ at Saigon; ‘ Tsare—
The crews left the vessels and
were interned till the end of the war.
Distinc-
tion in
regard to
asylum to
troops
174
INTERNATIONAL LAW 011. xxIv
The 1 Ala-
bama ’
case
§ 13. The well-known case of the ‘ Alabama,’ and of other
vessels ‘ of the Confederate Government, which preyed on
the commerce of the Federal States during the Civil War
in the United States, in 18,62, occasioned the latter Govern
ment to claim satisfaction from Great Britain on the ground
of variousbreaches of neutrality of that country in building,
equipping, and otherwise assisting the progress of those
vessels. To meet these claims, after various negotiations,
on the conclusion of the Civil War, the treaty of Washington
was signed at Washington, on May 8, 1871, between Great
Britain and the United States, referring the various questions
to five arbitrators, one being chosen by each of the following
Governments, viz. Great Britain, the United States, Italy,
Switzerland, and Brazil. These arbitrators met at Geneva
in Switzerland on December 15, 1871. It would far exceed
1 In 1862, during the early part of the American Civil War, a
vessel was being built in England, evidently for warlike purposes,
and the Federal Government of the United States drew the atten-
tion of the British Government to the fact, pointing out that it
was intended for the use of the insurgent or Confederate States.
The British Law Officers doubted whether the then Foreign Enlist-
ment Act (59 Geo. III. c. 69) met the case so far as regarded the
evidence adduced. Meanwhile the vessel (afterwards known as the
‘ Alabama ’) left for the Azores, then being unarmed, but she was
met there by other vessels, who supplied her with men, cannon,
and arms. The armament came from England, but the British
authorities did not know, when it left their shores, that it was
intended for the ‘ Alabama.’ The vessel in question was then
commissioned as a Confederate cruiser, and did much damage to
the commerce of the United States. She put into British Colonies,
on several occasions, for repairs and coal, and was treated as a ship
of war belonging to a belligerent power. She was eventually
destroyed by the United States steamer ‘ Kearsage,’ off Cherbourg,
in 1864. The ‘ Tuscaloosa ’ was her tender; this ship was seized
by the British authorities at the Cape of Good Hope, and remained
in their custody until the end of the Civil War.
Other ships were built in England and sold to the Confederate
Government, i.e. the ‘ Florida,’ known by the name of the ‘ Oreto,’
and the ‘ Shenandoah,’ originally a British merchant vessel known
as the ‘ Sea King.’ It was in respect of the ‘ Alabama,’ the
‘ Florida,’ and partially in respect of the ‘ Shenandoah ’ that the
indemnity was paid by Great Britain. Claims were made, but
ineffectually, by the United States in respect of the ‘ Nashville,’
the ‘ Georgia,’ and others.
' The North German Lloyd Steamship Co. and the Hamburg-
American Steamship Co. sold certain vessels to Russia during the
Russo-Japanese War, 1904, which were immediately converted into
second-class cruisers. It being asserted that these vessels did not
constitute part of the German auxiliary fleet, Germany alleges that
she did not commit any breach of neutrality. As ‘a matter of fact,
Japan did not raise any protest.
on. xxlv RIGHTS AND DUTIES OF NEUTRALS I75
the limits of this work to enlarge on the many important
questions discussed at the Tribunal of Arbitration, or, as
it is commonly called, the Conference of Geneva; but the
reader may gather a short history of the whole matter,
and some of the more important subjects discussed, by a
perusal of the extracts in the note below. Considerable
difference of opinion prevails among jurists as to the effect
which the decision of the Arbitrators has made on the
general principles of International Law. It should be
remembered that Austria, Holland, Germany, Russia,
Spain, and other States were not represented at the Con-
ference ; and both in Great Britain and on the Continent the
better opinion seems to be that oppressive and impracticable
obligations, hitherto unknown to International Law, would
‘ be imposed on neutral nations if the principles set forth as
the basis of the award, and the interpretation placed on the
three rules of the 6th Art. of the above treaty by the majority
of the arbitrators, were acceded to in future cases. On
March 21, 1873, Mr. Gladstone, as Prime Minister, stated
in the House of Commons, that in bringing these rules to
the knowledge of other Maritime Powers, and inviting them
to accede to the same, ‘ you have a right to expect that
we should take care that our recommendation of the three
rules does not carry with it, in whole or in part, in substance
or even in shadow, so far as we (the British Government)
are concerned, the recitals of the Arbitrators as being of
any authority in this matter.’ Considerable correspondence
passed between the British Government and the Govern—
ment of the United States during the years 1871-74, with
respect to communicating to other maritime Governments
the above rules, but it was not found possible to draft a
note which could meet the respective views of the two
Governments?
1 It was stipulated by Art. 6 of the above Treaty as follows:
‘ In deciding ‘the matters submitted to the arbitrators they shall
be governed by the following three rules, which are 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 incon-
sistent therewith as the arbitrators shall determine to have been
applicable to the case : 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
reasonable ground to believe is intended to cruise or carry on war
I 76 INTERNATIONAL LAW 0H- x'xiv
Arming
vessels
and en-
listing
troops
§14. At the commencement of the European war, in
against a Power with which it is at peace, and also to use like
diligence to prevent the departure from its jurisdiction of any
vessel intended 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.
‘ Thirdly. To exercise due diligence in its waters, and as to all
persons within its jurisdiction, to prevent any violation of the
foregoing obligations and duties.’
" ‘ Her Britannic Majesty has commanded her High Commis-
sioners and Plenipotentiaries to declare that her Majesty’s Govern-
ment cannot assent to the foregoing rules as a statement of prin-
ciples of international law, which were in force at the time when
the claims mentioned in Art. 1 arose ; but that her Maj esty’s Govern-
ment, in order to evince its desire of strengthening the friendly
relations between the two countries, and of making satisfactory
provision for the future, agrees that in deciding the questions
between the two countries arising out of those claims, the arbitrators
should assume that her Majesty’s Government had undertaken to
act upon the principles set forth in these rules.’ ‘ And the high
contracting parties agree to observe these rules as between them-
selves in future, and to bring them to the knowledge of other mari-
time Powers, and to invite them to accede to them.’
The following award was made on September 14, 1872, by the
Tribunal of Arbitration held at Geneva, viz. : -
‘ The Tribunal having since fully taken into their consideration
the Treaty, and also the cases, counter-cases, documents, evidence,
and arguments, and likewise all other communications made to
them by the two parties during the progress of their sittings, and
having impartially and carefully examined the same, has arrived
at the decision embodied in the present award. Whereas, having
regard to the 6th and 7th Articles of the said Treaty, the arbitrators
are bound under the terms of the said 6th Article, “ in deciding
the matters submitted to them, to be governed by the three rules
therein specified, and by such principles of International Law, not
inconsistent therewith, as the arbitrators shall determine to have
been applicable to the case ” ; and whereas the “due diligence ”
' referred to in the first and third of the said rules ought to be exer-
cised by neutral Governments in exact proportion to the risks to
which either of the belligerents may-be exposed, from a failure to
fulfil the obligations of neutrality on their part ; and whereas the
circumstances out of which the facts constituting the subject-
matter of the present controversy arose were of a nature to call
for exercise on the part of her Britannic Majesty’s Government of
all possible solicitude for the observance of the rights and duties
involved in the Proclamation of Neutrality issued by her Majesty
on the I 3th day of May, 1861 ; and whereas 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 com-
mission which the Government of the belligerent Power, benefited
by the violation of Neutrality, may afterwards have granted to
that vessel ; and the ultimate step, by which the offence is completed,
cannot be admissible as a ground for the absolution of the offender,
on. xxlv RIGHTS AND DUTIES OF NEUTRALS T77
1793, the Government of the United States took strong
nor can the consummation of his fraud become the means of esta—
blishing his innocence ; and whereas the privilege of exterritoriality
accorded to vessels of war has been admitted into the laws 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 protec-
tion of acts done in violation of neutrality ; and whereas the absence
of a previous notice cannot be regarded as a failure in any con-
sideration required by the law of nations, in those cases in which
a vessel carries with it its own condemnation; and whereas, in
order to impart to any supplies of coal a character inconsistent
with the second rule, prohibiting the use of neutral ports or waters
as a base of naval operations for a belligerent, it is necessary that
the said supplies should be connected with special circumstances of
time, of persons, or of place, which may combine to give them
such character ; and whereas, with respect to the vessel called the
“ Alabama,” it clearly results from all the facts relative to the
construction of the ship at first designated by the Number 290
in the port of Liverpool, and its equipment and armament in the
vicinity of Terceira through the agency of the vessels called the
“ Agrippina ” and the “ Bahama,” despatched from Great Britain
to that end, that the British Government failed to use due diligence
in the performance of its neutral obligations ; and especially that it
omitted, notwithstanding the warnings and official representations
made by the diplomatic agents of the United States during the con-
struction of the said Number 290, to take in due time any effective
measures of prevention, and that those orders which it did give at
last, for the detention of the vessel, were issued so late that their
execution was not practicable ; and whereas, after the escape of
that vessel, the measures taken for its pursuit and arrest were so
imperfect as to lead to no result, and therefore cannot be considered
sufficient to release Great Britain from the responsibility already
incurred ; and whereas, in despite of the violations of the neutrality
of Great Britain committed by the “290,” this same vessel, later
known as the Confederate cruiser “ Alabama,” was on several
occasions freely admitted into the ports of Colonies of Great Britain,
instead of being proceeded against, as it ought to have been, in any
and every port within British jurisdiction in which it might have
been found ; and whereas the Government of her Britannic Majesty
cannot justify itself for a failure in due diligence on the plea of the
insufficiency of the legal means of action which it possessed : Four
of the arbitrators for the reasons above assigned, and the fifth for
reasons separately assigned by him, are of opinion—That Great
Britain has in this case failed, by omission, to fulfil the duties pre-
scribed in the first and third of the rules established by the 6th
Article of the Treaty of Washington. And whereas, with respect
to the vessel called the “ Florida,” it results from all the facts rela-
tive to the construction of the “ Oreto ” in the port of Liverpool,
and to its issue therefrom, which facts failed to induce the authori-
ties in Great Britain to resort to measures adequate to prevent
the violation of the neutrality of that nation, notwithstanding the
warnings and repeated representations of the agents of the United
States, that her Maj esty’s Government has failed to use due diligence
to fulfil the duties of neutrality ; and whereas it likewise results
from all the facts relative to the stay of the “ Oreto ” at Nassau,
to her issue from that port, to her enlistment of men, to her supplies,
VOL. II. , N
178 INTERNATIONAL LAW cu. xx'rv
grounds against the arming and equipping of vessels within
and to her armament, with the co—operation of the British vessel
“Prince Alfred,” at Greeneay, that there was negligence on the
part of the British Colonial authorities; and whereas, notwith-
standing the violation of the neutrality of Great Britain committed
by the “ Oreto,” this same vessel, later known as the Confederate
cruiser “Florida,” was, nevertheless, on several occasions, freely
admitted into the ports of British Colonies ; and whereas the judicial
acquittal of the “Oreto” at Nassau cannot relieve Great Britain
from the responsibility incurred by her under the principles of
International Law ; nor can the fact of the entry of the“ Florida ”
into the Confederate port of Mobile, and of its stay there during
four months, extinguish the responsibility previously to that time
incurred by Great Britain: For these reasons: The Tribunal, by a
majority of four voices to one, is of opinion—That Great Britain
has in this case failed, by omission, to fulfil the duties prescribed
in the first, in the second, and in the third of the rules established
by Article 6 of the Treaty of Washington.
‘And whereas, with respect to the vessel called the “ Shenan-
doah,” it results from all the ‘facts relative to the departure from
London of the merchant vessel the “ Sea King,” and to the trans
formation of that ship into a Confederate cruiser, under the name
of the “ Shenandoah,” near the Island of Madeira, that the Govern-
ment of her Britannic Majesty is not chargeable with any failure,
down to that date, in the use of due diligence to fulfil the duties of
neutrality ; .
‘ But whereas it results from all the facts connected with the
stay of the “ Shenandoah” at Melbourne, and especially with the
augmentation which the British Government itself admits to have
been clandestinely effected of her force, by the enlistment of men
within that port, that there was negligence on the part of the
authorities at that place : For these reasons, the Tribunal is unani~
mously of opinion—That Great Britain has not failed, by any act
or omission, to fulfil any of the duties prescribed by the three rules
of Article 6 in the Treaty of Washington, or by the principles of
International Law not inconsistent therewith, in respect to the
vessel called the “ Shenandoah,” during the period of time anterior
to her entry into the port of Melbourne ;
‘ And, by- a majority of three to two voices, the Tribunal decides
that Great Britain has failed, by omission, to fulfil the duties pre-
scribed by the second and third of the rules aforesaid, in the case
of this same vessel, from and after her entry into Hobson’s Bay,
and is, therefore, responsible for all acts committed by that vessel
after her departure from Melbourne, on the 18th day of February,
186 ; '
‘SAnd so far as relates to the vessel called the “Tuscaloosa”
(tender to the “ Alabama”), the “ Clarence,” the “ Tacony,” and
the “ Archer ” (tenders to the “ Florida ”), the Tribunal is unani-
mously of opinion that such tenders or auxiliary vessels, being
properly regarded as accessories, must necessarily follow the lot
of their principals, and be submitted to the same decision which
applies to them respectively. And so far as relates to the vessel
called the “ Retribution,” the Tribunal, by a majority of three to
two voices, is of opinion—That Great Britain has not failed by
any act or omission to fulfil any of the duties prescribed by the
three rules of Article 6 in the Treaty of Washington, or by the
principles of International Law, not inconsistent therewith.
on. XXIV RIGHTS AND DUTIES OF NEUTRALS
their ports by the respective belligerent powers, to cruise
‘ And so far as relates to the vessels called the “ Georgia,” the
“Sumter,” the “Nashville,” the “ Tallahassee,” and the “ Chicka-
mauga ” respectively, the Tribunal is unanimously of opinion-
That Great Britain has not failed, by any act or omission, to fulfil
any of the duties prescribed by the three rules of Article 6 in the
Treaty of Washington, or by the principles of International Law,
not inconsistent therewith; and so far as relates to the vessels
called the “ Sallie,” the “ Jefferson Davis,” the “ Music,” the
“ Boston,” and the “ V. H. Joy ” respectively, the Tribunal is
unanimously of opinion—That they ought to be excluded from
consideration for want of evidence.
‘ And whereas, so far as relates to the particulars of the in—
demnity claimed by the United States, the costs of pursuit of the
Confederate cruisers are not, in the judgment of the Tribunal,
properly distinguishable from the general expenses of the war
carried on by the United States: The Tribunal is, therefore, of
opinion, by a majority of three to two voices—T hat there is no
ground for awarding to the United States any sum by way of in-
demnity under this head.
‘ And whereas prospective earnings cannot properly be made
the subject of compensation, inasmuch as they depend in their
nature upon future and uncertain contingencies, the Tribunal is
unanimously of opinion—That there is no ground for awarding
to the United States any sum by way of indemnity under this
head.
‘ And whereas, in order to arrive at an equitable compensation
for the damages which have been sustained, it is necessary to set
aside all double claims for the same losses, and all claims for “ gross
freights,” so far as they exceed “ net freights ” ; and whereas it
is just and reasonable to allow interest at a reasonable rate ; and
whereas, in accordance with the spirit and letter of the Treaty‘ of
Washington, it is preferable to adopt the form of adjudication of
a sum in gross rather than to refer the subject of compensation for
further discussion and deliberation to a Board of Assessors, as
provided by Article 10 of the said Treaty: The Tribunal, making
use of the authority conferred upon it by Article 7 of the said Treaty,
by a majority of four voices to one, awards to the United States
a sum of 15,500,000 dollars in gold as the indemnity to be paid by
Great Britain to the United States for the satisfaction of all the
claims referred to the consideration of the Tribunal, conformably
to the provisions contained in Article 6 of the aforesaid Treaty.
‘ And, in accordance with the terms of Article 11 of the said
Treaty, the Tribunal declares that “ all the claims referred to in
the Treaty, as submitted to the Tribunal, are hereby fully, per-
fectly, and finally settled.”
‘ Furthermore, it declares that “ each and every one of the
said claims, whether the same may or may not have been presented
to the notice of, or made, preferred, or laid before the Tribunal,
shall henceforth be considered and treated as finally settled, barred,
and inadmissible.” ’ .
Sir Alexander Cockburn, the arbitrator appointed by Great
Britain, refused to sign the above award, and published his reasons
for dissenting from it. After recapitulating the three rules of
Art. 6, he proceeds to remark :—
‘ With these rules before it, the Tribunal is directed to deter-
mine, as to each vessel, whether Great Britain has, by any act or
N 2
180 iNTERNATIoNAL LAW on. xxiv
against each other, declaring such acts to be a violation of
omission, failed to fulfil any of the duties set forth in such rules,
or recognised by the principles of International Law, not inconsistent
with such rules.
‘ The effect of this part of the Treaty is to place this Tribunal
in a position of some difficulty. Every obligation, for the non-
fulfilment of which redress can be claimed, presupposes a prior
existing law, by which a right has been created on the one side,
and a corresponding obligation on the other. But here we have
to deal with obligations assumed to have existed prior to the Treaty,
yet arising out of a supposed law created for the first time by the
Treaty. For we have the one party denying the prior existence
of the rules to which it now consents to submit as the measure of
its past obligations, While the other virtually admits the same
thing, for it “ agrees to observe the rules as between itself and
Great Britain in future,” and to bring them to the knowledge of
other maritime Powers, and invite them to accede to them, all of
which would plainly be superfluous and vain if these rules already
formed part of the existing law recognised as obtaining among
nations. -
‘ It is, I cannot but think, to be regretted that the Whole sub-
ject matter of this great contest, in respect of law as well as of
fact, was not left open to us, to be decided according to the true
principles and rules of International Law in force and binding
among nations, and the duties and obligations arising out of them,
at the time when these alleged causes of complaint are said to have
arisen. ‘ are
‘ From the history of the Treaty of Washington, we know that
it was proposed by the British Commissioners to submit the entire
question, both as to law and fact, to arbitration, but the Com-
missioners of the United States refused to “ consent to submit the
question of the liability of Great Britain to arbitration unless the
principles which should govern the arbitrators in the consideration
of the facts could be first agreed upon.” In vain the British Com-
missioners repliedthat they “ should be willing to consider what
principles should be adopted for observance in future, but that
they were of opinion that the best mode of conducting an arbitra-
tion was to submit the facts to the arbitrator, and leave him free
to decide upon them after hearing such arguments as might be
necessary ! ” The American Commissioners replied that they should
be willing to consider what principles should be laid down for
observance in similar cases in future, but only with the under-
standing that “ any principles which should be agreed upon should
be held to be applicable to the facts in res ect to the ‘ Alabama ’
claims.” The British Commissioners and overnment gave way,
possibly without fully appreciating the extent to which the prin~
ciples, of which they were thus admitting ‘the application, would
be attempted to be carried in fixing them with liability. . . .
‘ If, however, the differences which have unhappily arisen
between the United States and Great Britain were to be deter-
mined, not according to the rules of International Law, which the
arbitrators to be agreed on should determine to be applicable to
the case, but according to rules to be settled by the contending
parties themselves, then I cannot but wish that the framers of this
reaty had been able to accomplish the difficult task, now left to
us, of defining more precisely what is meant by the vague and
uncertain term “ due diligence,” and had also set forth the further
CH. xxlv RIGHTS AND DUTIES OF NEUTRALS 181
neutral rights, and positively unlawful ; and that any vessel,
“ principles of International Law, not inconsistent with the rules
laid down,” to which reference is made as possibly affecting the
liability of Great Britain.
‘ To some of the heads of complaint herein-before referred to,
this observation does not indeed apply. Whether vessels which
might originally have been seized, should have been so dealt with
when they re-entered British ports, or whether they were pro-
tected by the commissions they had in the meanwhile received
from the Confederate Government; whether Confederate ships of
war were permitted to make British ports the base of naval opera-
tions against the United States ; whether the accommodation
afforded to them in British ports constituted a violation of neutrality,
for which Great Britain can be held liable, are questions which
are left to be decided and must be decided according to the rules
of International Law alone. But when we have to deal with the
far more important question of the liability of Great Britain by
reason of the omission to use “due diligence” to prevent the
equipment of vessels of war in her ports, as required by the Treaty,
we find nothing in the Treaty to direct us as to the meaning of that
term, especially as regards the degree of diligence which is to be
understood to be required by it.
‘ Left in this difficulty, we must endeavour to determine for
ourselves the extent and meaning of the “ due diligence ” by which
we are to test the alleged shortcomings of the Government of Great
Britain. For it is plain that the standard of “ due diligence ”
ought not to be left to the unguided discretion of each individual
arbitrator. The municipal law of every country, wherever diligence
is required by the law, whether in respect of obligations arising out
of contract, or in regard to the due care which every one is bound
to exercise to avoid doing harm to the persons or property of others,
ne alienum lwdat, prescribes some standard by which the necessary
degree of diligence may be tested.
‘ Dealing here with a matter appertaining to law, it is to juridical
science that we must look for a solution of the difficulty. And
since we have to deal with a question of International Law, although,
it is true, of an exceptional character, it seems to me that it will
be highly useful to endeavour to form a clear view of the reciprocal
rights and duties between belligerents and neutrals, created by
International Law generally, and of the diligence necessary to
satisfy the obligations which that law imposes. I cannot concur
with Mr. Staempfli, that, because the practice of nations has at
times undergone great changes, and the views of jurists on points
of International Law have often been and still are conflicting,
therefore there is no such thing as International Law, and that,
consequently, we are to proceed independently of any such law——
for such is the efiect of his reasoning, if I understand it rightly-
according to some intuitive perception of right and wrong, or
speculative notions of what the rules as to the duties of neutrals
ought to be. It seems to me that when we shall have ascertained
the extent to which a neutral State is responsible, according to the
general law of nations, for breaches of neutrality committed by
its subjects, and the degree of diligence it would be called upon to
exercise under that law, in order to avoid liability, we shall be
better able to solve the question of what constitutes due diligence
in the terms of the Treaty of Washington. That Treaty may
have admitted a liability in respect of the equipment of ships,
182 51 INTERNATIONAL LAW 011. XXIV
so armed or equipped in the ports of the United States,
where none existed by International Law before, as I certainly
think it has; but the degree of diligence required of a neutral
Government to prevent breaches of neutrality by its subjects must
be determined by the same principles, whatever may be the nature
of the particular obligation. Besides the necessity of thus con-
sidering the relation of belligerents and neutrals with reference to
the subject of “ due diligence,” we have further, in order to satisfy
the exigency of the articles of the Treaty, to consider, whether,
besides in the omission of “ due diligence,” Great Britain has failed
to fulfil any duty imposed by any principle of International Law
not inconsistent with the rules laid down. It is clear also, that,
with reference to the other heads of complaint, our decision must
necessarily depend entirely on the rules of International Law
applicable thereto.’ ,
Referring to the question of the Confederate vessels, he says :—
‘ When the Government of the Confederate States had armed
certain vessels, and had placed them under the command of officers
duly commissioned by it, and those vessels put into ports of the
neutral Powers, the Government of the United States protested
loudly against their being received as vessels of war, on the ground
that the Insurgent States still formed an integral portion of the
Union ; that they were to be looked upon as rebels ; and that com-
missions from a Government, the independence of which had not
been acknowledged, could not give to its ships the character of
ships of war. They insisted, therefore, on these vessels being
looked upon as pirates, to which all entry into the ports of other
nations, and all assistance of every kind, should be denied. The
Federal Government even went further, and threatened ,to hold
neutral Governments responsible for any assistance or supplies
afforded to Confederate ships. But the neutral Governments were
unanimous in refusing to accede to these demands, and persisted
in conceding to the Confederate ships the same privileges as were
afforded to‘shose of the United States.’ And again, ‘ In January
1862, after thu war had been going on for some months, circum-
stances arose wnioh made further regulations as to the admission
of the armed vessels of the two belligerents into British ports neces-
sary. Instructions bearing date January 31, 1862, were accordingly
issued by the Government. One of these had reference to the
ports of the Bahamas in particular, the other to the ports and
waters of her Maj esty’s dominions in general.’
On the question of coal he observes :-‘ The general regulations
applicable to all her Majesty’s ports, which, as we have seen, were
in conformity with the wishes of the United States Government,
though not intended by the British Government to have any opera-
tion more favourable to one belligerent than the other, neverthe-
less, could not fail to prove very prejudicial to the Confederates,
the strict blockade of whose ports left their ships of war without
any ports to which they could resort for repairs or supplies, or into
which they could take their prizes. The rule forbidding them a
greater supply of coal than would suffice to take them to their
nearest port, and prohibiting also a renewal of the supply within
three months, was obviously calculated to place them at the greatest
possible disadvantage. Compelled, from having no ports of their
own, to keep the sea, their means of doing so were necessarily
lessened, and the regulation in itself, so unfavourable to the Con-
federate vessels, was rendered still more so by the strict construc-
01.1. XXIV RIGHTS AND DUTIES OF NEUTRALS I83
for military service, was not entitled to the rights of
tion put on it by her Maj esty’s Government, by whom the Governors
of the different Colonies were instructed that, in case of any special
application for leave to coal at a British port within the three months,
if it appeared that any part of the former supply had been consumed
otherwise than in gaining the nearest port, not even stress of weather
should form a ground of exception. As no Confederate vessel
could seek its nearest port, this was practically to prevent the
possibility of a renewed supply under any circumstances within the
three months.’ ..
As to ships obtained from Great Britain he says :—‘ Next as to
Great Britain having been, as it is said, “ the navy yard of the
insurgents,” it was, of course, impossible to prevent the Confederate
Government, reduced to desperate straits by the blockade, and in
want of ships of war, from resorting to the shipbuilders’ yards of
Great Britain. It was impossible to prevent the shipbuilders-who
looked upon the furnishing of such vessels as purely commercial
transactions, the Messrs. Laird, who built the “Alabama,” having
been perfectly willing, as appears from their correspondence with a
Mr. Howard, who professed to have authority to enter into a con-
tract with them to build vessels for the Federal Government, to
supply ships to the latter as well as to the insurgents, and who
appear to have thought that, so long as the ships were not armed
in British waters, such transaction would not be within the Foreign
Enlistment Act—from entering into such contracts. All the Govern-
ment could do was to use reasonable care to see that the Act was
not violated.’
‘ Two vessels of war, and two only, the “ Florida ” and the
“ Alabama,” equipped in British waters, found their way into the
hands of the Confederates. Whether, in respect of them, the British
authorities were wanting in due diligence will be matter for future
consideration, when these vessels come specifically under review.
The most unjustifiable charge that the Government were wilfully
wanting in the discharge of their duty from motives of partiality
has, I hope, been already disposed of. Every other vessel built or
equipped in British waters for the war. service of the Confederate
Government was prevented by the act of the British Government
from coming into their hands. Immediate and untiring attention
was paid to the frequent applications of Mr. Adams, which, for the
most part, turned out to have proceeded on erroneous information.
It may have been that, in the cases of the “Florida ” and the
“Alabama,” the local officers may have been somewhat too much
disposed to leave it to the United States officers to make out the
case against the vessels. But such, as we have seen, had been the
traditional view of the matter, not only in England, but in the
United States. These officers may have attached too much im—
portance to the fact that the vessels, though equipped for receiving
arms, were not actually armed before leaving the port. In that
they only shared the opinion of two distinguished judges in the
Court of Exchequer. But when the authorities had become
thoroughly alive to what was going on, no vessel of war to which
the notice of the Government was called, and which proved to be
intended for war, was suffered to escape. An enumeration of the
instances on which inquiry was instituted by her Maj esty’s Govern-
ment, with the results, will set this part of the case in its true light,
and show the flagrant injustice of the wholesale accusations which
have been so unwarrantably made.’
184 INTERNATIONAL LAW 011. mm
asylum.1 The authority of Wolfius, Vattel, and other
writers on the law and usage of nations, was appealed to in
support of these declarations and rules of neutrality. The
ground then assumed by the United States is now generally
admitted to be correct. The same objection was made by
them in the War of 1793, against the enlisting of men by
the respective belligerent powers Within ports of the United
States, and it was declared that if the neutral State might
not, consistent with its neutrality, furnish men to either
He thus concludes this exhaustive and lucid investigation on the
laws of neutrality : ‘ I have now gone through the cases of all the
different vessels in respect of which claims have been preferred for
losses sustained through the alleged want of due diligence on the
part of the British Government. After all that has been said and
written, it is only in respect of two vessels, both equipped, at the
very outset of the civil war, and before the contrivances resorted
to had become known by experience, that this Tribunal, which has
not shown a disposition to take too indulgent a view of the fulfil-
ment of neutral obligations, has been able to find any default in
British authorities at home, while in respect of a third, the Tribunal,
by a majority of one voice only, has fixed the Government with
liability for an alleged error in judgment of the Governor of a distant
Colony in respect of allowance of coal, and for the want of vigilance
of the police in not preventing men from joining a Confederate
vessel at night. We have here the best practical answer to the
sweeping charges so perseveringly brought against the British
Government and people. . . .
‘I concur entirely with the rest of the Tribunal, in holding
that the claim for cost of pursuit and capture must be rejected.
This item of expense formed part of the general expense of the war.
The cruisers employed on this service would, probably, have been
kept in commission had the three vessels in question never left the
British shores.’
1 It was decided by the Circuit Court of the Southern District
of New York in 1818, that it is no breach of neutrality on the part
of a belligerent to equip vessels of war in a neutral port, unless
the act be interdicted. (Stoughton v. Taylor, 2 Paine, 65 5.) .
It was decided under the 29 Geo. II. c. 16, s. 2, which pro-
hibited the exportation of arms, &c., from Great Britain during
time of war, except by license, when such arms were destined for
Africa, that the act of a neutral ship meeting by agreement a British
vessel, in Africa, for the purpose of receiving gunpowder and arms,
was illegal, though the latter had a license to export them for the
purpose of trade. (Gibson v. Mair, 1 Marsh. 39; SP. Gibson v.
Leune, I Stark. 119 ; SC. 5 Taunt. 433-.)
In the course of the Russo-Japanese war (1904), a vessel then
in a half-completed condition was bought by a Mr. Sinnet and
the Hon. James Bushe Roche from Messrs. Yarrow and Co., ship-
builders, for the purpose, as stated, of being used as a yacht. The
vessel might have been completed for the purpose of a torpedo-
boat or a yacht. She was duly completed, and navigated, via
Hamburg, to the Russian port of Libau, where she was converted
into a torpedo-boat. ‘
CH. xxrv RIGHTS AND DUTIES OF NEUTRALS I85
party for their aid in war, it was equally unlawful for either
belligerent to enrol them in the neutral territory. Wolfius
says that ‘ it is not permitted to raise soldiers on the territory
of another, without the consent of its sovereign.’ Vattel
says that, ‘ As the right of levying soldiers belongs solely to
the nation or the sovereign, no person must attempt to
enlist soldiers in a foreign country, without the permission
of the sovereign. . . . The man who undertakes to enlist
soldiers in a foreign country, without the sovereign’s per-
mission, and, in general, whoever entices away the sub-
jects of another State, violates one of the most sacred
rights of the prince and the nation. This crime is distin-
guished by the name of kidnapping, or man-stealing, and
is punished with the utmost severity in every well-regulated
State. Foreign recruiters are hanged without mercy,
and with great justice. It is not presumed that their
sovereign has ordered them to commit a crime, and, even
supposing that they had received such an order, they ought
not to have obeyed it—their sovereign having no right to
command what is contrary to the law of nature. . . . If
it appear‘ that they acted by order, such a proceeding in a
foreign sovereign is justly considered as an injury, and as
suflicient cause for declaring war against him, unless he
make a suitable reparation.’ 1
§15. The next question to be considered is, whether
neutrals may assist a belligerent by money, in the shape of
a loan or otherwise, without violating the duties or departing
from the position of neutrality. It seems to be universally
conceded, that if such loan be made for the manifest purpose
of enabling the belligerent to carry on the war, it would be a
virtual concurrence in the war, and consequently a just
cause of complaint by the opposite party. But Vattel
contends that the loaning of money to one belligerent, by the
subjects of a neutral State, is not such a breach of neutrality
as to be either a cause of war or of complaint, provided the
loan is made for the purpose of getting good interest,
and not for the purpose of enabling one belligerent to attack
the other. Phillimore very properly regards this as a
manifest frittering away of the important duties of the
‘ Wolfius, _[us Gentium, § 754; Vattel, Droit des Gens, liv. iii.
ch. ii. § 15.
Loans of
money by
neutrals
186 INTERNATIONAL LAW 011, xxrv
neutral ; and that it is as much a violation of neutral duty
to furnish the one as the other of the
‘ --- two main nerves, iron and gold,’
for the equipage and conduct of the war. The English
courts have decided that such loans are in violation of
international law, and that they will take no notice of, nor
render any assistance in, any transactions growing out
of such loans, unless raised with the special license of the
Crown.‘
1 Phillimore, On Int. Law, vol. iii. § 151 ; De Wurtz v. Hendricks,
9 Moore R. p. 586 ; Bello, Derecho Internacional, pt. ii. cap. vii. § 3.
It is contrary to the law of nations for persons residing in Great
Britain to enter into engagements to raise money, by way of loan. for
the purpose of supporting subjects of a foreign State in arms against
a Government in alliance with Great Britain. (De Wurtz v. Hend-
ricks, 9 Moore GR 586.)
British Courts of Justice will not take notice of, or afford any
assistance to, persons who set about raising loans for subjects of a
foreign Government, to enable them to prosecute war against that
Government. At all events such loans cannot be raised without the
license of the Crown. See also Josephs v. Pebrer, 1 Car. and Pay.
N. Pri. C. 341.
The two following opinions of the British law officers relate to the
above question :—
‘ To the Right Hon. George Canning, M .P., (50.
‘ DocToRs’ CoMMoNs,]ane 17, 1823.
‘ SIR,-We have been honoured with your commands, signified
in Mr. Planta’s letter of the 12th inst., stating that you were desirous
that we should report our opinion on the following questions :—
‘ 1. Whether subscriptions for the use of one of two belligerent
States by individual subjects of a nation professing and maintaining
a strict neutrality between them be contrary to the law of nations,
and constitute such an offence as the other belligerent would have a
right to consider as an act of hostility on the part of the neutral
Government ? I
‘ 2. If such individual voluntary subscriptions in favour of one
belligerent would give such just cause of offence to the other, whether
loans for the same purpose would give the like cause of offence P
‘ 3. And, if not, where is the line to be drawn between a loan at
an easy or mere nominal rate of interest, or a loan with a previous
understanding that interest would never be exacted, and a gratuitous
voluntary subscription ?
‘ In obedience to your commands, we beg leave to report that we
have taken the same into our consideration, and we are of opinion
that subscriptions of the nature above alluded to, for the use and
avowedly for the support of one of two belligerent States against the
other, entered into by individual subjects of a Government pro-
fessing and maintaining neutrality, are inconsistent with that
neutrality, and contrary to the law of nations ; but we conceive that
the other belligerent would not have a right to consider such sub-
scriptions as constituting an act of hostility on the part of the
0H. xxlv RIGHTs AND DUTIES OF NEUTRALS I87
§I6. Armed cruisers, in neutral ports, are not only Pursuit of
enemy
bound not to violate the peace while within neutral jurisdic- from new
tion, but they cannot use the asylum as a shelter from which tral Ports
Government, although they might afford just ground of complaint,
if carried to any considerable extent. With respect to loans, if
entered into merely with commercial views, we think, according to
the opinions of writers on the law of nations and the practice which
has prevailed, that they would not be an infringement of neutrality ;
but if, under colour of a loan, a gratuitous contribution was afforded
without interest, or with mere nominal interest, we think such a
transaction would fall within the opinion given in answer to the first
question. We have the honour to be, &c., CHRIsToPI-IER RoB1NsoN
(King’s Advocate), R. GIFFORD (Attorney-General), J. S. CoPLEY
(Solicitor-Genera1).’
‘ LINCOLN’S INN, fzme 21, 1823.
‘ SIR,-We have been honoured with your "commands, signified
to us by Mr. Planta in his letter dated the 18th inst., in which he
states, with reference to the queries proposed to his Majesty’s law
officers in his letter of the 13th inst., he was directed by you further
to ask for our opinion whether, having regard to the municipal law
of this country, there exists any, and what, means of proceeding legally against individuals and corporations engaged in such sub- ’
scriptions as were described in those queries.
We have accordingly taken the same into consideration, and
beg leave to report that, reasoning upon general principles, we should
be inclined to say that such subscriptions in favour of one of two
belligerent States being inconsistent with the neutrality declared by
the Government of the country and with the law of nations, would
be illegal, and subject the parties concerned in them to prosecution
for a misdemeanour, on account of their obvious tendency to inter-
rupt the friendship subsisting between this country and the other
belligerent, and to involve the State in dispute, and possibly in the
calamities of war. It is proper, however, to add that subscriptions
of a similar nature have formerly been entered into (particularly the
subscription in favour of the people of Poland in 1792 and 1793),
Without any notice having been taken of them by the public autho-
rities of the country, and without any complaint having, as far as we
can learn, been made by the Powers whose interests might be sup-
posed to have been affected by such subscriptions. Neither can we
find any instance of a prosecution having been instituted for an
offence of this nature, or any hint at such a proceeding in any period
of our history. We think, therefore, even if it could be proved that
the money had been actually sent in pursuance of the subscription,
it is not likely that a prosecution against the individuals concerned
in such a measure would be successful.
‘ But, until the money be actually sent, the only mode of pro-
ceeding, as we conceive, would be for counselling or conspiring to
assist with money one of the belligerents in the contest with the
other, a prosecution attended with still greater difficulty.
‘ We beg leave further to report that no criminal proceeding can
be instituted against a corporation for contributing its funds to such
a subscription, but that the individual members who may be proved
to have acted in the transaction can alone be made criminally
responsible.
‘ We have the honour to be, &c., R. GIFFQRD, J. S. CoPLEY.’
‘if
188
INTERNATIONAL LAW 011. xxiv
Passage
over
neutral
waters
to make an attack upon the enemy. Hence, if an armed
vessel of one belligerent should depart from a neutral port,
no armed vessel, being within the same, and belonging to
an adverse belligerent power, can depart until twenty-four
hours after the former, Without being deemed to have
violated the law of nations. And if any attempt at pur-
suit be made, the neutral is justified in resorting to
force, to compel respect to the sanctity of its neutrality.1
During the American Civil War the Confederate cruiser
‘ Nashville ’ being in the Southampton docks, the Federal
ship of War ‘ Tuscarora ’ took up a position outside the
harbour, thereby preventing the ‘ Nashville ’ from leaving.
The ‘ Tuscarora ’ always kept up steam, and thus was
able to precede the other ship Whenever she attempted to
leave. The ‘ Tuscarora ’ having left, the ‘ Nashville ’ could
not leave for twenty-four hours ; before the close of twenty-
four hours the ‘ Tuscarora ’ would return to her anchorage.
Repeating this operation, she effectually prevented the
‘ Nashville ’ from leaving.
§ 17. If a belligerent cruiser, in acting offensively,
passes over a portion of water Within neutral jurisdiction,
that fact is not usually considered such a violation of the
territory as to invalidate an ulterior capture made beyond
it. Permission to pass over territorial portions of the ,
sea is not usually required or asked, because not supposed
to result in any inconvenience to the neutral power. Nor
would the passage be deemed a violation of neutral rights,
nor would a capture by either power be invalidated by
the fact of such passage, animo capiendi, to the place
Where the right of capture could be exercised. ‘ Where
a free passage,’ says Sir William Scott, ‘ is generally enjoyed,
notwithstanding a claim of territory may exist for certain
purposes, no violation of territory is committed, if the
party after an inoffensive passage, conducted in the usual
manner, begins an act of hostility in open ground. In
order to have an invalidating effect, it must at least be
either an unpermitted passage over territory where per-
1 Kent, Com. on Am. Law, vol. i. p. 122 ; Azuni, Droit Maritime,
t. ii. ch. v. ; Ortolan, Diplomatic de la Mer, t. ii. ch. viii. ; Haute-
feuille, Des Nations Neutres, tit. vi. oh. i. ; Pistoye et Duverdy, Des
Prises M aritimes, tit. 1. oh. i. sec. iii. ; Marcy, On Recruiting, p. 50 ;
Valin, Com. sur l’Ordonnance, t. ii. p. 274.
on. xxw RIGHTs'ANn DUTIES or NEUTRALS I89
mission is regularly requested, or a passage under permis-
sion obtained under false representation and suggestions of
the purpose designed. In either of these cases there might
be an original malfeasance and trespass that travelled
throughout and contaminated the whole, but if nothing of
this sort can be objected, I am of opinion that a capture,
otherwise legal, is in no degree affected by a passage over
territory in itself otherwise legal and permitted.’ 1
§ 18. Such are the general prohibitions, recognised
and established by the laws of nations, against any positive
or even approximate acts of war in neutral territory. We
are not aware that any modern writer on international
law has questioned the soundness of the principle upon
which they are founded. Moreover, the extent of a nation’s
sovereign rights depends, in some measure, upon its
municipal laws, and other powers are bound, not only to
abstain from violating such laws, but to respect the policy
of them. The municipal laws of a State, for the protection
of the integrity of its soil and the sanctity of its neutrality,
are sometimes even more stringent than the general laws of
war ; 2 the right of a sovereign State to impose such restric-
1 The ‘ Twee Gebroeders,’ 3 Rob. 354.
2 The American Civil War, 1863, introduced a new series of cases
in which the then Foreign Enlistment Act was called into operation ;
they were—the ‘ Oreto,’ tried at Nassau, released August 1862 ; the
‘ Alexandra,’ tried in England; the ironclads ‘ El Toussoon ’ and
‘ Mounassir ; ’ the ‘ Tornado ; ’ the cases of the ‘ Alabama,’ ‘ Shenan-
doah,’ and ‘ Georgia.’ There were five prosecutions for enlisting
men for the Confederate navy.
For representations addressed to the British Government by
Mr. Adams during the last American Civil \l’ar, see Memorandum
annexed to Lord Russell’s letter to Mr. Adams, November 3, 1865.
(Parl. Pap. North Amer. No. 1, 1866, p. 139.)
The property in a prize of war may pass to the captors without
such prize being taken into a port belonging to the country of the
captors, or being condemned by a prize court. A prize of war (a
merchantman), with a prize crew on board, is not a ship of war. A
neutral steam-tug towing such a vessel—from neutral waters—-to
the waters of her captors, in the ordinary course of her employment,
does not complete the capture, and is not employed in the naval
service of a belligerent within the meaning of the Foreign Enlist-
ment Act, 1870, s. 8, subs. 4. (The ‘ Gauntlet,’ 1 Aspin. Mar. Law
Cas., 86. See also ex parte Ferguson and Hutchinson, ibid. 8 ; the
‘ Heinrich and Maria,’ 4 Rob., 43 ; the ‘Polka,’ I Stinks, 447. As
to enlistment of men to serve abroad, see vol. i. ch. xviii. § 7.)
In 1870, during the Franco—German War, the British Govern-
ment directed the seizure of a steamer about to leave England for the
purpose of laying down a deep-sea telegraphic cable between certain
Municipal
laws en-
forcing
neutrality
190 INTERNATIONAL LAW 011. xxiv
tions and prohibitions, consistent with the general policy
of neutrality, as it may seem fit, is undeniable. And all acts
of the officers of a belligerent power against the municipal
law of a neutral State, or in violation of its policy, involve
that government in responsibility for their conduct.
ports of one of the belligerents. On application under the 2 3rd
section of the Foreign Enlistment Act, 1870, by the owners of the
ship and her cargo for the release of the same, it was held by the
Court of Admiralty that primd facie the transaction was a com-
mercial one between subjects of Great Britain and of a Government
in friendly relations with her; that it was not a case to consider
whether the vessel might have been seized by a Prussian cruiser as
being employed in the service of France, or as carrying contraband
of war of a novel kind, but falling under the old principle ; the carrier
of contraband may violate the proclamation of the neutral State, of
which he is a member, and deprive himself of the right to protection
from her, but the punishment of his offence is, by the general law of
nations, left to the belligerent who has the right of capture. The
offence is not cognisable by the municipal law of Great Britain.
The only bearing of the law of contraband on the case would arise
from the analogies furnished by that law, namely, that as ‘ cir-
cumstances arising out of a particular situation of the war and con-
dition of the parties engaged in it ’ (the ‘ Jonge Margaretha,’ 1 Rob.
193) might clothe an article ancipitis uszts, with the character of
contraband, so it might be argued that the character of the ‘ Inter-
national’ might bring her within the category of a ship despatched
for the naval service of France. The statute, by specifying ‘ military
telegraphy,’ had not excluded the possibility of showing that, in
the particular circumstances of the case, postal telegraphy must be
considered as the telegraphy employed in the military service of
the State. The Company was formed to furnish ordinary postal
telegraphs ; the contract with the French Government was to furnish
telegraphy of this kind only. N 0 other kind was furnished. It was
probable that this telegraphic line would be partially used for
effecting communication between the French army and that Govern-
ment, but neither did this appear to be the main object of the line,
nor could it, without additions and adaptations, with which this
Company had no concern, be made even partially to subserve this
end. The probability that the line might be occasionally used for
military, among other, purposes, was not sufficient to divest it of its
primary and paramount commercial character, and to subject the
Company to the very severe penalty imposed by the statute. There
was a ‘ reasonable and probable cause ’ for the detention of the ship
and cargo, and for putting the applicants on their defence. Release
of the vessel decreed, but without costs or damages. (The ‘ Inter-
national,’ 3 Mar. Law. Cas. 523.)
See also the ‘ Gauntlet,’ L. R. 4. P. C. 184.
It was held by the Queen’s Bench Division, that the offence of
fitting out and preparing an expedition within the Queen’s Dominions,
against a friendly State, under section 11 of the Foreign Enlistment
Act, 1870, is sufflciently constituted by the purchase of guns and
ammunition in England, and their shipment for the purpose of being
put on board a ship in a foreign port, with a knowledge of the
purchaser and the shipper that they are to be used in a hostile
demonstration against such State, though the shipper takes no part
CH. xxlv RIGHTS AND DUTIES OF NEUTRALS I91
§.19. The Congress of the United States made suitable
provision by statute for the support and due observance
of the rules of strict neutrality within American territorial
jurisdiction. By the law of April 20, 1818, it is declared to
be a misdemeanour for any citizen of the United States,
within the territory or jurisdiction thereof, to accept and
exercise a commission to serve a foreign prince, State,
colony, district, or people, in war, by land or by sea, against
any prince, State, colony, district, or people with whom the
United States are at peace, or to enlist, or enter himself,
or hire or retain another person to enlist, or enter himself,
or to go beyond the limits or jurisdiction of the United
in any overt act of war, and the ship in not fully equipped for the
expedition within any port of the British dominions.
The facts were as follows :—In I 886 Colonel Sandoval, a foreigner,
but residing in England, bought two Krupp guns at Sheffield, and a
quantity of ammunition at Birmingham. The guns he sent to
Woolwich to be fitted with carriages suitable for use at sea. The
defendant then shipped in a general ship the guns and ammunition
(20,000 rounds of ball cartridge and shells) to Antwerp, where there
arrived at the same time a ship called the ‘ Justitia,’ purchased by
one Call in the name of his valet, Philips. He then embarked on
board the ‘ Justitia,’ and shortly afterwards she left Antwerp. He
assumed the general command of those on board, among whom were
three generals. The ship was supposed to be cleared for Trinidad,
in the West Indies, and her papers were regular ; she carried no cargo
except a large quantity of bunker coal and the warlike stores. On the
arrival of the ship off Grenada, it was discovered that she would not
be allowed to put into Trinidad, because she was carrying arms on
board. When off Trinidad the ship was transferred from Philips
to General Pulgar, one of the officers on board, her name was altered,
and the English flag hauled down and a foreign one run up in its
place. The defendant, however, left the ship and landed at Trinidad.
The ship then made for a place called Carupano, on the mainland of
Venezuela, where a British consul was said to be, but one could not
be found.- She there took in tow a flotilla of boats, filled with armed
men, and after harmlessly shelling a custom—house, engaged with a
Venezuelan man-of~war, and was worsted, one of the generals on
board being killed, and retired to San Domingo, whence the crew
were sent back to England. The defendant was tried under sections
8 and 11 of the above Act (33 and 34 Vict. c. 90), but only found
guilty under s. 1 1. (Reg. 11. Sandoval, 56 Law Times, R. 526.)
In the case of Wiborg v. United States (163 U .5. Rep. 632) an
expedition was held by the United States Court to be not a com-
mercial, but a military expedition under the American Neutrality
Act. In November 1898, Spain being then at peace with the
United States, and Cuba then belonging to Spain, a body of men
boarded a tug with arms, met a steamer outside the three-mile
limit, distributed the arms among themselves, and subsequently
disembarked, as, previously arranged, for the purpose of effecting
an armed landing on the coast of Cuba.
Laws
of the
United
States
192 INTERNATIONAL LAW 011. xxIv
Foreign
Enlist-
ment Act
States, with intent to be enlisted or entered in the service
of any foreign prince, State, 810.; or to fit out and arm,
or to increase and augment, the force of any armed vessel,
with the intent that such vessel be employed in the service of
any foreign power at war with another power, with whom the
United States are at peace ; or to begin, set on foot, or pro—
vide or prepare the means for any military expedition or
enterprise against the territory of any foreign prince or State,
or of any colony, district, or people with whom the United
States are at peace. And any vessel or vessels fitted out for
such purpose are made subject to forfeiture. The President
of the United States is also authorised to employ force to
compel any foreign vessel to depart, which, by the law of
nations, or by treaty, ought not to remain within the United
States, and to employ the public force generally in enforcing
the observance of the duties of neutrality prescribed by law.1
§ 20. The present British Foreign Enlistment Act (33
and 34 Vict. c. 90) was passed in 1870.’ It repeals the
1 U.S. Statutes at Large, vol. i. p. 381 ; vol. iii. p. 447 ; Dunlop,
Laws of the United States, pp. 580-583 ; the ‘ Gran Para,’ 7 Wheaton
R. 489; the United States v. Quincy, 6 Peters R. 445-467; the
‘Alerta,’ 9 Cranch. R. 364; the ‘Estrella,’ 4 Wheaton R. 309;
Legare, Opinions of U.S. Attys.-Genl. vol. iii. pp. 738, 741 ; John-
son, ibid. vol. v. p. 92.
In 1866 the United States considered the expediency of extending
the provisions of the statute of 1818, but eventually did not do so.
In that year a case was brought before the District Court at New
York, in which this statute was enforced by that court against a
vessel, alleged to be intended for the Chilian service in the war
between Chili and Spain. This vessel, the ‘ Meteor,’ had been
built as a ship of war for sale to the United States Government, but
the civil war having terminated, the sale was not effected. She
was acknowledged to have been built to carry eleven or twelve
guns, and the negotiations of the agent of the owners for her sale to
the Chilian Government were shown by conclusive evidence. The
vessel was libelled in the District Court in February 1866, but Judge
Betts’s decision in the case was not formally given until November.
(See I A m. Law Rev. 401 .) In the elaborate judgment then delivered,
the standard decisions of the Supreme Court are reviewed at length.
Judgment was given against the vessel, but she was eventually
restored to her owners under bond. The judgment was reversed by
the Circuit Court, and an appeal from that Court to the Supreme
Court of the United States was dismissed by consent.
1 This Act decrees it to be a misdemeanour—
‘ 4. If any person, without the license of her Majesty, being a
British subject, within or without her Majesty’s dominions, accepts
or agrees to accept any commission or engagement in the military
or naval service of any foreign State at war with any foreign State
at peace with her Majesty, and in this Act referred to as a friendly
on. xxlv RIGHTS AND DUTIES OF NEUTRALS 193
older Act of 1819, and strengthens the hands of the executive.
The earlier statutes of George II. which were enacted for
State, or whether a British subject or not within her Majesty’s
dominions induces any other person to accept or agree to accept any
commission or engagement in the military or naval service of any
such foreign State aforesaid.
‘ 5. If any person, without the license of her Majesty, being a
British subject, quits or goes on board any ship with a view of
quitting her Majesty’s dominions with intent to accept any com-
mission or engagement in the military or naval service of any
foreign State at war with a friendly State, or whether a British
subject or not, within her Majesty’s dominions, induces any other
person to quit or to go on board any ship with a view of quitting her
Majesty’s dominions with the like intent.
‘ 6. If any person induces any other person to quit her Maj esty’s
dominions, or to embark on any ship within her Maj esty’s dominions,
under a misrepresentation or false representation of the service in
which such person is to be engaged, with the intent or in order that
such person may accept or agree to accept any commission or
engagement in the military or naval service of any foreign State at
war with a friendly State.
‘ 7. If the master or owner of any ship, without the license of her
Majesty, knowingly either takes on board, or engages to take on
board, or has on board such ship within her Majesty’s dominions
any of the following persons : that is to say, any person who, being
a British subject within or without the dominions of her Majesty,
has, without the license of her Majesty, accepted or agreed to accept
any commission or engagement in the military or naval service of any
foreign State at war with any friendly State ; any person, being a
British subject, who, without the license of her Majesty, is about to
quit her Majesty’s dominions with intent to accept any commission
or engagement in the military or naval service of any foreign State
at war with a friendly State ; any person who has been induced to
embark under a misrepresentation or false representation of the
service in which such person is to be engaged, with the intent or in
order that such person may accept or agree to accept any commission
or engagement in the military or naval service of any foreign State
at war with a friendly State.
‘ 8. If any person within her Majesty’s dominions, without the
license of her Majesty . . . builds or agrees to build, or causes to
be built, any ship with intent or knowledge, or having reasonable
cause to believe that the same shall or will be employed in the
military or naval service of any foreign State at war with any
friendly State ; or issues or delivers any commission for any ship with
intent or knowledge, or having reasonable cause to believe that the
same shall or will be employed in the military or naval service of
any foreign State at war with any friendly State ; or equips any
ship with intent or knowledge, or having reasonable cause to believe
that ‘the same shall or will be employed in the military or naval
service of any foreign State at war with any friendly State; or
despatches, or causes or allows to be despatched, any ship with
intent or knowledge, or having reasonable cause to believe that the
same shall or will be employed in “the military or naval service of any
foreign State at war with any friendly State ; [except persons
building or equipping ships in pursuance of contracts made before
the commencement of war, under certain conditions]
VOL. II. 0
194 INTERNATIONAL LAW 011. xxrv
the purpose ofpreventing the formation of Jacobite armies
in France" and Spain, annexed capital punishment as fora
felony to the offence of entering the service of a foreign
State. There is no similar law in France ; butall subjects
exposing that country to reprisals are liable to punish-
ment. Austria, Denmark, Spain, and Portugal prohibit
the procuring of vessels of war, arms, or ammunition for
‘ 9. [The proof shall lie on the builder that he did not know that
the ship was to be employed for such foreign State]
‘ 10. If any person within the dominions of her Majesty, and
without the license of her Majesty, [by adding to the number of
guns, or by changing those on boardfor other guns, or by the addi-
tion of any equipment for war, increases the warlike force of any
ship being within the dominion of her Majesty, but being in the
service of any foreign State at war with any friendly State] 4
‘ 1 1. If any person within the limits of her'Majesty’s dominions,
and without the license of her Majesty, prepares or fits out any
naval or military expedition against the dominions of any friendly
State . . . every person engaged . . . or employed in any capacity
in such expedition shall be guilty of an ofience against this Act.’
The following is the form of a warrant for the detention of a
vessel, under the Foreign Enlistment Act, 1870. It was issued for
the detention of the vessel ‘ Captain W. Menzell,’ by Lord Lans-
downe, Secretary of State for Foreign Affairs, during the Russo-
Japanese War, 1904 :—
‘ The Marquess of Lansdowne [with full titles] to T. E. F., col-
lector of his Maj esty’s Customs at and for the Port of Cardiff, and to
all and every other officers and officer for the time being of his
Majesty’s Customs at and for the said Port being the local authority
or authorities as defined by “ The Foreign Enlistment Act, 1870,” ~
for the purposes thereof.’
‘ Whereas I am satisfied, and do hereby state that there is
reasonable and probable cause for believing that a certain vessel
called the “ Captain W. Menzell,” now being withinhis Majesty’s
dominions to wit within the limits of the said Port of Cardiff has been
or is being commissioned or equipped contrary to the said Act,
and is about to be taken beyond the limits of such dominions, and
that the said vessel is about to be dispatched contrary to the said
Act.
‘ Now I the said Secretary of State do hereby authorise and
require you the said local authority, and all and every other officers
and officer for the time being of his Majesty’s Customs at the said
Port to seize and search the said vessel ‘and detain her until she has
been either condemned or released by process of Law, or in the
manner in the said Act in that behalf mentioned and provided.
Given under my hand this fourth day of December, 1904.
_ ‘ (Signed) LANsnowNE.’
In Reg. v. Jameson [(1896) 2 QB. 425], arising out of the ‘ Jame-
son Raid,’ it was held that under s. 11 of the Foreign Enlistment
Act (33 and 34 Vict. c. 90) if there be a preparation for an’ unlawful
expedition by persons within the dominions of his Majesty, . any
person ‘ assisting ’ in the same is guilty of an offence, although he
himself be not within the dominions.
The history of this raid is as follows :-In January, 1896, Dr.
‘ ‘on. xitiv
RIGHTS’ AND DuTIEs or NEUTRALS 195
' point‘ of‘law, raised in vol. mi. of the Law Magazine and
‘p. 264, was not ‘taken by the defence, viz. :-—that the‘ whole "Act
' only applies to the regulation ‘of the conduct of British subjects
' during the existence of hostilities between foreign States, with which
the use of a foreign power ; and Holland has prevented the
equipment of'vessels of 'war for such purpose. ,
§21. It is not only the right of the neutral State to
protect the property of the belligerents when within the
‘neutral jurisdiction, but it is a part of the duty of neutrality
to defend such property while under neutral protection,
and to punish any and every offence against the rights
of neutrality, even, if necessary, by resort to force. Livy
relates that Syphax enforced peace between the Cartha-
ginian and Roman galleys while lying in a neutral port.
The Venetians prevented the Greeks from attacking the
Turks in the neutral port of Chalcocondylas. The same
‘may be said of the Venetians and Turks at Tunis, of the
Pisans and Genoese in Sicily, and numerous other cases
mentioned ‘in history. The Dutch East India fleet having
put into Bergen, in Norway, in 1666, to avoid the English,
‘were attacked by them; but the Government of Bergen
fired on the assailants, and the court of Denmark com-
plained to the English Government of the violation of
its sovereignty. It is a well-established principle of the
Jameson, the Administrator of Matabeleland, having recruited five
to six hundred men in Matabeleland, crossed the borders of the
Transvaal‘ Republic (now the British self-governing colony of the
Transvaal) with the intention, of securing the reins of government.
The motive of the expedition seems to have been that the Transvaal
Republic, numbering some fifteen thousand citizens, refused to
allow the sixty thousand foreign residents, mostly British, any
voice in the government of the Republic. However single-minded
the conduct of Dr. Jameson might have been, it could not be
supported upon any grounds of right or ‘public policy, and the
British Colonial Secretary, Mr. Joseph hamberlain, promptly
disavowed any approval of the expedition, and at the instance of
‘the British South Africa Company removed Dr. Jameson from the
high position he held. The raid itself met with failure, and after-
wards Dr. Jameson and his principal oficers were handed over by
the President of the Republic, President Kruger, to the British
authorities, under the assurance of the latter that the raiders would
be dealt with in accordance with law ; they were sent to England,
and tried in London in the following July, on an indictment framed
under section 11 of the above Act. They were found guilty and
sentenced to terms of imprisonment varying from fifteen to five
months,‘ without hard labour. Dr. Jameson, on the grounds of ill-
health,‘ was released after he had served six months of his term of
fifteenv months. It is much to be regretted that the very im ortant
seem,
the sovereign is at peace. No foreign States were at war.
Protec-
tion of
property
in neutral
territory
- o 2
196 INTERNATIONAL LAW on. xnv
Restitu-
tion of _
property
captured
in neutral
territory
law of nations that if the property of belligerents, when
within the neutral jurisdiction, be attacked, or any capture
made, the neutral is bound to redress the injury and effect
restitution. In the year I793 the British ship ‘ Grange ’
was captured in Delaware Bay by. a French frigate, and,
upon due complaint, the American Government caused the
British ship to be promptly restored. So, in the case
of the ‘ Anna,’ captured by a British cruiser in 1805, near
the mouth of the Mississippi, and within the jurisdiction of
the United States, the British Court of Admiralty not only
restored the captured property, but fully asserted and
vindicated the sanctity of neutral territory by a decree
of costs and damages against the captor. If a neutral
State neglects to make such restitution, and to enforce
the sanctity of its territory, but tamely submits to the
outrages of one of the belligerents, it forfeits the immunities
of its neutral character with respect to the other, and may
be treated by it as an enemy.1
§22. Although it is the duty of a belligerent State to '
make restitution of the property captured within the
territorial jurisdiction of a neutral State, yet it is a technical
rule of the prize court to restore to the individual claimant,
in such a case, only on the application of the neutral Govern-
ment whose territory was violated in effecting the capture. '
This rule is founded upon the principle, that the neutral
State alone has been injured by the capture, and that the
hostile claimant has no right to appear, for the purpose of
suggesting the invalidity of the capture. He must look to
the neutral Government for redress of the violation of
the right of asylum,‘ and that Government is bound to
effect a restitution, or procure indemnity for the injury
suffered. This claim is usually preferred by the ambassador
of the neutral State in the captor’s country, to the prize
court before which the captured property is brought for
adjudication.2
1 Phillimore, On Int. Law, vol. §§ 155—157 ; the ‘ Vrow Anna
Catharina,’ 5 Rob. 15 ; the ‘ Anna,’ 5 Rob. 348 ; Heffter, Droit
International, §§ 146—150 ; Bello, Derecho I nternaoz'onal, pt. c. vii.
§ 6 ; Riquelme, Derecho Pzib. Int. lib. i. tit. c. xvii.
1 The ‘ Etrusco,’ 3 Rob. 31, note; the ‘ Anne,’ 3 Wheaton R.
447 ; the ‘Gen. Armstrong,’ Ex. Doc. No. 50, H. R. 32nd Cong.
1st Sess. ; No. 24, Senate, and Sess.; Revue En. et Fr. t. vii. p. 751.
on. xxzv RIGHTS AND DUTIES OF NEUTRALS
I97
§ 23. But if the property captured in violation of
neutral rights comes into the possession of the neutral
State, it is the right and duty of such State to restore it
to its original owners. This restitution is generally made
through the agency of the Courts of Admiralty and mari—
time jurisdiction. Traces of the exercise of such a juris-
diction are found in the history of English jurisprudence
as early as the reigns of Charles II. and James II., and
are now matters of ordinary occurrence in English and
American Courts of Admiralty. Such restitution is not
confined to captures within neutral jurisdiction, but
extends to all captures made in violation of neutral rights,
such as by vessels which had been armed and equipped, or
had received military munitions, or had enlisted men, or in
any other way had violated the sanctity of neutral territorial
jurisdiction.1
§ 24. The power and duty of the United States to restore
captures made in violation of their neutral rights and
brought‘ into American ports have never been matters of
question; but, in the constitutional arrangement of the
different authorities of the American federal union, doubts
were at first entertained, whether it belonged to the execu-
tive government, or to the judiciary, to perform the duty
of inquiry into captures made in violation of American
sovereignty, and of making restitution to the injured party.
But it has long since been settled that this duty appro-
priately belongs to the federal tribunals, acting as courts
of admiralty and maritime jurisdiction. It, however, has
been judicially determined that this peculiar jurisdiction
ef the courts of the neutral. government to inquire into
the validity of captures made in violation of the neutral
immunity, will be exercised only for the purpose of restoring
the specific property, when voluntarily brought within
the territory, and does not extend to the infliction of
No private person can interpose in a case of prize and make
claim for the restoration of the captured property, on the ground
that the capture was made Within neutral waters. Whatever claim
is made must be resented by the neutral nation, whose rights have
been infringed. ven a consul, by virtue of his office merely, can~
not interpose. ‘(The ‘ Lilla,’ 2 Sprague, I 77.) '
1 Wheaton, Elem. Int. Law, pt. iv. ch. iii. § 12 ; Life and Works
of 82'? L. jenkz'ns, vol. p. 727 ; Phillimore, On Int. Law, vol. § 158 ; Riquelme, Dereolzo Pzéb. I m. lib. i. tit. c. xvii.
I! such
Property
be in pou-
aesaion of
neutral
Decisions
in the
United
States
198 INTERNATIONAL LAW on. 1m
Purchases
in foreign
ports
If con-
demned in
captor’s
country
vindictive damages, as in ordinary cases of- maritime injuries,
and as is done by the courts of the, captor’s own-country.
The punishment to be imposed upon the party violating
the municipal statutes of the neutral State is a matter to’
be determined in a separate and distinct proceeding. ' The
court will exercise jurisdiction, and decree restitution to
the original owner, in case of capture from a belligerent
power, by a citizen of the United States, under a‘ com-
mission from another belligerent power, such capture
being a violation of neutral duty; but they have no juris—
diction on a libel for damages for the capture of a vessel
as prize by the commissioned cruiser of a belligerent power,
although the vessel may belong to citizens of the United
States, and the capturing vessel and her commander be
found and proceeded against within the jurisdiction of the
court.1 '
§.25. In the case of capture by an armed vessel, fitted
out in the ports of the United States, in violation of neu-y
trality, the claim by an alleged bona fide purchaser in a
foreign port was rejected, and restitution decreed to the.
original owners. It, however, was decided that a bona fill-e
purchaser, Without notice, in such a case is entitled to be
reimbursed the freight which he may have paid upon the
captured goods; and that an innocent neutral carrier of
such goods, the same having been shipped in a foreign
port, is entitled to freight out of the goods.2
§ 26. If such property, captured in violation of neutral
immunity, be carried infra ;bmzsz'dla of the captor’s country,
and there regularly condemned in a competent court of
prize, the question arises whether the courts of the neutral
State will exercise jurisdiction, and restore such property
to the original owners.
hands of the original wrong-doer, it will be restored by the
court, notwithstanding a valid sentence of condemnation,
properly authenticated. The offender’s touch is said to
1 The United States v. Peters, 3 Dallas R. 121-131 ; the ‘ Divina
Pastora,’ 4 Wheaton R. 65, note ; the ‘ Amistad de Rues,’ 5 W heaton
R. 385 ; the ‘ Arrogante Barcelones,’ 7 Wheaton R. 519 ; ‘ La
Nereyda,’ 8 Wheaton R. 108; Glass 1). the ‘ Betsey,’ 3 Dallas R.
65 note a ; McDonough v. the ‘ Mary Ford,’ 3 Dallas R. 188' ; Waite,
State Papers, vol. vi. p. 19 5 ; thev ‘ Estrella,’ 4 Wheat. 298.
2 The ‘ Santissima Trinidad,’ 7 Wheaton R. 283 ; the ‘Fanny,’
9 Wheaton R. 658.
If the property be found in the '.
011. 111V RIGHTS AND DUTIES OF, NEUTRALS
I99
restore the taintv from which the condemnation may have
purified the prize, and it is not for him to claim a right
springing out of his own Wrong?
§ 27. Illegal equipment and outfit, in violation of neutral
immunity, will not affect the validity of captures made
after the cruise to which the outfit had been applied is
actually terminated. The offence is deemed to be deposited
at the termination of the voyage, and, does not affect future
transactions. This rule would result from analogy to
other cases of violation of public law, and has been directly
announced by the United States Supreme Court?
1 The ‘ Arrogante Barcelones,’ 7 Wheaton R. 496 ; the ‘ Amistad
de Rues,’ 5 Wheaton R. 390.
Neither an enemy, nor a neutral acting the part of an enemy, can
demand restitution of captured property on the sole ground of cap-
ture in neutral waters. (The ‘ Sir William Peel,’ 5 Wall. 5 I 7.)
Captures by belligerent vessels, lawfully commissioned, are alone
exempt from inquiry by neutral courts ; and if the capturing vessel
claims to be so exempted, the court. should inquire and have proof
of the exemption. (Talbot 11. Jansen, 3 Dall. 1 3 3.)
In the case of prize, where a neutral has a jus in re, namely, where
he is in possession with a right of retention until a certain amount is
paid to him, the captor takes cum onere, and should allow the
amount of such right ; but Where the neutral has merely a jus ad
rem, which he cannot enforce without the aid of a court of justice,
his claim will not be recognised. (The ‘ Amy Warwick,’ 2 Sprague,
1 50.)
Cases may occur in which a neutral ship may be authorised by the
natural rights of self-preservation to defend herself from extreme
violence threatened by a cruiser grossly abusing its commission ;
but in all ordinary cases it is her duty to submit to the captor, and
rely on-her remedy in costs and damages against it. (The ‘ Maria,’
I Rob., 374.)
A neutral ship, which had been rescued by her crew from the
hands of a lawful cruiser, was condemned on the ground of such
resistance. (The ‘ Dispatch,’ 3 Rob. 278.)
A neutral cannot be permitted to aver compulsion and duress of
one belligerent in j ustification of a departure from neutrality, to the
prejudice of the other belligerent. If he sustain a loss from yielding
to such duress, he must seek his remedy from the belligerent govern-
ment imposing it. (The ‘ Carolina,’ 4 Rob. 260.)
A neutral ship captured on her return from a whaling voyage, and I
proceeded against under the Order in Council respecting fishing
voyages from and to ports from which the British flag had been
excluded, was decreed to be restored, the voyage having been com-
menced before the Order in Council was issued, and the ship having ‘
received no notice thereof. ' (The ‘ Johan,’ Edwards, 27 5.)
A British subject cannot come before a Court of Prize to claim
property taken in a course of trade forbidden by the laws of his
country. Condemnation in such a case. (The ‘ Etrusca,’ 4 Rob.
462. n-) . .
2 The ‘ Santissima Trinidad," 6 Wheaton R. 348. See also the
following cases on neutral duties: the case of M. Genet, American
In cases
of illegal
equipment
and outfit
zoo INTERNATIONAL LAW
CH. XXIV
Case of
Arbuthnot
and Am-
brlater
§28. In 18r8, during the Seminole war, two English-
men, Arbuthnot and Ambrister, were tried by court-martial
by order of General Jackson, and executed. These gentle-
men were resident among the Indians who inhabited the
ill-defined borders of Georgia and Florida ; they were taken
by the Americans within’ the Spanish lines. Arbuthnot
was charged with exciting and stirring up the Creek Indians
against the United States, he being a subject of Great _
Britain, with whom the United States were at peace, and
with aiding, abetting, and comforting the enemy, and supply-
ing them with means of war. Ambrister was charged with
aiding the enemy, and leading and commanding them.
The court first sentenced him to death, but on reconsidera-
tion ordered him to be whipped, and confined with a chain
for twelve months.
revived the former decision, and caused the unhappy man
to be shot. The Committee of the House of Rrepresentatives
condemned the conduct of General Jackson,‘ and declared‘
that they could find no law of the United States authorising
a trial before a military court for such offences as those
alleged against the two prisoners (except so much of the
second charge against Mr. Arbuthnot which contained an
allegation that he had acted as a spy, but of which he was
found, Not guilty). In the opinion of the committee no
usage authorised or exigency appeared, from the report of
the trial, which could justify the assumption and exercise
of power, by the court-martial and commanding general,
but they were of opinion that the prisoners were entitled to
claim from the American Government that protection,
which the most savage of their foes had uniformly ex-
perienced when disarmed and in their power ; that humanity
shuddered at the idea of a cold-blooded execution of
State Papers, vol. i. ; the Terceira affair, Hansard’s Parl. Debates.
N.S. vol. xxiii. p. 737 ; ‘ La Amistad de Rues,’ 5 Wheat. 385 ; the
‘ Alabama,’ the ‘ Florida,’ the ‘ Shenandoah,’ the ‘ Nashville,’ the
‘ Sumter,’ the ‘ Georgia,’ the ‘ Tuscaloosa,’ Papers relating to the
Treaty 0;‘ Washington, vols. i. to iv., published‘ at Washington, 1872--
1873; the ‘ Tuscarora,’ Bernard’s British Neutrality during the
American Civil War, p. 267 ; the dispute between Denmark and
Sweden, Annual Register, mdcc1xxxviii., 292 and 293; Swedish
frigates sold to Mexico, De Martens, Causes Ce’lebres, vol. v. p. 229 ;
GideonEHenfield, Wharton's State Trials, _p. 49; United States '0.
Quincy, 6 Peters, 445 ; Attorney-General v. Sillem and others,
2 Hurlfand Colt. R. 431 ; the ‘ Gauntlet,’ L. R. 44F. c.5184.
General Jackson, of his own authority, '
on. xxlv RIGHTS AND DUTIES OF NEUTRALS 201
prisoners, disarmed and in the power of the conqueror;
that the principle assumed by General Jackson, that the
prisoners by uniting in war against the United States
while at peace with Great Britain had become outlaws and
pirates, and liable to suffer death, was not recognised in any
code of international law. Considerable correspondence
ensued on the subject between the British and American
Governments. The matter was subsequently debated in
the House of Lords, on the motion of the Marquis Lans-
downe for proceeding further with the question, which
doubtless was one of great delicacy. It was evident that
the act of. cruelty and violence of General Jackson, not
only was not done by the order of the American Govern-
ment, but that it was without any knowledge or participa-
tion whatever of that Government. The act which had
been committed formed a charge on the part of the American
Government against their general. The only question
for the British Government was, if the case was one which
called for retribution, and whether they should interfere
for the protection of British subjects who engage, without
the consent of their Government, in the service of States
at war with each other, but at peace with their Govern-
ment. Any British subject who engages in such foreign
service, without permission, forfeits the protection of his
country, and becomes liable to military punishment, if
the party by whom he is taken chooses to carry the rights
of war to that cruel severity. This is a principle admitted
by the law of nations, and which, in the policy of the law
of nations, has been frequently adopted. It is obvious
that if it were to be maintained that a country should hold
out protection to every adventurer who enters into foreign
service, the assertion of such a principle would lead it
into interminable warfare. The case of Ambrister stands
on the ground that he was taken aiding the enemy, and
although General Jackson’s conduct was most atrocious
in inflicting upon him a capital punishment, and contrary
to the sentence of the court-martial, that was a question
between the general and his Government. Arbuthnot’s
case stands on a different ground. _He was not taken in
arms, but he was proved—~as a political servant rather
than as a military agent—to have afforded equal aid and
202 INTERNATIONAL LAW CH. xxw
The North
Sea
incident
assistance to the enemy, and could not he held to be exempt
from punishment ; he had placed himself in the same
position as if he bore arms. And it was on these considera-
tions that the above-mentioned motion was negativedlL
§- 29. A most deplorable incident, and one almost in-
credible in connection with amodern naval fleet of a first-
class power, occurred during the course of the Russo-J apanese
War, 1904. In the early morning of, October 22, 1904, the
second Russian squadron of the Pacific Fleet, under the-
command of Admiral Rojdestvensky, whilst on its way from
the Baltic to the scene of hostilities in the Far East, without
any adequate cause, as the events proved, opened fire on a
fleet of English trawlers from Hull and Grimsby, which
were fishing off the Dogger Bank in the North Sea. The
fire, which lasted from‘ ten to twelve minutes, caused
great loss to the trawlers. Two men were killed, and six
others wounded; the trawler ‘Crane ’ sank; the ‘ Snipe,’
the ‘ Mino,’ the ‘ Moulmein,’ the ‘ Gull,’ and the ‘ Majestic ’
were more, or less damaged. The explanation given by
the Russian Admiral was that ‘ the North Sea incident
was occasioned by the action of two torpedo boats which-
steamed at full speed under cover of the night, showing
no lights, towards the ship which was leading our detach-
ment.
on that it was remarked that a few small steam craft bearing
a resemblance to trawlers were present. The detachment
made every effort to spare these craft, and ceased firing
as soon as the torpedo-boats had disappeared from sight.
The Russian detachment did not include any torpedo
destroyers, and no Russian vessel of any kind was left
behind upon the scene of the incident. Itfollows that the
vessel which is declared to have remained in the neighbour-
hood of the small fishing boats until daylight must have
been one of the two enemy’s torpedo-boats, which has only
1 In the Brit. and For. St. Pap. for 1818—1819 (vol. vi.), p. 326,
will be found the correspondence with Great Britain relative to this
war, in which the proceedings against Arbuthnot and Ambrister
are reviewed. The extracts include (inter alia) the instructions of
Mr. Adams, Secretary of State, to Mr. Irving, November 18, 28,
and December 2, 1818, General Jackson’s letter to the Governor of
Pensacola, together with full notes of the trial of Arbuthnot and
Ambrister, letters from Arbuthnot, and subsequent correspondence,
and General Jackson and General Gaines.
It was only after our search-lights had been turned ~
on. xxIv RIGHTS AND DUTIES OF NEUTRALS 203
sustained some injuries, the other one having been sunk.
Some of these trawlers did not show their navigation
lights for a long time, and others not at all.’ ‘
Feeling ran very high in Great Britain, and a grave inter-
national complication was only avoided by an agreement
signed on November 25, 1904, between the two Govern-
ments, to submit the dispute to an International Commission
of Inquiry conformably to Articles IX. to XIV. of the Hague
Convention, 1899? . _
The report of the Commissioners, which was announced
1 Part. Papers, Cd. 2350, p. 11.
2 The agreement referred to contained the following provisions :—
ART. 1. The International Commission of Inquiry shall be com-
posed of five members (Commissioners), of whom two shall be
officers of high rank in the British and Imperial Russian navies
respectively. The Governments of France and the United States
of America shall each be requested to select one of their naval
officers of high rank as a member of the Commission. The fifth
member shall be chosen by agreement between the four members
above mentioned. In the event of no agreement being arrived at
between the four Commissioners as to the selection of the fifth
member of the Commission, his Imperial and Royal Majesty the
Emperor of Austria, King of Hungary, shall be invited to select him.
Each of the two high contracting parties shall likewise appoint
a legal Assessor to advise the Commissioners, and an agent oflicially
empowered to take part in the labours of the Commission.
ART. 2. The Commission shall inquire into and report on all the
circumstances relative to the North Sea incident, and particularly
on the question as to where the responsibility lies, and the degree
of blame attaching to the subjects of the two high contracting
parties or to the subjects of other countries in the event of their
responsibility being established by the inquiry.
ART. 3. The Commission shall settle the details of the procedure
which it will follow for the purpose of accomplishing the task with
which it has been entrusted.
ART. 4. The two high contracting parties undertake to supply
the International Commission of Inquiry, to the utmost extent
‘ which they may find possible, with all the means and facilities
necessary, in order to enable it to acquaint itself thoroughly with
and appreciate correctly the matters in dispute.
ART. 5. The Commission shall assemble at Paris as soon as
possible after the signature of this agreement.
ART. 6. The Commission shall present its report to the two high
contracting arties signed by all the members of the Commission.
ART. 7. he Commission shall take all its decisions by a majority
of ‘the votes of the five Commissioners. , “
ART. 8. The two high contracting parties undertake each to
bear, on reciprocal terms, the expenses of the inquiry made by it
revious to the assembly of the Commission. The expenses incurred
by the International Commission, after the date of its assembly,
in organising its staff and in conducting the investigations which
it will have to make, shall be shared equally by the two Govern-
ments. _
204 INTERNATIONAL LAW 01!. xxrv
on February 25, 1905, found that the Russian Admiral, prior
to sailing, had been notified that he was to be on the watch
for enemy’s torpedo-boats, and on the night in question
his fears were aroused by a wireless telegram from one of the
transport vessels of the fleet, the ‘ Kamchatka,’ which
had fallen some ten miles to the rear of the squadron in '
consequence of damage to her engines, to the effect that
she, the ‘ Kamchatka,’ was ‘ attacked on all sides by torpedo-
boats.’ The Russian Admiral redoubled his precautions,
and the search—light having revealed, in addition~ to the
‘ trawlers,’ two suspicious-looking vessels, fire was ordered
to be opened upon them; the Commissioners, however,
being of opinion ‘ that there were no torpedo-boats either
among the trawlers nor anywhere near, the opening of fire
by Admiral Rojdestvenski was not justifiable.’ The firing
was probably‘ provoked, the Commissioners considered,
by the presence of the ‘ Aurora,’ a vessel of the Fleet,
which, unbeknown to the Admiral, had been left behind on
the route. This opinion was confirmed by the fact that the '
‘ Aurora ’ had in fact been hit by the firing. The Report
further found that the trawlers were not in fault. Looking
at these findings, it would certainly appear that the above
disgraceful and cowardly attack by the Russians could only
be attributed to a state of panic in their fleet. The last
conclusion of the Commissioners seems difficult to follow,
that ‘ their findings . . . are not in their opinion of a
nature to cast any discredit upon the military qualities or
the humanity of Admiral Rojdestvensky, or of the personnel
of his squadron,’ more particularly in. view of the finding
that ‘ the opening of fire by Admiral Rojdestvensky was
not justifiable.’ 1
1 Part. Papers, Cd. 2382 ; a graphic and important story of the
North Sea incident is told in a remarkable series of letters, in diary
form, written by M. Politovsky, engineer-in-chief of Admiral Roj-
destvensky’s Baltic Fleet, who took part in the whole voyage, and
finally met his death at the battle of Tsushima.
From these letters the story of the outrage on the Hull fishermen
is thus described: ‘ October 22nd, Night—Heavens, what doings
there have been in the fleet! At about one o'clock this morning we
beat to quarters, ships having been ahead. We allowed them to
approach within a short distance, and then let fly. . . . Words fail
me to describe the disgraceful action that followed .! The ships of
our division were wrapped in one vast sheet of flame, an incessant
roar arose from the guns, projectiles were whistling through the air.
on. 1m RIGHTS AND norms 0F NEUTRALS 205
“much to the
, line.
The following Proclamation of Neutrality was made by Great
Britain in 1877 :--
‘ VICTORIA R.
‘ WHEREAS We are happily at Peace with all Sovereigns, Powers,
and States :
‘ And whereas, notwithstanding Our utmost Exertions to pre-
serve Peace between all Sovereign Powers and States, a State of
War unhappily exists between his Majesty the Emperor of all the
Russias and his Majesty the Emperor of the Ottomans, and between
their respective Subjects and others inhabiting within their Countries,
Territories, or Dominions :
‘ And whereas We are on Terms of Friendship and amicable
Intercourse with each of these Sovereigns, and with their several
Subjects and others inhabiting within their Countries, Territories,
or Dominions :
‘ And whereas great Numbers of Cur loyal Subjects reside and
carry on Commerce, and possess Property and Establishments, and

I was standing on the stern bridge at the commencement, but,
deafened and blinded by the firing, I rushed below with my hands to
my ears and tears in my eyes, caused by the picture I had seen,
and watched the finish from the main hatchway. A small fishing
vessel was tossed helplessly on the sea ! We saw her quite distinctly,
the black and red of her sides, her single funnel, and the bridge,
but nobody was on deck; panic-stricken, all had probably taken
refuge below. The unhappy vessel had been the target for the
concentrated fire of our guns. I watched our shells explode. The
order to cease fire was given, but the firing continued unabated from
the other ships, who, no doubt, sent the steamer to the bottom.
The second and third steamers, also without a soul on deck, were
bobbing helplessly up and down. The ‘ Suvaroff ’ did not fire
at these. Try to imagine to yourself the feelings of the oor people
in these. vessels. They were probably fishermen. The whole
world will now ring with this shameful outrage, but they were them-
selves greatly to blame. Surely they knew that our fleet had
Started, and that the Japanese had vowed its destruction. They
saw our fleet approaching, and clearly their duty was to abandon
their nets and make all speed to one side. As for the nets, we should
have paid compensation. We shall know at Brest what damage
has been done. 2.30 A.M.-—A terrible incident has just been re-
ported from the ‘ Aurora ’ ; her hull has been pierced above the
water-line in four different places, her funnels are riddled, the
chaplain is severely, and her commander slightly, wounded. The
‘ Aurora ’ had evidently drawn the fire of our squadron.’
The Report of the Hull trawlers is that ‘ while fishing in lat. 5 5°,
18 N. and long. 5° E. on the night of Oct. 21 at 11.30 P.M. a large
fleet of men of war as soon as they got to windward began firing
on us.’ (Parl. Papers. Cd. 2350). .
We may 'well be amazed at the course steered by the Russian
fleet. It was 50 or 60 miles out of its true course. Having coaled
at the Skaw, the most northerly point of Jutland, it ought when it
had passed the Hanstholm Lightship on the Danish coast to have
steered a course which would have brought it within sight of the
Texel, off the Dutch coast, and thence made straight for the English
Channel. Instead of doing so, the fleet held a course which was too
West, and substituted an obtuse angle for a straight
British
proclama-
tion of
neutra-
lity, 1877
206 INTERNATIONAL LAW on. xxw
enjoy various Rights and Privileges, within the Dominions of each
of the aforesaid Sovereigns, protected by the Faith of Treaties
between Us and each of the aforesaid Sovereigns : -
‘ And whereas We, being desirous of preserving to Our Subjects
the Blessings of Peace which they now happily enjoy, are firmly
urposed and determined to maintain a strict and impartial Neutrality
in the said State of War unhappily existing between the aforesaid
Sovereigns : I
‘ We,‘ therefore, have thought fit, by and with the advice of Our
Privy Council, to issue this Our Royal Proclamation :
‘ And We do hereby strictly charge and command all Our loving
Subjects to govern themselves accordingly, and to observe a strict
Neutrality in and during the aforesaid War, and to abstain from
violating or contravening either the Laws and Statutes of the
Realm in this Behalf, or the Law of Nations in relation thereto, as
they will answer to the contrary at their Peril : ~
‘ And whereas in and by a certain Statute made and passed in a
Session of Parliament holden in the 33rd and 34th Year of Our
Reign, intituled “ An Act to regulate the Conduct of her Majesty’s
Subjects during the Existence of Hostilities between Foreign States
withwhich her Majesty is at Peace,” it is, amongst other things,
declared and enacted as ‘follows z—[Quoting sections 4, 5, 6, 7, 8,
9, 10, II_, and 12 of the Foreign Enlistment Act.]
‘,And whereas by the said Act it is further provided that Ships
built, commissioned, equipped, or despatched in contravention of
the said Act, may be condemned and forfeited by Judgment of the
Court of Admiralty; and that if the Secretary of State or Chief
Executive Authority is satisfied that there is a reasonable and
probable cause for believing that a Ship within Our Dominions has
been or is being built, commissioned, or equipped, contrary to the
said Act, and is about to be taken beyond the Limits of such
Dominions, or that a Ship is about to be despatched contrary to the
Act, such Secretary of State, or Chief Executive Authority, shall
have Power to issue a Warrant authorising the Seizure and Search of
such Ship and her Detention until she has been either condemned
or released by process of Law; And whereas certain Powers of
Seizure and Detention are conferred by the said Act on certain
Local Authorities :
‘ Now, in order that none of Our Subjects may unwarily render
themselves liable to the Penalties imposed by the said Statute,
We do hereby strictly command, that no Person or Persons what-
soever do commit any Act, Matter, or Thing whatsoever contrary
to the Provisions of the said Statute, upon Pain of the several
Penalties by the said Statute imposed, and of Our high displeasure.
‘ And We do hereby further warn and admonish all Our loving
Subjects, and all Persons whatsoever entitled to Our Protection, to
observe towards each of the aforesaid Sovereigns, their Subjects and
Territories, and towards all Belligerents whatsoever with whom We
are at Peace, the Duties of Neutrality; and to respect, in all and
each of them, the Exercise of those Belligerent Rights which We
and Our’Royal Predecessors have always claimed to exercise. -
‘ And We hereby further warn all Our loving Subjects, and all
Persons whatsoever entitled to Our Protection, that if any of them
shall presume, in contempt of this Our Royal Proclamation, and of
Our high Displeasure, to do any Acts in derogation of their Duty
as Subjects of a Neutral Sovereign in a War between other Sovereigns,
or in violation or contravention of the Law of Nations in that Behalf,
as more especially by breaking, or endeavouring to break, any
on. new RIGHTS AND DUTIES OF NEUTRALS 2'07
Blockade lawfully and actually established by or on behalf of either
of the said Sovereigns, or by carrying Oflicers, Soldiers, Despatches,
Arms, Ammunition, Military Stores or Materials, or any Article or
Articles considered and deemed to be Contraband of War according
to the Law or Modern Usages of Nations, for the Use or Service of
either of the said Sovereigns, that all Persons so offending, together
with their Ships and Goods, will rightfully incur and be justly liable
to hostile Capture, and to the Penalties denounced by the Law of
Nations in that Behalf.
‘ And We do hereby give Notice that all Our Subjects and Persons
entitled to Our Protection who may misconduct themselves in the
Premises will do so at their Peril, and of their own Wrong ; and that
they will in nowise obtain any Protection from Us against such
Capture, or such Penalties as aforesaid, but will, on the contrary,
incur Our high Displeasure by such Misconduct.
‘ Given at Our Court at Windsor, this Thirtieth Day of April, in
the year of Our Lord One thousand eight hundred and
seventy-seven, in the Fortieth Year of Our Reign.
‘ GOD SAVE THE QUEEN.’ 1
- On the same date the following letter was addressed by the Earl
of Derby to the Treasury, the Home Office, the Colonial Office, the
War Office, the Admiralty, and the India Ofiice :-
- ‘ Foreign Qfi‘ice .'
April 30, I877.
‘ HER Majesty being fully determined to observe the duties of
neutrality during the existing state of war between the Emperor of
all the Russias and the Emperor of the Ottomans, and being more-
over resolved to prevent, as far as possible, the use of her Majesty’s
harbours, ports, and coasts, and the waters within her Majesty’s
territorial jurisdiction, in aid of the warlike purposes of either
belligerent, has commanded me to communicate to you, for your
guidance, the following rules, which are to be treated and enforced
as her Maj esty’s orders and directions :—
‘ Her Majesty is pleased further to command that these rules
shall be put in force in the United Kingdom, the Isle of Man, and the
Channel Islands, on and after the 5th of May instant, and in her
Majesty’s territories and possessions beyond the seas, six days after
the day when the Governor, or other chief authority of each of such
territories or possessions respectively, shall have notified and pub-
lished the same ; stating in such notification that the said rules are
to be obeyed by all persons within the same territories and posses-
sions.
‘ 1. During the continuance of the present state of war, all ships
of war of either belligerent are prohibited from making use of any
port or roadstead in the United Kingdom, the Isle of Man, or the
Channel Islands, or in any of her Majesty’s Colonies or foreign
ossessions or dependencies, or of any waters subject to the territorial
jurisdiction of the British Crown, as a station, or place of resort,
for any warlike purpose, or for the purpose of obtaining any facilities
of warlike equipment ; and no ship of war of either belligerent shall
hereafter be permitted to sail out of or leave any port, roadstead, or
waters subject to British jurisdiction, from which any vessel of the
other belligerent (whether the same shall be‘ a ship of war or a

‘ See a similar proclamation- in the Russo-Japanese War, 1904, London
Gazette Extraordinary, February 12, 1904. ‘
208 INTERNATIONAL LAW on. xxiv
.merchant ship) shall have previously departed, until after the
expiration of, at least, twenty-four hours from the departure of such
fist-mentioned vessel beyond the territorial jurisdiction of her
ajesty. _
‘ 2. If any shi of war of either belligerent vshall, after the time
when this Order s all be first notified and put in force in the United
Kingdom, the Isle of Man, and the Channel Islands, and in the
several Colonies and foreign possessions and dependencies of her
Majesty respectively, enter any port,1 roadstead, or waters belonging
to her Majesty, either in the United Kingdom, the Isle of Man, or the
Channel Islands, or in any of her Majesty’s Colonies or foreign
possessions or dependencies, such vessel shall be required to depart
and to put to sea within twenty—four hours after her entrance into
such port, roadstead, or waters, except in case of stress of weather,
or of her requiring provisions or things necessary for the subsistence
of her crew, or repairs ; in either of which cases the authorities of
the port, or of the nearest port (as the case may be), shall require
her to put to sea as soon as possible after the expiration of such
period of twenty-four hours, without permitting her to take in
supplies beyond what may be necessary for her immediate use;
and no such vessel which may have been allowed to remain within
British waters for the purpose of repair shall continue in any such
port, roadstead, or waters, for a longer period than twenty-four
hours after her necessary repairs shall have been completed. Pro—
vided, nevertheless, that in all cases in which there shall be any
vessel (whether ships of war or merchant ships) of the said belligerent
parties in the same port, roadstead, or waters within the territorial.
jurisdiction of her Majesty, there shall be an interval of not less than
twenty-four hours between the departure therefrom of any such
vessel (whether a ship of war or merchant ship) of the one bel-
ligerent, and the subsequent departure therefrom of any ship of war
of the other belligerent ; 2 and the time hereby limited for the depar-
ture of such ships of war respectively shall always, in case of neces-
sity, be extended so far as may be requisite for giving effect to this
proviso, but no further or otherwise.
‘ 3. No ship of war of either belligerent shall hereafter be per-
mitted, while in any port, roadstead, or waters subject to the terri-
torial jurisdiction of her Majesty, to take in any supplies, except
provisions and such other things as may be requisite for the sub-
sistence of her crew, and except so much coal only as may be suflicient
to carry such vessel to the nearest port of her own country,3 or to
some nearer destination, and no coal shall again be supplied to any
such ship of war in the same or any other port, roadstead, or waters
subject to the territorial jurisdiction of her Majesty, without special

’ It is evident that if there are prisoners of war on board the ship, they would
not become free by the fact of the ship being in neutral waters. If they landed,
it is submitted that they would become free.
2 On the termination of the civil war in the United States in 186 5 vessels or
war under the Confederate flag were refused permission to enter British waters, or
if already there were ordered to leave at once ; the benefit of the twenty-four hours
rule being nevertheless maintained in their favour. Any such vessel, however,
which divested herself of her warlike character and the Confederate flag, and
disarmed, was allowed to remain in British waters at her own risk, and without
any protection save such as she might be entitled to in time of peace; and the
twenty-four hours rule was not applicable to her.
3 There appears to be no prohibition against such coals and other provisions
(in case of the usual means failing) being supplied from British or foreign ships of
war, if the commanders of such vessels permit the same to be done.
on. xxiv RIGHTS AND DUTIES OF NEUTRALS 209
permission, until after the expiration of three months from the time
when such coal may have been last supplied to her within British
waters as aforesaid.
‘ 4. Armed ships of either party are interdicted from carrying
prizes ‘ made by them into the ports, harbours, roadsteads, or waters
of the United Kingdom, the Isle of Man, the Channel Islands, or any
of her Majesty’s Colonies or possessions abroad.2
‘ I have, &c., (Signed) DERBY.’

‘ This is, of course, with the exception of the pressure of some necessity, such
as stress of weather. The letter does not appear to authorise the detention of
prizes if brought into port, but their entry being interdicted they should, except
under the above exception, be immediately ordered to quit, and, if necessary,
compelled to do so by force. In the case of doubt arising whether a vessel
brought into British waters be really a prize or not, the British authorities should
require the production of the vessel’s papers, and if this inquiry should prove the
vessel to be an uncondemned prize brought into British waters in violation of
H.M.’s orders, the prohibition of the exercise of any further control over her by
the captors, and the retention of the vessel by the British authorities until
reclaimed by her original owners, appears to be the proper course, although not
warranted by this letter. But it, should be remembered that if a prize has been
actually and éomifide converted into, and used as, a public vessel of war, it will
cease to be a ‘ prize ’ within the meaning of this letter. If the prize has been
captured by any violation of British territorial waters, the prize should not be
suffered to depart, but should be detained. All cargo on board a prize should be
treated as part of the prize, unless such cargo had been previously disposed of to
neutrals, and by them brought within British jurisdiction.
2 Similar rules were put into force in the Spanish-American War, 1898, and
the Russo-Japanese War, 1904.
VOL. 11. V P
210 INTERNATIONAL LAW OH. xxv
No inter-
course
with a
place
besieged
or block-
aded
CHAPTER XXV
LAW or SIEGES AND BLocKADEs
Interdiction of intercourse with places besieged or blockaded—-
2. Authority to institute sieges and blockades—3. Distinction
between them—4. Actual presence of an adequate blockading
force—5. Temporary absence produced by accident—6. Con-
structive or paper blockades—7. Use of steam—8. Course of
England and France in the wars of Napoleon—9. De ;‘acto
blockades—Io. Public blockades—r I. If blockading vessels be
driven away by superior force—12. If removed for other duty—-
13. If blockade be irregularly maintained—I4. A maritime
blockade does not affect interior communications-15. Effect
of a siege upon communications by sea—I6. Breach of blockade
a criminal act—17. Public notification charges parties with
knowledge—18. What constitutes a public notification-19.
Effect of general notoriety—20. Cases which preclude a denial
of knowledge—21. When presumption of knowledge may be
rebutted-—-22. Proof of actual knowledge or warning—~23. An
attempt to enter—24. Inception of voyage—2 5. Exception in
case of distant voyages—-26. In case of de facto blockades—
27. Where presumption of intention cannot be repelled—~28.
Neutral vessel entering in ballast—29. Declarations of master-—
30. Delay in obeying warning—31. Disregard of warning—32.
When ingress is excused—3 3. Violation of blockade by egress
--34. When egress is allowed—3 5. Penalty of breach of block-
ade—36. When cargo is excepted from condemnation-—37.
Duration of offence—38. Insurance, how affected by violation
of a blockade-39. Hautefeuille’s theory of the law of blockades.
§ I. THE same law which confers upon belligerents the
right to capture and destroy each other’s property imposes
upon neutrals 1 the obligation not to interfere with the
proper exercise of this right. Although, as a general rule,
neutrals may continue their accustomed trade and inter—
course with either or both of the parties to a war, there are,
1 According to the Courts of the United States, to create the i
right of blockade and other belligerent rights, as against neutrals,
it is not necessary that the party claiming them should be at war
with a separate and independent power. The parties to a civil war
are in the same predicament as two nations who engage in a contest
and have recourse to arms. See Prize Cases determined in the
Supreme Court of the United States, 1862; 2 Black, 635. (The
‘ Brilliante ’ v. United States, I Am. Law Rep. N .S. 334.)
omxxv LAW OF SIEGES AND BLOCKADES 211
as already remarked, certain exceptions to this rule, estab-
lished by the positive law of nations, one of which is, that
the neutral shall not communicate or carry on trade with
a place or post which is besieged or blockaded. Grotius
considers the carrying of supplies to a besieged town or a
blockaded port, as an offence exceedingly aggravated and
injurious; Bynkershoek thinks the prohibition is founded
on natural reason as well as established usage ; both agree
that a neutral so offending may be severely dealt with;
Vattel says that ‘he may be treated as a public enemy. The
views of these distinguished founders of international law
are fully concurred in by the opinions of modern publicists,
and by the prize courts of all countries. The right of a
belligerent to invest the places and ports of an enemy so as to
entirely exclude the commerce (otherwise lawful) of neutrals,
during the continuance of the investment, to prevent
exports as well as imports, and to cut off all communication
of commerce with the blockaded place, is undoubted, and,
however serious the grievance, it is one to which neutral
governments and their subjects are bound to submit. But
as this right of the belligerent is an exception to the general
rights of neutrals, and bears with great severity upon their
interests, its exercise is always watched with peculiar
jealousy, in order to prevent its necessary evils from being
aggravated by a lax construction of the laws which regulate
its application.l
§ 2. The institution of a siege, or blockade, is a high act
of sovereignty,2 and must proceed, either directly from the
government of the State or from some officer to whom the
authority has been expressly or impliedly delegated. The
general of an army, or the commander of a fleet, in a foreign
country, or on a distant station, may be reasonably presumed
to carry with him this authority, as the exigencies of the
service on which he is employed, under the varying cir-
cumstances of the war, would often seem to require its
1 Grotius, De furs Bell. ac Pac. lib. iii. c. i. § 5 ; Bynkershoek,
Quasi. fur. Pub. lib. i. 0. xi. ; Vattel, Droit des Gens, liv. iii. ch. vii.
§ 117 ; the ‘ Jufirow Mara. Schroeder,’ 3 Rob. r47 ; the ‘ Haabet,’
6 Rob. 58 ; the ‘ Franciska,’ 10 Moore P. C. 36.
2 The President of the United States, in time of war, has the
power, by virtue of the constitutional authority conferred upon him
as commander-in-chief of the army and navy, to institute and declare
3. blockade. (The ‘Tropic Wind,’ 14 Law Rep. NS. 144.)
Authority
to insti-
tute sieges
and
blockades
P2
212 INTERNATIONAL LAW OH. XXV
Distinc-
tion be-
tween
them
exercise. His authority in such cases is, therefore, implied
from the nature of the service. But where the station of
the army or fleet is so near the government of the belligerent
State as to enable the commander to receive direct and
special instructions, it would seem that the necessity of
presuming power in the officer does not exist, and it has been
suggested by some, that it is the duty of the commander, in
such a case, if his authority should be questioned, to justify
his acts by express proof of the instructions of his govern-
ment. The weight of authority, however, is in favour of the
rule that a neutral individual is never at liberty to impeach
the regularity of a siege or blockade, otherwise valid, by
questioning the authority of the officer by whom it was
established or is enforced. The officer is undoubtedly
answerable to his own government for any irregular or
unauthorised acts, but so long as they are acts of legitimate
hostility, it is not open to a neutral State or its subjects,
under any circumstance, to dispute their validity. The
orders of his government are known only to that govern-
ment and the officer, and cannot be enquired into by third
parties. If he has acted without orders, and his acts are
subsequently adopted and ratified, such ratification sup-
plies the want of an original authority, and precludes all
further enquiry. But if the act is disavowed by the
government of the belligerent State, or if it can be proved that
the officer exceeded his actual authority, such disavowal
or excess may be urged as a valid defence. Where a blockade
has been declared by the government, the commander of
the blockading squadron has no discretionary power to
extend its limits; and if he prohibits neutral ships from
entering ports not embraced in the terms of the blockade
he was appointed to enforce, the warning is illegal, and
no penalty is incurred by the neutral master by whom it is
disregarded.1
§ 3. A siege is a military investment of a place, so as to
intercept, or render dangerous, all communications between
1 The ‘ Henrick and Maria,’ I Rob. 146; the ‘Rolla,’ 6 Rob.
366; Duer, 0n Insurance, vol. i. p. 646 ; Phillimore, 0n Int. Law,
vol. iii. § 288 ; the ‘ Juffrow Maria Schroeder,’ 3 Rob. I 54 ; Cameron
1). Kyte, 3 Knapp. R. 342 ; Chitty, Law of Nations, p. 2 59 ; Riquelme,
Derecho Pub. Int. lib. i. tit. ii. 0. xviii. ; Bello, Derecho Interna-
eional, pt. c. viii. § 5. L j
OH. XXV LAW OF SIEGES AND BLOCKADES 213
the occupants and persons outside of the besieging army;
and the place is said to be blockaded, when such communica—
tion, by water, is either entirely out off or rendered dangerous
by the presence of the blockading squadron. A place may
‘be both besieged and blockaded at the same time, or its
communications by water may be intercepted, while those
by land may be left open, and vice versa. Both are instituted
by the ‘rights of war, and for the purpose of injuring the
enemy, and both impose upon neutrals the duty of not
interfering with the operations of the belligerents. But
there is an important distinction, with respect to neutral
commerce, between a maritime blockade and a military
siege. The object of a blockade is solely to distress the
enemy, intercepting his commerce with neutral States. It
does not, generally, look to the surrender or reduction of the
blockaded port, nor does it necessarily imply the commission
of hostilities against the inhabitants of the place. The
object of a military siege is, on the other hand, to reduce
the place by capitulation, or otherwise, into the possession
of the besiegers. It is by the direct application of force,
that this object is sought-to be attained, and it is only by
forcible resistance that it can be defeated. Hence, every
besieged place is, for the time, a military post; for even
when it is not defended by a military garrison, its inhabi-
tants are converted into soldiers by the necessities of self-
defence. This distinction is not merely nominal, but as
will be shown hereafter, leads to important consequences
in determining the rights of neutral commerce, and in
deciding questions of capture.1
1 The ‘ Stert,’ 4 Rob. 66 ; Kluber, Droit des Gens Jl/Ioderrte, § 297 ;
Heffter, Droit International, § 154. General Le Blois, in his work
Fortifications irz. Presence 0]‘ the New Artillery (1865), Strongly re-
commends the shocking idea that hollow projectiles be thrown upon
all points of the interior of a fortified place. ‘ Shell the dwelling-
houses,’ says he ; ‘ when the shells fall in the various quarters, the
catastrophes are in proportion to the density of the population.
Deathv hovers above the heads of all. Each individual feels
threatened as to his own existence and that of all he holds dear in
the world, while at any moment his property may be destroyed by
fire. . . . The governor is made responsible for all the disasters that
occur ; the people rise against him, and his own troops seek to compel
him to' an immediate capitulation.’
. The French military law (Art. 218) ‘ condemns to capital punish~
ment every commandant who gives up his place without having
forced the besiegers to pass by the slow and successive stages of a
214 INTERNATIONAL LAW 0H. XXV
Actual
presence
of an
adequate
blockad-
ing force
Tempo-
rary
absence
produced
by acci- .
dent
§4. It is now a well-settled principle of international
jurisprudence, that a lawful maritime blockade of a port
requires the actual presence of a competent blockading force.
A competent force is suflicient. Thus during the Spanish-
American War, I898, the United States blockaded the
North Coast and part of the South Coast of Cuba and the
island of San Juan. The ports involved were few in number,
thus requiring but few ships for the effective blockade in
spite of the large extent of coast concerned. A mere
proclamation or notification of one belligerent, that such a
port of the other belligerent will be blockaded at such a
. time, and thus closed to neutral commerce, is not sufficient
to constitute a legal blockade; the force must be actually
present at the entrance to the port, or sufficiently near to
prevent communication. Nor is the mere presence of a
hostile force sufficient, of itself, to make the blockade a
legal one ; it must not only be actually present, but it must
be large enough to prevent communication, or, at least,
to render it dangerous to attempt to enter the port.1
. § 5. The only exception to the general rule which requires
the actual presence of an adequate force to constitute a legal
blockade is the temporary absence of the blockading squad-
ron, produced by accident, as in the case of a storm. Such
accidental removal of the blockading force, if it be only for
a very short time, does not suspend the legal operation of the
blockade, and an attempt to take advantage of such an
accidental removal is regarded as a fraudulent attempt to
break the blockade. But if the blockading forces should be
siege, and before having repulsed at least one assault on the body
of the place by practicable breaches.’ General Ulrich, although in
defending Strasbourg he had made such a defence as no other general
had made throughout the Franco-German war of 1870, could not
obey this article. He could not repel or even await an assault, for
it was a physical impossibility for his men to remain on the ramparts
in presence of the hurricane of fire kept up by the Prussians. ’ Nor
did any other French general observe this article. A telegraphic
communication ran through the trenches at Strasbourg; and also
between the batteries at Kehl and a church tower close by, whence
an artillery officer watched each shot and corrected or approved
the gunner’s aim. (Edwards’s Germans in France.)
1 Kent, Com. on Am. Law, vol. i. p. 144 ; Wheaton, Elem. Int.
Law, pt. iv. ch. iii. § 28 ; Phillimore, On Int. Law, vol. iii. § 289 ; the
‘ Betsey,’ 1 Rob. 92 ; the ‘ Mercurius,’ I Rob. 82, 83 ; the ‘ Vrouw
Judith,’ I Rob. I 50 ; Ortolan, Diplomatz'e de la Mer, t. ii. ch. ix. ;
Hautefeuille, Des Nations Neutres, tit. ix. eh. i. ; De Cussy, Droit
Mam'tz'me, liv. i. tit. iii. § II.
0H. XXV LAW OF SIEGES AND BLOCKADES 215
so scattered or injured by the storm, as to be unable to
resume their stations without repairs, and within a reason~
able time, the blockade will be considered as terminated, in
the same manner as if the blockading squadron had been
driven away by a superior force of the enemy. Some ports
‘are subject to such periodical storms during one or more
months of the year, that any blockading squadron is obliged
to leave its station, and seek refuge in some other harbour
till the season of storms is passed. In such cases the legal
operation of the blockade is suspended. It should be
remembered, however, that some text-writers do not admit
this exception of the temporary and accidental absence of
the blockading force. They say that the blockade is not
mere theory, but the material result of a material fact
(résultat materiel d’un fail materiel), and, consequently,
cannot exist in the absence of that fact; that, therefore,
the blockade must be regarded as raised the moment the
blockading force is removed, no matter whether the absence
is for a long or short period, or whether produced by accident,
by storm, or by an opposing force.1
§ 6. A constructive, or, as it is sometimes called, a paper
blockade, is one established by proclamation, without the
actual presence of an adequate force to prevent the entrance
‘of neutral vessels into the port or ports so pretended to be
blockaded. It is now universally conceded to be illegal.
The ancient text-writers all agree that a blockade which does
not really exist, but is merely declared by proclamation, is
not sufficient to render commercial intercourse unlawful on
the part of neutrals. Grotius forbade the carrying of
anything to ‘ a town actually invested, or a port closely
blockaded ; ’ and Bynkershoek evidently concurred with
Grotius, in requiring a strict and actual siege or blockade,
such as where a town is actually invested with troops or
a port closely blockaded by ships of war (ojbpz'dum obsessum,
portus clausos). This is shown from his remarks upon the
1 The ‘ Columbia,’ 1 Rob. 154 ; the ‘ Triheten,’ 6 Rob. 65 ; the
' ‘ Hofinung,’ 6 Rob. 116; the ‘ Frederick Molke,’ 1 Rob. 73; the
‘ Jufirow Maria Schroeder,’ 3 Rob. 1 5 5; Radclifi u. U. Ins. Co.
7 johns. 38 ; Laing u. U. Ins. Co. 2 johns. 178 ; Hautefeuille, vol.
iii. p. 1 19 ; the ‘ Nancy,’ 1 Act. 37. ‘» Blockading ships are at liberty
.to take a. rize if it comes in the way, but they are not to chase to a
distance, or that would be a desertion of their duty of blockade.’
(‘ La Melanie,’ 2 Dodson, 13o.)
Construc-
tive or
paper
blockades
216 INTERNATIONAL LAW 01:. xxv
Use of
steam
various decrees of the States-General. The general practice
of the Continental powers accorded with the opinions .of
these writers. In the Convention of r801, between Great
Britain and Russia, intended as a final adjustment of the
disputed points of maritime law which had given rise to the
armed neutrality of 1780 and 1801, the general law of nations
as to what constitutes a blockade is very correctly expressed.
The third article, section four, of that Convention, declares :
‘ That in order to determine what characterises a blockaded
port, that denomination is given only where there is, by the
disposition of the power which attacks it with ships stationary
or sufficiently near, an evident danger in entering.’ The
same definition of a blockade is implied in the previous
treaties between Great Britain and the Baltic powers, and
in that of 1794 with the United States. In 1804 instruc-
tions’ were sent by the Board of Admiralty to the naval
commanders and judges of the Vice-Admiralty Courts,
not to consider any blockade of the French West India
islands as existing unless in respect to particular ports which
were actually invested.l
§ 7. Although the above definition of blockade remains _
unaltered, the application of it to practice has been much
altered by the introduction of steam power. A port must
be strictly blockaded ; but for the purposes of blockade two
or three steam vessels may be as effective now as twenty
sailing vessels were formerly. Also under particular circum-
stancesv a single vessel may be adequate to maintain the
blockade of one port, and co-operate with other vessels, at
the same time, in the blockade of another neighbouring port.
On the other hand a blockade is not to be extended by con-
struction. The mouth of the Rio Grande was not included
in the blockade of the ports of the Southern States, set on
foot by the Federal Government, during the American Civil
War of 1862; and neutral commerce with Matamoras, a
neutral town on the Mexican side of the river, except in con-
1 The ‘ Betsey,’ I Rob. 92; the ‘ Mercurius,’ I Rob. 84 ;' Reddie,
Researches, Historical, &c., vol. ii. p. 16'; Pistoye et Duverdy, Traite'
des Prises, tit. vi. ch. ii. § 2; Heffter, Droit International, § 157 ;
De Cussy, Droit Maritime, liv. i. ch. vii. ; Wheaton, Hist. Law 0)‘
VNations, pp. 138—143 ; Wheaton, Eleni. Int. Law, pt. iv. ch. iii. §‘ 28;
Grotius, De ]ure Bell. a0 Pac. lib. iii. 0. i. § 5; Bynkershoek,
Queest. ]ur. Pub. lib. 'i. 0. xi. ; Hautefeuille, Des Nations Neutres,
tit. ix. ch. v. § I the ‘ Henrick and Maria,’ I Rob. I46.
CH. XXV LAW OF SIEGES AND BLOCKADES 217
‘ lay down a precise definition of it.
traband destined to the enemy, was entirely free. Semble, a
belligerent cannot blockade the mouth of a river occupied on
one bank by neutrals with complete rights of navigation.’ 1
§ 8. In the course pursued by the belligerents in the wars
of the French revolution and empire, and in the British
Orders in Council, and Napoleon’s retaliatory decrees, an
attempt was made by England and France to annul the well-
established rule of blockades, and to close the ports and
coasts of a whole State to neutral commerce, by simple pro-
clamations, and without the slightest pretence of an actual
blockading force. The United States constantly protested
against this proceeding. At the commencement of the
Crimean War in 1854 England and France declared their
intention to ‘ maintain the right of a belligerent to prevent
neutrals from breaking any effective blockade which may be
established with an adequate force against the enemy’s ports,
harbours, or coasts.’ This declaration was a virtual con-
demnation of paper blockades, although it was in form a
mere temporary order. But the Declaration of the pleni-
potentiaries of France, Great Britain, Russia, Austria,
. Prussia, Sardinia and Turkey, in April 16, 1856, at the
Conference of Paris, removed all doubt on this point, by
announcing in the fourth Article or principle, that
‘ blockades, in order to be binding, must be effective ; that is
to say, maintained by a force safifcient really to prevent access
to the coast of the enemy.’ This proposition was approved
by the United States, and has been adopted by the other
nations of Europe. There is, therefore, very little danger
of its ever again being disputed as an, established principle
of international jurisprudence. This Article, however, fails
to define what is a ‘ Sllfl‘lClCIlt force ; ’ and it is diflicult to
‘ In the eye of the law,’
said Sir A. Cockburn, in Geipel v. Smith,2 ‘ a blockade is
effective if the enemies’ ships are in such numbers and
position as to render the running of the blockade a matter
of danger, although some vessels may succeed in getting
through.’ A blockade is not necessarily made by ships ; it may
equally well be made by land batteries commanding the sea.3
1 The ‘ Nancy,’ I Act. 69 ; ‘the ‘ Peterhofi,’ 5 Wall. 28.
2 L. R. 7 Q. B. 410. ~ '
3 The ‘ Circassian,’ 2 Wall. 149 ; the ‘Baigorry,’ ibid. 480 ; the
In the
wars of
Napoleon
218 INTERNATIONAL LAW on. xxv
De facto
‘blockade:
Public
blockades
§ 9. Blockades are divided, by English and American
publicists, into two kinds --(I) a simple or de facto blockade,
and (2) a public or governmental blockade. This is by no
means a mere nominal distinction, but ‘one that leads to
practical consequences of much importance. In cases of
capture, the rules of evidence which are applicable to one
kind of blockade, are entirely inapplicable to the other ; and
what a neutral vessel might lawfully do in case of a simple
blockade, would be sufficient cause for condemnation in case
of a governmental blockade. A simple or de faclo blockade
is constituted merely by the fact of an investment, and with-
out any necessity of a public notification. As it arises solely
from facts, it ceases when they terminate ; its existence must,
therefore, in all cases, be established by clear and decisive
evidence. The burthen of proof is thrown upon the captors,
and they are bound to show that there was an actual
blockade at the time of the capture. If the blockading ships
were absent from their stations at the time the alleged
breach occurred, the captors must prove that it was acci-
dental, and not such an absence as would dissolve the
blockade.1
§ 10. A public, or governmental blockade, is one where
the investment is not only actually established, but where
also a public notification of the fact is made to neutral
powers by the government, or officers of State, declaring the
blockade. Such notice to a’ neutral State is presumed to
extend to all its subjects; and a blockade established by
public edict is presumed to continue till a public notification
of its expiration. Hence the burthen of proof is changed,
and the captured party is now bound to repel the legal
presumptions against him by unequivocal evidence. It
would, probably, not be sufi‘icient for the neutral claimant
to prove that the blockading squadron was absent, and
there was no actual investment at the time the alleged
‘ Andromeda,’ z'bz'd. 48,1 ; Phillimore, On I at. Law, vol. iii. Appendix,
pp. 850, 851; Ortolan, Diplomatz'e de la Mer, t. ii. appendice
special ; Pistoye et Duverdy, Traz'zfe' des Pm'ses, tit. ch._ v. 2 ;
Heffter, Drozt Iatematzona , § I 57; De Cussy, Pre’ezs Hzstorzqae,
ch‘ 1x1The English Government informed the Haytian Government
in r889 that their blockade of insurgent ports of Hayti could no
longer be respected by Great Britain, because the blockade had ceased
to be effective.
OH. XXV LAW OF SIEGES AND BLOCKADES 219
breach took place; he must also prove that it was not an
accidental and temporary absence, occasioned by storms,
but that it arose from causes which, by their necessary and
legal operation, raised the blockade.1
§ II. Where the blockading squadron is driven away from
its station by a superior force of the enemy, the interruption
operates as a legal discontinuance of the blockade, and on its
renewal the same measures are necessary to bring it to the
knowledge of neutrals, either by public declaration or by the
notoriety of the fact, as were legally requisite when it was
first'established. It is, in effect, a new blockade, and not the
continuance of the old one. The reason of this is obvious.
The raising of the blockade by a superior force of the enemy
effects a material change in the relative circumstances of the
war, and a new course of events arises which may lead the
government to make a very different disposition of its block-
ading force. It, therefore, introduces a new and different
train of presumptions, in favour of the ordinary freedom of
commercial intercourse.
§ 12. A blockade is dissolved by the removal of the
blockading force for a different service, although the removal
should be a temporary one. Even where only a portion of
the force is ordered away, the legal effect is the same, unless
the force that is left is competent, by itself, to maintain and
enforce the blockade, by its ability to prevent all communica-
1 The ‘Neptunus,’ K. 1 Rob. 170; the Christina Margaretha,’
6 Rob. 62 ; the ‘ Vrouw Johanna,’ 2 Rob. 109 ; Duer, 0n Insurance,
vol. i. pp. 649, 650; the ‘ Mercurius,’ 1 Rob. 82 ; the ‘ Neptunus,’
H. 2 Rob. 110 ; the ‘ Welvaart van Pillaw,’ 2 Rob. 13o; Ortolan,
Dz'plornatz'e de la Mer, t. ii. ch. ix.
In 1804 Napoleon issued directions, framed by himself, for the
improvement of his fleet in Brest water. He began by complaining
that the enemy should be permitted, with so few ships, to blockade
so large a fleet as the one in the port. He ordered the ships to get
under weigh every day, as well to exercise the crews as to harass the
British, and favour the passage of the flotilla coming from Audierne ;
that 200 soldiers should be placed on board each ship of the line,
who, besides being exercised at the guns and about the rigging and
sails, were to row in the ship’s launch. Premiums were to be given
to those who excelled in these matters ; and nothing that could
excite the emulation of either soldiers or sailors appears to have
been overlooked. Every ship of the line was to be provided with a
quantity of 36-pound shells for her lower battery, and the men were
to be taught how to fire them off with effect. The captains were
ordered not to quit their vessels to go on shore, and even the com-
mander-in-chief was not allowed to lodge elsewhere than on board
his ship. (James, Nav. Hist. vol. iii. p. 216.)
If driven
away by
force
It removed
for other
duty
220
INTERNATIONAL LAW on. xxv
If block-
ade be
irregular-
1y main-
tained
tions. But the blockade is not considered as raised where
some of the passes of communications are left unguarded and
open by the temporary absence of some of the ships in
chasing suspicious vessels which had approached the
blockaded port; for the‘ service in which such ships are
employed is a necessary part of the duty they are appointed
to perform, and their absence is justly regarded as acci-
dental, like that produced by stress of weather; they,
however, are bound to resume their station with due dili—
gence, as otherwise their prolonged absence would lead to
the inference that they had been detached as cruisers, and
the blockade would be considered as suspended.1
§ I3. A blockade is also dissolved by repeated instances
of an improper relaxation of theapplication of the block-
ading force to the purposes intended. The mere presence of
an adequate force is not sufficient to constitute and main-
tain a blockade, but its application must be constant and
uniform, to prevent all communication with the port it
encloses. If, through motives of civility, or other con-
siderations, it should allow ships, not privileged by law, to
enter or depart, the irregularity may be justly held to
vitiate the blockade, as it necessarily tends to deceive other
parties. Where some are suffered to pass, others will have
a right to infer that the blockade is raised. To justify
this presumption, however, there must be repeated instances
of an improper relaxation, for one or two cases would
hardly be deemed suficicient to warrant the belief that the
legal restraint on neutral commerce had been wholly
removed.2 ' -
1 The ‘Triheten,’ 6 Rob. 65; the ‘Hoffnung,’ 6 Rob. 112;
Williams v. Smith, 2 N. Y. R. p. I ; the ‘Eagle,’ I Act. R. 68 ;
the ‘ Rolla,’ 6 Rob. 372 ; the ‘ Fox,’ I Edw. R. 321.
Every vessel of a blockading squadron is bound to do all in its
power in the service to be performed, and the law presumes that that
obligation is fulfilled unless the contrary be proved. The rule is
different with respect to joint associations, or enterprises undertaken
by privateers or cruisers owned by individuals. (The ‘ Anglia,’
Blat‘chf. Pr. Cas. 566.) '
2 Duer, On Insurance, vol. i. p. 654; ]acobsen, Seerecht, p. 68 3.
The proclamation of the President of May 12, I862, not ‘only
relaxed the‘ blockade so far as to, let in vessels duly licensed, but
entirely raised the blockade of the ports therein named, as respected
neutrals. The proviso respecting the license was construed to be
a regulation of trade with places in the military possession of th
Government. (The ‘ Alma,’ I 5 Law Rep. NS. 663.) '
OH. XXV LAW OF SIEGES AND BLOCKADES ZZI
339
§ 14. A legal blockade can only exist where its actual
force can be applied; hence the legal effect of a maritime
blockade, not accompanied by a military investment on
land, applies only to a direct communication by sea, and to
vessels sailing from, or immediately destined to, the block-
aded port, and cannot be construed to prohibit the convey-
ance of articles, not contraband of war, to or from the
blockaded port, by interior communications. A blockade
can never be a complete investment of a place unless its
force can be applied to every point by which a communica-
tion may be carried on. It is true that, by this. construction,
a maritime blockade is usually imperfect, as a complete
investment, but this imperfection arises from the nature of
the force applied; it is now universally conceded that they
extent of legal pretensions of a blockade is unavoidably
limited by the physical impossibility of applying ships to
obstruct communications by land. The conveyance of
goods through the mouth of a river under blockade, for the
purpose of being shipped for exportation, is regarded as
a breach of blockade, it being perfectly insignificant whether
this is effected in large or small vessels. Thus, goods
shipped in a river, having been previously sent in lighters
along the coast from the blockaded port, with the ship
under charter party proceeding also from the blockaded
port in ballast to take them on board, were held liable to
confiscation.1
§ I5. It might be inferred, by parity of reasoning, that,
when a port is under a military siege, neutral commerce
might still be lawfully carried on by sea, through channels of
communication which could not be obstructed by the forces
of the besieging army. But such inference would not be
strictly correct, for the difference between a blockade and a
siege, in their character and object, have led to a difference in
the rules applicable, in the two cases, to neutral commerce.
Although the legal effect of a siege on land—that is, apurely
military investment of a naval or commercial port—may not
be an entire prohibition of neutral commerce, yet it does not
1 The ‘ Jonge Pieter,’ 4 Rob. 8 3 ; the ‘ Ocean,’ 3 Rob. 297 ; the
‘Maria,’ 6 Rob. 201; the ‘ Charlotte Sophia,’ 6 Rob. 204, note;
Hefiter, Droit International, § I 55. A proclamation by a commander,
withoutan actual investment, will not constitute a legal blockade.
(The ‘ Betsey,’ I Rob. 93.) ‘
Effect of
maritime
blockades
on interior
communi-
cations
Efl'eet of a
siege upon
communi-
cations by
sea
222 INTERNATIONAL LAW OH. XXV
Breach of
blockade
a criminal
act
leave the ordinary communications by sea open and unre-
stricted, as a purely maritime blockade leaves the interior.
communications by land. The primary object of a blockade
is, as we have already said, to prohibit commerce ; but the
primary object of a siege is the reduction of the place. All
writers on international law impose upon neutrals the duty
of not interfering with this object. To supply the inhabi-
tants of the place besieged with anything required for
immediate use, such as provisions and clothing, might be
giving them aid to prolong their resistance. It is, therefore,
a clear departure from neutral duty to furnish supplies, even
of possible utility, to a port in a state of siege, although
the communication by sea may be open. It would be a
direct interference in the war, tending to the relief of one
belligerent, and to the prejudice of the other; and such
supplies are justly deemed contraband of war to the same
extent as if destined to the immediate use of the army or
navy of the enemy. Hence, although the prohibition of
neutral commerce with a port besieged be not entire, yet it
will extend to all supplies of even possible utility in pro—
longing the siege.1
§ 16. The breach of a blockade is viewed, in all cases, as
a criminal act ; this necessarily implies a criminal intent, and
to constitute such intent a knowledge of the existence of the
blockade, and an intention to violate it, are indispensable.
These are sometimes a presumption of law which the party is
not permitted to repel: in others, as inference more or less
probable; but in many cases they must be shown by positive
1 Duer, On I nsaranee, vol. i. pp. 656-658 ; Vattel, Droit des Gens,
liv. iii. ch. vii. § 117. j
The permission of the English king, granted to the city of Bremen,
for lighters to navigate between the rivers Jade and Weser with
innocent cargoes, notwithstanding the blockade, was held to justify
the particular trade in which the ship was engaged. Restitution
of ship and cargo was decreed, on payment of captor’s expenses.
(The ‘Maria,’ 6 Rob. 201 ; the ‘ Charlotte Sophia,’ are. 204, n. ;
the ‘ Lisette,’ z'bz'd. 394.)
A vessel destined for a neutral port, with no ulterior destination
for the ship, or none by sea for the cargo, to any blockaded place,
violates no blockade._ Hence trade, during the Civil War in the
United States, between London and Matamoras, two neutral places,
the latter an inland port of Mexico and close to the Federal boundary
of Mexico, even with intent to supply, from Matamoras, goods to
Texas, then an enemy of the Federal States, was not unlawful on the
ground of such violation.
OH. XXV LAW OF SIEGES AND BLOCKADES 223
evidence. Sometimes one will be presumed, while the other
will require positive proof. Although both knowledge and
intention must be combined to complete a criminal intent, it
is evident that the questions themselves are perfectly distinct,
and, in any particular case, may be governed by different
rules of evidence. The judicial decisions in England and in
the‘ United States have given great precision to the rules of
law applicable to a breach of blockade, by the cleamess of
their reasoning and the equity of their illustrations. They
are distinguished, likewise, for general coincidence and
harmony in their principles.1
§ 17. It has been held by the English Courts of Admiralty,
that the notification of a blockade to a neutral government
is, by construction of law, a direct personal notice to each
inhabitant of that country, and that he cannot be allowed to
aver his own ignorance of the blockade, or otherwise contra—
dict the legal presumption of knowledge. To allow indivi-
duals to plead ignorance of a blockade which had been
notified to their government would wholly defeat the object
of the notification. It is true that the exclusion of this
evidence may operate with severity in particular cases ;
but an opposite construction would render a notification,
in the words of Sir William Scott, ‘ the most nugatory thing
in the world.’ If the neutral government should fail to
communicate the information to its subjects, by a prompt
and authoritative publication of the notice which it receives,
those subjects who suffer from such neglect cannot complain
of the belligerent State, but must address their complaints,
and demand for compensation, to their own government.’
1 For cases of a vessel condemned as enemy’s property and for
attempt to violate 3. blockade, see the ‘ Advocate,’ Blatchf. Pr. Cas.
142.v For a vessel and cargo condemned for the same cause, see the
‘ Shark,’ Blatchf. Pr. Gas. 215 ; the ‘ General C. C. Pinckney,’ find.
278 ; the ‘ Zavalla,’ z'bz'd. I 7 3. For a cargo condemned for attempt
to violate blockade, and as enemy’s property, see the ‘ Edward
Barnard,’ Blatchf. Pr. Gas. 122. For a cargo condemned for
attempt to violate blockade, and as contraband of war, see the
‘ Richard O’Bryan,’ 2 Sprague, 197. For a vessel and cargo con-
demned for an actual or attempted violation of blockade, see the
‘ Solidad Cos,’ Blatchf. Pr. Gas. 94; the ‘Albion,’ tbz'd. 95 ; the
‘Express,’ z'btd. 128. '
vessel ostensibly bound to Port Royal, then in the possession
of the United States forces, was condemned for an attempt to break
the blockade of other ports. (The ‘ Ocean Bird,’ 2 Sprague, 261.)
2 Kent, Com. on Am. Law, vol. vi. pp. 147, 148; Phillimore,
Public
notifica-
tion
charges
parties
with
knowledge
224 INTERNATIONAL LAW CH. XXV
What
consti-
tutes a
public
notifica-
tion
Effect of
general
notoriety
. § 18. A question may here arise as to what constitutes a
public notification. ' This is usually in the form of an official
communication from the belligerent to the authorities of
neutral States. It may be a notice that a certain port will be
blockaded on and after a certain date, or that it is the inten-
tion of the belligerent to proceed to blockade certain ports
or harbours. Such notices require a subseguentnotice of the
commencement or time of the actual blockade. Sometimes
several notifications are given, such as a notice of intention,
a subsequent notice of the sailing of the naval forces for the
purpose of carrying that intention into execution, and
finally a notice of the actual commencement of the blockade.
The two former are given, as a matter of courtesy, for the
information of neutrals. The French have held that a
general diplomatic notice is not sufficient to charge parties
with a knowledge of a blockade, but there must be an actual
notice by the blockading force. This doctrine was distinctly
announced by Count Molé, in his letter of October 20, 1838,
to the French Minister of Marine, in relation to the French
blockade of Vera Cruz, Mexico, and is strenuously advocated
by Ortolan and other French writers on international
law. As already remarked, British writers and British
Courts of Admiralty regard a public or diplomatic notice
of a blockade as, by construction of law, a direct, personal
notice to each inhabitant of the State so notified.
§ 19. Instead of a direct ofi‘icial notification to a neutral
government of the establishment of, or intention to institute,
a blockade of a particular port, a general notice to that effect
On Int. Law, vol. viii. § 290; Duer, On Insurance, vol. i. p. 659;
the ‘ ]onge Petronella,’ 2 Rob. I31 ; the ‘ Spes and Irene,’ 5 Rob.
79 ; the ‘ Welvaart,’ 2 Rob. 128. , v ,
Under the proclamation of blockade by the United States,
April 19, I 861, it was not necessary for the lawful capture of a vessel
seized for violating the blockade, that a warning should have been
previously endorsed on her. register, when at the time'of capture she
possessed knowledge of the- blockade. (The ‘ Hiawatha,’ Blatchf.
P. C. I.) ' I I
Although a notification of blockade does not, proprio vigore, bind
any country but that to which it is addressed, yet in a. reasonable
time it must afiect neighbouring States with knowledge as a reason-
able ground of evidence. A vessel seized for breach of blockade by
egress was condemned, the court holding the master to have been
cognisant of the blockade, although his government had received
no notification thereof, and he and his crew swore to ignorance of
the fact. (The ‘ Adelaide,’ 1 Rob. 11 1.)
0H. XXV LAW OF SIEGES AND BLOCKADES 225
is sometimes given by official publication in the newspapers.-
By this means information is distributed among the mer-
cantile community more generally and expeditiously than
through the ordinary channels of official communication with
the neutral government. Thus, where the vessel intercepted
is destined to a blockaded port, and there is clear and posi-
tive proof that the existence of the blockade was generally
known at her port of departure when she sailed, neither the
master nor his owners, nor the shippers of the goods, will
be permitted to aver their personal ignorance of that which it
is scarcely possible they should not have known, or, at any
rate, by due enquiry might have ascertained. To allow
proof of personal ignorance in such a case, by admitting
the aflidavits of the master or his crew, would be a direct
invitation to perjury and fraud.1 -
§ 20. Where aneutral vessel is intercepted on her passage,
with a cargo from a blockaded port, and the cargo is proved
to have been shipped after the blockade had commenced, and
was known at the port, the party is precluded from denying
his knowledge of its existence. The personal ignorance of
the master, in such a case, could only have arisen from a
fraudulent determination not to know ——an obstinate
exclusion of knowledge it was his duty to have acquired;
and if his personal ignorance could be proved, it would not
form even an equitable defence. He is, therefore, very
justly precluded from denying his knowledge of what it is
morally impossible heshould have been ignorant of, except
for a fraudulent intent?
§ 21. There are many cases where the inference of a
knowledge of the blockade is so probable as to create a
strong presumption, but a presumption not entirely con-
clusive, and which may be repelled by unimpeached and
positive proof. Thus a public notification to one neutral
‘State will be presumed, in due time, to reach the inhabi-
tants of a‘ neighbouring power not oflicially notified of the
The ‘Adelaide,’ 2 Rob. III ; the ‘ Frederick Molke,’ I Rob.
86 ; the ‘ Hare,’ I Act. Ap. Ca. 261. A notice of blockade to the
oflicials of a neutral government is sufficient notice to the subjects
of such government. (The ‘ Hiawatha,’ Blatchf. P. C. 2.)
2 The ‘Frederick Molke,’ 1 Rob. 86; the ‘Vrouw Judith,"
1 Rob. :50. A blockade may be broken by obstinacy as well as by
fraud of the master. (The ‘ ,I'IQQIiQ-k and Maria,’ E £95: iii-.73)
vor. 11, Q
Cases
which
preclude
a denial of
know-
ledge
When pre-
sumption
of know-
ledge may
be re-
butted
226 INTERNATIONAL LAW on. xxv
Proof of
actual
know-
ledge or
warning
blockade, as such information, generally circulated in one
country, must of necessity in vtime reach the knowledge of
the inhabitants of an adjoining country. But as such notifi-
cation does not, proprz'o m'gore, bind the inhabitants of any
State but that to which it is addressed, the presumption of
such knowledge, in a reasonable time, may be repelled by
positive evidence. So, where a blockade has lasted for such
a considerable time as to render it highly probable that its
existence must have been known at the port of departure,
a knowledge of it will be presumed, and it will rest upon
the party to show by satisfactory proof that he was not
apprised of the blockade. ' Again, where the neutral vessel
is intercepted on her egressefrom a blockaded port, with
a cargo shipped immediately after the blockade had com-
menced, and while it might have been unknown to the
inhabitants of the port when the vessel sailed, the party
will be allowed to rebut the presumption of law by satis—
factory proof of his ignorance of the establishment of the
blockade. In all cases of this kind, where the presumption
of knowledge is not absolute and conclusive, the neutral
claimant is allowed to prove his own innocence. And the
captor can judge from the nature and circumstances of
each particular case, whether the neutral vessel is acting in
good faith, and is really ignorant of‘ the existence of the
blockade, or whether the pretended ignorance is a mere
fraudulent attempt to deceive} _.
§ 22. Where there are no legal or probable grounds for
imputing to the master of a neutral vessel the knowledge
of the existence of a blockade which heis charged to have
violated, it rests upon the captor to establish the fact of
this knowledge by positive evidence. To warrant a con—
demnation, the proof must be clear and definite that. such
vessel had been duly notified of the blockade, and had
undertaken or prosecuted the voyage in defiance of the
notice or warning.’ To be binding,‘ the notice or warning
must be clear, and not so ambiguous or insidious as to be
calculated to mislead the neutral master, otherwise it is
{1 Seethe report of eight cases, in the High Court of Admiralty,
on the blockade of the coast- of Courland, 1854, by Dr. J. Parker
Deane, D.C.L. ; also the ‘ Calypso,’ 2 Rob. 298 ; the ‘ Hurtige Hane,’
3 Rob. 328 ; Pistoye et Duverdy, Traite' des Prz'ses, tit. vi. ch. ii. § 2 ;
the ‘ Mercurius,’ 1 Rob. 80 ;the ‘ Betsey,’ z'bz'd. 93.
01!. XXV LAW OF SIEGES AND BLOCKADES 227
capture.
illegal and void. Where it is expressed in such general
terms as to embrace other ports not blockaded, it is not
even valid as to the blockaded port, although included in
the general language. Where the notice is irregular and
insufficient, no penalty is incurred by its contravention.
Proof of the actual knowledge of the party at the inception
of the voyage supersedes, in all cases, the necessity of a
warning, nor is it of any importance by what means or in
what form he received the information, if the information
was credible in its nature, and came in such a form and
from such a source as to leave no reasonable doubt on his
mind as to its authenticity; he is not permitted to aver
that he placed no confidence in a communication that had
just claims to his belief. Again, if the voyage was com-
menced without a knowledge of the blockade, but he was
afterwards notified of its existence by a cruiser, or officer
of the blockading State, and he continue his voyage with
the evident intention of entering the blockaded port, he is
liable to condemnation.1
§ 23. An actual entrance into a blockaded port is by no
means necessary to render a neutral ship guilty of a violation
of the blockade. Indeed, such a construction would essen-
tially defeat the very object of a blockade, by rendering the
capture of a ship lawful only after such capture had ceased
to be possible. Hence it is universally held that an attempt
to enter the port, knowing it to be blockaded, completes the
offence to which the penalty of the law is attached. It is
the attempt to commit the offence which, in the judgment of
the law, constitutes the crime, and is as much a breach of
neutrality as an actual entrance into the prohibited port.
1 Kent, Com. on Am. Law, vol. i. pp. 147, 148 ; Duer, 0n Insa-
ranee,~ vol. i. p. 663 ; the ‘ Henrick and Maria,’ 1 Rob. 146; the
‘ Vrouw Judith,’ 1 Rob. 150 ; the ‘ Apollo,’ 5 Rob. 286 ;the ‘Columbia,’
1 Rob. 156 ; Phillimore, On Int. Law, vol. iii. § 302 ; Heffter, Droit
International, § 15 5.
A vessel sailing ignorantly to a blockaded port is not liable to
(Yeaton 1). Fry, 5 Cranch. 335.)
The prize courts look with disfavour on the excuse that the pur-
pose of a vessel, in attempting to enter a blockaded port, was to
obtain necessary supplies. (The ‘Argonaut,’ Blatchf. Pr. Gas. 62.)
. Upon a question of breach of blockade, the owners of a vessel are
deemed in a prize court conclusively bound in all cases by the act of
the master, and so, as a general rule, are persons interested in the
cargo. (The ‘ Aries,’ 2 Sprague, 198.) But this is qualified by the
case of the ‘ Springbok,’ 5 Wall. 1.
Attempt
to enter
a block-
aded port
g 2
228 INTERNATIONAL LAW 011. xxv
Inception
of voyage
It would bev absurd to say that the penalty is not incurred
till the unlawful design is fully accomplished, for the offender
would, in most cases, be placed, by its accomplishment,
beyond the reach of the law. Nor is the word ‘ attempt ’
to be understood in a literal and narrow sense. It is not
limited to the conduct of the ship at the mouth of the
blockaded port, but is applicable to her whole conduct
from the moment she has knowledge of the existence of the
blockade, and the consequent prohibition of neutral com-
merce. If she has this knowledge before she begins her
voyage, the offence is complete the moment she quits her
port of departure : 1 if that knowledge is communicated
to her during the voyage, its continued prosecution involves
the crime, and justifies the penalty ; if it is not given to her
till she reaches the blockading squadron, she must im-
mediately retire, or she is made liable to confiscation. It is
not the mere mental intention that the law punishes, but
it is the overt act by which the execution of an unlawful
intent is begun. This overt act is the starting for, or
proceeding towards, the prohibited port, with the know-
ledge that it is blockaded. The same rules prevail in all
analogous cases of unlawful voyages.2
§ 24. Several continental writers of authority contend
that the inception of a voyage for a blockaded port, with a
knowledge of the existence of the blockade, is not such an
offence as to render the vessel subject to seizure upon the
high seas. Indeed, they regard such seizure as a violation
of the liberty of the seas and of the independence of the
sovereign State to which the vessel belongs. But
English and American publicists have generally held, and
1 The ‘ Columbia,’ 1 Rob. 156. .
2 The ‘ Vrouw ohanna,’ _2 Rob. 109 ; the ‘ Spes ’ and the ‘ Irene,’
5 Rob. 76 ; the Shepherdess,’ 5 Rob. 262 ; the ‘ James Cook,’
Edw. R. 261 ; the ‘ Nereide,’ 9 Cranch. R. 440 ; Vos and Graves v.
N. Ins. Co. 1 Caines Cas. 7 ; 2 ]ohns. 180 ; Yeaton 0. Fry, 5 Cranch.
R. 335; Fitzsimmons o. N. Ins. Co. 4 Cranch R. 185. A vessel
may sail for a blockaded port after a notification of blockade, for the
purpose of inquiry whether the blockade continues. (1 Park on
Ins. 180.) A vessel approaching a blockaded port with intent to
violate the blockade is not entitled to be warned off. (The ‘ Hallie
Jackson,’ Blatchf. P. C. 41.) The captors of a vessel taken off a
blockaded coast are not entitled to prove the intention of her crew
to violate the blockade, if such intention does not aqpear from the
ship’s papers and the depositions. (The ‘ Aline and anny,’ 2 ]ur,
N. 5. I42 ; the ‘ Fortuna,’ ibid. 71, . I
OH. XXV LAW OF SIEGES AND BLOCKADES 229
the decisions of British and American Courts of Admiralty
seem to sustain, the opinion, that the inception of the
voyage, with a knowledge of the blockade, and the intention
to enter is sufficient in law to constitute the offence and
incur penalty, and that the intention will be presumed from
the fact of commencing the voyage with the knowledge of
the existence of the blockade. They say that the vessel
had no right to commence the voyage with such knowledge,
and that the act of inception is, in itself, as a general rule,
illegal and punishable as a breach of neutrality, and, there~
fore, that the master or owners are not permitted to aver that
they merely intended to proceed to the blockaded port to
ascertain, by due enquiry, whether the blockade still
continued, and to enter it only in case the blockade had
ceased.l
§ 25. But this general rule is subject to some important
exceptions, or rather the inference, from the inception of
the voyage with knowledge of the blockade, of intention
to violate it, may, in some cases, be removed by proof to
the contrary. Thus, where the vessel sails from a distant
country, she may clear with a provisional destination to
the blockaded port, without incurring the penalty of a
breach of the blockade, provided it be clearly and positively
proved that she intended to proceed to the blockaded port
only in case she ascertained, by due enquiry during the
voyage, that the blockade had been raised. This may be
shown by instructions to the master not to pursue the
voyage unless, by enquiry at a port of the blockading
power, or of some neutral State, he found that the blockade
had ceased. These instructions to the master must clearly
set forth the necessity of the previous enquiry, and the
mode in which it has to be made, in order to furnish satis-
factory proof of the intentions of the parties. The pre-
sumption is against them, and to repel the presumption
1 Olivera 21. Union Insurance Co. 3 Wheaton R. 196, note.
Vide, also, cases referred to ante, § 2 3.
A vessel sailing from a neutral port with intent to violate a
blockade is liable to capture and condemnation as a prize from the
time of sailing, and the intent to violate the blockade is not disproved
by evidence of a purpose to call at another neutral port, not reached
at time of capture, with an ulterior destination to the blockaded
port. (The ‘ Circassian, 2 Wall. 135 ; and ' see the A ‘ Nayade,’
I Newb. 366.) ‘
Distant
voyages
230 INTERNATIONAL LAW OH. XXV
Exception
in case of
de facto
blockades
when pre-
sumption
of inten-
tion to
enter can-
not be
repelled
the equivocal evidence of ambiguous instructions will not
be sufficient. But no matter how distant the country
from which the vessel sails, she has no right to proceed
to the entrance of the blockaded port with a view to ascer-
tain from the blockading force whether she can be per-
mitted to enter. An enquiry from the blockading force is
only justified when the master who finds himself in its
presence was ignorant that the blockade existed. In other
cases, a vessel found in a situation to make the enquiry,
if destined to the blockaded port, is liable, from her previous
knowledge, to instant capture. A neutral merchant, says"
Sir William Scott, has no right to speculate on the greater
or less probability of the termination of a blockade, and,
on such speculation, to send his vessel to the very mouth
of the blockaded river or port, with instructions to the
master to enter, if no blockading force appeared, otherwise
to demand a warning, and proceed to a different port.
A rule that would permit this would be introductory of the
greatest frauds.1
§ 26. ‘ It seems a just inference from the decisions,’ says
Duer, ‘ that where the blockade has been constituted simply
by the fact of an investment, although its existence was
known at the port of departure, previous to the sailing of
the neutral ship, she may clear out, provisionally, for the
blockaded port; but that, in this, as in former cases, the
enquiry upon the result of which the right to complete the
voyage must depend, must be made at a port of the block-
ading State, or of a neutral power. I see no reason to ‘doubt
that the prohibition to proceed to the mouth of the block-
aded port embraces all cases of a previous knowledge, from
whatever source the knowledge may have been derived;
and that, in all, its violation is subject to the same penalty.’ 2
§ 27. There are other cases where the criminal intent
to violate a blockade, is deduced from the facts existing
at the time of capture, and forming a presumption which
the party is not permitted to repel by his own denial. Thus,
vessels, though not ostensibly destined to the blockaded
port, cannot innocently place themselves in a situation that
. 1 The ‘ Spes ’ and ‘ Irene,’ 5 Rob. 80 ; the ‘ Posten,’ 1 Rob.
5 36, note ; the ‘ Little William,’ 1 Act. Ad. R. 141.
2 Duer, 0r: Irzsurarwe. vol. i. pp. 669, 670.
OH. XXV LAW OF SIEGES AND BLOCKADES 231
would enable them to violate the blockade at their pleasure.
Even when they are bound, by their papers, to different
ports, their suspicious approximation to that under blockade
will subject them to condemnation. Were they permitted,
on the pretence of an intention to proceed to another port,
to approach so close to that blockaded as to be able to slip
in without obstruction, whenever they choose, it would be
impossible that any blockade could be long maintained.
Hence, it is not unfair to hold, that the intention of the
party, in such cases, to violate the blockade, is a necessary
and absolute presumption ; although the excuse of necessity,
when established, is doubtless to be admitted. The proof,
however, must be clear and satisfactory, to remove the
inference of guilt.1
§-28. For a neutral ship to enter a blockaded port, is
altogether unlawful. If she entered with a cargo, the
legal presumption is, that she went in with the fraudulent
intention of delivering it, and if she come out again without
delivering it, that fact will not remove the presumption,
because some change of circumstance may have altered
that intention. If she entered in ballast, it is to be pre-
sumed that she went in for the purpose of bringing away
property, and, for the same reason as above, her egress, still
in ballast, will not oust that presumption. On this point
we quote the remarks of Duer. ‘ A neutral ship,’ he says,
‘ is not permitted to enter a blockaded port, even in ballast,
for, although an exception of this kind is allowed in the
case of an egress, the reasons on which it is founded are not
applicable to an inward voyage. The egress is necessary
to restore the ship to the beneficial use of the owners, and
can tend, in no degree, to aid the commerce that is meant
to be prohibited ; but there can be no necessity for sending
a ship to a blockaded port, and the intention of procuring
a freight is the only assignable motive of the voyage. It is
a fair presumption that it is intended that she shall return
with’ a cargo, purchased or prepared in the blockaded port,
not that she shall return in ballast, thus rendering the
entire expedition a fruitless expense ; nor that she will
remain useless in port during. the uncertain period that the
, 1 The ‘ Gute Erwartung,’ 6 Rob. 182 ; the ‘ Arthur,’ 1 Edw. R.
202 ; the ‘ Charlotte Christine,’ 6 Rob. 103. ‘ »
Neutral
vessel
entering
in ballast
232
INTERNATIONAL LAW on. xxv
Declara-
tion of
master
blockade may continue. Nor is it admitted, in such cases, as
an adequate excuse, that the object of the voyage was to bring
away property that was absolutely locked up by the block-
ade, and which there was no other mode of extricating.
It can rarely happen that other channels of communication
are not open, and, in all cases, the property may be sold,
and its value remitted in money or in bills. The only
adequate excuse is that of physical necessity.’ 1
§ 29. We have already stated that any attempt to enter
a blockaded port, after due information or warning, subjects
the party to the penalty of the law ; ‘ but, whether the mere
declaration of the master, when detained and warned by a
ship of the blockading force, of his intention to persist in
the voyage, notwithstanding the warning, is to be considered
as evidence of an actual attempt, justifying an immediate
capture, is exceedingly doubtful.’ The mere hasty ex-
pressions of the master, resulting from resentment and
surprise, certainly ought not to produce the condemnation
of property entrusted to his care. But where the declara-
tion of the master is proved to be deliberate and is accom-
panied by such facts as induce the court to believe that he
really intended to carry it into effect, Sir William Scott
was of opinion that it supersedes the necessity of proving
further facts, and it is of itself a sufficient ground of con-
demnation. Chief Justice Marshall, in enumerating several
general acts that would be justly regarded as evidence of
such an attempt, adds : ‘ Possibly the obstinate, determined
declarations of the master, of his resolution to break the
1 Duer, On’Insurance, vol. i. pp. 671, 672 ; the ‘ Comet,’ 1 Edw. R.
32 ; the ‘ Charlotte Christine,’ 5 Rob. 103 ; the ‘ Charlotta,’ 1 Edw.
R. 252.
A neutral professing to be engaged in trade with a neutral port,
_ under circumstances which warrant close observation by a blockading
squadron, must keep his vessel, while discharging or receiving cargo,
so clearly on the neutral side of the blockading line as to repel, as
far as position can repel, all imputation of intent to break the
blockade. Neglect of that duty may well justify capture and
sending in for adjudication; though in the absence of positive
evidence that the neglect was wilful, it might not justify a condem-
nation. (The ‘ Dashing Wave,’ 5 Wall. 170.)
Communication of neutral ships of war with a blockaded port is
permissive only, and such ships should on no account embark any
property with the object of passing the blockade,‘ except ofiicial
despatches of the consul of their own nation or of consuls of nations
in amity with the blockading power.
OH. XXV LAW OF SIEGES AND- BLOCKADES
Z33
blockade, might bear the same interpretation.’ The Supreme
Court of Pennsylvania have clearly decided that the declara-
tions of the master, however positive and unequivocal, are
evidence merely of intention, which, unless followed by
some voluntary act after his release, can never constitute
the offence to which alone the penalty attaches.1
§ 30. Although the declarations of the master, during
his detention, will not constitute in themselves sufficient
cause for condemnation, his subsequent conduct, either
with or without such declarations, may determine the law—
fulness of his capture. It is his duty, on being duly warned,
to alter the course of his voyage, as soon as he is at liberty
to resume it, and to depart at once from the vicinity of the
blockaded port. He has no right to linger in its neighbour-
hood, on the pretence of a deliberation as to the course he
shall pursue, thus compelling the belligerent ship, either to
leave him to enter the blockaded port without obstruction,
or to wait for an indefinite time to watch his motions. He
is bound to manifest, by his immediate acts, his deter-
mination to obey the Warning he has received. Hence a
very short delay, an interval probably of less than an hour,
will enable the belligerent to determine whether the master
is pursuing the course he is bound to observe, or whether
the temporary detention may not lawfully be followed by
a final capture. It is scarcely possible that a neutral ship,
thus circumstanced, shall escape, otherwise than by an
abandonment in good faith of the voyage, that the warning
she hadreceived has rendered illegal.
§ 31. If the master ‘persist in his voyage to a blockaded
, port, in defiance of a suflicient and legal warning, no excuse
is ever admitted for his conduct, and the ship and cargo are
invariably condemned. His misconduct may, in no degree,
1 The ‘ Apollo,’ 5 Rob. 289; Fitzsimmons 1). Newport Ins. Co.
4 Cranch. R. 185 ; Calhoun 1). Ins. Co. of Penn. I Binny R. 293.
Intoxication of the master is no excuse for a breach of blockade. Sir
William Scott remarked on this subject, that if such excuse were
permitted, ‘ there would be eternal carousings in every instance of
violation of blockade.’ (The ‘ Shepherdess,’ 5 Rob. 262.)
A vessel and cargo were condemned for breach of blockade, the
evidence showing an actual hostile destination. (The ‘ Alma,’
2 Sprague, 203.) The case of the ‘ Revere ’ (2 Sprague, 107) shows
what circumstances were considered suficient to warrant the
condemnation of a vessel for an attempt to violate the blockade
of Beaufort, N.C., during the American Civil War, 186 I.
Delay in
obeying
warning
Disregard
of warn-
ing
234
INTERNATIONAL LAW OH. XXV
When
ingress is
excused
be imputable to his vowners, yet their innocence affords no
protection to their property. His acts may be in direct
violation, of their express instructions, may even amount to
fraud or barratry : yet his owners will continue to be bound
by their legal consequences, to the same extent, as if they
had been performed under their previous sanction and
authority. Indeed the rule, so far as relates to the ship,
and the property of its owners, is universal, that they are
concluded by the acts of the master. He is their agent,
and the property they have entrusted to his care is, in all
cases, responsible for his just observance of the duties of
neutrality.
§ 32. There are but few cases where the entrance of a
vessel into a blockaded port, or an attempt to enter, is ever
justified or excused. A license1 from the government of
the blockading State to enter the blockadedcport is always
a sufficient justification, and, as will be shown hereafter, all
_ such licenses are to be liberally construed. But a general
license to enter the port before the blockade would not be
available after it had commenced ; to constitute a sufficient
protection it must authorise the vessel to enter the port as
one blockaded. Again, aphysical necessity, arising from the
immediate need of water, or provisions, or repairs, produced
by stress of weather, which leave no other alternative for
safety, is an excuse.2 ‘ But as, in order to cover a real design
1 The permission, by a blockading force, to some unprivileged
ships to go in and others to come out, would vitiate even a blockade
by notification ; but such permission accorded to certain slave ships,
from motives of humanity, was held not to work such a result. The
liberation of certain vessels, after seizure and detention for breaking
the blockade, was held not to amount to a renunciation of the rights
of blockade. (The ‘ Rolla,’ 6 Rob. 374.) Particular licenses will not
vitiate a blockade. (The ‘ Fox,’ and others, 1 Edwards, 320.)
2 The ‘ Forest King,’ Blatchf. P. C. 45; A Spanish-owned
vessel, in distress, on her way from New York to Havannah, by leave
of the admiral commanding the squadron, put into Port Royal, S. C.
(then in rebellion and blockaded by a fleet of the United States),
and was there siezed and made use of by the Government of the
United States. She was afterwards condemned as a prize. The
Supreme Court decided that she was not a lawful prize or subject to
capture, and that her. owners were entitled to fair indemnity, though
it might‘be well doubted whether the case was not more properly
a subject for diplomatic adjustment. (The “ Nuestra Senora de
Regala,’ 17 Wall. 29.) Excuse of distress set up as a justification
for entering a blockaded port admitted, the deviation into‘ such a
port having been proved to have been necessary under the circum-
stances. Restitution decreed. (The ‘Charlotta,’ 1 Edw. 252.)
0H. XXV LAW OF SIEGES AND BLOCKADES
235
'is required to be given.
to dispose of a cargo,’ says Duer, ‘ the pretext of a necessity
is easily framed, the excuse is necessarily liable to great
suspicion, and in all cases as justly subject to a rigid scrutiny.
Hence, it is established that the evidence relied on must
clearly show an. imperative and overruling compulsion to
enter the particular port under blockade. It is not enough
that it appears that there were existing and adequate causes
to justify the ship in deviating from her voyage, to an inter-
mediate port of necessity. It must also appear that she
could not have proceeded, without hazard, to any other
port than that blockaded, and that in no other port to which
she could have proceeded could her necessary wants have
been supplied. In short, the necessity that alone can save
her, when captured, from condemnation, must be evident,
immediate, pressing, and, from its nature, not capable of
removal by any other means than by the course she had
adopted.’ 1
§ 33. As a general rule the egress of a ship, during
blockade, is regarded as a violation of the blockade, and
renders her liable, in the first instance, to seizure, and to
exempt her from condemnation the most satisfactory proof
There are, however, many cases
where the egress is innocent,2 although the knowledge of the
blockade, by the master, is admitted or proved. But the
taking on board a cargo, with a knowledge of the blockade,
is considered a fraudulent act, and the sailing of the ship,
with such a cargo, a violation of the blockade. Nor is it
necessary that the whole of the cargo should be thus laden ;
when even a portion of the goods are taken on board after
the existence of the blockade is known, the act is considered
as a fraud that justifies a general condemnation. The
ground of these decisions is, that after the commencement
of a blockade, the interposition of a neutral to assist in any
way the exportation of the property of the enemy, tends
directly to relieve him from the distress that the blockade
was meant to create. It would defeat a principal object
of the hostile proceeding ; consequently, after the com-
1 Duer, 0n Insurance, vol. i. pp. 678, 679 ; the ‘ Hurtige Hane,’
2 Rob. 124 ; the ‘ Elizabeth,’ 1 Edw. 198 ; the ‘ Arthur,’ 1 Echo. 202 ;
the ‘ Charlotta,’ 1 Echo. 252 ; the ‘ Hoffnung,’ 2 Rob. 163 ; Bello,
Derecho I nternaez'onal, pt. ii. c. viii. § 5.
2 The ‘ Gerasimo.’ 11 M oore. RC. Cases, 88.
Violation
of block-
ads by
egress
236 INTERNATIONAL LAW 011. xxv
mencement of the blockade, a neutral is no longer at liberty
to make any purchase in the place, with a view to exporta-
tion. *
3711:3518 § 34. There are a number of cases in which the egress
512mg of the neutral vessel, during a blockade, is justified or ex-
cused, which we will enumerate : First, If the ship is proved
to have been in the blockaded port when the blockade was
laid, she may retire in ballast, for such egress affords no aid
to the commerce of the enemy, and has no tendency to
defeat any legitimate purpose for which the blockade was
established. Second,‘ If the ingress was from physical
necessity, arising from stress of weather, and the immediate
need of water, or provisions, or repairs. Third, Where the
entrance with a cargo was authorised by a license, such
license is construed to authorise the return of the ship with
a cargo. Fourth, Where a neutral ship, arriving at the
entrance of a blockaded port, in ignorance of the blockade,
is suffered to pass, there is an implied permission to enter,
which fully protects her egress. But this implied permission
does not, of necessary consequence, protect the cargo, for
its owners may be guilty of a criminal violation of the block—
ade even where the ship is innocent. F ifth, A neutral ship,
whose entry into the blockaded port was lawful, is permitted
to return with her original cargo that has been found un-
saleable, and re-shipped during the blockade. Sixth, An
equitable exception is allowed in favour of a neutral ship that
leaves the port in the just expectation of a war between
her own country and that to which the blockaded port
belongs. In this case, she is permitted to depart, even with
a cargo purchased from the enemy during the blockade,
if the purchase was made with the funds of neutral owners,
and the investment and shipment were probably necessary to
save the property, in the event of a war, from a seizure ‘and
confiscation by the enemy. But it is not the mere apprehen-
sion of a remote and possible danger that will entitle a neutral
ship to this exemption. To save the vessel and cargo from
condemnation, it must appear that there was‘a well-founded
expectation of an immediate war, and consequently that the
danger of the seizure and confiscation of the property was
imminent and pressing.1 V
1 It may be questioned how far the Declaration of Paris, 1856,
OH. XXV LAW OF SIEGES AND BLOCKADES
237,
§ 35. ‘ No rule in the law of nations,’ says Duer, ‘is
more certainly and absolutely established than that the
breach of a blockade subjects all the property, so employed,
to confiscation by the belligerent power whose rights are
violated. Among all the contradictory positions that have
been advanced on the law of nations, this principle has never
been disputed. It is to be found in all the writings on public
law; is frequently admitted, and never denied in treaties ;
is universally acknowledged by all governments that have
any degree of civil instruction; and is known to all their
subjects, who have any interest to possess the knowledge.
. . . The confiscation of the ship, where a violation of the
blockade is justly imputed to the owners, or to the master,
acting with or without the authority of the owners, is, in
all cases, a necessary consequence. . . . The goods that
compose the cargo, so far as they are the property of the
owners of the ship, upon the principle stated, necessarily
share its fate ; and even where they are the property of other
shippers, as a general rule, they are involved in the same
condemnation. It is only in a few cases, where the innocence
of the owner is apparent and undeniable, that they are
exempt. The presumption of law, founded on very probable
that ‘ free ships make free goods,’ can be extended to the carrying
of enemy’s property out of a blockaded port. A similar question
collaterally arose under the Treaty of 16 54 between Great Britain
and Portugal, a cargo being documented as the property of Portu-
guese neutral merchants, though claimed generally, and not verified
in the depositions. Restitution was decreed, the Court declining,
under the circumstances, to order further proof of the property.
(The ‘ Nostra Sefihora da Adjuda,’ 5 Rob. 52.)
A neutral ship coming out of a blockaded port, laden with a cargo,
in consequence of a rumour that hostilities were likely to take place
between the enemy and the country to which the vessel belonged,
the regulations of the enemy not permitting a departure in ballast,
was held not to be liable to condemnation, and was decreed to be
restored. The cargo was condemned, though put on board against
the will of the master. (The ‘Drie Vrienden,’ I Dodson, 269.)
A neutral is not justified in violating a blockade under an appre-
hension, whether well or ill founded, of seizure of his property by the
enemy. He is to rely on his neutrality, and to look to his own
Government for protection. (The ‘ Wasser-Hund,’ I Dodson,
272, n-) .
In an English court it is no excuse for breach of blockade by egress
that the cargo was intended to be brought to Great Britain. (The
‘ Byfield,’ 1 Edwards, 189.) The cargo may be condemned for an
attempt by the vessel to violate the blockade, although the vessel has
not been taken on process in the Suit. (The ‘Joseph H. Toone,’
Blatchf. Pr. Gas, 641.)
Penalty
for breach
of block-
ade
238 INTERNATIONAL LAW 011. xxv
When
cargo is
exempted
from con-
demnation
reasoning, is, that the violation of a blockade is intended
for thebenefit of the cargo, as well as of the ship, and con-
sequently, that it is made with the sanction and under the
instructions of its owners ; and, in all cases, where the
innocence of the owners is not manifested by the papers on
board, this presumption prevails to exclude the proof.
Thus the rule applies, even where the apparent destination
of the ship, judging from her papers, was to a different port,
and the attempt to enter that under blockade was a devia-
tion from the regular course of the voyage. Where the only
assignable motive for such a deviation is an intention to
dispose of the cargo in the blockaded port, and, by such a
disposition, to promote the interests of its owners, they are
not allowed to contradict the presumption that the master,
thus visibly acting for their benefit, was not also acting
under their secret authority.’ 1
.§ 36. But if it be clearly established, by proofs found
on board at the time of the capture, that, at the inception
of the voyage, the owners of the cargo stood clear, even
from a possible intention of fraud, their property will be
excepted from the penal consequences of the breach of the
blockade. Thus, where the illegality consists in the‘ mis—
conduct of the master in attempting to enter a blockaded
port, if it be certain that, when the voyage commenced,
the existence of the blockade neither was, nor could have
been, known at her port of departure, the owners of the
cargo could not possibly have contemplated a breach of the
blockade. In such cases, the act of the master, although
it prevail to condemn the ship, will not condemn the cargo
also, for there is no general or necessary relation of principal
and agent between its owners and the master. So, also,
in case of egress, the ship may be subject to condemnation,
and yet the cargo may be restored, although laden during
the blockade, if the innocence of its owners be certain and
indisputable. Thus, if their orders ‘for the shipment of the
goods were given to their agents in the blockaded port before
the blockade existed, or was known to exist, and they could
not, by any diligence, after the blockade was known to them,
countermand their orders in time to prevent their execution,
the owners are deemed innocent. In such cases, the agents
‘ Duer, On Insurance, vol. 1. pp. 683-685.
OH. xxv LAW OF SIEGES AND BLOCKADES 239
and owners do not stand in the same relative situation of
ordinary agents and principals, for the interests of the former
are not only distinct from, but actually opposed to, those
of the latter. It must be remarked, however, that, in all
cases, whether of ingress or egress, in which an exception
is allowed in favour of the cargo, the evidence of the in-
nocence of its owners must be so clear and certain as to
exclude any possible imposition on the mind of the court.
Another exception, in this relation, deserves notice. A
neutral, domiciled in an enemy’s country, in itinere, on his
return home to reside, was a passenger, with his family,
in a neutral vessel, which was guilty of a breach of blockade.
The specie which he had with him, for the support and
comfort of himself and family, was taken as prize. But
the supreme court decreed restitution, on the ground that
he had a right to carry with him such property, which was
not a mercantile adventure, and that, being personally
in no fault, such property was not forfeited by a breach of
blockade by the vessel in which he had taken passage.l
§ 37. To justify a capture for the violation of a blockade,
or the attempt to violate it, the offence must continue to
exist at the time of seizure. In technical language, the ship
must be then in delz'cto. In cases where the ship has vio-
lated the blockade by egress, the clelz'ctnrn continues during
her whole voyage, till she has reached her final port of
destination. Until then, as the offence consists, not in the
mere attempt, but in an actual breach, no change of circum-
stances, or subsequent repentance, can efface the guilt.
It is not cancelled by a mere interruption of the voyage, such
as the stopping of the ship at an intermediate port, either
1 The ‘ Exchange,’ 1 Bare. R. 43 ; the ‘ Alexander,’ 4 Rob. 93 ;
the ‘Mercurius,’ 1 Rob. 80; the ‘Neptunus,’ 3 Rob. 173; the
‘Adelaide,’ 3 Rob. 281; the ‘Manchester,’ 2 Act. R. 687; the
United States v. Guillem, 11 Howard R. 62. The acts of a master
in breach of. a blockade affect the cargo equally with the vessel if the
cargo is laden on board after the blockade has become effective as
to the vessel. (The ‘ Hiawatha,’ Blatchf. Pr. Gas. 1 ; the “ Cren-
shaw,’ c'bz'd. 23.) Where a vessel and cargo were owned by un~
naturalised foreigners, residing in the enemy’s country, who came in
her, out of a blockaded port of the enemy, with the sole purpose of
escaping with their pro erty from the enemy, and delivering that and
themselves to the b 00 ading squadron, and to the authority of the
United States, it was held by the District Court of New York that
they should be restored, but without costs, there being probable
cause for the seizure. (The ‘ Evening Star,’ Blatchf. Pr. Gas. 582.)
Duration
of offence
240 INTERNATIONAL LAW OH. XXV
Insu-
rance,
how af-
fected by
violation
of a
blockade
from necessity or design ; when she resumes her voyage, she
becomes again subject to the penalty of the law. But when
a ship sailsfor a blockaded port, with a knowledge of the
blockade, and the intention to violate it, the offence is so
far complete as to justify her immediate capture ; yet, as it
exists only in an attempt, the delictuni does not necessarily
continue during the whole of her subsequent voyage. If,
previous to her capture, the blockade had ceased to exist,
or the master, from the information of a ship of war of the
blockading State, had just grounds for believing that such
was the fact, or had altered his destination, with the in-
tention of not proceeding at all to the blockaded port, the
offence no longer exists, and that which had existed is no
longer punishable. To constitute the offence, three cir-
cumstances must be found to co-exist : the fact of a blockade,
the party’s knowledge of its existence, and his intention
to violate it ;' and, in each of the above cases, an indispens-
able circumstance is wanting. The delicturn, therefore, at
the time of capture, had wholly ceased, and both ship and
cargo will be restored.
§ 38. It may be stated, in general terms, that an in-
surance made in the country of the blockading State is
necessarily invalid from the time the property insured
becomes liable to confiscation by the violation, or attempted
violation, of a blockade, and that the invalidity continues
so long as this liability exists. Where the ship is insured
upon time, although the contract may not be void in its
origin, it may be rendered so, by the contravention of a
blockade, for the particular voyage to which the legal
penalty attaches; but where the voyage has been termi-
nated, and the liability to capture no longer exists, it seems
probable that the obligation of the contract would be held
to revive. The effect of a supervening war, by which the
property insured is rendered that of an enemy, according
to Lord Ellenborough, is to exonerate the insurers ‘from all
the risks of the policy during the continuance of the hos-
tilities. This language plainly implies that . the contract
is not annulled, but merely suspended by the operation of
the war, and that the return of peace, should the policy not
have expired by its own terms, will restore its life and
obligatory force, The doctrine seems, in itself, just and
OH. XXV LAW OF SIEGES AND BLOCKADES 24I
never be subjected to local jurisdiction.
reasonable, and, in cases where the policy is not so entire
as to preclude any separation of its risks, may be applied,
with equal justice, to every case of supervening illegality ;
that is, an illegality arising after the commencement of the
risks. Such seems to be the rule established by the decision
of the courts of Common Law in England, although the
opposite rule has been assumed in the United States.1
§ 39. Hautefeuille’s theory of blockades differs from
those of the generality of writers on international law, and
especially from the decisions of English and American
jurists. He considers the right of maritime blockade to
result from the right of conquest, by the successful bel—
ligerent’s getting military possession of an enemy’s port,
or of a belt of territorial sea surrounding or commanding it,
precisely as he would of a belt of land around a fort in case
of a siege. The conqueror, being thus in possession of a
portion of an enemy’s territory, may, so long as he retains
that possession, extend over it his own laws and juris-
diction. He may prohibit foreigners from entering such
territory, either for commerce or any other purpose, or he
may permit them to enter on such terms as he may see fit
to impose, precisely as he might do if it were a part of his
most ancient dominion. The right of blockade, therefore,
extends over only so much of the sea as is, in international
law, regarded as territorial and liable to conquest, although
the blockading force may be stationed outside of the ter-
ritorial limit, and consequently on the high sea, which can
In order to
blockade a maritime port, or territorial sea, it is necessary
that the blockading force acquire the sovereignty of it, and
actually hold it in possession. This definition of a blockade
gives rise to very few questions with respect to its establish-
ment or continuance, nor can there be much dispute about
what is to be regarded as a violation of it. It is a visible,
material fact, and any notification of that fact would be
unnecessary and superfluous, for neutrals can see the con-
queror’s possession, and readily ascertain from him whether
1 See Duer, 0n Insurance, vol. i. pp. 688, 690, and note ii. pp. 463-
478 ; Brandon 2). Curling, 4 East. 410 ; Harratt 2:. Wise, 9 B. and C.
712 ; Naylor 22. Taylor, ibid. 718; Medeiras a. Hill, 8 Bing. R. 231 ;
ch. xxiii. § 2:, post.
VOL. II. R
Haute-
feuille’s
theory of
the law of
blockades
242 INTERNATIONAL LAW 0H. xxv
or not they are permitted to enter, .and if so, upon what
terms. So long as. they remain without the line of ter-
ritorial jurisdiction they violate no rights of blockade. If
they pass, or attempt to pass, against the will of the‘new
sovereign, this magic line, they become liable to capture ;
but they must be seized while within the territorial limits,
for they cannot be pursued upon the high seas, as no rights
of blockade can extend beyond the sovereignty which was
acquired by conquest and is continued by actual possession.
We think Hautefeuille has confounded the rights of blockade
with the rights of military occupation, which are not only
distinct in their nature, but essentially. different in their
- legal consequences. Nevertheless, his views are worthy of
attention, and he has maintained them with marked ability.
It is not so much our object in this work to discuss theories,
or to determine what the law of blockades ought to be, as to
ascertain what the law now is, according to the decisions of
prize courts, and the opinions of the best writers’ on inter-
national jurisprudence. The rules of maritime war, as now
practised, undoubtedly present some anomalies which can-
not be easily reconciled with any abstract theory.1
1 Hautefeuille, Des N atz'ons Neutres, tit. ix. ; Hautefeuille, Hist.
du Droit Mar. Int. pt. iii. oh. i. § 1 ; Lampredi, Commerce des N eutres,
t. i. § 5 ; Galiani, Dec‘ Doverz', &c., c. ix. ; Massé,_Droz't Commercial,
iv. ii. ch. ii.
on.‘ mm 243
CHAPTER XXVI
CONTRABAND or WAR
1. Definition of contraband—2. All contraband articles to be
confiscated— 3. Ancient rule that cargo affects the ship—4.
Modern rule—5. Cases where ship also is condemned—6.
Ordinary penalty not averted by ignorance or force--7. The
inception—8. Return voyage—9. If not contraband at
time of seizure—10. Transfer of such goods from one port to
another—1 I. Destination need not be immediate to enemy’s
port—12. The "Commercen ’--13. Differences of opinion among
text-writers—14. Views of Grotius and others—15. Of modern
publicists—16. Ancient treaties and ordinances—17. Modern
treaties and ordinances—18. Conflicting decisions of prize
courts—19.‘ There is no fixed universal rule—20. Implements
and munitions of war—21. Manufactured articles—22. Un-
wrought articles—2 3. Intended use deduced from destina-
tion—24. Provisions—2 5. The Russo-Japanese War, 1904—
26. Pre-emption—27. British rule of pre-emption—28. Con-
tested by other nations-29. Insurance on articles contraband
of war.
§ I. HAVING already discussed the general rights and Definition
duties of neutrals, and the liability ‘of neutral property to 255311;‘,
capture and condemnation for violation of the law of sieges
and blockades, we will now consider the rules of inter-
national law with respect to goods contraband of war. The
terrncontraband (contrabandnrn, or contra bannnrn) has been
used from time immemorial to express a prohibition of
Certain kinds of commerce. Such prohibitions are found
in the laws of Justinian, in the decrees of the Popes and
Councils in the time of the Crusades, and more especially
in those issued by different Powers during the wars of the
Hanseatic League. The theory of the present law of
contraband, however, had its origin in the school of Bologna,
but its complete development was coincident with the
development of the modernv ‘laws of commerce. By this
term we now understand a class of articles of commerce
‘which neutrals. are prohibited from furnishing to either one
of the belligerents, for the reason that, by so doing, injury is
R 2
244
INTERNATIONAL LAW OH. XXVI
Contra-
band arti-
cles con-
flsoated
done to the other belligerent. To carry on this class of
commerce is deemed a violation of neutral duty, inasmuch
as it necessarily interferes with the operations of the war
by furnishing assistance to the belligerent to whom such
prohibited articles are supplied. But the trade of neutrals
with belligerents, in articles not contraband, is absolutely
free, unless interrupted by blockade.1
§ 2. ‘ In the view of international law,’ says Lord West-
bury, ‘ the commerce of nations is perfectly free and un-
restricted. The subjects of each nation have a right to
interchange the products of labour with the inhabitants of
every other country. If hostilities occur between two
nations, and they become belligerents, neither belligerent
has a right to impose, or to require a neutral government to
impose, any restrictions on the commerce of its subjects.’
But if the trade of the neutral in munitions of war—or
contraband articles—interferes with the rights of either
belligerent, then that belligerent has an international
right to seize such goods. ‘There is no difference of opinion
with respect to this'general rule, whatever may be the extent
of disagreement with respect to what articles may properly
be regarded as contraband. The noxious articles them-
selves (if decided to be contraband) are invariably condemned,
and no defence or plea can save them from confiscation,
when their character as contraband, and their destination
to a hostile port or country, are admitted or established.
But the extent of the penalty, ‘for the carriage of such
articles, does not seem to be fixed by any positive or uni-
form rule ; or, at least, the decisions seem to vary with the
special circumstances of each case. Nevertheless, it may
be possible to deduce from these apparently conflicting
decisions ofv Courts of Admiralty, some general principle
which may form the basis of the rule of international law
with respect to the carriage of such prohibited articles?
1 The ‘ Peterhoff,’ 5 Wall. '28 ; certain English merchants, when
applying to the United States Government during the Spanish-
American War of 1898 for a definition of contraband of war, were
referred to Chief Justice Chase's decision in this case. -
‘1 Ex ;barte Chavasse, in re Grazebrook, 34 L. j . Bank. 17 ;
Seton 1). Low, 1 Johns. N.Y. Cases, 1, (NS) 249; the ‘Helen,’
5 L. ]. Ad. 2 ; Kent, Corn. on Am. Law, vol. i. pp. 135-143 ; Ortolan,
Diplomatic de la Mer, liv. iii. ch. vi. ; Garden, De la Diplomatic,
liv. § 4; Heffter, Droit International, 5 161 ; Nau, Vo'lkerseerecht,
on. xxvr CONTRABAND OF WAR 245
§ 3. By the ancient laws of war, as established by the Ancient
usages of European nations, the contraband cargo affected the ship, and involved it in the sentence of condemnation.1 to ships
The justice of this rule is vindicated by Bynkershoek and
Heineccius, and it cannot be said that the penalty was
unjust in itself, or unsupported by the analogies of the law.
Grotius does not particularly discuss the case of the ship
carrying contraband, but alludes to the subject in very
general terms.’ Soon after his time a relaxation began to
be introduced into treaties, but this relaxation, at first,
applied only to cases in which the owner of the vessel might
be supposed to be a stranger to the transaction. Subse-
quently, the stipulation in treaties became more general,
although the relaxation was directed, in its particular
application, as well as in its origin, only to such cases as
afford a presumption that the owner was innocent, or the
master deceived.2
§ 4. By the modern practice of the prize courts of Modern
England and the United States, and not opposed, it is "11"
believed, by other nations, a milder rule has been adopted,
and the carrying of articles contraband of war is now
attended only with the loss of freight and expenses, except
where the ships belong to the owner of the contraband
cargo, or where the simple misconduct of carrying contra—
band articles is connected with other circumstances which
extend the offence to the ship also. Sir William Scott
says, ‘ Anciently, the carrying of contraband did, in ordinary
cases, affect the ship, and although a relaxation has taken
§§ 193 et seq. ; Jacobson, Seereckt, &c., pp. 422, 42 3 ; Pando, Derecho
I nternacional, p. 496 ; Hautefeuille, Des Nations Neatres, title viii.
§ 1 ; Bello, Derecho I nternacional, pt. ii. c. viii. § 4 ; Poehls, Seerecht,
&c., b. iv. p. 1104; Kaltenborn, Seerecht, b. ii. p. 420; Lampredi,
Commerce des N eutres, pt. i. § 7.
1 Great Britain and the United States strongly disapproved
the proclamation of Russia in the 1904 war with Japan to treat as
lawful prize ‘neutral vessels, arrested ofi Kuanting within the zone
of the action of the Russian fleet, having on board ‘improved
apparatus not yet provided for by existing conventions,’ and to
treat newspaper correspondents found thereon as spies. Russia
recognises the right (where necessity, as interpreted by that country,
requires it) to destroy prizes; see Russian Regulations of 1895
and Instructions of 1901, Art. 40, and the sinking of the s.s. ‘ Knight
Commander ’ (Int. Law, Smith and Sibley, p. 186).
2 Bynkershoek, Quaest. jar. Pub. lib. i. c. x. ; Heineccius, De
Nav. &c., 0. ii. § 6 ; Grotius, De jure Bell. ac Pac. lib. c. i. ; the
‘ Ringende Jacob,’ 1 Rob. 90 ; the ‘ Mercurius,’ 1 Rob. 288, note.
246 INTERNATIONAL LAW
OH. XXVI
Gases
where the
ship also
is con-
demned
Plea of
ignorance
or force
place, it is a relaxation the benefit of which can only be
claimed by fair cases. The aggravation of fraud justifies
additional penalties.’ 1
§ 5. Where the transportation of the contraband articles
is prohibited by the stipulations of a treaty, to which the
government of the neutral shipowner is a party, the for-
feiture of the freight is extended to the ship, on the ground
that the criminality of the act is enhanced by the violation
of the additional duty imposed by the treaty. An attempt
to conceal the destination of the ship, by false papers, will
lead to the same result. ‘ I desire it to be considered as
the settled rule of‘ law received by this court,’ says Sir
William Scott, in the case of the ‘ Franklin,’ ‘ that the
carriage of contraband with a false destination will work a
condemnation of the ship as well as the cargo.’ There are
other cases of misconduct which are held by the courts to
involve the confiscation of the ship carrying contraband;
as the privity of the owner of the ship to the contraband ;
the concealment of the contraband in the outward voyage ;
the misconduct of the supercargo, the agent of the owner ;
the contraband traffic of the officer placed in command of
a private vessel by the Board of Admiralty, and where the
owner of the contraband is also owner, or part owner, of the
ship. But these cases will be more particularly discussed
in the chapter on violation 'of neutral duties.2 ,
§ 6. The ordinary penalty of carrying articles contra-
band of war, is the confiscation of the goods and the loss of
1 The ‘Franklin,’ 3 Rob. 221, note; Polson, Law of Nations,
p. 64; the ‘ Jonge Tobias,’ 1 Rob. 329 ; the ‘ Neptunus,’ 3 Rob. 108;
the ‘ Jonge Margaretha,’ I Rob. 189 ; the ‘ Sarah Christina,’ I Rob.
242. In determining the question of costs and expenses, the fact
of conveyance of contraband may be properly taken into con-
sideration, with other circumstances, such as want of frankness in
a neutral captain, engaged in a commerce open to great suspicion,
and his destruction of some kind of papers in the moment of capture,
and this, although it seemed almost certain that the ship was destined
to a port really neutral, and with a cargo for the most part neutral
in character and destination. (The ‘ Peterhoff,’ 5 Wall. 28; the
‘ Springbok,’ are. I.)
2 The ‘ Franklin,’ 3 Rob. 221 ; Duer, On Insurance, vol. i.
. 62 5 ;
the ‘ Baltic,’ 1 Acton, 25 ; Blewitt 1). Hill, 13 East, 13 ; the ‘ Floreat‘
Commercium,’ 3 Rob. 178 ; the ‘ Neutralitet,’ 3 Rob. 295 ; the
‘ Enrom,’ 2 Rob. 6 ; the ‘ Ranger,’ 6 Rob. 125 ;the ‘ Edward,’ 4 Rob.
68. In the Russo-Japanese War, 1904, Russia declared that
neutral ships captured while engaged in flagrant act of contraband,
according to‘ circumstances, should be seized or even confiscated.
(‘H.VXXVI CONTRABAND OF WAR
247
the freight and expenses to the ship. This penalty is not to
be averted by the allegation that the owners or master were
ignorant of the true nature of the articles, or that, by the
threat or violence of the enemy, they were compelled to
receive and transport them. Such excuses, if allowed,
would be constantly urged, and by robbing the prohibition
of contraband of its penal character, would convert it into
a mere nugatory threat.
consist of contraband goods, the innocent articles of innocent
shippers are restored; but all the goods of the owner of
the contraband articles, even those which are innocent,
share the same fate.1
§ 7. The inception of the voyage is held to complete the
offence; and from the moment that the vessel, with the
contraband articles on board, quits her port on a hostile
destination, the capture may be legally made. It is by no
means necessary to wait till the ship and goods are actually
endeavouring to enter the enemy’s port. The voyage
being illegal at its commencement, the penalty immediately
attaches and continues to the end of the voyage, or at least
so long as the illegality exists.’
§ 8. Where the contraband goods are not taken in
delicto, in the actual prosecution of the outward voyage,
and the return voyage is distinct and independent, the
penalty is not generally held to attach, either upon the
proceeds of the goods or on the ship upon her return voyage.
But where they are both inseparably connected in their
original plan, so as to form parts of a continuous voyage,
the penalty is generally considered as attaching in every
stage till its final completion. Such is the doctrine estab-
lished by the decisions of the English Admiralty, and
seemingly admitted by the Supreme Court of the United
States. Wheaton has questioned its soundness, but his
objection, that it extends the oflence indefinitely, is com-
pletely answered by the decisions themselves, which
expressly limit the offence and its penal consequences to
completion of the entire voyage. Ortolan contests this rule
1~ Duer, On Insurance, vol. i. p. 625 ; the ‘ Oster Resoer,’ 4 Rob.
109; the ‘ Caroline,’ ibid. 260; the ‘ Richmond,’ 5 Rob. 325 ; the
‘ Charlotte,’ ibid. 27 5.‘ a .
2 The ‘ Imina,’ 3 Rob. 168; the ‘ Trende Sostre,’ 6 Rob. ‘390, note ;
see further on this subject, ch. xxviii. § 27.
Where the cargo does not wholly-
The
inception
Return
voyage
248 INTERNATIONAL LAW
OH. XXVI
If not
contra-
band at
time of
seizure
Transfer
from one
port to
another
of the continuation of the offence during the return voyage,
on the ground that the ship should, in all cases, be exempted
from any penalty, and the confiscation confined to the
contraband articles. He has supported his doctrine by
strong and logical arguments, but, however correct it may
be in theory, it is not supported by the practice of the great
maritime Powers of the world. The general rule of exemp-
tion is, undoubtedly, well established, but the exceptions
indicated are supported by good authorities, and generally
admitted in practice.1 7 ‘
§ 9. It must be observed that the offence does not
necessarily continue during the entire outward voyage, even
where it was completed by the mere inception with contra-4
band articles on board. ‘ Where there is positive evidence,’
says Duer, ‘ that previous to the capture, the voyage had
been changed, by the substitution of an innocent port of
destination, or that the original port, by capitulation or
otherwise, had ceased to be hostile, as the goods were not -
contraband when seized, the capture is invalid, and restitu-
tion is decreed.’ Although the penalty is not averted by
the possibility that the intention to prosecute an illegal
voyage, which is in the progress of execution, will be changed
before its completion, yet, if the intention, when the capture
was made, had, in good faith, been abandoned, or was no
longer capable of execution, the corpus delicti is extinguished,
and the penalty cannot be sustained?
§ IO. The illegality of the transportation of contra-
band goods is not confined to an original importation into
an enemy’s country. The transportation of such articles
from one port of the enemy to another is equally unlawful,
and is subject to be treated in the same manner as an original
importation. It may equally and as directly tend to assist
the enemy in the prosecution of the war. ‘ The transfer
of contraband from one port of a country to another,’ says
1 Ortolan, Diplomatic de la Mer, liv. iii. ch. vi. ; Hubner, De la
Saisie des Bdtirnents, liv. ii. ch. iv. § 4 ; Zouch, ]uris et ]ur. Fecialis,
p. ii. 0. ; Wheaton, On Captures, p. 183 ; the ‘ Nancy," 3 Rob.
127 ; the ‘ Rosalie and Betty,’ 2 Rob. 348 ; the ‘ Baltic,’ 1 Act. 25 ;
the ‘ Joseph,’ 8' Cranch. 451 ; the ‘Caledonia,’ 1 Wheat. Ioo ;
‘ Christiansberg,’ 6 Rob. 381 ; Carrington v. the M. Ins. Co. 8 Peters.
521 ; the ‘ Frederick Molke,’ 1 Rob. 87; the ‘Charlotte,’ ibid. 386;
the ‘ Margaret,’ 1 Act. R. 13 3. .
2 Duer, On Insurance, vol. i. pp. 629, 571, 572.
OH. XXVI CONTRABAND OF WAR
249
Sir William Scott, ‘is subject to be treated in the same
manner as an original importation into the country itself.’ 1
§ II. In order to constitute the unlawfuhiess of the
transportation of contraband, it is not necessary that the
immediate destination of the ship and cargo should be to an
enemy’s country or port. If the goods are contraband and
destined for the direct use of the enemy’s army or navy, the
transportation is illegal, and subject to the ordinary penalty.
Thus, if an enemy’s fleet be lying, in time of war, in a
neutral port, and a neutral vessel should carry contraband
goods to that port, not intended for sale in the neutral
market, but destined for the exclusive supply of the hostile
forces, such conduct would be a direct interposition in the
war by furnishing essential aid in its prosecution, and
consequently would be a flagrant departure from the
duties of neutrality.
§ r2. In the case of the ‘ Commercen,’ a Swedish vessel
captured by an American cruiser in the act of carrying a
cargo of barley and oats for the supply of the allied armies in
the Spanish peninsula, the United States being at war with
Great Britain, but at peace with Sweden and the other
powers allied against France, the Supreme Court of the
United States held that the voyage was illegal, the cargo
was condemned, and the neutral carrier denied his freight.
The cargo, in this case, was enemy’s property, but all the
members of the court concurred in the principle that a
neutral carrying supplies for the enemy’s naval or military
forces, was engaged in an illicit voyage inconsistent with
the duties of neutrality, and that it was a very lenient
administration of justice to confine the penalty to a mere
denial of freight. Some doubts have arisen as to the pro-
priety of the decision in the particular case, but none as
to the truth of the general principles upon which it was
founded. Chief Justice Marshall dissented from the
majority of the court, but his dissent was founded on the
special circumstances of the case : first, that the war in the
Spanish peninsula was so distinct from that between
England and the United States, that the latter could not
be prejudiced by the aid furnished; and, second, that
Sweden being an ally with England in the war against
1 The ‘ Edward,’ 4 Rob. 70.
If for
enemy’:
use in a
neutral
port
The
‘ Com-
mercen ’
250 INTERNATIONAL.- LAW 0H. xxvI
Disagree-
ment as
to what-
particular:
articles
are con-
traband
View of ~ -
Grotius
and‘ others
France," her subjects might lawfully aid the British forces
engaged in that war, and without violating their neutrality
toward thev United States.1 ' .
§ I3. ‘All writers on international law are agreed, that
. implements and munitions of war, and articles, which," in
their actual condition, are of immediate use for warlike
purposes, are to be deemed contraband, whenever they are
destined to an enemy’s country, or to an enemy’s use ; but,
beyond this, there is such a diversity of opinion among
text-writers that it is exceedingly difficult, if not impossible, '
to deduce from such works any well-established and satis-
factory principles to guide our decision on the points in
dispute. We will proceed to refer to the discussions of
publicists of‘ the highest authority on these questions,
without attempting, however, to reconcile their differences
of Opinion.
§ 14. Grotius divides all articles of trade into three
classes : I. Implements and materials which, by their
nature, are suitable to be used in war. 2. Articles of taste
and luxury, useful only for civil purposes, as books, paint-
ings, &c. 3. Articles which‘ are of indiscriminate use in
peace and war, as provisions, naval stores, 81c. Articles
of the first class are always contraband ; those of the second
class never; those of the third class may or may not ‘be
contraband, according to the particular circumstances of
the war. .But little objection can be made to this classifica-
tion, but it leaves the entire difficulty unsettled, as the
question immediately arises with respect to what articles
are to be assigned to each class, and under what particular
circumstances articles of the - third class ‘are subject to
capture as contraband of war. Loccenius is of opinion
that provisions are universally contraband, and refers to
many instances in which different nations had enforced the
prohibition. Heineccius includes in the list of contraband
articles of promiscuous use in peace or war, such as provi-
sions, naval stores, &c. Vattel makes a similar distinction
to that of Grotius, though he includes timber or naval
stores among articles which are liableto capture as contra-
band, and considers provisions as such‘ only under certain
circumstances, as ‘ when there are hopes of reducing the
1 The ‘ Commercen,’ 1 Wheat. R. p. 322.
on. xxvr' CONTRABAND OF WAR 251
enemy by famine.’ ' Valin and Pothier wholly exclude
provisions, but admit that by general usage, when they
wrote, naval stores were prohibited. Bynkershoek strenu-
ously contends against admitting into the list of contra-
band articles of promiscuous use in peace and war, and
denies that any other than those which, in their actual
state, are immediately vapplicable to warlike purpose, can
properly be enumerated as prohibited. Sir Leoline Jenkins,
in a letter to Charles 11., says: ‘ I~ am humbly of opinion
that nothing ought to be judged contraband by the general
law of nations, but what is directly and immediately
subservient to the uses of war, except it be in the case of
besieged places.’ 1
§ I 5. British authors have generally favoured the exten-
sion of the list of contraband to all articles of promiscuous
use in peace and war. Reddie defines contraband to be :
‘ I. Articles which have been constructed, fabricated, or
compounded into actual instruments of war. 2. Articles
which, from their nature, qualities, and quantities, are
applicable and useful for the purposes of war. 3. Articles
which, although not subservient generally to the purposes
of war, such as grain, flour, provisions, naval stores, become
so by their special and direct destination for such purposes,
namely, by their destination for the supply of armies,
garrisons, or fleets, naval arsenals, and posts of military
equipment.’ The following list is given by Sir Godfrey
Lushington, viz :——‘ Goods absolutely contraband—Arms of
all kinds and machinery for manufacturing arms. Ammuni-
tion and materials for ammunition, including lead, sulphate
of potash, muriate of potash, chloride of potassium, chlorate
of potash, and nitrate of soda. Gunpowder and its materials,
saltpetre and brimstone ; also gun cotton. Military equip-
ments and clothing. Military stores. Naval stores, such
as masts (the ‘ Charlotte,’ 5 Rob. 305), spars, rudders, and
ship timber (the ‘ Twende Brodre,’ 4 Rob. 33), hemp (the
‘ Apollo,’ 4 Rob. I58), and cordage, sail cloth (the ‘ Nep-
tunus,’ 3 Rob. 108), pitch and tar (the ‘Jonge Tobias,’
1 Life and Correspondence of Sir L. .jenkins, vol. ii. p. 751 ;
Grotius, De-jnre Bell. ac Pac. lib. i. § 5 ; Loccenius, De jnre
Marit. lib. i. c. 4, § 9; Heineccius, De Nam'bus, c. i. § 14 ; Vattel,
Droit des Gens, liv. iii. ch. vii. § 112 ; Valin, Com.‘ snr I’Ord. liv. iii.
tit. ix. art. xi. ; Bynkershoek, Qncest. jar. Bel. liv. i. c. x.
0f modern
writers
252 INTERNATIoNAL LAW . on. xxvr
I Rob. 329), copper fit for sheathing vessels (the ‘ Charlotte,’
5 Rob. 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 the 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 g to % of an inch diameter,
rivets, strips of iron, sheet plate iron exceeding a} of an inch,
and low moor and bowling plates.’ ‘ Goods conditionally
contraband—Provisions and liquors fit for the consumption
of army or navy (the ‘ Haabet,’ 2 Rob. 182), money, tele-
graphic materials, such as wire, porous cups, platina,
sulphuric acid, and zinc (Parl Papers, ‘ N. America,’ No.
14, 1863), materials for the construction of a railway, as
iron bars, sleepers, &c.; coals, hay (Hosaek, 45), horses,
rosin (the ‘ Nostra Signora de Begona,’ 5 Rob. 98), tallow
(the ‘ N eptunus,’ 3 Rob. 108), timber (the ‘ Twende Brodre,’
4 Rob- 37%’ 1 '
American writers, such as Kent, Wheaton, and Duer,
have generally limited their remarks to stating the opinions
of the older text-writers, and the decisions of English and
American courts of prize. Wheaton is evidently disposed
to exclude entirely, from the list of contraband, provisions
and other articles of promiscuous use. Kent and Duer
are of opinion that such articles may, or may not, be contra—
band, according to the circumstances of the case? In the
case of the ‘ Peterhoff ’ 3 the Supreme Court of the United
States, in 1866, was of opinion that a strictly accurate and
satisfactory classification of contraband is perhaps impractic-
able, but that which is best supported by English and
American decisions divides all merchandise into three
classes : Ist. Articles manufactured primarily or ordinarily
used for military purposes in time of war, destined to a
belligerent country or places occupied by the army and navy
of a belligerent, are always contraband and liable to con-_
1 Reddie, Researches, Hist. and Crit., on Marit. Int. Law, vol. ii.
p. 456 ; Lushington, Manual of Naval Prize Law, p. 35.
2 Wheaton, Eleni. Int. Law, pt. iv. ch. iii. § 26; Kent, Com.
on Am. Law, vol. i. pp. 135-143 ; Duer, On Insurance, vol. i. pp.
622-644. ,
3 5 Wall. 28.
on. xxvr CONTRABAND OF WAR
253
demnation. 2nd‘. Articles which may be and are used for
purposes of war or peace, according to circumstances, are
contraband only when actually destined to the military or
naval use of a belligerent. 3rd. Articles exclusively used
for peaceful purposes are not contraband at all, though
liable to seizure and condemnation for violation of blockade
or siege. The Court further held that contraband articles
contaminate the parts not contraband of a cargo if belonging
to the same owner ; and that the non-contraband must share
the fate of the contraband, viz. confiscation.
Continental writers, generally, contend against the
English extension of contraband. Among them are Haute-
feuille and Ortolan. The former admits but one class of
contraband, and confines it to objects of first necessity for
war, which are exclusively useful in war, and which can be
directly employed for that purpose, without undergoing
any change. The latter declares his opinion to be, that,
on principle, under ordinary circumstances, arms and
munitions of war, which serve directly and exclusively for
belligerent purposes, are alone contraband. He admits
that in special cases certain determinate articles, whose
usefulness is greater in war than in peace, are, from cir-
cumstances, in their character contraband, without being
actually arms and munitions of War, such as timber, evi-
dently intended for the construction of ships of war, or for
gun carriages, boilers or machinery for the enemy’s steam
vessels, sulphur, saltpetre, or other materials for arms or
munitions of war. Heffter is of opinion that certain articles,
as provisions, not in their nature contraband, may, in
certain cases, from their destination and intended use, be
regarded as such.1 “
§ 16. And the same discordancy in the definition of con-
traband is to be found in the conventional law of nations, as
established by treaties, the provisions of which are various
and contradictory— even of those made, at different periods,
between the same nations.2 The same may be said of marine
1 Hautefeuille, Des Nations Neutres, tit. viii. § 2 ; Ortolan, Dip.
de la Mer, t. ch. vi. ; Heffter, Droz't International, § 160.
2 Particular relaxations, or special articles of treaty, may protect
certain contraband ; thus, in 1802, hemp, the produce of Russia and
the property of a Russian merchant, taken on its way to Amsterdam,
was not confiscated by the British Court of Admiralty ; it was not on
Discord-
ancy of
earlier
treaties
and ordi-
nanoee
254 INTERNATIONAL LAW on.‘ xxvr
ordinances and diplomatic discussions. The marine treaty
between. England and Holland, December I, 1674, ‘compre-
hends as contraband of war pieces of ordinances, with all
implements belonging to them, fireballs, powder, matches,
bullets, pikes, swords, lances, spears, halberts, guns, mortar-
pieces, petards, grenadoes, musket rests, bandaliers, salt-
petre, muskets, musket shots, helmets, .corslets, breastplates,
coats of mail, and the like kinds of armature; also horses
and other warlike instruments. The marine ordinances of
Louis XIV., 1681, limit contraband to munitions of war.
So, also, the treaties between England and Sweden in 1656,
1661, 1664, and 1665. Bynkershoek refers to- other treaties
of the seventeenth century, as containing the same limita-
tion. But Valin says that in the treaty of commerce between
France and Denmark, in 1742, pitch, tar, resin, sail cloth,
hemp, cordage, masts, and ship timber were declared to be
contraband- By the treaty of Utrecht, in 1713, and the
subsequent treaties of 1748, 1763, 1783, and 1786, between
Great Britain and France, contraband was strictly confined
to munitions of war’; all other goods not worked into the
form of any instrument or furniture-for warlike use, by land
or sea, are expressly excluded from this list. But the
contraband character of naval stores continued a vexed
question between Great Britain and the Baltic powers.
By the treaty of 1801, between Great Britain and Russia,
.to which Denmark and Sweden subsequently acceded,
saltpetre, sulphur, saddles and bridles, were enumerated
as contraband; and by the convention of July 25, 1803,
' the list was augmented by the addition of coined money,
horses, equipments for cavalry, and all manufactured
articles serving immediately for the equipment ,of ships
of war. In. the treaty of 1794, between Great Britain and
the United States, it was stipulated (article 18) that under
the denomination of contraband should be comprised all
arms and implements serving for the purposes of war, ‘ and
also timber for ship-building, tar or rosin, copper in sheets,
sails, hemp and cordage, and generally whatever may serve
directly to the equipment of vessels, unwrought iron and fir
board a Russian ship, but was taken in the vessel of another country.
;It, was, however, liable to seizure and pre-emption. (The ‘ Apollo,’
4 Rob. 158.)
OH. XXVI CONTRABAND OF WAR 255
planks onlyexcepted.’ The article then goes on to provide,
that ‘whereas the dificnlty of agreeing on the precise cases,
in which alone provisions and other articles, not generally
contraband, may be regarded as such, renders it expedient to
provide against the inconveniences and misunderstandings
which might thence arise, it is further agreed that whenever
any such articles, so becoming contraband, according to the
existing law of nations, shall, for that reason, be seized,’ &c.,
the owners thereof shall be paid their value, 810.1 Spain
declared the following goods contraband of war in the
Spanish-American War (1898): cannon, quickfiring guns,
shells, rifles of all patterns, cutting and thrusting weapons
and arms of precision, bullets, bombs, grenades, fulminates,
capsules, fuses, powder, sulphur, dynamite, explosives
of all kinds, uniforms, pack-saddles, straps, equipment
for artillery and cavalry, marine engines, and all appliances
used in war. ~ .
§ 17. The numerous treaties to which the United States
have been parties, and which contain any stipulations re-
specting contraband, with the single exception of the one
just referred to with England, in 1794, confine the term to
arms and munitions of war, and in the early ones naval
stores are, in express terms, excluded from the list. The
more modern treaties between European Powers are not
calculated to throw much light upon this subject. The
‘declarations of the French and English governments, at
the commencement of the war with Russia, in 1854, except
contraband of war from the articles to which impunity is
accorded, but they contain no new definition of contraband.
But the British Order in Council of February 18, 1854,
issued in anticipation of the declaration of war, prohibited
from being exported, or carried coastwise, ‘ all arms,
_ ammunition and gunpowder, military and naval stores, and
the following articles, being articles which are judged
capable of being converted into, or made useful in increasing
I the quantity of military or naval stores, that is to say,
marine engines, screw propellers, paddle wheels, cylinders,
1 Merlin, Repertoire, verb. ‘ Prise Maritime," § 3, art. 1 ; Pistoye
etDuverdy, Trait! des Prises, tit. vi. ch. ii. § 3. And see the attempt
made by John Burrough to trade with Sweden expressly against
» the interdiction of the King of Denmark. (Sir Walter Raleigh, liv. v
c. i. § IQ.)
Of those
of more
recent
date
256 INTERNATIONAL LAW 011. xxvi
cranks, shafts, boilers, tubes for boilers, boiler plates, fire
bars, and every article or any other component part of an
engine or boiler, or any article whatever which is, or can,
or may become applicable for the manufacture of marine
machinery.’ Although this Order, and its subsequent modi-
fication, were probably not intended as a fresh declaration
of contraband of war, yet it was evident from the character
of the Order itself, and from answers given by the ministers
in the House of Commons, that the parts and elements of
steam machinery, and also coals,l were to be regarded as
1 After the declaration of war in 1870 between France and
Germany, the British Government lost no time in announcing the
determination of Great Britain to maintain a position of neutrality
between the contending parties; but Germany appeared to wish
that Great Britain should go further, and that she should not only
enjoin upon British subjects the obligations of neutrality, but that
she should take it upon herself to enforce those obligations in a
manner and to an extent wholly unusual. Germany complained
that England had rovisioned the French fleet with coal by direct
communication of- nglish vessels with the fleet, that there was an
export of horses in large quantities to France, and that contracts
had been entered into with English houses at Birmingham to
supply the French Government with cartridges. Germany abso-
lutely wished that England should not only forbid, but should also
prevent the exportation of articles contraband of war ; that is to
say, that she should decide herself what articles were to be con-
sidered as contraband of war, and that she should keep such a watch
upon her ports as to make it impossible for such articles to be ex-
ported from them. But even if it be clearly defined that coal ‘is
contraband, it is beyond dispute that the contraband character
would depend upon the destination ; the neutral power could hardly
be called upon to prevent the exportation of such cargo to a neutral
port, and i this be the case, how could it be decided at the time of
departure of a vessel, whether the alleged neutral destination were
real or colourable P The question of the destination of the cargo
must be decided in the prize court of a belligerent, and Germany
could hardly seriously purpose to hold the British Government
responsible, whenever a British ship, carrying a contraband cargo,
should be captured while attempting to enter a French port. It
appears from the journal Oflfciel of July 26, 1870, that the French
Government did not consider coal to be contraband of war.
In the Russo-Japanese War of 1904, Great Britain limited the
supply of coal to ‘ so much as may be sufficient to carry such vessel
to the nearest port of her own country or to some nearer named
neutral destination ’ (London Gazette, February 11, 1904).
The best opinions on this subject seem to agree that the quantity
and the destination of coal may render it liable to seizure. In such
case it is obviously for the prize court "of the captor to decide the
uestion of contraband. See the jurist, 18 59, vol. v. part . 203.
he determination of what is contraband must depend on t _e cir-
cumstances of each particular cargo. Provisions, though they may
be safely sent under ‘other circumstances, yet if sent to a port where
an army of a State at war is in want of food, may become contra-
on. .xxvr CONTRABAND OF WAR ‘ 257
articles ancz'pz'tz's asfls, not necessarily contraband, but
liable to be considered so, if they were to be applied to
the military or naval uses of the enemy. Now, by virtue
of the 42 and 43 Vict. c. 21, s. 8 (1879), supplemented by
63 & 64 Vict. c. 44 (1900), the following goods may, by
Proclamation or Order in Council, be prohibited either to
be exported or carried coastwise: arms, ammunition, and
gunpowder, military and naval stores, and ‘any articles
Which her Majesty shall judge capable of being converted
into or made useful in increasing the quantity of military
or naval stores, provisions, or any sort of victual which
may be used as food by man; and if any goods so‘ pro-
hibited shall be exported or brought to any quay or other
place to be shipped for exportation from the United King-
dom, or carried coastwise, or to be water-borne to be so
exported or carried, they shall be forfeited, and the ex-
porter or his agent or the shipper of any such goods shall
be liable to the penalty of 1001.
band. So with regard to coals. They may be sent for the purpose
of manufacture, but if sent to a port where there are war steamers,
with the view of supplying them with coals, then they become
contraband. See Parliamentary Debates, H. of L., May I6, 1861.
By parity of reasoning the same remarks apply to horses. They
are, moreover, mentioned as contraband in many treaties between
different States, Russia always excepted. A neutral vessel destined
to be sent to the enemy and to be used for purposes of war is con-
traband. (The ‘ Richmond,’ 5 Rob. 325.)
When Prussia was in the same position as that in which Great
Britain found herself in 1870, her line of conduct was similar, and
she found herself equally unable to enforce upon her subjects
stringent obligations against the exportation even of unquestionable
munitions of war. During the Crimean war arms and munitions
were freely exported from Prussia to Russia, and arms of Belgian
manufacture found their way to the same quarter through Prussian
territory, in spite of a decree issued by the Prussian Government,
prohibiting the transport of arms coming from foreign States. It
may not be irrelevant to quote the views expressed, in 1870, to a
foreign Minister at Washington by the Sectetary of State of the
United'States, respecting the duties of neutrals in regard to trade
in articles contraband of war. He is reported to have said that
arms and ammunition had always been considered to be articles
of legitimate commerce by neutrals during war, and that the United
States claimed the right to supply them to all belligerents without
distinction, adding that during the Civil War in America quantities
of these articles had been brought from England, France, and
Belgium. The Belgian Government, while prohibiting the transit
and exportation of arms and munitions of war in 1870, nevertheless
excepted from that prohibition articles which could clearly be shown
to be destined for a neutral Government, and reserved formally the
right of free exportation for the future.
VOL. 11. S
258 INTERNATIONAL LAW on. xxvr
Decisions
of prize
courts
A Swedish ordinance, of April 8, 1854, enumerates as
contraband of, war all kinds of varms, munitions of war,
military stores, saddles, bridles, and other’ manufactured
articles, immediately applicable to warlike purposes.~ In
1877 Russia declared the following articles to be contraband :
small arms and artillery, mounted or in detached pieces ;
ammunition for fire-arms, such as projectiles, fuses for
shells, balls, priming cartridges, cartridge cases, powder,
saltpetre, sulphur, explosive materials and ammunition,
such as mines, torpedoes, dynamite, pyroxyline', and other
fuhninating substances ; artillery engineering and transport
materials, such as gun carriages, caissons, cartridge boxes,
campaigning‘ forges; canteens, pontoons, &c.; articles of
military equipment‘ and attire, such as pouches, cartridge
boxes, bags, cuirasses, sappers’ tools, drums, saddles and
harness, articles of military dress, tents, &c.-, and generally
everything destined for military or naval forces. The
same to be liable to seizure and confiscation, save so much
of them as might be for the use of the ship in which they
were conveyed. _ And in 1904, after protest from Great
Britain, Russia during the Russo-Japanese War declared
cotton to be conditional contraband. I
I § 18. Again, ifwe recur to the decisions of prize courts,
although we shall find less discordancy, perhaps, than in
the other sources of international law, we nevertheless shall
encounter a diversity of sentiment, on some points, which
it would be vain to attempt to reconcile. Even in the
same country, at different periods, the decisions have been
various and contradictory. Thus, in England, Sir Leoline
Jenkins, the judge of Admiralty in the reign of Charles II.,
1674, in the case of a Swedish vessel laden with naval
stores, already referred to, decided that such commodities
as pitch, tar, and naval stores, except in case of besieged
places, ought not to be judged contraband ; while Sir
William Scott condemned naval stores as contraband, even
when bound to a mercantile’ port only, as ‘ they may then
be applied to immediate use in the equipment of privateers,
or may be conveyed from the mercantile to the naval port,
and there become subservient to every purpose to which
they could have been applied, if going» directly to a port of
naval equipment.’ The same authority sustained the orders
OE. XXVI CONTRABAND OF WAR
259
and instructions to English cruisers, to seize all neutral
vessels laden with corn, flour, meal, and other provisions,
bound to ports of France, upon the ground that by the
modern law of nations, all provisions are to be considered
contraband, and, as such, liable to confiscation, whenever
the depriving the enemy of these supplies is one of the
means to be employed in reducing him to terms.1
§ 19. As already stated, it is not our intention to. attempt
to reconcile conflicting opinions and decisions, or to deduce,
from any process of reasoning, the rules of a universal law
applicable to contraband of war. But we will endeavour
to state what has been decided to be contraband by the
prize courts of Europe and of the United States, wherein
the courts are generally agreed, and wherein they have
differed in opinion. It is, perhaps, of as much importance
to know what has been, and is likely to be, administered
as the law, in the courts of the principal commercial States,
as to know what ought, in theory, to be established as the
conventional law of nations. The liability to capture can
only be determined by the rules of international law, as
interpreted and applied by the tribunals of the belligerent
State, to the operations of whose cruisers the neutral mer-
chant is exposed. -
§ 20. It is universally admitted, that all instruments
and munitions of war are to be deemed contraband, and
subject to condemnation. This rule embraces, by its terms,
and by fair construction, all ordnance and arms of every
description, balls, shells, shot, gunpowder, dynamite, and
articles of military pyrotechny, gun carriages, ammunition
waggons, belts, 'scabbards, holsters, all military equipments
and military clothing. Any vessel, evidently built for war-
like purposes, as gun and mortar boats, and destined to
be sold for such use, is clearly liable to confiscation under
the same rule. To this list are to be added all articles manu-
factured or unmanufactured, which are almost exclusively
used for military purposes, as machinery for manufacturing
arms, and saltpetre, and sulphur for making gunpowder.
.§ 21. It ' is an ., established doctrine of the English
Admiralty, that all manufactured articles that in their
’ ‘1 Life and Cor. of Sir L. ]enkins,supra ; the ‘Richmond,’ '5 Rob.
325. _ .
There is
no posi-
tive rule
Muni-
tions of
war
Manu-
featured
articles
52
260 INTERNATIONAL LAW 011. xxvr
Un-
wrought
articles
natural state are fitted for military use, or for building and
equipping ships of war, such as masts, spars, rudders,
wheels, tillers, sails, sail cloth, cordage, rigging, and anchors,
are contraband, in their own nature, to the same extent
as munitions of war, and that no exception is admitted in
their favour, unless treated by express provisions of a
treaty. Since the introduction of steam, as a motive
power, in ships of war, marine engines, screw propellers,
cylinders, shafts, boilers, boiler plates, tubes,_fire bars, and
every component part of a marine engine or boiler, and
every article suitable for the manufacture of marine
machinery, would be contraband; the same may be said
of torpedoes, and all electric gear, connected with them or
with artillery. ‘ .
§ 22. Articles in a rough state, which may be used for
military or naval purposes, may, or may not, be contra-
band, according to their nature and destined use, as in-
ferred from their immediate destination. Thus, pitch, tar,
and hemp, destined to the enemy’s use, are generally held
to be contraband in their nature, but when they are the
produce of the neutral country from which they are ex-
ported, and are the property of its subjects or citizens,
they are exempt from confiscation, except when they are
exclusively and immediately destined to warlike use. Ship
timber, in a rough state, is not in se contraband, but it
may become so from its particular character, as masts and
spars, or from the character of its port of destination.
Copper is not generally contraband, but if in sheets, adapted
to the sheathing of vessels, it is condemned. Hemp is
more favourably considered than cordage. Rosin is not
generally contraband, but is condemned if going to a port
of naval equipment. Iron itself is treated with indulgence,
but if of such a form as to make it suitable for military
or naval purposes, and its immediate destination is for such
use, it cannot claim the benefit of exemption; and the
same of telegraph cables and insulated wire}L This rule
would probably be applied to all unwrought materials for
shipbuilding, and for the construction of marine machinery.
Since the introduction of steam as the motive power in
ships of war, the question has been much discussed in
1 The ‘ International,’ L. R. 3 Adm. 321.
on. xxvr CONTRABAND or WAR 261
Europe, whether coals are to be considered as contraband.
They would seem now to properly belong to the same class
as ship timber, tar, pitch, and other unwrought materials
for ship-building and naval stores. In the war of 1856,
between the Allies and Russia, the English cruisers stopped
coals on their way to an enemy’s port on the Black Sea,
though it appears, from an answer given in the House of
Commons, by Sir James Graham,1L that they would be
regarded by British cruisers in the same light as hemp, viz.
as an article aacz'pitis usils, not necessarily contraband, but
liable to detention under circumstances that warrant sus-
picion of their being destined to the military or naval uses
of the enemy. Ortolan 2 first expressed the opinion that
coals might, or might .not, according to their intended use,
be classed as ‘prohibited articles, but he afterwards (wrongly)
corrected this statement, and concluded that they never
can, under any circumstances, become contraband of
war. This view of the question is ably advocated by
Hautefeuille.3
§ 23. The probable use of articles is inferred from their
known destination. This rule seems neither unjust nor
unequal. The remarks of Chancellor Kent on this point
are exceedingly clear and appropriate. ‘ The most im-
portant distinction,’ he says, ‘is whether the articles were
intended for the ordinary uses of life, or even for mer-
cantile ships’ use, or whether they were going with a highly
probable destination to military use. The nature and
quality of the port to which the articles are going, is not an
irrational test. If the port be a general commercial one,
it is presumed the articles are intended for civil use, though
occasionally a ship of war may be constructed in that
port. But, if the great predominant character of that
port, like Brest in France, or Portsmouth in England, be
that of a port of naval military equipment, it will be pre-
sumed that the articles were going for military use, although
1 May 9, I845, Hansard’s Debates, cxxxiii. p. 38.
2 Dz'plomatz'e de la M er, b. iii. c. 6, t. p. 206.
‘‘ Droz't des Gens, tit. 2, p. 212 ;Polson, Law of N atz'ons, p. 63 ; the
‘ Staadt Embden,’ I Rob. 26 ; the ‘ Sarah Christina,’ I Rob. 24: ;the
‘ Maria,’ 1 Rob. 372 ;the ‘ Apollo,’ 4 Rob. 1 58 ;the ‘ Christina Maria,’
4 Rob. :66 ; ‘the ‘ Twee Jufirowen,’ 4 Rob. 244 ; the ‘ Evert,’ 4 Rob.
354 ; the ‘ Nostra Signor-a,’ 5 Rob. 97 ;the ‘Neptunus,’ 3 Rob. 108.
Intended
use
deduced
from desti-
nation
262 INTERNATIONAL LAW 011. xxvi
Provisions
it is possible that the articles might have been applied to
civil" consumption. As it is impossible to ascertain the
final use of an article ancipitis usfls, it is not an injurious
rule which deduces the final use from the immediate
destination '; and the presumption of a hostile use, founded
on its destination to a military port, is very much in-
flamed, if at the time when the articles were going a con-
siderable armament was notoriously preparing, to which a
supply of those varticles would be eminently useful.’ The
same principle is‘laid down by Sir William Scott, but it
does not seem to have been followed out in all his decisions.
It applies equally to unwrought materials and ordinary
naval stores‘. If, when they are destined to a commercial
port it is a just presumption that‘ they are intended solely
for civil use, it is evident that this presumption exists in
all cases when such is their destination, from whatever
country they may be exported, and hence, in all such
cases, the presumption should be admitted for their pro-
tection, as it is for their condemnation when destined to
a port of naval equipment. The distinction in favour of
those which are the produce of the country from which
they are imported, does not seem to be well founded.1
§ 24. It is generally admitted, that provisions (com-
meatus bellz') are not, in their own nature, contraband.
But while some contend that they never can become so-
under any circumstances, Great Britain holds (and such is
her uniform practice) that they may become liable to con-
demnation by their special destination and intended use.
Thus, during the Russo-Japanese War (1904), rice, all kinds
of grain, fish, beans, were declared by Japan to be contra-
band of war. When provisions are destined to the im-
mediate supply of the military or naval forces of the enemy,
the aid thus intended to be given for the prosecution of
the war is so direct and important that the act of trans-
portation is peculiarly noxious, and they are condemned
without hesitation; but grain in an unprepared state is
regarded more favourably. It would seem, from the deci-
sion of the Supreme Court of the United States, in the
case of the. ‘ Commercen,’ that where the real object is the
1 Kent, Com. on Am. Law, vol. i. p. 140; Riquelme, Demoho
P7222. Int. lib. i. tit. ii. 0. xv.
on. xxvr CONTRABAND or WAR 263
supply of the enemy’s forces, the voyage is illegal, even
where the port of destination is. neutral in its character.
Nor, by the established doctrine of the British Admiralty,
is it in all cases necessary, in order to make provisions
contraband, that the destination to the use of the enemy’s
military or naval forces should be certain. The rule of
ancipz'tz's usfis is here applied, which deduces the final use
from the immediate destination. It destined to a general
commercial port, they used to be presumed to be for civil
use, but if to a port whose predominant character is that
of naval construction and equipment, they were presumed
to be for military use. But the modern inland communica—
tions by railway must tend to qualify this rule ; while, on
the other hand, a warlike destination alone is not usually
sufficient to produce a condemnation. It must further
appear that the provisions were, from their nature and
quality, adapted to military use; since, otherwise, there
would be no basis for the presumption that they would
have been applied to that use, had their arrival been per—
mitted. Thus, where cheeses, intercepted as contraband,
were destined to Brest, a port notoriously of naval equip-
ment, evidence was required by Sir William Scott of their
fitness for naval use.l
v§ 25. Considerable friction was occasioned, during the
Russo-J apanese War, 1904, between Russia and the neutral
powers, and in particular Great Britain, owing to the
extreme views which Russia held as to contraband. N o
doubt a somewhat novel state of affairs arose by reason
of the immense distance of the Russian Fleet from her
European base, and by reason of the long commercial sea
route between Japan and the neutral powers trading with
her. The dispute, so far as Great Britain was concerned,
mainly turned on the position that Russia took up with
regard to contraband of war, a position which threatened
to paralyse British trade in the Far East during the war.
There can be little doubt that Russian aggressiveness was
particularlymarked in the case of Great Britain by reason
of the political bias in favour of Japan which it was
_ 1 The ‘ Commercen,’ 2 Galhis R. 264 ; the ‘ Jonge Margaretha,’ I
Rob. 196 ; the ‘ Zelden Rust,’ 6 Rob. 93 ; the ‘ Ranger,’ 6. Rob. 126 ;
the ‘ Edward,’ 4 Rob. 68 ;Maisonnaire v. Keating, 2 Gallz's 334.
The
Russo-
Japanese
War, 1904
264 ‘ INTERNATIONAL LAW 011. xxvI
considered, and possibly rightly considered, this country
showed, and also by reason of Great Britain’s predominant
commerce in the Far East. But inasmuch as Russia
attempted to support her action upon general principles of
international law, the matter calls for a more serious notice
than merely national prejudice would have demanded.
The vessels which were seized, and for which compensation
was demanded by the British Government, and in the end
conceded by the Russian Government were, to mention
only the more important cases : (a) The ‘ Allanton,’ which
sailed from Muroran for Singapore with coal to British
merchants at Singapore, and was captured on June 16,
1904, on a direct course for the latter port. She was taken
to Vladivostok, and there condemned by a Prize Court
and confiscated. The decision of the Court, however, was
reversed by the Appellate Court. (b) The ‘ Calchas,’ seized
on July 25, 1905, but released after its cargo of flour and
cotton had been confiscated. In addition to these cases,
there were the seizure and detention of vessels in the neigh-
bourhood of the Red Sea by the so—called Russian volun-
teer cruisers, ‘ Peterburg’ and ‘ Smolensk.’ Of seizures of
foreign vessels, the most important was the case of the
German steamer ‘ Arabia,’ which was carrying a cargo of
railway material and flour belonging to American subjects,
destined to Japanese ports, and addressed to various com-
mercial houses there. The cargo was condemned and
confiscated as contraband of war.
The conflict was directed to the alleged claim put
forward by the Russian Government to arbitrarily extend
the list of goods to be deemed absolute contraband of war,
and for all practical purposes to extinguish the well-recog-
nised distinction between absolute and conditional contra-
band. On February 14, 1904, the Russian Government
issued rules1 to be enforced during the war, whereby the
following articles were declared, inter alia, to constitute
absolute contraband of war: ‘ Every kind of fuel, such
as coal, naphtha, alcohol and other similar materials?
Generally, everything intended for warfare by sea or land,
'1 Rules ‘ which the Imperial Government will enforce during the
war with Japan ’ (Parl. Papers, Cd. 2348).
2 Rule 6, sub-sect. 8. "
on.’ xxvr CONTRABAND or‘ WAR 265
as well as rice, provisions, and horses, beasts of burden, and
other animals which may be used for a warlike purpose.’ ‘
In the course of a lengthy correspondence in reference to
these rules, the Marquess of Lansdowne points out to the
British Ambassador accredited to Russia that the inclusion
of rice and provisions as unconditional contraband of war
is ‘inconsistent with the law and practice of nations.’
In reference to coal and fuel he writes : ‘ You will add that
it is impossible for us to admit the new Russian doctrine,
contrary to that which the Russian Government have on
former occasions supported 2 that coal and fuel are contra-
band, irrespective of whether they are destined for the use
of belligerent forces or not. Still less can we admit that
it is within the competence of any Power to abolish by a
stroke of the pen the long established distinction between
articles which are conditionally and those which are abso-
lutely contraband of war, and suddenly announce their
intention of including within the latter category a number
of articles, in themselves of an innocent description and
largely dealt in by neutral powers. We are unable to
admit that the seizure of cargoes or the vessels containing
them, merely upon the ground that they include‘ such
articles, and without proof of such destination, is justifiable
in international law; and His Maj esty’s Government will
accordingly consider it their duty to support strenuously
claims for compensation put forward by British subjects
whose interests have suffered by the application of these
rules.’ 3 In connection with this, the protest of Mr. Hay
of August 30, 1904, on behalf of the United States, against
the confiscation of the cargo of the ‘ Arabia,’ should be
read: ‘ Articles which, like arms and ammunition, are by
their nature of self-evident warlike use, are contraband if
destined to enemy’s territory, but articles which, like coal,
cotton, and provisions, though ordinarily innocent, are
capable of warlike use, are not subject to capture and
confiscation unless shown by evidence to be’ actually destined
1 Rule 6, sub-sect. IO.
2 At the West African Conference, held at Berlin in 1824, the
Russian Plenipotentiary stated that his Government refused cate-
gorically to consent to any treaty which would recognise coal as
contraband of war. ’ '
3 Parl. Papers, Cd. 2348, No. 21.
266
INTERNATIONAL LAW on. xxvr
Ancient
rule of
pro-emp-
tion
for naval and military. forces of a belligerent. This sub-
stantive provision of the law of nations cannot be over-
ridden by a technical rule of the Prize Court that the
owners of- the captured cargo must prove that no part of
it may eventually come to the hands of the enemy’s forces.
The proof is of an impossible nature; and it cannot be
admitted that the absence of proof, in its nature impossible
to make, can justify the seizure and condemnation’, 1 As
a result of these protests the Russian Government issued
an amendment of the rules 2 whereby rice and provisions
and the like were declared to be conditional, contraband ;
but the Imperial Government refused to recede from the
position that it was entitled by the law of nations to
arbitrarily extend the list of unconditional contraband
articles at its discretion, nor during the course of the war
were the rules amended so as to admit coal and fuel into
the list of conditional contraband. It is to be remarked
that Great Britain fully recognised its duty to prevent
coal being supplied by its subjects to the fleets of the
belligerents, whilst Germany, on the other hand, took no
steps to prevent its subjects supplying the Russian fleet
with coal, although in the war-of 1870 it protested against
the supply of coal by British subjects to France.
§ 26. The ancient custom of preemption 3 by the bel-
ligerent of the property of the subjects of another State,
as practised about the middle of the seventeenth century,
had a much wider operation and very different meaning
than is now attributed to it ; all cargoes, without distinc-
tion, were subject to it. By the French Ordonnance of
1 Standard newspaper, September 21, 1904 ; Law Magazine and
Review, vol. xxx. p. 78 '
2 Dated October 22 (9) 1904. Parl. Papers, Cd. 23418, at p. 27.
3 The prerogative of Purveyance and Pre-emption upon land was
a right enjoyed by the Crown of buying up provisions and other
necessaries, by the intervention of the King’s purveyors, for the use
of his royal household, at an appraised valuation, in preference to all
others, and even without the consent of‘the owner ; also of forcibly
impressing the carriages and horses of the subjects to do the King’s
business on the public roads, in the conveyance of timber, baggage,
and the like, however inconvenient to the proprietor, upon paying
him a settled price. .This prerogative prevailed pretty generally
throughout Europe, during the .scarcityof gold and silver and the
high nominal valuation of money consequential thereupon. _Pre-
emption on the sea is akin to the above, and is well explained in the
case of the ‘ Haabet,’ 2 Rob. 182.
on. xxvI CONTRABAND OF .WAR 267
1584, ‘Art. 69, contraband was subjected, not to confisca-
tion, but to pra-emption. But, according to the modern
use of this term, it is applied to articles not contraband in
themselves, but which, being ambigui nsas, are, under the
peculiar circumstances of the case, subject to seizure and
to be condemned to the use of the belligerent, he paying
their value with a reasonable mercantile profit—which, by
the practice of the British prize courts, is usually fixed at
ten per cent. If the goods are contraband by the law of
nations the carrying of them is a criminal act, punishable
by confiscation, or any milder penalty which the belligerent
may see fit to impose. The question, therefore, resolves
itself into one of contraband, upon which opinions are
somewhat divided.1
§ 27. The British Admiralty, and especially Sir William
Scott, sustained the capture of provisions which were not
even probably destined to military use; they did not con-
fiscate them as contraband, but condemned them to the use
of the British Government, on the payment of a price
equivalent to their value, or, rather, their cost, and the
specified mercantile profit of ten per cent. A similar rule
of. pre-emption, or requisition, was applied by Great Britain
to certain native commodities of neutral States, found in
neutral vessels, and required by her for naval purposes.
In some cases, where this rule of pre-emption, or right of
purchase, was exercised, it was not claimed that the goods
so captured and condemned to a forced sale were contra-
band, or even ambigai uszis; but the right to pre-empt
them was claimed, because ‘ the ancient practice of Europe,
or at least of several maritime States of Europe, was to
confiscate them entirely; a century has not elapsed since
this claim has been asserted by some of them.’ 2
, § 28. The arguments adduced in favour of the British
right of ;bre—emption failed to convince its opponents of its
justness or legality, and its enforcement was, at the time,
most strenuously opposed by the Government of the
1 Phillimore, 0n Int. Law, vol. iii. §§ 267-270; the ‘Sarah
Qhristina,’ I Rob. 241; De Cussy, Droit Maritime, liv. i. tit.
m. g IWg'heaton, Elem. Int. Law, pt. iv. ch. § 24 ; Kent, Com. on
Am. Law, vol. i. pp. I38, I 39; Debrett’s State Papers, p. 380;
Manning, Law of Nations, pp. 287, 3x6.
British
rule of
pro-emp-
tion
Contested
by others
268 INTERNATIONAL LAW
on. xxv1
Insurance
on articles
contra-
band of
war
United-States and the neutral powers of Europe. Nor did
this opposition cease with the war in which the rule had
originated, or, at least, been called into operation. Since
then text-writers have most emphatically denied the legality
of the rule, and attacked the arguments by which it was
attempted to be defended. Probably in any future war
the British Government will not attempt to exercise the
right of pre-emption, except upon goods manifestly contra-
band of war, or which may fall within section 38 of the
Naval Prize Act, 1864 (27 and 28 Vict. c. 25), amended
by 57 and 58 Vict. c. 39. This Act (which is in part re—
pealed) enacts that ‘ where a ship of a foreign nation,
passing the seas, laden with naval or victualling stores
intended to be carried to a port of any enemy of her
Majesty, is taken and brought into a port of the United
Kingdom, and the purchase for the service of her Majesty
of the stores on board the ship appears to the Lords of
the Admiralty expedient, without the condemnation thereof
in a prize court, in that case the Lords of the Admiralty
may purchase on the account or for the service of her
Majesty all or any of the stores on board the ship; and
the Commissioners of Customs may permit the stores pur-
chased to be entered and landed within any port.’
§ 29. Arnould lays down the rule that all insurances on
articles contraband of war are wholly void, and incapable
of being enforced in the courts of the belligerent country.1
But if effected by or for neutrals, and sought to be enforced
in the court of a neutral State, the case would be different,
for it is not deemed unlawful in a neutral, by its own
government, to be engaged in a‘ contraband trade? The
insurance, therefore, by a neutral, of articles contraband of
war, being per se a valid contract, may be enforced in the
courts of the neutral country, provided the nature of the
trade and of the goods was disclosed to the underwriter,
or provided there be just ground, from the circumstances
of the trade, or otherwise, to presume that he was duly
informed thereof. Duer contends that the carrying of
1 Gibson v. Service, 5 Taunt. 433.
2 The ‘ Santissima Trinidad,’ 7 Wheat. 283 ; ex parte Chavasse, in
re Grazebrooke, 34 L. J. (Chane), 17. ~
on. xxvr CONTRABAND OF WAR 269
contraband, being contrary to the general law of nations,
renders the voyage prohibited and illegal, and hence, that
an ‘insurance of the ship on such a voyage cannot be sus-
tained. We copy a portion of his remarks. ‘ An insur-
ance,’ he says, ‘ upon goods liable to confiscation, as contra-
band of war, if made in the belligerent country whose
rights are violated, it is admitted by all writers, is wholly
void; nor do I perceive any reason for doubting that an
insurance upon every other subject or interest, liable to
be involved in the same penalty, is equally invalid. Hence,
a policy upon the freight of the contraband articles, upon
other goods, the property of the same owner, and upon the
ship, when subject to condemnation, is, in all cases, an
illegal contract; for, although the penalty in which the
subject is liable may not always be enforced in a court of
Admiralty, that court alone seems competent to judge of
the special circumstances that may warrant a discretionary
relaxation of its general rules. Nor to avoid a policy upon
the ship does it seem to be necessary that she should be
placed in circumstances to justify her condemnation. The
transportation of contraband, as viewed by the law of
nations, is universally an unlawful act ; and it is for this
reason that it subjects the ship to the penalty of the loss
of freight. The imposition of this penalty, it seems to me,
renders the voyage prohibited and illegal; and hence, if
we are governed by analogy, an insurance of the ship, on
such a voyage, cannot be sustained. The arguments of a
sound policy lead us to the same conclusion. It is im-
possible to deny that a belligerent country has a real, and,
in some cases, a deep interest in preventing the trans-
portation of contraband articles to the use of the enemy.
To permit the vehicle of transportation to be insured, is
to encourage the act. These reasons do not apply to an
insurance upon the innocent goods of an innocent shipper,
which is, doubtless, valid. He was no party to the illegal
transaction, had no power to prevent it, and, it must be
presumed, had no knowledge of its existence. It is, how-
ever, doubtful whether the insurer is liable even to the
owner of innocent goods for a loss arising from condemna-
tion or detention, by his own government, of the carrier
270 INTERNATIONAL LAW on. xxvr
ship.’ :These views are contested by some of the Conti-
nental publicists.‘ ' . V - ' .
The carriage by a neutral of despatches, or of persons in
the naval‘ or military service of a belligerent, will be dis-
cussed in chapter xxviii. §.§ I7 and I8. -
1 Arnould, On I nsui’ance, vol. 1. p. 740 ; Duer,‘ On I nsumnce,
vol. i. pp. 642, 643 ;- Bedarride, Droit Maritime, § 1095 et seq.
The English law seems to have omitted to enact that contraband
must be specified‘in the policy of insurance. But the assurer would
not be liable unless aware of the risk. According to the French law,
contraband of war must be specially and specifically described; in
the policy of insurance, unless the assured be ignorant of the nature
of the goods. (Ord. de la Marine, liv. iii. t. vi. art. 31.)
See also Andersen v. Marten (LR. [1907] 2 K .B. 248) as to. in-
surance of a vessel, carrying contraband, captured by the enemy
and‘ sunk at sea before adjudication.
Although it is not a breach of neutrality to carry enemy’s goods,
not contraband, from a neutral to an enemy’s country, no insurance
can be efiected in the belligerent country ; but query whether since
the Declaration of Paris, 1856, such an insurance might not be val-id.
on. xxvn 271
CHAPTER XXVII
RIGHT OF VISITATION AND SEARCH -
I. General exemption of merchant vessels on the high seas—
2. Right of search a belligerent right— 3. British claim of a
right of visit in time of peace—4. Denied by the United States-—
5. Opinions of publicists—6. ‘Of older Continental writers—-
7. Of Lord Stowell—8. Distinction between pirates and
slavers—9. Treaties with regard to the slave trade—Io. Visit
and search in time of war—I 1. English views as to extent _of
this right—~12. Views of American writers—1 3. Limitations
imposed by Continental publicists—14. Force may be used
in the exercise of this right—I5. But must be exercised in a
lawful manner—I6. Penalty for contravention of this right—-
I 7. English decision as to effect of convoy—18. Ships of war
exempt from search—~19. Merchant ships under their convoy—
20. Treaties respecting neutral convoy—21. Opinions of pub-
hoists—22. Neutral vessels under enemy’s convoy—2 3. Re-
sistance of master on cargo—24. Neutral property in armed
enemy vessel—2 5. Documents requisite to prove neutral
character—#26. Concealment of . papers—2 7. Spoliation of
papers—28. Use of false papers—29. Impressment of seamen
from neutral vessels.
§ I. IT has been stated in chapter vii. that every mer-
chant vessel on the high seas is regarded, in international
law, as a part of the territory of the State to which it
belongs. To enter into such vessel, or to interrupt its
course, by a foreign power in time of peace, or (it being
neutral) by a belligerent in time of war, 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 suflioient justification by the law of nations. The right
of a vessel of one State to visit and search a vessel of
another State on the high seas, in any case, is therefore
an exception to the general rights of property, jurisdiction,
equality, and independence of sovereign States ;' to justify
such an act it must be shown ‘that the particular case comes
clearly within the exceptions to this rule, which have been
General
exemption
of mer-
chant
vessels
on the
high seas
272 INTERNATIONAL LAW 011. xxvn
Right of
search a
belli-
gerent
right
Claim of
England
to visit
in time
of peace
established by the positive law of nations, or by treaty
stipulations between the parties.1
§ 2. The right of search upon the high seas is now
universally regarded as a belligerent right which cannot be
exercised in time of peace, except when it has been con-
ceded by treaty or where there is suspicion of piracy or
crime. Whatever difference ofopinion may formerly have
existed on this point, this right of search in time of peace
has been disclaimed by the British Government—the only
maritime power which was supposed to advocate it as a
principle of the law of nations. This general rule with
respect to vessels on the high seas does not, of course,
apply to the execution of revenue laws or other municipal
regulations in the ports and bays, or within one marine
league of the coast? a ' I
§ 3. The British Government ‘at one time attempted to
draw a distinction between the right of visit and the right
of search, and while it distinctly disavowed any claim to
exercise the latter in time of peace, it. insisted upon the.
right of visit for the purpose of ascertaining whether a
merchant vessel is justly entitled to the protection of the
flag which she may happen to have hoisted, such vessel
being in circumstances which render her liable to suspicion ;
the right ‘ to know whether the vessel pretending to be
American, and hoisting the American flag, be bona fide
American "; and yet, says Lord Aberdeen, ‘if, in the
exercise of this right, either from involuntary error, or in
spite of every precaution, loss or injury should be sus-
tained, a prompt reparation would be afforded.’ 3
1 Webster, Dip. and 01?. Papers, p. 143 ; Wildman, Int. Law,
vol. p. 40 ; Lawrence, Visitation and Search, p. 4 ; Hubner, Saisie
de Bdtiments, pt. ii. ch. iii. ; Kluber, Droit des Gens Mod. § 293, a ;
Jouffroy, Droit Maritime, p. 213 ; Heffter, Droit Int. § 167 ; Haute-
feuille, Des Nations Neutres, tit. xi. oh. i. ; the ‘ Antelope,’ 10 Wheat.
R. 66. . A.
2 Ortolan, Dip. de la Mer, t. ii. ch. vii. ; Lord Aberdeen to Mr.
Everett, December, 20, 1841.
aPhillimore, On Int. Law, vol. iii. § 326; Riquelme, Derecho
Pub. Int. lib. i.-tit. ii. c. vii.; British and Foreign State Papers,
vol. xxx. p. .1165. _
But maritime States have always claimed a right of visitation and
inquiry, within those parts of the ‘ocean adjoining ‘to their shores,
which the common courtesy of nations has, for their common con-
venience, allowed to be considered as parts of their dominions for
various domestic purposes; this has nothing in common with a
on. xxvn RIGHT OF VISITATION AND SEARCH
27 3
§ 4. ‘ The Government of the United States, on the Claim
other hand,’ said Mr. Webster, ‘ maintains that there is no
such well-known and acknowledged, nor, indeed, any broad
and generic difference between what has been usually called
right of visitation and search upon the unappropriated parts of
the ocean in time of peace. (And see ‘ Le Louis,’ 2 Dads. 246.)
Extract from the ‘ Black Book of the Admiralty,’ No. B, 8 :—
‘ Item, if any of our ships or vessels do meet upon the sea or in ports
any other vessels, which do make any resistance or defence
against those of our ships or vessels, then it is lawful for our men
to assail the other as enemies, and by force to seize and bring them
before the Admiral, entirely as they have taken them, without
pillaging or indamaging them, and there to receive what the law
and custom of the sea wills and requires.’ Sir Travers Twiss, in a
note to this paragraph, says that the law and custom on this. point are
set forth in a letter from Edward III. to Peter, King of Aragon.
An Ordinance of Parliament, November 1643, enabling certain
persons to set forth ships for the guarding of the seas, directs that,
if such persons or any ships by them employed shall happen, upon
the seas or in any harbour or creek, to meet with any ships that
shall not willingly yield themselves to be visited, but shall make
resistance by force and violence, then they shall by all means
possible and with all force compel them to yield and submit them-
selves to reason and justice, although it doth fall out that, by fighting
with them, one or more of them be maimed, hurt, or slain in the
resistance.
A court martial was held in August 1812, in the Downs, on the
Hon. Henry Blackwood, commander of His Maj esty’s ship ‘ War-
spite,’ upon a charge of having caused the death of a master of a
merchant schooner in the Mediterranean, by ordering several guns
to be fired into her. The merchant vessel had not obeyed the usual
means taken to bring her to, but persisted in her course and made
more sail. Captain Blackwood, considering it imperious on him to
ascertain that she was not a privateer (for he knew that several
were near), went in chase and fired at her, when, unfortunately,
the master was killed. The mate of the schooner represented the
circumstances to the Admiralty, and the court martial was accord—
ingly held. N 0 person belonging to the schooner appeared to
substantiate the charge of murder, although they had received
notice of the trial. The court martial not only acquitted Captain
Blackwood, but adjudged his conduct to have been strictly correct,
and that he could not have acted otherwise. (A me. Reg. 1812,
. r 10.)
p In 18 38 the British packet ‘ Express,’ on her way from Vera Cruz
to Sacrificios, was stopped by a French ship of war, and her pilot
taken on board the French ship. The French Government apologised
for the occurrence, stating that the oflicer who had given the order
was not aware that the packet was an English vessel. (Parl.
Papers of 1839.)
In 18 5 5, the ‘ El Dorado,’ a United States mail vessel, was sto ped
upon the high seas by a Spanish frigate, and was boarded y a
Spanish officer and required to produce papers. It appeared
that the cruiser was only ordered to visit or search foreign vessels
when within the maritime jurisdiction of Spain. The apology
was considered to be ‘ technically satisfactory" by the United States
Government.
VOL. II. T
denied
by the
United
States
274 INTERNATIONAL LAW on. xxvrr
visit, and what has been usually called search; that the
right to visit, to be effectual, must come, in the end, to
include search.’ He thus describes the views of the United
States on the means which a vessel of war may use in time
of peace, to ascertain the character of any other vessel on
the high seas :--‘ As we understand the general and settled
rules of public law, in respect to ships of war sailing under
the authority of their Government, “ to arrest pirates and
other public offenders,” there is no reason why they may
not approach any vessel descried at sea, for the purpose-of
ascertaining its real character. Such a right of approach
seems indispensable for the fair and discreet exercise of
their authority ; and the use of it cannot be justly deemed
indicative of any design to insult or injure those they
approach, or to impede them in their lawful commerce.
On the other hand, it is clear that no ship is, under such
circumstances, bound to lie by, or wait the approach of
any other ship. She is at full liberty to pursue her voyage,
in her own way, and to use all necessary precautions to
avoid any suspected sinister enterprise or hostile attack.
Her right to the free use of the ocean is as perfect as that of
any other ship. An entire equality is presumed to exist.
She has a right to consult her own safety, but, at the same
time, she must take care not to violate the rights of others.
She may use any precautions dictated by the prudence or
fears of her officers, either as to delay, or the progress or
course of her voyage, but she is not at liberty to inflict
injuries upon other innocent parties, simply because of her
conjectural dangers. But if the vessel thus approached
attempts to avoid the vessel approaching, or does not
comply with her commander’s order to send him her papers
for his inspection, nor consent to be visited or detained, I
what is next to be done? Is force to be used? And if
force be used, may that force be lawfully repelled? . . .
Suppose that force be met by force, gun returned for gun,
and the commander of the cruiser, or one of his seamen,
be killed, what description of offence will have been com-
mitted? It may be said, in behalf of the commander of
the cruiser, that he mistook the vessel for a vessel of Eng-
land, Brazil, or Portugal; but does this mistake of ‘his
take away from the American vessel the right of self-
OH. XXVI! RIGHT OF VISITATION AND SEARCH 275
II Wheat. R. 42.
defence‘? The writers of authority declare it to be a
principle of natural law, that the principle of self-defence
exists against an assailant who mistakes the object of his
attack for another whom he had the right to assail.’ He
also discussed the consequences of admitting the claim as
a matter of right, for, if a right, it had its correlative antics.1L
§ 5. Kent says most emphatically that the right of
visitation and search ‘is strictly and exclusively a war
right, and does not rightfully exist in time of peace, unless
conceded by treaty.’ He, however, concedes the right of
approach for the sole purpose of ascertaining the real
national character of the vessel sailing under suspicious
circumstances. The right of seizure for a breach of the
revenue laws, or laws of trade and navigation, of a particular
nation is quite different. The utmost length to which the
exercise of this right on the high seas has ever been carried,
in respect to the vessels of another nation, has been to
justify seizing them within the territorial jurisdiction of
the State against whose laws they offend, and pursuing
them, in case of flight, seizing them upon the ocean, and
bringing them in for adjudication before the tribunals of
that State. This, however, says the Supreme Court of the
United States, in the case of the ‘ Marianna Flora,’ has
never been supposed to draw after it any right of visitation
or search. The party, in such case, seizes at his peril. If
he establishes the forfeiture, he is justified. Every vessel
undoubtedly has a right to the use of so much of the ocean
as she occupies, and is essential to her own movements.
Beyond this, no exclusive right has ever yet been recog-
nised. Merchant ships are in the constant habit of
approaching each other on the ocean, either to relieve their
own distress, to procure information, or to ascertain the
character of strangers ; and there has never been supposed
in such conduct any breach of the customary Observances.’ 2
§ 6. The older Continental publicists discuss the general
question of search under the terms visit and visitation, as a
belligerent right. We refer particularly to the works of
1 Webster, Dip. and Ofi. Papers, pp. 164, I65, I66, 167 ;Webster,
Wofks, V01. vi. pp. 3 3 5, 336, 338, 3 39 ; Bello, Derecho Internacional,
pt. ii. c. viii. § 10 ;Wheaton, Hist. Law of Nations, pp. 706 et seq.
‘~’ ent, Com. on Am.- Law, vol.- i- P- IS 3 5 the ‘Marianna Flore.’
Views of
publicists
0f Conti-
nental
writers
T2
276 INTERNATIONAL LAW 011. xxv11
Massé, Ortolan, Hautefeuille, and Pistoye et Duverdy.
Massé says : ‘ Whatever may be the object of visit in time
of peace, it is always an act of police which cannot be
exercised by one nation over another, for this act would
imply, on the part of the visitor, a sovereignty incompatible
with the reciprocal independence of nations (peuples)?
Ortolan distinguishes the right of ships of war to ascertain
the nationality of a merchantman (droit d’enguete du pavillon),
from the right of visitation or search (droit de visite ou de
recherche). He thinks that signals, or exchange of words,
suffice with respect to the nationality of the flag, except on
suspicion of piracy, when all further proceedings must be
taken at the risk of the man-of-war. He, however, omits
all consideration of vessels committing crimes against
municipal law in-territorial waters and of vessels having
hostile intent in time of peace.1 He unites in declaring
that the right of visitation or search does not exist except
in time of war. He says that if accorded for time of peace,
by special conventions between particular States, such
treaty stipulations do not bind those who are not parties
to them, nor do they make it a part of the law of nations.
There is a right for ships of war to ascertain the nationality
of a merchantman by approaching her, and requiring her
to hoist her flag. But beyond this he denies any droit
d’enquéte in time of peace, except in the case of suspected
piracy, which in modern times very rarely Occurs. Even
then the visiting vessel proceeds at her peril, for if her
suspicions are not verified, she becomes guilty of an illegal
act toward the vessel visited. Pistoye et Duverdy regard
the right of reciprocal visit (droit de visite re'ciproque) in
time of peace, for the suppression of the slave trade, as one
which results only from special convention or treaty?
1 See the ‘ Virginius,’ ante, vol. i. p. 481.
2 Ortolan, Diplomatie de la M er, liv. iii. ch. ii. § 15 ; Hautefeuille,
Des Nations N eutres, tit. xi. ch, ii. ; Pistoye et Duverdy, Des Prises,
tit. i. ch. iii. ; Massé, Droit Commercial, liv. ii. tit. i. c. § 2. Pistoye
et Duverdy refer to the treaties between France and England of
November 30, 1831, March 22, 1833, May 20, 1845 ;the convention
between France and Sweden, and Norway, May 21, 18 3 3 ; the
treaty between France and Sardinia, December 8, 1834; between
France and the Two Sicilies, February 14, 1838 ; France and
Tuscany, November 27, I837 ; and the convention between France
and Hayti, August 9, I849,
on. xxvrr Rrcur'or VISITATION ANDi—SEARCH
277
§ 7. Lord Stowell, than whom no greater authority can
be found in British maritime jurisprudence, says: ‘ I can
find no authority that gives a right to the interruption of
the navigation of the vessels of States in amity upon the
high seas excepting that which the rights of war give to
both belligerents against neutrals. . . . N 0 one can exer-
cise the right of visitation and search upon the high seas,
except a belligerent power. No such right has ever been
claimed, nor can it be exercised without the suppression,
interruption and the endangering of the relations with and
the lawful navigation of other countries. If the right were
to exist at all, it must be universal and extend equally to
all countries. If I felt it necessary to press the considera-
tion further, it wouldbe by stating the gigantic mischiefs
which such a claim is likely to produce.’ And, again:
‘ All nations being equal, all have an equal right to the
uninterrupted use of the ocean for their navigation. In
places where no legal authority exists, where the subjects
of all States meet upon the footing of entire equality and
independence, no one State nor any of its subjects have a
right to assume or to exercise any authority over the
Subjects of another.’ The late Sir Robert Phillimore
attempted to sustain the views of Lord Aberdeen, and
argued the question at considerable length.1
§ 8. Sir R. Phillimore remarks that the objection by
the United States to the right to visit and search a sus-
pected slaver bearing the American flag, applies equally to
the suspected pirate sailing under the same flag, but this
is fully answered by the American Government, which
admits the right to visit and search any vessel ‘ reasonably
suspected ’ of being engaged in piracy. This distinction is
pointed out in President Tyler’s special message of Feb-
ruary 27, 1843, as follows: ‘ The attempt to justify such
a pretension [i.e. the right of visit for the purpose of sup-
pressing the slave trade] from the right to visit and detain
ships upon reasonable suspicion of piracy, would deservedly
be exposed to universal condemnation; since it would be
an attempt to convert an established rule of maritime
1 Phillimore, On Int. Law, vol. iii. §§ 322-326; the ‘ Louis,’ 2
Dods. R. 210 ; Kent, Com. on Am. Law, vol. i. p. 15 3 ; Coxe, Brief
Examinations, p. 26; Lawrence, On Visitation and Search, pp. 79—
103 ;the ‘a San juan Nepomuceno,’ I H agg. R. 265.
0! Lord
8towell
Distinc-
tion be-
tween
pirates
and
slavers
278 ‘ . INTERNATIONAL LAW 011. xxvn
law, incorporated as a principle into the international code
by the consent of all nations, into a rule and principle
adopted by a single nation, and enforced only by its assumed
authority. To seize and detain a ship upon suspicion‘ of
piracy, with probable cause, and in good faith, affords no
just ground either for complaint on the part of the nation
Whose flag she bears, or claim of indemnity on the part
of the owner. The universal law sanctions and the common
good requires the existence of such a rule. The right under
such circumstances, not only to visit and detain, but to
search a ship, is a perfect right, and involves neither re-
sponsibility nor indemnity. But, with this single excep-
tion, no nation has, in time of peace, any‘ authority to
detain the ships of another upon the high seas, on any
pretext whatever, beyond thelimits of the territorial juris-
diction.’ The argument of President Tyler, it will be seen,
is founded on the fact that the slave trade admittedly not
being piracy by the law of nations, cannot be held to carry
with it the same liabilities attached to the latter. The
pirate, as an enemy of the human race, may, by the common
law of the world, be seized and disposed of by whomsoever
taken. Lawful commerce demands the extinction and sup-
pression of maritime depredation ; and hence, in considera-
tion of this desirable end, President Tyler held that ‘ to
seize and detain a ship upon suspicion of piracy, with
probable cause and in good faith,’ affords no just ground
for any reclamations in the premises. If, then, the slave
trade is placed in the same category with the crime of
piracy, why should it not be subject to the same liabilities P
For the reason assigned by President Tyler, in common
with the consenting voice, not only of American statesmen,
but of distinguished European publicists, that such an
admission would involve the theoretical right of any mari-
time power, at its pleasure, to interpolate its municipal
statutes into the law of nations. The slave trade is not
piracy by the common law of the world, and therefore
cannot be treated as piracy on the high seas, where the
sanctions of international law can alone assert their right
to universal recognition.1
1 The ‘ Antelope,’ 10 Wheat. R. 66 ; the ‘ Diana,’ 1 Dads. R. 95 ;
and see vol. i. p. 270 ; Riquelme, D8780h0 Pzib. Int. lib. i. tit. ii. 0. viii.
(3H- XXVII RIGHT OF VISITATION AND SEARCH
279
§ 9. This discussion between the Governments of Great
Britain and the United States, or, more properly speaking,
between Lord Aberdeen and Mr. Webster, arose out of the
claims of British cruisers on the coast of Africa to visit
American vessels suspected of being engaged in the slave
trade. Neither party would admit the correctness of the
rule of international law contended for by the other, but
the difficulty in the particular case was amicably arranged
by an agreement that each Government should maintain a
specified naval force on the coast of Africa to prevent the
fraudulent use of their respective flags. Such was the posi-
tion of this question until 1858, when the operations of
Britishv cruisers in visiting American vessels, in the Gulf of
Mexico, suspected of being engaged in the slave trade,
brought about a direct issue between the two Govern-
ments. The United States regarded such visits as a viola-
tion of their flags, and protested against the acts of these
cruisers. Before acting upon this direct issue the British
Ministry referred the question to the law officers of the
Crown, and the answer to this reference was, as predicted
by Mr. Webster and Mr. Wheaton, that no authority could
be found to support the allegations of Lord Aberdeen;
and the right of visit in time of peace, as distinguished
from the belligerent right of visitation and search, was then
distinctly and unequivocally disavowed, by the British
Government.l
In I858, after considerable correspondence between the
British, French, and United States Governments, a code of
instructions was agreed upon. This was issued, with im-
material variation, to the cruisers or vessels of war of those
countries, and may be said to express the view of those
countries on the subject.’ Whilst the correspondence on
1 .Lawrence, On Visitation and Search, pp. 181 et seq. ; Monthly
Law Reporter, vol. xxi. p. 265 ; London Times, July 27, I8 58 ; Revue
des Deax Mondes, July I, I8 58. I
In the message of the President of the United States in 1858, it
was stated as unanimously resolved, that ‘ American vessels on the
high seas in time of peace, bearing the American flag, remain under
jurisdiction of the country to which they belong, and, therefore,
any visitation, molestation, or detention of such vessels by force
or by the exhibition of force on the part of a foreign power, is in
derogation of the sovereignty of the United States’.
2 The instructions are as follows :—
" I. The treaty with [France] for the suppression of the slave
Treaties
with
regard to
the slave
trade
280 INTERNATIONAL LAW 011. xxvn
this subject was pending the United States Government,
without distinctly recognising the right of a vessel of war
trade having been abrogated, I am commanded by my Lords Com-
missioners of the Admiralty to acquaint you that, under an arrange-
ment which has been adopted provisionally between the British and
French Governments, their lordships desire that all commanding
officers of her Maj esty’s ships will strictly attend to the following
regulations with regard to visiting merchant vessels suspected of
fraudulently assuming the French flag.
‘2. In virtue of the immunity of national flags, no merchant
vessel navigating the high seas is subject to any foreign jurisdiction.
A vessel of war cannot therefore visit, detain, arrest, or seize, except
under treaty, any merchant vessel not recognised as belonging to
her own nation.
‘ 3. The colour of a vessel being ;brima facie the distinctive
mark of her nationality, and consequently of the jurisdiction to
which she is subject, it is natural that a merchant vessel on the high
seas, on finding herself in presence of a ship of war, should hoist her
national flag in declaration of her nationality. So soon as the
ship of war has made herself known by the display of her own colours,
the merchant vessel should, accordingly, hoist her proper national
fla . '
‘ 4. Should the merchant vessel refuse to do so, it is admitted by
both Governments that a warning may be given to her, first by
firing a blank gun, and should that be without effect, it may be
enforced by a second gun, shotted, but pointed in such a manner
as to ensure that she is not struck by the shot.
‘ 5. Immediately that the colours are hoisted, and that the
merchant vessel has in this manner announced her nationality, the
foreign vessel of war can no longer pretend to exercise a control over
her. At most, in certain cases, she may claim the right to speak with
her, and demand answers to questions addressed to her by a speaking-
trumpet or otherwise, but without obliging her to alter her course.
When, however, the presumption of nationality resulting from the
colours which may have been shown by a merchant vessel may be
seriously thrown in doubt, or be questionable from positive informa-
tion, or from indications of a nature to create a belief that the vessel
does not belong to the nation whose colours she has assumed, the
foreign vessel of war may have recourse to the verification of her
assumed nationality.
V ‘ 6. A boat may be detached for this purpose towards the sus-
pected vessel, after having first hailed her to give notice of the
intention The verification will consist in an examination of the
papers establishing the nationality of the vessel; nothing can be
claimed beyond the exhibition of these documents.
‘ 7. To inquire into the nature of the cargo, or the commercial
0 erations of the vessel, or any other fact, in short, than that of
t e nationality of the vessel, is prohibited. Every other search,
and every inspection whatever, is absolutely forbidden.
‘ 8. The officer in charge of the verification should proceed with
the greatest discretion, and with every possible consideration and
care, and should quit the vessel immediately that the verification
has been effected, and should offer to note on the ship’s papers the
circumstances of the verification, and the reasons which have
led to it.
‘ 9. Except in the case of legitimate suspicion of fraud, it'should
never otherwise be necessary for the commander of a foreign ship
0H. xxvII RIGHT or VISITATION AND SEARCH 28:
to compel a merchant vessel to display colours, declared
that the simple fact of refusing to exhibit colours was so
high a ground of suspicion that it might seem to sanction
boarding and further inquiry, and that even if such inquiry
were not justified by the result the Government of the
United States would not demand redress for an act of
visit executed under such circumstances. The question
may now be considered as finally settled.
By the Treaty of Washington, signed April 7, I862,
between Great Britain and the United States, it was agreed
that those ships of the respective navies of the two nations
which should be provided with special instructions for that
purpose, as thereinafter mentioned, might visit such mer-
chant vessels of the two nations as might upon reasonable
grounds be suspected of being engaged in the African slave
trade, but that the reciprocal right of search and detention
should be exercised only within the distance of two hundred
miles from the coast of Africa, and to the southward of
the thirty-second parallel of north latitude, and within
thirty leagues from the coast of the island of Cuba; by
a treaty of February I7, 1863, it was further agreed between
the two nations that the reciprocal right of visit and deten-
tion as defined in the article aforesaid might be exercised
of war to go on board, or to send on board a merchant vessel. Apart
from the colours shown, the indications are numerous which should
be suflicient to satisfy seamen of the nationality of a vessel.
‘ 10. In every case it is to be clearly understood that the captain
of a ship of war, who determines to board a merchant vessel, must
do so at his own risk and peril, and must remain responsible for
all the consequences which may result from his own act.
‘ II. The commander of a ship of war who may have recourse
to such a proceeding should, in all cases, report the fact to his own
Government, and should explain the reason of his having so acted.
A communication of this report, and of the reasons which may
have led to the verification, will be given officially to the Government
to which the vessel may belong which shall have been subjected to
inquiry as to her flag.
‘ In all cases in which this inquiry shall not be justified by obvious
reasons, or shall not have been made in a proper manner, a claim
may arise for indemnity.
‘ You will clearly understand that the foregoing instructions
have reference only to vessels navigating under the French flag, and
are intended mutually to prevent misunderstanding between the
British and French Governments, but cannot affect the vessels
of other nations with whom Great Britain has treaties for the
suppression of the slave trade, or deprive her Majesty of the right
to seize and detain vessels engaged in the slave trade, when not
entitled to the protection of any national flag.’
282 INTERNATIONAL LAW on- xxvn
also within thirty leagues of the island of Madagascar;
within thirty leagues of the island of Puerto Rico; and
within thirty leagues of the island of San Domingo; and
that the additional article should have the same force and
validity as if it had been inserted word for word in the
treaty of April 7, 1862, and should havejuthe same duration
as that treaty. By a convention of June 3, I870, certain
courts that were established in Africa, to adjudicate on
alleged slavers, were abolished, and it was ordered that
such vessels should be brought before the nearest Prize
Court of their own State, or handed over to one of the
cruisers of such State.1 '
1 By 36 and 37 Vict. c. 88 (1873), it is enacted that ‘where a
vessel is, on reasonable grounds, suspected of being engaged in or
fitted out for the slave trade, it shall (subject, in the case either
of the vessel of a foreign State, or of the commander or officer of a
cruiser of a foreign State, to the limitations, restrictions, and regula-
tions, if any applicable thereto, contained in any existing slave trade
treaty made with such State), be lawful : (a) if the vessel is a British
vessel, or is engaged in the slave trade within British jurisdiction,
or is not a vessel of a foreign State, for any commander or officer
of any of her Majesty’s ships, for any officer bearing her Majesty’s
commission in the army or navy, for any officer of her Majesty’s
customs in the United Kingdom, Channel Islands, or Isle of Man, for
the governor of a British possession, or any person authorised by any
such governor, and for any commander or officer of any cruiser of
a foreign State, authorised in pursuance of any existing slave trade
treaty ; and (b) if the vessel is the vessel of a foreign State, for any
commander or officer of any of her Majesty’s ships, when duly
authorised in that behalf, in pursuance of any treaty with that
State, and for any commander or oflicer of any cruiser of that foreign
State, to visit and seize and detain such vessel, and to seize and
detain any person found detained or reasonably suspected of having
been detained as a slave, for the purpose of the slave trade, on
board any such vessel, and to carry away such vessel and person,
together with the master and all persons, goods, and effects on
board any such vessel, for the purpose of bringing in such vessel,
person, goods, and effects for adjudication ’ (s. 3.)
‘ The High Court of Admiralty of England and every Vice-
Admiralty Court in her Majesty’s dominions out of the United
Kingdom shall have jurisdiction to try and condemn or restore any
vessel, slave, goods, and effects alleged to be seized, detained or
forfeited, in pursuance of this Act, and on restoring the same to
award such damages in respect of the visitation, seizure, or detention
of such vessel, goods and effects, and of any person on board such
vessel, and in respect of any act or thing done in relation to such
visitation, seizure, or detention, or in respect of any such matters,
and in any case'to make such order as to costs as, subject to the
provisions‘ of this Act and of any existing slave trade treaty, the
court may think just. Provided that nothing in this section shall
give to any court any jurisdiction inconsistent with any existing
slave trade treaty over a vessel which is shown to such court to be
on. xxvn RIGHT or VISITATION AND SEARCH ~ 283
By the General Act of the Brussels Conference relative
to the African slave trade, signed at Brussels, July 2, 1890,
and which came into force April 2, 1892, Great Britain,
Germany, Austria, Belgium, Denmark, Spain, the Congo,
the United States, France, Italy, Holland, Persia, Portugal,
Russia, Sweden and Norway, Turkey and Zanzibar, de-
clared the opportuneness of repressing the slave trade, by
sea, in the maritime zone, which extends on the one hand
between the coasts of the Indian Ocean (those of the Persian
Gulf and of the Red Sea included), from Beloochistan to
Point Tangalane (Quilimane), and on the other hand, a
conventional line which first follows the meridian of Tanga-
lane till it meets the 26th degree of south latitude, is then
merged in this parallel, then passes round the island of
Madagascar by the east, keeping 20 miles'off the east and
north shore, till it crosses the meridian of Cape Amber;
from this point the limit of the zone is determined by an
oblique line which extends to the coast of Beloochistan,
passing 20 miles off Cape Ras-el-Lad. Those of the above
Powers between whom there are special conventions for
the suppression of the slave trade have agreed to restrict
to the above-mentioned zone the clauses of these conven-
tions concerning the reciprocal rights of visit, search, and
detention (droit de visite, de recherche et de saisie), of vessels
at sea; also to limit these rights to vessels of less than
the vessel of any foreign State, and which has not been engaged
Within jurisdiction in the slave trade, but where any vessel of a
foreign State is liable to be condemned by a British slave court, such
court shall have the same jurisdiction as if she were a British
vessel’ (s. 5).
‘ The regulations contained in any existing slave trade treaty for
the time being in force, with respect to any mixed court or commis-
sion, shall have effect as if they were enacted in this Act, and such
court or commission shall have all necessary jurisdiction for the
purpose of carrying into effect any treaty referring to them, and in
articular shall have jurisdiction to try, condemn, and restore
ritish vessels seized in pursuance of such treaty on suspicion of
being engaged in the slave trade, and shall, for the purpose of their
jurisdiction, have the same power as any Vice-Admiralty Court in
her Majesty’s dominions has, and may accordingly take evidence,
administer oaths, summon and enforce the attendance of witnesses,
and acquire and enforce the production of documents in like manner
as any such court ’ (s. 8).
By order in Council of May 9, 1892, the General Act of the
Brussels Conference 1890, relative to the slave trade, is declared to
be from April 2, 1892, an existing slave trade treaty within the above
statute.
284 INTERNATIONAL LAW 011. xxvlr
Visit and
search in
time of
war
500 tons burthen. All other provisions of conventions con—
cluded between the aforesaid Powers, for the suppression of
the slave trade, remain in force in so far as they are ‘not
modified by this General Act. The above Powers under-
take to exercise a strict supervision over native vessels
authorised to fly their flag within the above zone, and over
the commercial operations carried on by such vessels.
When the officers in command of vessels of war of any of
the above Powers have reason to believe that a vessel of
less than 500 tons burthen, in the above zone, is engaged
in the slave trade or is guilty of a fraudulent use of a flag,
they may proceed to the verification of the ship’s papers ;
it is, however, stipulated that this verification does not
imply any change in the existing-state of things, as regards
jurisdiction in territorial waters. A boat commanded by
a naval officer in uniform may be sent on board the sus-
pected vessel after it has been hailed, to give notice of
intention to verify the ship’s papers; but investigation of
the cargo, or search, can only take place with respect to a
vessel navigating under the flag of a Power who has con-
cluded, or may conclude, a special convention for rights of
visit, search, and detention. ‘If the officer in command of
the cruiser is convinced that an act of slave trade has been
committed on board during the passage, or that irrefutable
proofs exist against the captain, or fitter-out, to justify a
charge of fraudulent use of the flag, of fraud, or of participa—
tion in the slave trade, he shall take the detained vessel
to the nearest port of the zone, where there is a competent
authority, of the Power whose flag has been used. The
suspected vessel may also be handed over to a cruiser of
its own nation, if the latter consents to take charge of it.1
§ IO. Although it is universally conceded that the
vessels of one State cannot search a duly documented
vessel of another State in time of peace, and although the
right of visitation, if it exists at all (and since the announce-
ment by Great Britain in 1858 probably no respectable
Power will claim that it does exist, except in cases of piracy
everywhere, or of vessels committing crimes against muni-
cipal law in the territorial waters of the Power making the
1 See-Appendix at the end of this volume, Articles xxi., xxiii.,
xxiv., xxx'., xlii., xliii., xlix. ; also vol. i. p. 270. .
on. xxvn RIGHT or VISITATION AND SEARCH 285
visit, or of vessels suspected of having hostile intent against
a Power in time of peace), must be limited, in time of peace,
to the sole purpose of ascertaining the national character
of a suspected vessel, it is, nevertheless, the incontestable
right of the lawfully commissioned ‘cruisers of every belli—
gerent, in time of war, to visit and search, on the high
seas, the merchant ships of every nation, whatever may be
their character, cargoes, or destination. This right of
visitation and search in time of war springs directly from
the right of maritime capture; until vessels are visited
and searched, it is impossible to know whether or not
they are liable to capture either from the ownership of the
vessel, the nature of the cargo, or the character of the
voyage. But there is difference of opinion with respect to
the circumstances under which a neutral vessel is liable to
search, and with respect to the character and extent of
the search which the belligerent is authorised to make.1
§ II. Sir William Scott, in the case of the ‘ Maria,’
said, that to visit and search merchant vessels on the high
seas, whatever may be the ships, the cargoes, or the destina-
tions, is the indubitable right of the lawfully commissioned
cruisers of a belligerent nation, because, until they are
visited and searched, it is impossible to know the character
of a vessel or its destination. ‘ This right,’ he says, ‘is
so clear in principle, that no man can deny it who admits
the right of maritime capture; because, if you are not at
liberty to ascertain by sufiicient inquiry whether there is
property that can legally be captured, it is impossible to
capture. Even those who contend for the inadmissible
rule, that free ships make free goods, must admit the
exercise of this right for the purpose of ascertaining whether
the ships are free ships or not. The right is equally clear
in practice, for practice is uniform and universal on the
1 Kent, Com. on Am. Law, vol. i. p. '153 ; Duer, 0n Insurance,
vol. i. p. 725 ; Phillimore, 0n Int. Law, vol. § 325 ; Martens,
Pre'eis du Droit des Gens, §§ 317, 321 ; Gallani, Dei Doveri de’ P.
Neat. p. 458 ; Lampredi, Del Commeroio ale’ Popoli Neat. p. 18 5 ;
Kluber, Droit des Gens Mod. § 293 ; Hubner, Saisie des Bdtime-ns
Nentres, t. i. pt. p. 227 ; Azuni, Droit Maritime, t. ch. § 4 ;
the ‘ Antelope,’ IO Wheat. R. 66; Ortolan, Diplo-matie de la Mer,
t. ch. ; Pistoye et Duverdy, Traite' des Prises, tit. vi. eh. i. ;
Bello, Dereoho Internaoional, pt. ii. ch. § 10; Heffter, Droit
English
views as
to extent
of search
International, § 168 ; Hautefeuille, Des Nations N eutres, tit. xi. ch. i. ; S
De Cussy, Droit Maritime, liv. i. tit. § I 5.
286
INTERNATIONAL LAW CH. XXVII
American
writers
Con-
tinental
writers
subject. The many European treaties which refer to‘ this
right, refer to it as pre-existing, and merely regulate the
exercise of it. All writers upon the law of nations .unani-
mously acknowledge it, without the exception of even
Hubner himself, the great champion of neutral privileges.’ ‘
§ 12. In the United States the text-writers generally
concur in recognising the existence of this right.‘ Chief
Justice Marshall, in the case of the.‘ Anna Maria,’ said that
‘ the right to visit and detain for search is a belligerent right
which cannot be drawn into question.’ Notwithstanding
that the ship’s papers in this case were perfectly satisfac- _
tory, the Supreme Court held that the right to search
the ship, in order to examine fully as to the character of
her trade, was a complete right. The same court, in other
cases, has fully sustained Sir William Scott’s opinion with
respect to the extent of search authorised by the rules of
international law.2
§ I3. The Continental publicists admit the general right
of visitation and search, as a belligerent right authorised by
the rules of international law, but they would restrict its
exercise within very narrow limits. Hubner thinks it should
be limited to the examination of the papers on board, in
order to ascertain the neutrality of the vessel. Rayneval
says that it should be limited to the coasts of the belligerents,
and ought not to be exercised upon the high seas, any
further than may be necessary to ascertain the actual
neutrality of the vessel visited,’ because, he says, a neutral
vessel on the high seas has no other duty to perform toward
a belligerent than that of showing that she does not belong
to the enemy, and that she is not sailing under a false flag ;
any further examination he deems an act of hostility.
Hautefeuille considers that the right of visit may be exer-
cised whatever acts of hostility are permitted ; that is, in
the territorial seas of the belligerents, and upon the ocean,
but not in neutral waters. Moreover, that its object is not
merely to ascertain the character of the vessel, whether it
be enemy or neutral, but also, if the latter,‘ to ascertain
whether it is’ not violating neutral duty, andlithereby
‘ 1 Rob. 36o. ’ '
2 _The ‘ Anna Maria,’ 2 Wheat. R. 327. Kent, Com. on Am. Law,
vol, 1. p.‘ 154 ; Wheaton, Elem. Int. Law, pt. iv. ch. iii. § 29,
OH. XXVII
RIGHT OF VISITATION AND SEARCH 287
rendering itself subject to capture. He, however, limits the
examination to the papers produced, and will permit no
further investigation where the visiting oflicer doubts, or
pretends to doubt, their genuineness or the truth of their
statements. To search for other papers, to interrogate the
captain and crew, or to investigate the character of the
cargo, he deems an abuse of the right of visit-——acts entirely
unauthorised, and which neutrals may and ought to resist
with force. Lampredi, Azuni, and Ortolan are of the
opinion that the visit cannot proceed beyond the examina-
tion of the papers, except where there is suspicion of fraud.
Martens and Massé, though in some respects differing in
their views, limit the right of search to the single case where
the papers are incomplete or irregular.l
§ 14. The exercise of this right, within its true limits,
whatever they may be, implies the right of using lawful
force, if necessary, in its execution, the same as in the execu-
tion of a civil process on land. The right of search on the
one side implies the duty of submission on the other ;~ and as
the belligerent may lawfully apply his force to the neutral
property for the purpose of ascertaining its character and
destination, it necessarily follows that the neutral may not
lawfully resist the lawful exercise of the right of search.
This duty of the neutral, says Sir William Scott, is founded
on the soundest maxims of justice and humanity. There
are no conflicting rights between nations at peace, and the
right of search in the belligerent necessarily denies the right
of resistance in the neutral. Any attempt, therefore, on the
part of the neutral vessel, its owner, oflicers, or crew, tov
resist the lawful search of a duly commissioned cruiser of a
belligerent power, is a violation of a duty imposed by the
laws of war, and incurs a penalty proportioned to the nature
of the offence?
§ I 5. But, although it is the duty of the neutral to sub—
mit to the lawful search of the belligerent, and to all acts
1 Hautefeuille, Des Nations Neutres, tit. ; Rayneval, De la
Liberte’ des M ers, t. i. ch. 16—21 ; Hubner, Saisie des Bdtimens N eatres,
t. i. pt. ii. ch. iii. ; Ortolan, Dip. de la M er, liv. iii. ch. ; Massé, Droit
Commercial, liv. ii. tit. ii. ch. ii. ; Martens, Essai sur les Armateurs,
ch. ii. ; Azuni, Droit Maritime, ch. art. iv. ; Lampredi, Com-
merce des Neutres, § 12 ; De Cussy, Droit Maritime, liv. i. tit. iii. § I 5.
. 2 The ‘ Maria,’ 1 Rob. R. 340 ; the ‘ Eleanor,’ 2 Wheat. R. 345.
Enforce-
ment of
the right
of search
It must be
exercised
in a law-
ful man-
ner
288 INTERNATIONAL LAW 011. xxvn
that are necessary to accomplish that object, it by no means
follows that the belligerent is subject to no restraints in the
exercise of this right. It is not sufficient that the right is
lawful, it must be exercised in a lawful manner. The right
is limited to such acts as are necessary to a thorough examina-
tion into the real character of the vessel, her cargo, and
voyage, and all acts that transcend the limits of this neces-
sity are unlawful.1 For any improper detention of the
vessel, or any unnecessary, and therefore unlawful, violence
to the master or crew, the belligerent court of Admiralty
ought to award full compensation in damages ; and if this
should be denied to the neutral, his own government may
demand and enforce the redress of his wrongs. ‘ What-
ever,’ says Phillimore, ‘ may be the injury that casually
results to an individual from the act of another, while
pursuing the reasonable exercise of an established right, it. is
his misfortune. The law pronounces it damnum absque
iny'uria, and the individual from whose act it proceeds is
liable neither at law, nor in the forum of conscience. The
principal right necessarily carries with it also all the means
essential to its exercise. A vessel must be pursued in order
to be detained for examination. And if, in the pursuit, she
has been in any way injured (e.g. dismasted, upset, stranded,
or even run on shore and lost), it would be an unfortunate
case, but the pursuing vessel would be acquitted. The
usual mode, adopted by most of the maritime powers of
Europe, of summoning a neutral to undergo visitation, is
the firing of a cannon on the part of the belligerent. This
is called by the French semonce, coup d’assurance, and by
the English afiirming gun. It is, undoubtedly, the duty of
the neutral to obey such a summons, but there is no positive
obligation on the belligerent to fire such an afifrming gun, for
its use is by no means universal. Moreover, any other
method, as hailing by signals, &c., of summoning a neutral
to submit to an examination, may be equally as effective and
binding as the afiirming gun, if the summons is actually
communicated to, and understood by, the neutral. The
means used are not essential, but the fact of a summons
1 During the Russo-Japanese War (1904) the German mail
steamer ‘ Prinz Heinrich ’ was stopped by the Russian cruiser
‘ Smolensk,’ and her mail bags were examined.
- OH. XXVI!
RIGHT or VISITATION AND SEARCH 289
actually communicated is necessary to acquit the visiting
vessels of all damages which may result to the neutral dis-
obeying it.’ 1
§ I6. The penalty for the violent contravention of this
right is the confiscation of the property so withheld from
visitation and search. ‘ For the proof of this,’ says Sir
William Scott, ‘ I need only refer to Vattel, one of the most
correct, and certainly not the least indulgent of modern
professors of public law.’ He then quotes § 114, ch. vii.,
liv. iii., of Vattel, Droit des Gens, and continues : ‘ Vattel is
here to be considered not as a lawyer delivering an opinion,
but as a witness asserting a fact—the fact that such is the
existing practice of modern Europe.’ After referring to
other authorities, he closes his remarks on this point with
the following emphatic declaration : ‘ I stand with confidence
upon all principles of reason—upon the distinct authority
of Vattel—upon the institutes of other great maritime
countries, as well as those of our own country, when I
venture to lay it down that, by the law of nations, as now
understood, a deliberate and continued resistance to search,
on the part of a neutral vessel, to a lawful cruiser, is followed
by the legal consequence of confiscation.’ This penalty is
not averted by the orders of the neutral Sovereign to resist
the visitation and search of the belligerent cruiser. ‘ The
law of nations,’ says Duer, ‘ does not permit the sovereign
power of a neutral State to interpose its authority for such
a purpose, so as to vary the legal rights of the belligerent. . . .
Hence the obedience of the neutral subject to the unlawful
orders of his Government, so far from justifying his conduct,
will impress him with the character of an enemy.’ The
resistance of the neutral cannot, therefore, be protected by
any orders or instructions from his own Government, but
the act must be judged of according to its own character.2
§ 17. Nor, according to the opinion of Sir William Scott,
can the interposition of the authority of the neutral Sovereign,
by the presence of an armed convoy, deprive the lawfully
1 Ortolan, Diplomatie de la Mer, t. ii. ch. vii. ; Phillimore, 0n
Int. Law, vol. iii. §§ 331-333 ; Heffter, Droit Inter-national, § 169;
Hautefeuille, Des Nations N entres, tit. xi. ch. ii. ; the ‘ Jeune Eugenie,’
2 Mason R. 439 ; the ‘ Mariana Flora,’ 1 I Wheat. R. 48 ; the ‘ N ereide,’
9 Crunch. R. 392 ; Bello, Derecho Internacional, pt. ii. c. viii. § IO.
2 The ‘ Elsabe,’ 4 Rob. R. 408. .
VOL. II. U
Penalty
for re-
eisting
search
Can they
exempt
their
convoys 2
2'90 INTERNATIONAL LAW on. xxvn
commissioned cruiser of the legal right of visitation and
search. His language on this point is very clear and
decided. ‘ Two Sovereigns,’ he says, ‘ may unquestionably
agree, if they think fit, as in some late instances they have
agreed, by special covenant, that the presence of one of their
armed ships along with their ‘merchant ships shall be
mutually understood to imply that nothing is to be found in
that convoy of merchant ships inconsistent with amity or
neutrality; and if they consent to accept this pledge, no
third party has a right to quarrel with it, any more than any
pledge which they may agree mutually to accept. But
surely no Sovereign can legally compel the acceptance of
such a security by mere force. The only security known to
the law of nations upon this subject, independently of all
special covenant, is the right of personal visitation and
search, to be exercised by those who have the interest in
making it.’
Vessels of § 18. This question leads to an examination of the
225m? powers, duties, and exemptions of public armed vessels on
from the high seas. The belligerent right of visit and search,
Search whatever its extent or limitation, is undoubtedly confined
exclusively to private merchant vessels ; it does not apply to
ships of war or to privateers. The immunity of such
vessels on the high seas from the exercise of any right of
visit and search, or of any other belligerent right, has been
uniformly asserted and conceded. ‘ A contrary doctrine,’
says Kent, ‘ is not to be found in any jurist or writer on the
law of nations, or admitted in any treaty, and every act to
the contrary has been promptly met and condemned.’
‘ A public vessel,’ says Wheaton, ‘ belonging to an inde-
pendent Sovereign, is exempt from every species of visita-
tion and search, even within the territorial jurisdiction of
another State; e fortiori, must it be exempt from the
exercise of belligerent rights on the ocean, which belongs
exclusively to no one nation P ’ 1
1 Kent, Com. on Am. Law, vol. i. p. I 57 ; Wheaton, Elem. Int.
Law, pt. iv. ch. iii. § 18.
The right of search does not apply to vessels of war (Thurloe’s
State Papers, vol. 503 ; Mr. Canning to Mr. Munroe, August 3,
1807 ; American State Papers, vol. vi. p. 89), nor to civil or criminal
process in ports, although this exemption is not founded on any
absolute right, but u on principles 0 public convenience and the
comity of nations. ( he ‘ Prins Frederik,’ 2 Dads. 451 ; the ‘ Ex-
j on. xxvrr
RIGHT or VISITATI'ON AND SEARCH zgr
§ .19. One of the'most common, as well as one of the
most important duties of public ships of war, is the convoy
or protection of merchant vessels on the high seas. Can
such convoying ships exempt the merchant vessels, under
their protection, from the exercise of the right of visitation
and search, from which they themselves are exempt P If
so, may neutral vessels place themselves under such protec—
tion, and lawfully resist any attempt on the part of belligerent
cruisers to subject them to such visitation and search P In
other words, is the opinion of Sir William Scott, before
referred to, a true exposition of the law of nations on this
subject? If private merchant vessels, so convoyed, are
exempt from visitation and search, there can be no doubt
that no resistance on their part to an attempt to visit or
search them can draw after it any penalty ; for in doing so
they violate no duty. This question is properly divided
into two parts : First, the case of convoy, by ships of war,
of private vessels of the same State ; and second, the case
of convoy of merchant vessels of other neutral States. The
discussions of publicists have been mainly confined to the
first class of cases, although some have claimed that the
convoying ship extends its own exemption to all neutral
merchant vessels under its protection. Before examining
into this distinction, we will give a brief summary of the
various treaties on the subject of convoy, and the opinions
of text-writers.
change,’ 7 Cranch. I 16.) Further, it would seem that this concession
may be withdrawn by the local authorities, and that although the
ship and equipage existing as a ship of war remain exempt, persons
not forming part of the crew, and prize or other property, may
become subject to the local authority. (Opinions of the Attorneys-
General of the United States, vol. i. 47 ; vol. vii. I31 ; vol. viii. 79.)
When a war ship is boarded off a blockaded port, evidence of her
character may be given by production of the captain’s commission,
and of the colours ; also by the statement of the consul at the port.
The captain of a merchant steamer, when brought to by a vessel
of war, is not privileged, by the fact that he has a government mail
on board, from sending, if required, his papers on board the boarding
vessel for examination ;. on the contrary, he is bound by that cir-
cumstance to the strictest performance of neutral duties and to
special respect of belligerent right. (The " Peterhorf,’ 5 Wall. 28.)
Two or three Danish ships of war were, during the war, seized by
the Spaniards, carrying stores to Gibraltar. On the remonstrance
of the Danish minister at Madrid, it was answered that they were not
men-of-war that were stopped, but vessels which had made themselves
merchantmen for the time. August I 5, 1798. (Life of Nelson,
v01. ii. p. 241.)
Merchant
ships
under
their
convoy
u 2
292 INTERNATIONAL LAW 011. xxvn
Treaties
respecting
neutral
convoy
§ 20. Whatever may have been the ancient practice with
respect to the effect of neutral convoy on the exercise of the
belligerent right of visitation and search, it was not till
near the middle of the seventeenth century that the question
assumed any considerable importance. In the war of 1653,
between England and Holland, Queen Christina, of Sweden,
directed her merchant vessels to take all possible advantage
of the convoy of her ships of war, and ordered such convoy-
ing ships to resist, even by force, every attempt on the part
of the belligerents to visit the merchant vessels placed under
their protection. This ordinance, however, was never exe-
cuted, and the war was terminated soon after its publication.
In the succeeding war, between England and Spain, Holland,
now a neutral, claimed the exemption of her merchant ships
under convoy, and an English squadron was obliged to con-
tent itself with the word of De Ruyter, that the vessel under
his convoy carried nothing belonging to the King of Spain.
England, however, refused to acknowledge any such right of
exemption, and Holland herself, whenever a belligerent,
always attempted to visit merchant vessels, under neutral
convoy. Even when a neutral, she admitted the duty of the
convoying ship to exhibit the papers of the merchant vessel
under its escort, and if found to be irregular, the right of the
belligerent cruiser to visit the suspected vessel, and even
to seize and conduct it into port for trial. Nevertheless, she
applauded the conduct of Captain Deval, in 1762, and of
Admiral de Byland, in 1780, in forcibly resisting the attempt
of English men-of-war to visit merchant vessels under their
convoy. None of the treaties of 1780 alluded to this ques-
tion, but the resistance by the Swedish vessel of war, "the
‘ Wasa,’ in 1781, of an attempt of an English cruiser to visit
a merchant vessel under convoy, revived the discussion, and
the right of exemption was stipulated in a number of treaties,
made soon after by Russia and Sweden, with other powers,
and especially in the convention of armed neutrality, signed
December 4—16, 1800. But in the convention of June 17,
1801, Russia herself conceded the belligerent right of ships
of war to visit merchant vessels under neutral convoy. This
convention was annulled in 1807. Since the peace of 1815
European treaties have generally, except where England
was a party, stipulated for the exemption of merchant
CILXXVII RIGHT OF VISITATION AND SEARCH
293
‘ station.
vessels under the convoy of public ships of the same State.
The treaties which the United States have made with foreign
powers, both before and since that period, have generally
provided that, in case of convoy, the declaration of the com-
mander of the convoy, that the vessels under his protection
belong to ‘the nation whose flag he carries, and when bound
to an enemy’s port, that they have no contraband goods on
board, shall be sufficient. Such are the ‘stipulations con-
tained in the treaty with Sweden, of April 3, I783 ; with
France, of September 30, I800 ; with Columbia, made
October 3, I824; with Brazil, made December 12, 1828;
with Mexico, made April 5, I831 ; with Chili, made May I6,
1832; with Peru-Bolivia, made November I3, I836; with
Venezuela, made January 20, I836, &c. It is worthy of
remark that the orders and decrees of the belligerents in
the Crimean war were silent as to convoy; nor was it
alluded to in the declaration of the Paris Conference, April I6,
I856}
§ 2r. Recent Continental publicists have generally con-
1 Hautefeuille, Des Nations N entres, liv. i. tit. ch. xiv. ;Heffter,
Droit International, § I70.
Sir R. Strahan insisted on searching French convoys in the East
Indies during the last century. (Brenton, vol. i.)
In 1800 a British squadron fell in with a Danish convoy under the
frigate ‘ Freya.’ Capt. Baker, of the ‘ Nemesis,’ the senior British
oflicer, hailed the ‘ Freya ’ to say he should send his boat on board
the convoy. Capt. Krabbe, of the ‘ Freya,’ replied that if such an
attempt were made he would fire into the boat. Both threats were
put into execution, and an action ensued which ended in the ‘ F reya’s’
submission. She was taken to the Downs, but still kept flying the
Danish ensign and pendant by order of the vice-admiral of the
Lord Whitworth was immediately sent to Denmark to
place the business on an amicable footing. On August 29 Lord
Whitworth terminated the negotiation with the Danish Minister,
Count Bernstorff, and a convention was mutually signed agreeing that
the ‘ Freya ’ and convoy should be repaired at English expense and
then released ; that the right of the British to search convoys should
be discussed at a future date in London ; that Danish vessels should
only sail under convoy to the Mediterranean, to protect them from
the Algerines, and should be searchable as formerly ; and that the
convention should be ratified by the two Courts in three weeks.
(James, Nao. Hist. vol. iii. 63.)
By the Navy regulations of the United States, vessels of war are
not to take under their convoy the vessels of any power at war with
another, with which the United States are at peace, nor the vessels
of a neutral, unless some very particular circumstances render it
proper. The commanding officers are forbidden to permit the
vessels under their protection to be searched or detained by any
belligerent or cruiser.
Opinions
of publi-
cists
294 INTERNATIONAL LAW 011. xxvn
tended that neutral convoy exempts the convoyed vessel
from visitation and search. Some have stated this proposi-
tion in general terms, while others limit it to merchant
vessels convoyed by ships of war of their own nation, and
put it on the ground that the declaration of the commander
is suflicient as to the character and cargoes of the vessels
of his own country under his escort and protection. Such
are the general views of Martens, Rayneval, Kliiber, Heffter,
Massé, and Ortolan. Rayneval, however, is of the opinion
that if the belligerent vessel should inform the convoying
commander that he has evidence that one or more of the
vessels under his escort are liable to capture for being really
enemy’s vessels, or because they have on board contraband
goods, destined to an enemy’s port, the commander should
immediately proceed, in concert with the belligerent cruiser,
to verify the truth of these allegations. This opinion is
concurred in by Ortolan ; but Hautefeuille thinks that such
examination, if made, should be by the neutral officer only,
and that his word, as to the character of his convoy, must
suffice. This author has discussed the question of convoy
at great length, and with marked ability. It must, how-
ever, be remembered, that he attempts to represent what
ought to be the rule of international law on this subject,
rather than what that law really is at the present time.
English text-writers have adopted the opinion of Sir William
Scott, with respect to the right to visit and. search vessels
underneutral convoy, and the effect of such convoy, when
it tended to impede and defeat this belligerent right. Man-
ning denies that neutrals, under convoy, can claim, under
the general law of nations, to be exempted from search, as
a matter of right, but he deems it desirable that it should be
accorded to them by agreement. The United States have
uniformly favoured the rule of exemption, andhave, when-
ever possible, introduced it into their treaties with other
powers. It must, however, be stated that American
publicists have generally admitted that the exemption can-
not be claimed as a matter of law, and that an attempt in
this way to impede search will incur a penalty. Chancellor
Kent says that ‘ the very act of sailing under the protection
of a belligerent-or neutral convoy, for the purpose of resisting
search, is a violation of neutrality.’ Wheaton, in his dis-
0H. XXVII RIGHT OF VISITATION AND SEARCH
295
oussion of the Danish captures under the ordinance of 1810, ’
referring to the English decisions respecting neutral convoys,
says : ‘ Why was it that navigating under the convoy of a
neutral ship of war was deemed a conclusive cause of con-
demnation ? It was because it tended to impede and
defeat the belligerent right of search; to render every attempt
to exercise this lawful right a contest of violence ; to disturb
the peace of the world, and to withdraw from the proper
forum the determination of such controversies by forcibly
preventing the exercise of its jurisdiction.’ Mr. Justice
Story, in the case of the ‘ Nereide,’ says: ‘ It is a clear
maxim of national law that a neutral is bound to a perfect
impartiality as to all the belligerents. If he incorporate
himself into the measures or policy of either ; if he become
auxiliary to the enterprises or acts of either, he forfeits his
neutral character—nor is this all. In relation to his com—
merce he is bound to submit to the belligerent right of
search, and he cannot lawfully adopt any measures whose
direct object is to withdraw that commerce from the most
liberal and accurate search, without the application, on the
part of the belligerent, of superior force. If he resists this
exercise of lawful right, or if, with the view to resist it, he
takes the protection of an armed neutral convoy, he is
treated as an enemy, and his property is confiscated. Nor
is it at all material whether the resistance be direct or con-
structive. The resistance of the convoy is the resistance
of all the ships associated under the common protection,
without any distinction whether the convoy belong to the
same or a foreign neutral sovereign ; for upon the principles
of natural justice, a neutral is justly chargeable with the acts
of the party which he voluntarily adopts, or of which he
seeks the shelter and protection.’ 1
§ 22. The question, whether neutral vessels under
enemy’s convoy are liable to capture and condemnation, has
been frequently raised and most elaborately discussed.
1 Kent, Com. on Am. Law, vol. i. p. I57 ; Wheaton, Elem. Int.
Law, pt. iv. ch. iii. § 32 ;Duer, On Insurance, vol. i. pp. 731, 732; the
‘ Nereide,’ 2 Cranch. R. 438 ; the ‘ Catharine Elizabeth,’ 5 Rob. R.
232 ; Rayneval, De la Liberté des M ers, t. i. ch. xviii. ; Kluber, Droit
des Gens Mod. § 293 ; Massé, Droit Commercial, liv. ch. sec. ix. ;
Ortolan, Diplomatie de la M er, liv. ch. vii. ; Hefiter, Droit I nter-
national, § I 70; Hautefeuille, Des Nations Neutres, tit. xi. ch. iii. ;
De Cussy, Droit Maritime, liv. i. tit. iii. § I 5.
Effect of
enemy’s
convoy
296 INTERNATIONAL LAW 011. xxvn
} The Lords of Appeal in England decided, in the case of the
‘ Sampson,’ that sailing under enemy’s convoy was a con-
clusive ground of condemnation. There has been no direct
decision on this subject by the Supreme Court of the United
States. The question was not directly involved in the case
of the ‘Nereide,” but Mr. Justice Story in his dissenting
opinion said : ‘ My judgment is, that the act of sailing under
belligerent convoy is a violation of neutrality, and the ship
and cargo, if caught in delicto, are justly confiscable; and
further, that if resistance is necessary, as in my opinion it
is not, to perfect the offence, still the resistance of the con-
voy is, to all purposes, the resistance of the association.’
Chancellor Kent is clear, that ‘ the very act of sailing under
the protection of a belligerent convoy, for the purpose of
resisting search, is a violation of neutrality.’ Duer, in his
able work on Insurance, fully coincides in this opinion.
Wheaton limits himself to a statement of his own arguments,
as the advocate of the claims of American merchants against
Denmark for condemnation, under the ordinance of 1810,
for having made use of English convoy. The strongest
point of his argument is, that being found in company with
an enemy’s convoy, even if presumptive evidence, certainly
should not be regarded as conclusive of an intention to resist
the search of a duly commissioned belligerent cruiser.
‘ This presumption,’ he says, ‘is not of that class of pre-
sumptions called presumptiones iuris et de 7'ure, which are
held to be conclusive upon the party, and which he is not
at liberty to controvert. It is a slight presumption only,
which will yield to countervailing proof. One of the proofs
which, in the opinion of the American negotiator, ought to
have been admitted by the prize tribunal to countervail-this
presumption would have been evidence that the vessel had
been compelled to join the convoy; or that she had joined it,
not to protect herself from examination by Danish cruisers,
but against others, whose notorious conduct and avowed
principles render it certain, that capture by them would
inevitably be followed by condemnation. It followed, then,
that the simple fact of having navigated under British con-
voy could be considered as a ground of suspicion only,
warranting the captors in sending in the captured vessel for
further examination, but not constituting in itself a con-
on. xxvrr RIGHT OF VISI'I‘ATION AND SEARCH 297
clusive ground of confiscation.’ This argument of Wheaton
was ably answered by the Danish authorities, who held
that ‘ the only point to be established is, whether the neutral
was voluntarily under enemy’s convoy.’ If so, condemna-
tion must inevitably follow. The negotiation finally
terminated in a treaty to pay the American claimants,
generally, a fixed sum, en bloc, but without any admission by
either party of the correctness of the other’s views on this
question of international law. The English commentators
on this discussion regard the Danish ordinance as in per-
fect conformity with the law of nations. Hautefeuille
states the arguments of both parties without expressing his
own opinion. Ortolan admits that the act of a neutral
navigating under the convoy of a belligerent may be irregular
and even illegal, and that such a convoy cannot always’
exempt from search. ‘ Mais,’ he says, ‘ si le neutre se joint
en pleine mer a un, on a plusieurs navires de guerre bel-
ligérants et navigue de concert avec ces navires, sans pré—
tendre a aucune protection de leur part, dans la seule
espérance de pouvoir échapper pacifiquement et par la
fuite a la visite, a la faveur d’une rencontre et d’un combat
possible entre les seuls belligérants, c’est la de sa part une
ruse innocente qui ne peut lui étre irnputée a délit, et qui
ne peut pas, a elle seule, entrainer la confiscation.’ Per-
haps the foregoing remarks of Ortolan are too strongly
expressed, for, in the very case he describes, the neutral
merchant vessel uses the force of the belligerent convoy to
escape search. It is not only a constructive but a virtual
resistance. The case, however, is very different where the
merchant vessel has left the convoy prior to the appearance
of, or attempted search by, the belligerent cruiser; as, for
example, where the convoy was used on the outward
voyage, and the capture made during the return voyage.
This distinction is forcibly presented by Wheaton, in his
argument in favour of the American claimants for indemnity
for Danish captures under the ordinance of 1810.1 We
know of no judicial decision directly upon this question.2 5
1 See Laurence’s Wheaton, Elem. Int. Law, pt. iv. ch. § 32.
' Riquelme, Derecho PzZb. Int. lib. i. tit. ii. 0. xiv. ; Martens,
Nouvean Recneil, t. viii. p. 350 ; Elliot, American Diplomatic Code,
vol. i. p. 453 ; the ‘ Nereide,’ 9 Cranch. R. 442.
298 INTERNATIONAL LAW on. xxvrr
lfl’eet of
resistance
of neutral
master
§ 23. ‘ The resistance of a neutral master,’ says Sir Wm.
Scott, in the ‘ Catherina Elizabeth," will undoubtedly
reach the property of the owner; and it would, I think,
extend also to the whole property entrusted to his care,
and thus fraudulently attempted to be withdrawn from the
operation of the rights of war.’ ‘ Confiscation,’ says
Chancellor Kent, ‘is applied, by way of penalty, for resist~
ance to search, to all vessels, without any discrimination as I
to the national character of the vessel or cargo, and without
separating the fate of the cargo from that of the ship.’
Duer holds that a forcible resistance to a lawful search is
a distinct and substantial cause of condemnation, and
involves all the property under the charge of the neutral
master ; not merely that of its owners, but of the shippers,
although between them and himself no relation of principal
and agent can be said to exist. ‘ The goods may be wholly
innocent, in their nature, and from their destination, and
their true character, and that of the ship as neutral may be
undoubted, but the unlawful resistance, from the time it is
attempted, stamps on them all an illegal character, and
involves them all in its fatal penalty.’ The offence being
regarded as of a greater criminality and more dangerous in
its effects than the transportation of contraband or the
violation of a blockade, the severity of the penalty is the
greater.
not, in general, affect neutral property laden on board an
enemy’s merchant vessel ; for an attempt on his part to rescue
his vessel from the possession of the captor is nothing more
than the hostile act of a hostile person, who has a perfect
right to make such an attempt.’ ‘ If a neutral master,’ says
Sir William Scott, ‘ attempts a rescue, or to withdraw him-
self from search, he violates a duty which is imposed on him
by the law of nations, to submit to search, and to come in
for inquiry as to the property of the ship or cargo ; and if he
violates this obligation by a recurrence to force, the conse-
quence will undoubtedly reach the property of his owner,
and it would, I think, extend also to the whole property
entrusted to his care, and thus fraudulently attempted to be
withdrawn from the operation of the right of war. With
an enemy master, the case is very different ; no duty i
1 5 Rob. 232. ‘
The forcible resistance of an enemy master will,
on. XXVI! RIGHT OF VISITATION AND SEARCH
299
violated by such an act on his part—lu¢um auwlbus teneo,
and if he can withdraw himself he has a right to do so.’
§ 24. The Supreme Court of the United States has
applied the same rule to neutral property in an armed
enemy vessel, and in the case of the ‘ N ereide,’ decided in
I8I5, it was held that a neutral had a right to charter and
lade his goods on board a belligerent armed merchant ship
without forfeiting his neutral character, unless he actually
concurred and participated in the enemy master’s resist-
ance to capture. This doctrine was re-affirmed in 1818, in
the case of the ‘ Atalanta,’ notwithstanding the contrary
opinion of Sir William Scott in the case of the ‘ Fanny,’
decided contemporaneously with that of the ‘ Nereide.’
The reasoning of the Supreme Court most ably sustains its
decision, notwithstanding the powerful arguments in the
dissenting opinion of. Mr. Justice Story, supported as it is
by the opinions of Kent and Duer, among American writers,
and by the decision of Sir William Scott in the case of the
‘ Fanny ’ and the authority of English publicists generally.
The question does not seem to have arisen in the Continental
courts. Hautefeuille sustains, on principle, the American
decision against that of Sir William Scott, while Ortolan
merely states the contradiction between the English and
American decisions on this question, without expressing
any opinion of his own upon the particular question in-
volved.1
§ 25. The acknowledged belligerent right of visitation
and search draws after it a right to the production and ex-
amination of the ship’s papers. With respect, however, to
the nature and character of the papers which the neutral is
bound to have on board, there is some difference of opinion.
A list of papers usually to be expected is given in § 1:9 of
chapter xxii. Some Continental writers contend that the
ordinary sea letter or passport is all that is required, as that
must establish the nationality of the vessel. If, however, it
has been agreed between the belligerent and neutral, that
certain papers executed in a particular form shall be carried,
the absence of such papers, so executed, may be good ground
1 The ‘ Nereide,’ see p. 295 ; the ‘ Fanny,’ 1 Dad. Ad. R. 443 ; the
‘ Atalanta,’ 3 Wheat. R. 409 ; Hautefeuille, Des Nations Neutres, tit.
xi. ch. 420 ; Ortolan, Diplomatz'e de la Mer, t. iii. ch. vii.
Neutral
property
in enemy’s
vessels
Docu-
ments
required
to prove -
neutral
character
300 INTERNATIONAL LAW 011. xxvrr
Conceal-
ment of
papers
of seizure. But English and American writers, as well as
the decisions of the prize courts of the two countries, have
held that the neutral vessel may be required to have on
board, and to produce when visited, such other documentary
evidence as is usually carried, and deemed necessary to
establish the character of the ship and its cargo ; and that the
absence or non-productionof such papers may, or may not,
be good cause for capture and condemnation, according to
the particular circumstances of the vcase. The rule is very
clearly stated by Chancellor Kent. ‘ A neutral is bound,’
he says, ‘ not only to submit to search, but to have his vessel
duly furnished with the genuine documents requisite to
support her neutral character. The most material of these
documents are the register, passport or sea letter, muster
roll, log book, charter party, invoice, and bill of lading.
The want of some of these papers is strong presumptive
evidence against the ship’s neutrality, yet the want of any
one of them is not absolutely conclusive. Si aliquid ex
solemnibus deficiat, quum equitas poscit, subveniendum
est.’ 1 '
§ 26. Sometimes the neutral vessel produces the principal
papers necessary to show her neutrality’ and the innocent
character of her cargo, but conceals others which might
have a contrary effect, as, for example, secret instructions
relating to her destination and the landing of goods, &c.
Those who deny the right of search beyond the verification
of her sea letter, or manifest, justify such concealment.
But English and American writers are of opinion that con-
cealment is in itself a serious offence against the belligerent
right of visit and search. The rule of international law on
this question is thus stated by Chancellor Kent : ‘ The con—
cealment of papers,’ he says, ‘ material for the preserva-
tion of the neutral character, justifies a capture, and carry-
ing into a port for adjudication, though it does not abso—
lutely require a condemnation. It is good ground to refuse
costs and damages on restitution, or to refuse further proof
to relieve the obscurity'of the case, where the cause laboured
1 Kent, Com. on Am. Law, vol. i. p. 157'; Duer, On Insurance,
vol. i. pp. 734, 735 ; Martens, Essai sur les Armateurs, ch. ii, § 22 ;
Massé, Droit Commercial, liv. ii. tit. 1. ch. ii. ; Pistoye et Duverdy,
Des Prises, tit. vi. ch. ii. sec. iv. ; De Cussy,'Droit Maritime, liv. i.
tit. iii. § I 5.
0H. xXVII RIGHT OF VISITATION AND SEARCH 301
under heavy doubts, and there was prima facie ground for
condemnation independent of the concealment.’
§ 27. The spoliation of the papers of a ship, subjected
to the visitation and search of a belligerent cruiser; is a still
more aggravated circumstance of suspicion than that of
their denial or concealment, and, in most countries, would be
sufficient to infer guilt and exclude further proof. ‘ But it
does not in England,’ says Kent, ‘ as it does by the maritime
law of other countries, create an absolute presumption jnris
et de fare ; and yet a case that escapes with such a brand
upon it is saved so as by fire. The Supreme Court of the
United States has followed the less rigorous English rule,
and held that the spoliation of papers was not, of itself,
sufficient ground for condemnation, and that it was a cir-
cumstance open for explanation, for it may have arisen from
accident, necessity, or superior force. If the explanation be
not prompt and frank, or be weak and futile ;- if the cause
labours under heavy suspicions, or there be a vehement pre-
sumption of bad faith, or gross prevarication, it is good cause
for the denial of further proof ; and the condemnation
ensues from defects in the evidence, which the party is not
permitted to supply. The observation of Lord Mansfield, in
Bernardi v. Motteaux, was to the same effect. By the
maritime law of all countries, he’ said, throwing papers
overboard was considered as- a strong presumption of
enemy’s property ; but, in all his experience, he had never
known a condemnation on that circumstance only.’ 1
§ 28. ‘ The use of false papers,’ says Duer, ‘ although
in all cases morally wrong, is not in all cases a subject of
legal animadversion in a court of prize. Such a court has
no right to consider the use of the papers as criminal, where
the sole object is to evade the municipal regulations ofa
foreign country, or to avoid a capture by the opposite belli-
gerent. The falsity is only noxious where it certainly
appears, or is reasonably presumed, that the papers were
framed with an express view to deceive the belligerent‘by whom
the capture is made, so that, if admitted as‘ genuine, they
would operate as a fraud on the rights of the captors. It is
not sufficient that the papers disclose the most disgusting
'1 Kent, Com. on Am. Law, vol. i. p. 158 ; Bernardi v. Motteaux,
Doug. R. 581. "
Spoliation
of papers
Use of
false
papers
302 INTERNATIONAL LAW on. xxvn
Impress-
ment of
seamen
from
neutral
vessels
preparations of fraud in relation to a different voyage or
transaction. The fraud must certainly, or probably, relate
to the voyage or transaction which is the immediate subject
of investigation.’ 1 '
§ 29. In the wars immediately resulting from the
French revolution, the British Government attempted to
engraft upon the right "of visitation and search the right of
impressment of seamen by British cruisers from American
merchant vessels. The deep feeling of opposition, in the
United States, to this claim of Great Britain co-operated
most powerfully with other causes to produce the war of
1812 between the two countries.2 The war was terminated
1 Duer, On Insurance, vol. i. p. 738; the ‘Eliza and Katy,’
6 Rob. R. 192 ; the ‘ St. Nicholas,’ I Wheat. R. 417 ; Blaze v. N.Y.
Ins. Co. 1 Caines R. 565 ; Phoenix Ins.‘ Co. v. Pratt, 2'Binney R.
308 ; the ‘ Mars,’ 6 Rob. R. 79 ; the ‘ Phoenix,’ 3 Rob. R. 186 ; the
‘Zulema,’ I Act. R. 14.
2 In I 798 not only merchantmen, but vessels of war of the United
States were searched by the British ships of war. His Majesty’s
ship ‘ Carnatic,’ 74, boarded an American vessel of war off Havannah.
The United States Government issued orders to their vessels never
to submit when they had the means of resistance, and never to part
with the men unless the vessel was taken. (Brenton, vol. i.) But,
on the other hand, Americans seduced British seamen, and even
soldiers in their regimentals.
By Art. 45 of the British Regulations of I 787 it was ordered to
demand English seamen out of foreign ships wherever met with.
In 1794 the Minister of the United States in England complained
that a large number of American vessels had been irregularly
captured and as improperly condemned, and thereby under colour
of his Majesty’s authority great injury had been done to American
merchants. Also that citizens of the United States had been im-
pressed into the King’s service. It was explained on behalf of the
British Government that, although in a naval war extending over
four quarters of the globe, some inconvenience must accrue to the
commerce of neutral nations which no care could prevent, his
Majesty would always desire that the fullest opportunity be given
to all to prefer complaints and to obtain redress and compensation,
that in most cases they could be redressed by the usual judicial
procedure at a very small expense, and without other interposition ;
but if cases should be found wherein redress could not be obtained
in the ordinary way, his Majesty would readily discuss measures to
be established for that purpose ; that if American seamen had been
impressed, it was contrary to his Majesty’s desire, but that there
was great difliculty in discriminating between British and American
seamen, especially when there so often existed an interest and inten-
tion to deceive.
A return to Congress, in 1806, states that the aggregate number
of impressments of American seamen into British service, from the
commencement of the war in Europe to that date, was 2,273 ; of
these, forty-three were passengers.
James, referring to this subject in his Naval History in 1826, says
~
on. xxvn RIGHT OF VISITATION AND SEARCH 303
by the treaty of Ghent, on the basis of the status qno ante
bellnm, leaving the questions of maritime law which led to
that the crew of a vessel, armed or unarmed, sailing under the flag
of the United States, usually consists of one or more of the following
classes : I, native American citizens ; 2, American citizens, wherever
born, who were such at the definitive treaty of ace in 1783 ; 3,
foreigners in general, who may or may not have ecome citizens of
America subsequently to the treaty in question ; 4, deserters from
the British army or navy, whether natives of Britain or of any other
country. He considers that to the first class Great Britain cannot
have the shadow of a right ; and from such of the second as were
British born she barred herself by the treaty acknowledging the
independence of the revolted colonies. Of the third class, the only
portion which England. can have any pretension to seize are the
subjects of the Power or Powers with whom she may be at war, and
her own native subjects. With respect to the former, the very act
of entering on board a neutral implies that the foreigner has thrown
off his belligerent character; he is a non-combatant of the most
unequivocal description, and, as such, entitled to exemption from
seizure. A passenger, especially if a military man, might be an
exce tion. When, by the maritime ascendency of England, France
coul no longer trade for herself, America proffered her services, as
a neutral, to trade for her; and American merchants and their
agents, in the gains that flowed in, soon found a compensation for
all the perjury and fraud necessary to cheat the former out of her
belligerent rights. The high commercial importance of the United
States, thusv acquired, coupled with a similarity in language, and, to
a superficial observer, a resemblance in person, between the natives
of America and Great Britain, has occasioned the former to be the
principal, if not the only, sufierers by the exercise of the right of
search. Chiefly indebted for their growth and prosperity to emigra-
tion from Europe, the United States hold out every allurement to
foreigners, particularly to British seamen, whom, by a process
peculiar to themselves, they can naturalise as quickly as a dollar can
exchange masters, and a blank form, ready signed and sworn to,
can be filled up. It is the knowledge of this fact that makes British
naval officers, when searching for deserters from their service, so
harsh in their scrutiny, and so sceptical of American oaths and
asseverations. (N av. Hist. vol. iv. 325.)
The ancient right of Great Britain to impress seamen for the
Royal Navy from her own merchantmen has been modified by
various statutes. The 19 Geo. III. e. 75 (repealed by Stat. Law
Rev. Act, 187 I), ‘ in an arduous and difficult conjuncture,’ suspended
four statutes which modified or limited the above right—viz. the
2 and 3 Anne, 0. 6, s. 8, the 13 Geo. II. c. 17, the 2 Geo. III. c. 15,
s. 22, and the I I Geo. III. 0. 38, s. Ig—for the space of five months,
except as far as regarded coal vessels.
By the 19 Geo. II. c. 30, ‘ no mariner or other person who shall
serve on board or be retained on board any privateer or trading
ship or vessel that shall be employed in any of the British sugar
colonies in the West Indies, in America, nor any mariner or other
person being on shore in the said British sugar colonies, nor any of
them shall be liable to be impressed or taken away, or shall be im-
pressed or taken away, in or from any of the said British sugar
colonies or any of them, or any of the ports thereof, or at sea in those
parts, by any officer or officers of or belonging to any of his Majesty’s
304 INTERNATIONAL LAW . on. xxvn
the war still unsettled. The point in dispute being that, by
the English law, the subject owes a perpetual and indis-
soluble allegiance to the Crown, and'is under the obligation,
in all circumstances, and‘ for his whole life, to render military
service to the.» Crown, whenever required, and that it is a
legal exercise of the prerogative of the Crown to enforce
this obligation of the subjects, wherever they may be
found; the right of search being conceded by the laws of
war, the right of examining the crews of neutral vessels
follows, and if, on such examination, British seamen are
found among them, such seamen may be forcibly taken
from the neutral vessels, and carried on board British
cruisers. In reply, the Americans say that, whatever may
be _the obligations existing between the Crown of England
and its subjects, the English law cannot be enforced beyond
the dominions and'jurisdiction of that government; that
every merchant vessel on the high seas being rightfully con-
sidered as a part of the territory of the country to which
it belongs, to attempt to enforce the peculiar law of England
on board such vessel, is to assert and exercise an extra-
territorial authority for the law of British prerogative;
that the doctrine stands only as English law, not as national
law; that English law cannot be of force beyond English
dominion; that as laws, the prerogatives of the Crown'of
England have no obligations on persons or property domiciled
or situated abroad.l It is not probable, however, after the
discussions which have taken place on this subject, that
the British Government will ever again endeavour to
enforce this right of impressment from foreign merchant
vessels. -
ships of war empowered by the Lord High Admiral of Great Britain
or the Lords Commissioners, &c., or any other person whosoever,
unless such mariner shall have before deserted from such ship of
war belonging to his Majesty.’ This statute is discussed in Spieres
2). Parker (I Term R. 141)"; it is repealed by 27 and 28 Vict. c. 23, s. I.
1 Webster to Lord Ashburton, Au . 8, 1842 ; Webster, Dip. and
01?. Papers, pp. 97, 101; Webster, orks, vol. v. p. 142, vol. vi.
P- 329- j .
305
CHAPTER XXVI II
VIOLATION OF NEUTRAL DUTIES
1. The rights and duties of neutrality are correlative—2. Violation
of neutral duty by a State—3. By individuals—4. Character
of such violations-- 5. Neutral vessels transporting enemy’s
goods—6. Opinions of publicists—7. Neutral goods in enemy
ships—8. Maxims of ‘ free ships free goods,’ and ‘ enemy ships
enemy goods ’—-9. These maxims in the United States—10.
Treaties and ordinances—1 1. France and England in 1854-—
12. Congress of Paris in 1856-13. Rule of evidence with
» respect to neutral goods in enemy ships—14. Neutral ships
under enemy’s flag and pass—15. Neutral goods in such
‘ vessel—~16. Neutral vessel in enemy’s service—17. Transport—
ing military persons—18. Conveying enemy’s despatches by.
ship, post, or cable—19. The case of the ‘ Trent ’—-20. Rules of
1756 and 1793-21. Explication of them—22. Distinction
between them—2 3. Effect on American commerce of the rule
of 1793—24. 0 inions of Story and of Phillimore—2 5. Views
of American vernment—26. Change of British colonial
policy—~27. Extension of the doctrine of continuous voyages
by the United States.
§ I. ANY act of positive hostility on the part of a neutral
State towards one of the belligerents in a war, is deemed a
breach of neutrality, and makes such State a party in the
War. The rights and duties of neutrality are correlative, and
the former cannot be claimed, unless the latter are faith-
fully performed. If the neutral State fail to fulfil the obliga-
tions of neutrality, it. cannot claim the privileges and ex—
emptions incident to that condition. The rule is equally
applicable to ‘the citizens and subjects of a neutral State.
The rights
and duties
of neu-
trality are
correla-
tive
So long as they faithfully perform the duties of neutrality, -
they are entitled to the rights and immunities of that con-
dition. But for every violation of neutral duties, they
are liable to the punishment of being treated in their persons
or property as public enemies of the offended belligerent.1L
1 Kent, Com. on Am. Law, vol. i. ‘pp. 115-117 ; Wheaton, Elem.
Int. Law, ‘pt. iv. ch. § 1 ; Vattel, Droit des Gens, liv. ch. § 104 ; Riquelme, Derecho Pztb. Int. lib. i. tit. i. 0. xi. 5 De Cussy,
Droit Maritime, liv. i. tit. § 9-
VOL. 11. X
306 INTERNATIONAL mm on. xxvm
Imperfect or qualified neutrality is no longer supported by
custom, although it formerly was in use. A Government
bound by capitulations to supply mercenaries to a belligerent
would, in time of war, be in a state of qualified neutrality.
This has been fully dealt with in chapter xix.1L
Violation § 2. Having already discussed the mutual duties of
321;??? States in times of peace, it will not be necessary here to
State make any extended argument to enforce those duties on
the part of the neutral State toward other States with which
it remains at peace, while they are carrying on hostilities
towards each other. Its duty is that of ‘entire impartiality,
.as well as neutrality. Should a neutral government, with-
out cause or provocation, complaint or warning, attack the
possessions, or capture the ships of a belligerent power, all
would denounce the aggression as a flagrant outrage on the
laws of justice as well as of humanity ; yet, it is precisely of
this violation of justice, although in a milder form, that a
neutral government is guilty, that, while it affects to
maintain the relations of friendship with contending belli-
gerent powers, furnishes to one effectual aid in the prosecu—
tion of the. war, by a supply of ships, or arms, or munitions
of war. With whatever pretext the government may veil
its conduct, its'acts are those of unprovoked and causeless,
and, therefore, unjust hostility. A violation of neutrality
is not limited to acts of positive hostility. If the neutral
State assist one of the belligerents ; if it grant favours to one
to the detriment of the others; if it neglect or refuse to
maintain the inviolability of its territory; or if it fail to
restrain its own citizens and subjects from overstepping
the just bounds of neutrality, as defined and established by
the law of nations—it violates its duties towards the bellige—
1 Neutralisation is distinct from neutrality. It consists in the
obligation on a State of abstention from war except in the strictest
self-defence; but a State cannot be neutralised except with the
concurrence of all other States ‘affected ‘by. such neutralisatio'n.
Thus Switzerland was neutralised by the Great Powers in I815, and
‘Belgium in T8 31. In 1877, M. de Less'eps, the engineer of the
Suez Canal, proposed - to the British Government that this canal
should be neutralised ; but the project was- not then adopted. The
matter was again considered in 1883, and after considerable negotia-
tions between ‘Great Britain and, the various Powers a Convention
for that purpose was approved on’behalf'of Great Britain and France
in 1887'; and it was subsequently accepted in 1888 by Austria,
Germany, Italy, Russia, Spain, the Netherlands, and Turkey,
on. xxvur VIOLATION OF NEUTRAL DUTIES
307
rent who is injuredtby such act or neglect, and is justly
chargeable with hostility. Such conduct furnishes good
cause for complaint, and, if persisted in, may become just
cause of war. Sir Wm. Scott very justly remarked that
there are no conflicting rights between nations at peace ; which
remark may be applied, with truth, to every case of a
violation of neutral duty.1
§ 3. But while the law of nations holds the government
of‘ the neutral State responsible for any act of positive
hostility committed by its officers, or, in most cases, by its
citizens and subjects, it is not in general held responsible for
ordinary violations of neutral duty (not in themselves of
positive hostility) by such citizens or subjects. The law
in such cases imposes the duty upon the individual, and if it
be violated the penalty is imposed and enforced upon the
individual by the capture and confiscation of his property.
Thus, the neutral State is not bound to restrain its subjects
from engaging in contraband trade, or from violating the
right of visitation and search, or the law of sieges and block-
'ades ; the law imposes upon the individual the duty of ab-
staining from such illegal acts, and, if guilty of a violation of
this duty, he is the one to suffer the punishment due to the
offence. Nor do the courts of a neutral country, as a general
rule, enforce penalties for violations of neutral duty.2 As
before remarked, there are certain obligations of neutrality,
such as abstaining from actsof positive hostility, which the
neutral State is bound to enforce with respect to its sub-
jects; its own municipal laws’ in relation to such matters
are, of course, administered by its own tribunals. But
such courts do not enforce penalties for carrying contra-
band of war, for a breach of blockade, or for violating the
belligerent right of visitation and search. All such cases are
left to be adjusted by the prize tribunals of the belligerents.
As to the rules of the Treaty of Washington, I871,3 concern-
1 Bello, Dereeho Internaoional, pt. ii. ch. §§ 1—3 ; Harrat 2).
Wise, 9 B. and C. 712 ; Naylor 1). Taylor 9 B. and C. 715 ;Medeiros
21. Hill, 8 Bing. R. 231 ; the ‘ Maria,’ 1 Rob. 36o ; Pitkin, Civil and
Pol. Hist. of U.S. vol. i. ch. 7x. _
9 Ex parte Chavasse, are Grazebrook, 2 Mar. Law Cas. (Chan),
:97 ; Webster, Dip. and 01?. Papers, pp. 309, 310 ; Lee, Opinions 0)‘
U .S. Attys.-Genl. vol. 1. p. 61 ; Heffter, Droit International, §§ 148,
172 ; Ortolan, Diplomatic: de la Mer, t. ch. 'vi.
3 See ante, ch. .xxiv. p. I 74.
Responsi-
bility of
indivi-
duals for
violation
of‘ neutral
duties
x2-
308 INTERNATIONAL LAW 011. xxvn
Character
of such
violations
Neutral
vessels
trans-
porting
enemy’s
goods
ing the fitting out and arming of vessels for warlike use in the
ports of a neutral, and laying down certain principles of
neutrality as binding on the Government of a neutral
country, it must be noticed that they are only binding as
between Great Britain and the United States of America,
and any other maritime Power (if any) who may in the future
accede to those rules. They must be looked upon rather in
the light of peculiar treaty obligations than as real principles
of international law. Their interpretation is far from easy.
§ 4. It may be stated, as a general principle which lies
at the foundation of the rules of international law relating to
neutral duties, that their violation is neither innocent nor
lawful. It is not simply the penalty incurred by such viola-
tion that makes it wrong, as some have asserted ; nor is it
correct to say. that, if the neutral merchant is willing to incur
the risk of capture and condemnation, he may engage, with
entire security of conscience, in a trade forbidden by the
law of nations. The act is wrong in itself, and the penalty
results from his violation of moral duty, as well as of law.
The duties imposed upon the citizens and‘subjects flow from
exactly the same principle as those which attach to the
Government of the neutral States. ‘Where he supplies to
the enemy,’ says Duer, ‘ munitions or other articles contra-
band of war, or relieves with provisions, or otherwise, a
blockaded port, although his motives may be different, his
moral delinquency is precisely the same. By these acts he
makes himself personally a party to a war, in which, as a
neutral, he had no right to engage, and his property is justly
treated as that of an enemy.’ 1 It appears, from early
decisions in the courts of Common Law in England, that
the above doctrine has been explicitly recognised.
§ 5. The first question which presents itself for considera~
tion, as connected with neutral duties, is the transport of
goods of an enemy in a neutral vessel. ‘ Whatever may be
the true original abstract principle of natural law on this
subject,’ says Wheaton, ‘. it is undeniable that the constant
usage and practice of belligerent nations, from the earliest
times, have subjected enemy’s goods in neutral vessels to
1 Duer, 0% Insurance, vol. i. pp. 531, 754, 7 5 '5, 772-72 5 ; the
‘ Shepherdess,’ 5‘ Rob. 264 ;Pistoye et Duverdy, Tmzte' des Pmses, tit.
vi. ch. ii. sec. iii. ; Hautefeuille, Des N an'ons N eutres, tit. I 5.
OH. xxvm VIOLATION OF NEUTRAL DUTIES 309
capture and condemnation as prizes of war. This constant
and universal usage has only been interrupted by treaty
stipulations, forming a temporary conventional law between
the parties to such stipulations. The regulations and prac-
tice of certain maritime nations, at different periods, have not
only considered the goods of an enemy laden in the ships of
a friend liable to capture, but have doomed to confiscation
the neutral vessel, on board of which these goods were laden.
This practice has been sought to be justified upon a supposed
analogy with that provision of the Roman law, which in-
volved the vehicle of prohibited commodities in the confisca-
tion pronounced against the prohibited goods themselves.
Thus, by the marine ordinance of Louis XIV., of 1681, all
vessels laden with enemy’s goods are declared lawful prizes
of war. The contrary rule had been adopted by the pre-
ceding prize Ordinances of France, and was again revived by
the reglement of 1744, by which it was declared that, in case
there should be found on board of neutral vessels, of what—
ever nation, goods or effects belonging to his Maj esty’s
enemies, the goods or effects should be good prize, and the
vessel should be restored.’ 1 Valin, in his commentary upon
1 1 Wheaton,‘ Elem. Int. Law, pt. iv. ch. §§ 19, 20 ; Wheaton,
Hist. Law of Nations, pp. 111-119, zoo—206; Albericus Gentilis,
Hist. Advoc. lib. i. ch. ; Valin, Com. snr l’Ord. liv. tit. ix.
In 1640 it was asserted that it had never been the practice
to condemn neutral ships for having enemy’s goods on board, but
the freight of the enemy’s goods condemned was always paid.
(Sydn. State Papers, v01. xxi. p. 662.) The Court books of the
Admiralty show the case of the ‘ Pearl,’ in which a question was
raised, in 1704, on the point concerning freight. In the result freight
was decreed, although the cargo was condemned.
In 175 3, in the celebrated answer to the Prussian memorial, it is
asserted that in the case of ships restored freight was paid for such of
the goods as manifestly belonged to the enemy, and were con-
demned ; and among the list of Prussian cases referred to there is a
class described, ‘ Ships restored with freight according to the bills
of lading for such goods which were found to be the property of
enemy, and condemned as prize.’ It was the invariable practice
of the British Court of Admiralty during the wars of 1801, unless in
cases where some circumstances of mala fides occurred, or where the
ship was adjudged to have drawn on herself the loss of freight—as a
penalty for some act which, though a departure from pure neutral
conduct, has not, according to the practice of the law of nations,
made her liable to condemnation. -
In 1866, upon a seizure 'of a neutral vessel engaged in shipping
coin under circumstances adapted to excite reasonable suspicion,
there being no proof that it was enemy’s property, a decree was made
by the Supreme Court of the United States restoring the vessel and
cargo, including the coin, but apportioning the costs and expenses
3'10 INTERNATIONAL LAW 011. xxvm
the Ordinance, admits that the more rigid rule, which
continued to prevail in the French prize tribunals from
1681 to 1744, was peculiar to ‘the jurisprudence of France
and Spain ; but that the usage of other nations‘ was only to
confiscate the goods of the enemy. The concurring testi-
mony of text-writers is that, by the usage of the world,
neutral vessels are not liable to condemnation for carrying
enemy goods, whatever rule may be adopted or enforced
with respect to the condemnation of the goods themselves.
The transport of enemy’s goods in a neutral vessel
cannot, therefore, be regarded, in general, as a violation
of any neutral duty, or as an act subject to any punish-
ment. _ -
In the course of the Russo-J apanese War, 1904, the British
steamship ‘ Knight Commander’ was sunk by the Vladi-
vostok Squadron of the Russian Navy on July 24, 1904,
near Idzu. She was bound from New York via Manila to
Shanghai and Yokohama with an American-owned cargo.
The facts appear to be as follows. The vessel, having obeyed
the order to stop, was boarded by men from the Russian
ships. Her captain and crew were taken off her after a
very perfunctory examination of the vessel, and then two
shells were fired into her, causing her to sink. The British
crew were taken to Vladivostok and the native crew were
put on board another vessel which happened to be passing.
The action of the Russian fleet could only be justified, if at
all, on the ground that a belligerent has the right to destroy
a neutral vessel, carrying contraband, if it is impossible
to take the captured vessel into a national port to be duly
adjudicated upon by a Prize Court, either because the’ captor
cannot spare a prize crew to navigate the prize, or because
the distance to a requisite port makes it practically impossible
to undertake the task. Be that as it may, it seems impossible
to contend that a belligerent could destroy a neutral vessel
without‘ compensation, and it is to be noted that in the
case of the German vessel ‘ Thea,’ which was destroyed
under similar circumstances, the same Russian Prize Court
which adjudicated the ‘ Knight. Commander ’ to be a valid
consequent on the ca ture rateably between the vessel and coin,
exempting from contri ution the rest of the cargo. (The ‘ Dashing
Wave,’ 5 Wall. 170.)
on. xxvm VIOLATION or ‘NEUTRAL DUTIES 311
prize did in fact award compensation. The British Govern-
ment entered a strong protest and insisted upon com-
pens-ation being paid in respect of the sinking of the ‘ Knight
Commander,’ and it would appear that the Russian Govern-
ment has now recognised its liability to pay. It is extremely
doubtful whether the vessel was carrying contraband goods
at all, and certainly there could have been no djifiiculty in
providing a prize crew. The incident, however, has opened
up the important question whether the sinking of the
vessel was, under the circumstances, a breach of international
law. Dealing with the subject in general terms, the Marquess
of Lansdowne, writing to Sir C. Hardinge, the British
Ambassador at St. Petersburg, said : ‘ The position already
sufficiently threatening, is ‘aggravated by the assertion on
behalf of the Russian Government that the captor of a
neutral ship is within his rights if he sinks it, merely for the
reason that it is difficult, or impossible, for him to convey it
to a national port for adjudication by a Prize Court. We
understand that this right of destroying a prize is claimed
in a number of cases ; among others, when the conveyance
of the prize to a Prize Court is inconvenient because of the
distance of the port to which the vessel should be brought,
or when her conveyance to such a port would take too
much time or entail too great-a consumption of coal. It is,
we understand, even asserted that such destruction is
justifiable when the captor has not at his disposal a sufficient
number of men from whom to provide a crew for the cap-
tured vessel. It is unnecessary to point out to your Excel-
lency the effects of a consistent application of these principles.
They would justify the wholesale destruction of neutral
Ships taken by a vessel of war at a distance from her own
base upon the ground that such prizes had not on board a
sufficient amount of coal to carry them to a remote foreign
porte—an amount of coal with Which such ships would. pro—
bably in no circumstances have been supplied. They would
similarly justify the destruction of every neutral ship taken
by a belligerent vessel which started on her voyage with‘ a
crew sufficient for her own requirements only, and therefore
unable to furnish prize crews for her captures. The adop-
tion of such measures by the Russian Government could
not fail to occasion a complete paralysis of all neutral
312 INTERNATIONAL LAW on. xxvm
Opinions
of English
and.
American
text-
writers
commerce.’ ‘ These viewsof the British Government were
repeated by the noble marquess in reply to a question put
by the Marquess of Ripon in the House of Lords on August II,
1904: ‘ We might find ourselves,’ he says, ‘ confronted
with this result, that a cruiser, starting with acrew sufficient
only for the purpose of navigating her, and consequently
not having on board any men whom she could spare for the
purpose of providing a prize crew, might sink every prize
that she took, merely on the ground that there were no means
of conveying that prize before a Prize Court. I am speaking,
of course, of neutral prizes, because the case of enemy
prizes are wholly different. I have mentioned these
possible results because I desire that your Lordships should
realise how serious is the problem with which we have to
deal.’ 2 And again on ]uly 28, 1904, he says: ‘Upon no
hypothesis of international law can we conceive that a
neutral ship, even if it be assumed that her cargo included
contraband of war, could be destroyed in this manner upon
the mere fiat of the commanding officer of the capturing
squadron, and without reference to a‘ properly constituted
Prize Court.’ 3 In spite of the explicit understanding of
the Russian Governments that such a practice would not
be repeated during the war, the British steamers ‘ St. Kilda,’
with coal on board, and ‘ Ikhona,’ with rice, were sunk
by Russian cruisers“; it is much to be regretted that the
British Government did not initiate reprisals.
§ 6. The rule of international law, as stated in the
beginning of the above fifth section by Wheaton, with respect
to enemy goods in neutral vessels, is sustained by English
and American text-writers, and by the older Continental
publicists, as Bynkershoek, Heineccius, Cocceius, Vattel,
Lampredi, Azuni, &c.,. while Hubner, Kluber, Rayneval,
]ouffroy, Massé, Ortolan, and Hautefeuille have not only
attacked its principles, but have denied its correctness as
a rule of law. Hautefeuille has discussed the question at
great length, and with marked ability. His conclusions
are ':—-‘ I. That neutrals may freely transport in neutral
1 Perl. Papers, Cd. 2348, p. I2. ‘
2 Parl. Debates (Fourth Series), vol. cxl. p. I 58.
3 I bid. vol. cxxxviii. p. 1436.
4 Law‘Magazz'ne and Review, vol. xxx. pp. 77 and 466.
on. xxvm VIOLATION OF NEUTRAL DUTIES 313
vessels the goods of one of the belligerents, except contra-
band of war. 2. That belligerents have not, in any case,
the right to seize the property of their enemy in neutral
vessels ; in a word, that free ships make free the merchandise
which they carry, ‘whatever may be the ownership.’ 1
1 Azuni, Droit Maritime, t. ii. ch. iii. ; Lampredi, Du Com-
merce, &0., pt. i. § 10; Cocceius, De jure Belli in Amicos; Vattel,
Droit des Gens, liv. ch. vii. § 115 ; Heineccius, De Navium, &c.,
com. §§ 8, 9; Bynkershoek, Qucest. fur. Pub. lib. i. c. iv.;
Hubner, Saisie des Batimens, t. i. pt. ch. ; Rayneval, De la
Liberte’ des Mers, t. i. ch. vi. ; Joufiroy, Droit Maritime, pp. 188 et
seq. ; Massé, Droit Commercial, liv. tit. i. ch. sec. ; Ortolan,
Diplomatic de la Mer, liv. ch. v.; Hautefeuille, Des Nations
Neutres, tit. x. ; Zouch, juris et juridici Fecialis, p. § 8 ; Bello,
Derecho Internacional, pt. c. § 1 ; Riquelme, Derecho Pub. Int.
lib. i. tit. c. xiv.
From the earliest time Great Britain had claimed and exercised
the right of seizing an enemy’s goods under whatever flag they
might be found, and that right had been unquestioned in England.
Lord Mansfield, when appealed to by that Government in 1 7 56, laid
down the following principles: 1. The goods of an enemy on board
the ships of a friend might be taken. 2. The lawful goods of a friend
on board the ships of an enemy ought to be restored. 3. Contra-
band goods going to an enemy, although the property of a friend,
might be taken as prize.
In 1780, when the armed neutrality was formed by the Empress
Catherine of Russia, England again declined to abandon these prin-
ciples ; and within fifteen years every nation who had joined it,
as soon as it touched its interests, abandoned it. In 1801, when
there was the armed confederacy, England laid an embargo on the
property of each of the countries forming that league. Letters of
marque were issued, and in six months the whole confederacy
was at an end. Lord Eldon held that the right of searching neutral
vessels originated in the right of nature, and that no convention or
treaty could destroy that right. Lord Stowell held that ‘ a war
and a commercial peace is a state of things not yet seen in the
world ; there is no such thing as a war for arms and a peace for
commerce; and the right of visiting and searching merchantmen
on the high seas, whatever be the cargoes, whatever the destination,
is the incontestable right of the lawfully commissioned cruisers of a
belligerent State.’ Lord Nelson, in the House of Lords in 1801,
stigmatised the maxim, ‘ free ships free goods,’ as ‘a proposition
so monstrous in itself, so contrary to the law of nations, so injurious
to the maritime interests of this country, that if it had been persisted
in we ought not to have concluded the war with those powers while
a single man, a single shilling, or even a single drop of blood remained
in the country.’ Buonaparte, on the same subject, said ‘ the greatest
blow that could be given to England would be to compel her to give
up her maritime rights.’
The rule was that a neutral should not be allowed to feed the
resources of one belligerent as against another. Enemy’s goods, as
well as contraband of war, should be seized whenever found on a
neutral vessel. The neutral vessel was not seized, but was detained,
and after adjudication in a prize court was not only released, but the
owners were paid the freight to which they would have been entitled
314
INTERNATIONAL LAW on. xxvm
Neutral
goods in
enemy’s
vessels
_§ 7- Another question, usually discussed in connection
with the carrying of enemy’s goods in neutral ships, is that
of transporting neutral goods in enemy’s ship. On this
question we quote some of the remarks of Wheaton. ‘ Al-
though,’ he says, ‘ by the general usage of nations, inde-
pendently of treaty stipulations, the goods of an enemy
found on board the ships of a friend are liable to capture
and condemnation; yet the converse rule, which subjects
to confiscation the goods of a friend on board the vessels
of an enemy, is manifestly contrary to reason and justice.
It may, indeed, afford, as Grotius has stated, a presumption
that the goods are enemy’s property ; but it isv such a pre-
sumption as will readily yield to contrary proof, and not of
that class of presumptions which the civilians call presump-
tiones juris et de 7'ure, and which are conclusive upon the
party. The rule cannot be defended on sound principles,
had they taken the goods to their destination, and in some instances
demurrage was allowed as well. This was never disputed till
Frederick the Great refused to satisfy the English claims after the
cession of- Silesia, and then for the first time the new principle,
‘ free ships free goods,’ was put forward, but was resisted, and the
claims were paid. Next, the Prussian Commission was appointed
to alter the old maritime rules, and establish other rules more
favourable to Prussian interests. The memorials which wereissued
by this Commission were answered by the able letter of the Duke
of Newcastle, and by the report which Lord Mansfield assisted in
drawing up, and nothing more was heard of the new doctrine until
the armed neutrality of 1780. By a decree of the National Conven-
tion of May 9, I 793, ‘ enemy’s goods on board neutral vessels ’
were declared good prize, the neutral ships being released and freight
paid by the captors. On February _ 8, I 793, Russia renounced
her treaty of I 786 with France, declaring that the principle, ‘free
ships free goods,’ should be ‘ no longer obligatory until the restora-
tion of order in France.’ In the same year Russia renewed with
England her treaty of I776, stipulating that neutral commerce
should be carried on ‘ according to the principles and rules of the law
of nations generally recognised,’ and further, engaged to prevent
neutrals from giving, on that occasion of common concern to every
State, any protection whatever, directly or indirectly, in conse-
quence of their neutrality, to the commerce or property of the
French on the sea or in the ports of France. A similar article was
inserted in the treaty of the same year between Great Britain and
Spain, between Great Britain‘ and Prussia, and between Great
Britain and the Emperor. These powers all re-affirmed the old rule.
The new rule was abandoned by Sweden in 1788, and by Russia,
France, Spain, Prussia, and by the Emperor. In 1809 Russia
declared that ships laden in part with goods of the manufacture or
produce of hostile countries should be stopped, andsuch merchandise
confiscated and sold by auction for the profit of the crown, and if
the merchandise composed more than half the cargo, not only the
cargo, but also the ship should be confiscated.
on. xxvrn VIOLATION or NEUTRAL norms
315
and is now admitted only when established by special
compact, as an equivalent for ‘the converse maxim, that
free ships make free goods.’ ‘ I
7 § 8. Wheaton proceeds to show that these two maxims are
not only not inseparable, but ‘have no natural connection.
‘ The primitive law,’ he says, ‘independently of inter-
national compact, rests on the simple principle that war
gives a right to capture the goods of an enemy, but gives no
right to capture the goods of a friend. The right to capture
an enemy’s property has no limit but of the place where the
goods are found, which, if‘ neutral, will protect them from
capture. A neutral vessel on the high seas is not such a
place. The exemption of neutral property from capture
has no other exceptions than those arising from the carrying
of contraband, breach of blockade, and other analogous
cases where the conduct of the neutral gives to the belli-
gerent a right to treat his property as enemy’s property.
The, neutral flag constitutes no protection to an enemy’s
property, and the belligerent flag communicates no hostile
character to neutral property. States have changed this
simple and neutral principle of the law of nations by mutual
compact, in whole or in part, according as they believed it
to be for their interest ; but the one maxim, that free ships
make free goods, does not necessarily imply the converse
proposition, that enemy ships make enemy goods. The
stipulation that neutral bottoms shall make neutral goods is
a concession made by the belligerent to the neutral, and
gives to the neutral a capacity not given to it by the primitive
law of nations. On the other hand, the stipulation sub-
jecting neutral property, found in the vessel of an enemy, to
confiscation as prize of war, is a concession made by the
neutral to the belligerent, and takes from the neutral a
privilege he possessed under the pre-existing law of nations ;
but neither reason nor usage renders the two concessions
so .indissoluble, that the. one cannot exist without the
other.’ 2 r
1 Wheaton, Elem. Int. Law, pt. iv. ch. iii. §21 ; the. ‘ Atalanta,’
3 Wheat. R. 409 ;the ‘ London Packet,’ 5 Wheat. R. r 32 ;the ‘ Amiable
Isabella,’ 6 Wheat. R. r. -
~ ‘2 The ‘ Nereide,’ 9 Cranch. R. 388 ;Ortolan, Diplomatie de la M er,
t. ii. ch. v. ; Bello, Derecho Internaoional, pt. c. § 2 ; Heffter,
Droit International, §§ 163, I64 ; Riquelme, Derecho Pzib. Int. lib. i.
Maxims of
‘ free
ships free
goods’
and
‘ enemy
ships
enemy
goods ’
316 INTERNATIONAL LAW.
OH." XXVII
These
maxims
in the
United
States
Treaties
and ordi- '
11831068
§ 9. Although, the United States, by their ‘judicial
tribunals and executive department, have recognised the
right of capturing enemy’s goods in neutral vessels as a
subsisting right under the law of nations, independently of
conventional arrangements, they have always endeavoured
to incorporate the privilege of free ships free goods in their
treaties, and advocated its adoption as a rule of international
jurisprudence. In no case have they concluded any treaty
sustaining a different principle, except that of 1794, with
England. They have invariably‘ opposed the rule that
enemy ships make enemy goods, and their Supreme Court has
refused to admit it, even against a neutral whose law of prize
would subject the property of American citizens to condem—
nation when found on board the vessels of her enemy.1
§ 10. Prior to the war between the Allies and Russia,
1854, and the Congress of Paris, 1856, the conventional law
with respect to these two maxims varied at different periods,
according to the fluctuating policy and interests of the
different maritime powers of Europe. It was much more
flexible than the consuetudinary law, but there was a decided
preponderance of modern treaties in favour of the maxim
tit. ii. 0. xiv. ; Hautefeuille, Des Nations Neutres, tit. xv. ; De Cussy,
Droit M ai/itime, liv. i. tit. iii. § IO.
1 U.S. Statutes at Large, vol. viii. pp. 262, 312, 393, 437, 472, 490.
It was decided by the Supreme Court of the United States, in 1 8 I 5 ,
that the stipulation in a treaty ‘ that free ships shall make free goods ’
does not imply the converse proposition that ‘ enemy ships shall
make enemy goods ’ ; that the rule of retaliation is not a rule of the
law of nations ;- it is true that States may resort to retaliation as a
means of coercing justice from the other party, but it is an act of policy,
not of law ; that a neutral may lawfully employ an armed belligerent
vessel to transport his goods, and such goods do not lose their
neutral character by the armament, nor by the resistance made
by such vessel, provided the neutral do not aid in such armament
or resistance, although he charter the whole vessel, and be on board
at the time of the resistance. Mr. justice Story differed from the
opinion of the Court, and declared that in his judgment the act of
sailing under a belligerent or neutral convoy is of itself a violation
of neutrality, and that the ship and cargo, if caught in delicto, are
justly confiscable ; that it might with as much propriety be main-
tained that neutral goods, guarded by a hostile army in their passage
through a country, for the avowed purpose of evading munici a1
rights, should not in case of capture be lawful plunder. ( he
‘ Nereide,’ 9 Cranch. 388.)
The privilege of ‘ free ship free goods,’ under the Dutch treaty,
was held to protect the cargo of a Dutch ship going from one enemy
port to another enemy port. (The ‘ Catherine Joanna,’ 6 Rob.
42%)
on. xxvm VIOLATION OF NEUTRAL DUTIES
317
of free ships free goods, sometimes connected with that of
enemy ships enemy goods, although the constant tendency
has been to exclude the latter.- France is almost the only
Government which has maintained that the goods of a friend
laden on board of the ships of an enemy are good and
lawful prize. This principle was incorporated into the
French ordinances of 1538, 1543, and 1584. The contrary
was provided in the declaration of 1650, but the former rule
was re-established in 1681. In the numerous French
ordinances and treaties after that period, France generally
contended for the same principle, sometimes with, and some-
times without, the converse maxim of free ships free goods.
In her earlier treaties England adopted this last maxim,
although she has since most strenuously opposed it, and her
tribunals have uniformly condemned all enemy goods in
neutral vessels, while neutral goods in enemy vessels have,
as a general rule, been exempted from confiscation. The
other nations of Europe have adopted the same principle,
but have in their treaties shown a willingness to adopt the
maxim free ships free goods.1
§ II. At the beginning of the war of 1854 between the
Allies and Russia, the different constructions put upon the
law of nations by England and France, with respect to the
maxims of free ships free goods, and enemy ships enemy
goods, threatened to aggravate the difficulties to which war
always subjects neutral commerce. Neutral property,
which England would not condemn for being found in an
enemy’s vessel, would be good prize to the French cruiser ;
while the neutral ship, whose flag would protect, against
France, enemy’s property on board, might be sent by an
English cruiser into an English port, her voyage broken up,
and her cargo condemned, with no allowance for freight
or damages. A Declaration was agreed upon by the two
Powers, in April, 1854, ‘ waiving the rights of seizing
enemy’s property laden on board a neutral vessel, unless it
be contraband of war,’ and of ‘ confiscating neutral pro—
perty, not being contraband of war, found on board enemy’s
1 Flassan, De la Diplomatic, t. ii. pt. ccxxvi. t. p. 451, t.
vii. pp. 183, 273 ; Dumont, Corps Diplomatique, t. vi. pt. i. p. 342 ;
Hautefeuille, Des Nations Neutres, t. p. 270; Martens, Recueil
de Traite’s, t. v. p. 5 30; the ‘ Citade de Lisboa,’ 6 Rob,
‘ Erstern,’ 2 Dallas ,R. 34%; the ‘Mariana,’ 5 Rob. 28.
France
and Eng-
land as
allies in
1854
_--_:_1 .
358; the ‘
318 INTERNATIONAL LAW on. xxvm
Declara-
tion of the
Congress
of Paris,
1856
ships.’ 1 Nevertheless, the arrangement was, upon its
face, only for the war, and was declared to be temporary.
§ 12. All questions for the future, however, were removed
by ‘the Declaration of Paris, April 16, 1856, by the pleni-
potentiaries of Great Britain, France, Russia, Austria,
Prussia, Sardinia, and Turkey, which has since been accepted
in its entirety by all civilised States, with the exception of
the United States, Spain, Mexico, and Venezuela. The
second and third articles of this Declaration are as follows :
‘ 2nd. The neutral flag covers enemy’s goods, with the ex-
ception of contraband of war.’ ‘ 3rd. Neutral goods, with
the exception of contraband of war,2 are not liable to capture
under an enemy’s flag.’ It was also provided that ‘ the
present declaration is not, and shall not be binding, except
between those powers who have acceded or shall accede to it.’
The second and third articles of the Declaration of the Con-
gress of Paris have been formally approved by the United
States, Spain, and Mexico. Nevertheless, as the principle
1 The Declaration was as follows :—
‘ Her Majesty the Queen of the United Kingdom of Great Britain
and Ireland, having been compelled to take up arms in support of
an ally, is desirous of rendering the war as little onerous as possible
to the powers with whom she remains at peace.
‘ To preserve the commerce of neutrals from all unnecessary
obstruction, her Majesty is willing, for the present, to waive a part
of the belligerent rights appertaining to her by the law of nations.
‘ It is impossible for her Majesty to forego the exercise of her right
of seizing articles contraband of war, and of preventing neutrals
from bearing the enemy’s despatches, and she must maintain the
right of a belligerent to prevent neutrals from breaking any effective
blockade which may be established with an adequate force against
the enemy’s forts, harbours, or coasts.
‘ But her Majesty will waive the right of seizing enemy’s property
laden on board a neutral vessel, unless it be contraband of war.
‘ It is not her Majesty’s intention to claim the confiscation of
neutral property, not being contraband of war, found on board
enemy’s ships ; and her Majesty further declares that, being anxious
to lessen as much as possible the evils of war, and to restrict its
operations to the regularly organised forces of the country, it is not
her present intention to issue letters of marque for the commission-
ing of privateers.-—~’Westminster, March 28, 1854.’
2 The Declaration of Paris cannot be said to affect the question of
visitation and search, for it expressly excepts contraband of war.
and contraband can only be ascertained by searching a vessel.
It is doubtful whether neutral goods (not contraband of war)
found on board an enemy’s ship of war, privateer, or merchantman,
carrying letters of marque ‘and reprisal, are not a good ‘prize, not—
withstanding the Declaration of Paris ; for it is a breach of neutrality
to make such shipments.
OH. XXVIII VIOLATION OF NEUTRAL DUTIES
319
must be regarded as established by a conventional agreement,
rather than ‘by the general law of nations, it is binding only
upon those who have accededor may accede "to it ; but there
is very little probability ‘that any nation will hereafter
attempt to enforce rules of maritime capture in conflict with
the principle thus established by the great powers of
Europe."1
§ I3. It is an established rule of the law of prize, that all
goods found in an enemy’s ship are presumed to be enemy’s
property—res in hostinm na'oibns jbrasnmnntnr esse hostinm,
doneo probetnr. The evidence required to repel this pre-
sumption depends upon the particular character of the case.
If the character of the ship is hostile, the neutral character
of the goods must be shown by documents on board at the
time of capture. If these are insufficient, further proof is
never allowed, and the penalty of forfeiture attaches as
a matter of course. ‘ It has been truly observed,’ says
Duer, ‘ that any other course would subject the prize
’tribunals to endless impositions and frauds, and enable the
enemy, thus obtaining the benefit of other proof, to evade,
by supplying the documentary evidence, the just rights of
the captor.’ Although it is the duty, in all cases, of a neutral
claimant to establish his claim by positive evidence,v it is
only when the character of the ship is certainly hostile that
the presumption of the hostility of the goods *cannot be
refuted by evidence additional to the documents found on the
ship. In other cases a reasonable time is allowed for the
production of further proof, and it is only upon the failure
to produce such proof, or its unsatisfactory nature when
produced, that the court proceeds to a condemnation.2
§ 14. Another violation of neutral duty is the use of the
flag and pass of the enemy. A neutral vessel is bound by
1 More than a year prior to this Declaration, the President of the
United States had submitted, not only to the powers represented in
the Congress of Paris, but to all other maritime nations, two pro-
positions ‘which were substantially the same as those adopted, viz. :
I. That free ships make free goods—that is to say, that the effects or
goods belonging to subjects or citizens of a power or State at war are
free from capture and confiscation when found on board of neutral
vessels, with the exception of articles contraband of war. 2. That
the property of neutrals on board an enemy’s vessel is notsubject
to confiscation, unless the same be contraband of war.’ 5
‘3 Duer, 0n Insurance, vol. i.'pp. 5 34, ‘53-5 ; the ‘ Flying Fish,’
' z Gallis R. 374 ; the ‘ London Packet,’ 1 Mason R. 14.
Proof of
neutral
goods in
enemy’s
ships
320 INTERNATIONAL LAW ~ on. xxvm
Neutral
ships
under
enemy’s
flag and
pass
Neutral
goods
in such
vessels
Neutral
vessel in
enemy’ s
service
the character which she has thus assumed, and the owner is
not allowed to contradict his own acts, and to redeem his
vessel from condemnation, by a disclaimer of the hostile
character which, with a view to his own interests, or those of
the enemy, he has elected she should bear.
vessel,’ says Kent, ‘ enjoys the privileges of a foreign
character, she must expect, at the same time, to be subject
to the inconveniences attaching to that character.’ But,
as already stated, the foreign character thus assumed is con-
clusive only as against the owner, and not in his favour, for
the real character of the vessel may always be pleaded against
her, where the knowledge of that fact would justify a con-
demnation. The first branch of the rule is intended as a
penalty for violation of neutral duty.1
§ I5. But while the belligerent flag and pass are, in all
cases, decisive, as to the owners, of the character of the ship,
a distinction is made by the English courts in favour of the
cargo of such ships, if the shipment were made in time of
peace and plainly not in contemplation of war. Even where
the goods themselves, for purposes having‘ no relation to a
future war, are clothed with a foreign character, now become
hostile, the owner is not concluded, but is permitted to dis-
prove the colourable title, and, upon due proof of his neutral
character and actual ownership, his property is restored.
Some countries have gone so far as to make thefiag and pass
of the ship conclusive on the cargo also ; but Great Britain
has never carried the principle to that extent. It holds the
ship bound by the character imposed upon it by the authority
of the government from which all the documents issue. _But
goods which have no such dependence upon the authority
of the State may be differently considered.2 .
§ I6. _If a neutral vessel is captured while in the employ-
ment of the enemy or his officers, for purposes immediately
or mediately connected with the operations of the war, the
owner is never permitted to assert his claim. The nature of '
1 The ‘ Francis,’ 8 Cranch. R. 418 ;the ‘ Success,’ I Dad. R. I 31 ;
the ‘ Fortuna.’ I Dod. R. 87.
2 The ‘ Elizabeth,’ 5 Rob. 5, n. ; see also the ‘ Julia,’ I Gallis R.
605 ;the ‘ Aurora,’ 8 Cranch. R. 203 ;the ‘ Hiram,’ 8 Cranch. R. 444 ;
the ‘ Ariadne,’ 2 Wheat. R. 143: ; the ‘ Caledonia,’ 4 Wheat. R. 100.
A neutral flag cannot protect an enemy’s ship, although it may
the cargo. (‘ Citade de Lisboa,’ 6 Rob. 358.) _ ._
‘If a neutral _
OH. XXVIII VIOLATION OF ‘NEUTRAL DUTIES 321
the service or employment is very justly deemed, in such a
case, conclusive evidence of its hostile character. While
thus employed the neutral vessel is as truly a vessel of the
enemy as ‘if she were such by documentary title ; and the
owner is not allowed, for his own protection, to divest
her of the character which she has thus assumed. Nor will
the prize court listen to the plea that the vessel was im-
pressed into such service by duress and violence. When
threats or force are employed for such a purpose by a belli-
gerent, it is the duty of a neutral master, who has no means
of resistance, to surrender his vessel as a hostile seizure. If
he surrenders his vessel as a hostile seizure, he may appeal
to his government for redress ; but if he retain the com-
mand he will be treated as an enemy, and his vessel as the
property of the belligerent.
§ 17. So, also, if the owner of a neutral ship has suffered
his vessel to be employed in transporting military or naval
persons or military stores for the enemy, the vessel and cargo
are condemned.l Nor in such cases is it held necessary that
the privity of the master, or his owners, be shown; it is
sufficient that the employment be proven ; no plea of igno-
rance or imposition is received. Where imposition is prac-
tised to entrap a neutral vessel into a hostile service, it
operates as force, and redress in the wayw‘rof indemnification
must be sought against those who, by imposition or deceit,
exposed the property to capture. A different rule would
afford impunity to such conveyance, as it would generally be
impossible to prove the knowledge or privity of the master or
owners. In the case of the transportation of ninety French
mariners from Baltimore to Bordeaux, in a neutral vessel, it
wascontended that there was no proof that they were to be
immediately employed in military service. This distinction
was discarded by the prize court. It was enough, said Sir
Wm. Scott, that they were military persons, and that their
transportation was the act of their government. It was not
the mere fact of carrying military persons, but the fact of the
v_vessel letting herself out, in a distinct manner, under a con—
tract, for that purpose.
If a military officer were going
merely as an ordinary passenger, or other passenger, and at
his own expense, neither that nor any other British tribunal
‘ The ‘ Carolina,’~4 Rob. R. 256 ; the ‘ Orozembo,’ 6 Rob. R. 43 3.
VOL. 11. Y
Trans-
porting
military
persons
322 INTERNATIONAL LAw on. ~ xxvm
Conveying
enemy’s
des-
patches
by ship,
post, or
cable
had ever laid down the principle to the extent of condemning
a vessel for such transportation.1
§ 18. A neutral vessel fraudulently carrying the des-
patches of an enemy, is, as a general rule, liable to con-
demnation.2 Public despatches are defined to embrace all
1 Ortolan, Diplomatie de la Mer, t. ii. ch. vi. ; the ‘ Friendship,’
6 Rob. 420 ; Phillimore, On Int. Law, vol. iii. §272 ; the ‘ Caroline,’
4 Rob. 256; the ‘Commercen,’ I Wheat. R. 391. In the Russo-
Japanese War (1904) the ‘ Nigretia ’ vessel was condemned for
attempting to take into Vladivostok the Captain and a lieutenant
of the Russian destroyer ‘ Ratzoporin.’
2 Sir William Scott decided that the fraudulent carrying of
despatches of the enemy by a neutral is a criminal act which will
lead to the condemnation of the neutral vessel. (The ‘ Atalanta,’ 6
Rob. 458.) The gist of the offence appears to be the fraudulent
carriage of despatches relating to a pending war by a neutral for the
purpose of assisting a belligerent; but culpable negligence of the
master has been held to constitute the offence. (The ‘Susan,’ 6
Rob. 461.) Papers may lawfully be carried by a neutral vessel from a
hostile port to a consul of the enemy residing in a neutral country,
or may be carried to a port which, during the transit, has ceased to
belong to the enemy (the ‘ Trende Sostre,’ 6 Rob. 4 5 7) ; or they may
be purely commercial (the ‘ Hope,’ 6 Rob. 390, n. a); or deceit may
have been practised on the neutral ship (the ‘ Lisette,’ 6 Rob. 457).
Wheaton, in his adoption of the doctrine laid down in the case of the
‘ Atalanta,’ seems to limit its force to acts fraudulent and hostile
in their nature (Wheat. on Captures, ch. 6, § 10). Sir W. Scott
interprets ‘ despatches,’ treated of in the decisions as warlike or
contraband communications, to be ofiicial communications of official
persons, on the public afi‘airs of the government. (The ‘ Caroline,’
6 Rob. 465.) The cases to which he refers and from which that
definition was deduced were essentially of that character, and more-
over generally contained some marked element of fraud, culpable
concealment or duplicity, or evasive subterfuge. (I bid. 461, note.)
The ‘Madison ’ (Edw. 225) indicates clearly that the court only
regards as criminal in a neutral vessel the carrying of letters or
despatches of a public nature from or to a belligerent port.
tone of sentiment prevails in like cases with the same eminent
judge, and he manifests a strong disposition to exonerate a vessel
from responsibility, for transporting private letters between indi-
viduals, and, in the absence of proof to the contrary, to presume
they were of an innocent kind. (The ‘Acteon’ 2 Dods. 5 3.) A
British ship and cargo were ca tured in Hampton Roads, near
Fortress Monroe, by the United tates during the Civil War, 1861.
The libel alleged the transmission of despatches on board that ship
to persons in Virginia, but the evidence, supported by the sworn
protest of the master, merely proved that a small box was put ashore,
at the mouth of the Rappahannock, by the master, containing
some newspapers and a letter directed to his wife, who resided at
Richmond. The court refused to presume that the letter was of a
contraband nature or conduced to compromise the neutral character
of the vessel, and ordered restitution of the vessel. (The " Tropic
Wind,’ Blatchf. Pr. Cas. 64.) In the ‘Rapid ’ (Edit). 228) Sir W.
Scott observes that he would certainly be extremely unwilling to
incur the imputation of imposing any restrictions upon the corre~
The like ,
on. xxvm VIOLATION OF NEUTRAL DUTIES 323
official communications of public officers relating to public
affairs. ‘The carrying of two or three cargoes of stores,’
says Kent, abbreviating the language of Sir Wm. Scott, ‘is
necessarily an assistance of a limited nature; but in the
transmission of despatches may be conveyed the entire plan
of campaign, and it may lead to a defeat of all the projects
of the other belligerent in that theatre of the war. The
appropriate remedy for this offence is the confiscation of the
ship ; and in doing so, the courts make no innovation on the
ancient law, but they only apply established principles to
new combinations of circumstances. There would be no
penalty in the mere confiscation of the despatches. The
proper and efficient remedy is the confiscation of the vehicle
employed to carry them ; and if any privity subsists between
the owners of the cargo and the master, they are involved
by implication in his delinquency. If the cargo be the pro-
perty of the proprietor of the ship, then, by the general rule,
ob continentiam delioti, the cargo shares the same fate, and
spondence which neutral nations are entitled to maintain with the
enemy, or to lay down a rule which would in effect deter masters of
vessels from receiving on board any private letters, as they cannot
know what they may contain. If a master is taking his departure
from a hostile port in a hostile country, and still more so if the letters
which are brought to him are addressed to persons resident in a
hostile country,‘ he is called upon to exercise the utmost jealousy.
On the other hand, where the commencement of the voyage is in a
neutral country, and is to terminate at a neutral port, or at a port
to which, though not neutral, an open trade is allowed, in such a
case there is less to excite his vigilance. With regard to an allegation
against the American minister, Sir W. Scott also observes that
he cannot bring himself to believe that the accredited minister of a
country in amity with England would so far lend himself to the
purposes of the enemy as to be the private instrument of conveying
the despatches of the enemy’s government to their agent.
‘In I 780 private negotiations were opened between persons in
Holland and "in the then North American colonies of Great Britain
on the subject of a free commercial intercourse between those
countries. Mr. Henry Laurens was sent as Minister Plenipotentiary
to Holland on board an American packet, with important papers
showing a plan of alliance between those countries. The packet
was stopped, and Laurens and the papers brought to England,
where he was charged with high treason. (Knight’s Hist. of England,
vol. v. p. 437.) _ .
In 1810 Lucien Bonaparte, was detained as a pnsoner of war by a
British ship of war at Cagliari, in Sardinia. The claim of territory
was not advanced by the Sardinian Government, which was allied
with Great Britain against France. Lucien Bonaparte was at the
time of his arrest on board an American vessel bound for Phila-
delphia. The fact of the nationality of the vessel was not argued
as a ground of exemption.
y 2
324 INTERNATIONAL LAW on. xxvm
especially if there was an active interposition in the service
of the enemy, concerted and continued in fraud.’ The
mere fact that such despatches were found on board a neutral
vessel is not sufficient to produce her condemnation; for
the rule refers to a fraudulent carrying of the despatches of
the enemy, and it is presumed that it would not apply to
regular postal packets, whose mails, by international con-
ventions, are distributed throughout the civilised world;
nor even to merchant vessels which, in some countries, are
obliged to receive letters and mail matter sent to them from
the post offices. The master must necessarily be ignorant
of the contents of the letters so received, and, in the absence
of all suspicion of fraud, orof interposition in the service
of the enemy, the mere carrying of an enemy’s despatches,
under such circumstances, could hardly be regarded as a
delinquency under the law of nations, and a violation of
neutral duty. The case is very different where the neutral
vessel is employed by the belligerent for that purpose, or
carries them fraudulently, and for the benefit of a belligerent.
The same may be said of a telegraphic cable extending from
a neutral port to a port of a belligerent. So long as inno—
cent messages alone are transmitted, the other belligerent
has no ground of complaint against the neutral. But it is
otherwise if enemy despatches are telegraphed. It is still
a moot point whether a belligerent may, in any event, cut
the cable to obviate the danger. He probably may if he
tenders due compensation to the neutral. On the other
hand, the neutral by permitting the exercise of any acts to
the injury of one of the belligerents may, ipso faoio, be deemed
an ally of the favoured belligerent. As to the conveyance
of the despatches of an ambassador, or of any other public
minister of the enemy, resident in a neutral State in the
language of Sir Wm. Scott, in the case of the ‘ Caroline,’
‘ they are despatches from persons who are, in a peculiar
manner, the favourite objects of the protection of the law
of nations, residing in the neutral country for the purpose
of preserving the relations of amity between that State and
their own government. On this ground a very material
distinction arises, with respect to the right of furnishing the
conveyance. The neutral country has a right to preserve
its relations with the enemy, and you are not at liberty to
OH. XXVIII
VIOLATION OF NEUTRAL DUTIES 325
conclude that any communication between them can par-
take, in any degree, of the nature of hostility against
you.’ The limits assigned to the operations of war against
ambassadors, by writers on public law, are, that the belli-
gerent may exercise his right of war against them, wherever
the character of hostility exists ; he may stop the ambassador
of his enemy on his passage ; but when he has arrived in the
neutral country, and taken on himself the functions of his
office, and has been admitted in his representative character,
he becomes a middle man, entitled to peculiar privileges,
as set apart for the preservation of the relations of amity
and peace, in maintaining which all nations are, in some
degree, interested. The practice of nations has allowed to
neutral States the privilege of receiving ministers from the
belligerent powers, and of an immediate negotiation with
them.
§ 19. In 1861, during the American Civil War, an
English steamer, the ‘ Trent,’ left Havanna with her
Majesty’s mails for England, having on board numerous
passengers. Shortly after noon on the following day, a
steamer, being the ‘ San Jacinto,’ having the appearance of
a man-of-war, but not showing colours, was observed
ahead. On nearing her she fired a round shot from her
pivot gun across the bows of the ‘ Trent,’ and showed
American colours. A shell was also discharged. The
‘ Trent ’ stopped and an officer with a large armed guard
of marines boarded her. The oflicer demanded a list of the
passengers, and compliance with this demand being refused,
the officer said he had orders to arrest Messrs. Mason and
Slidell and two others, naming them, and that he had sure
information of their being passengers in the ‘ Trent.’ The
commander of the ‘ Trent ’ and a commissioned officer
of her Majesty’s navy, acting 011 behalf of the Postmaster-
General, and in charge of the mails, protested against the
act of taking by force, out of the vessel, four passengers under
the protection of the British flag. Resistance was out of the
' question, and the four passengers were forcibly taken out of
the ship. It was further demanded that the commander of
the ‘ Trent ’ should proceed on board the steamer, but he
refused to do so unless forcibly compelled, and the demand
was not insisted on. These four persons were forcibly taken
The case
of the
‘ Trent ’
326 INTERNATIONAL LAW ' OH. xxvm
from on board a British vessel, the ship of a neutral power,
while pursuing a lawful voyage.1 '
The Government of the United States declared that
Captain Wilkes} in executing the proceeding in question,
acted without the instruction or foreknowledge of that
government ; that although a round shot was fired, it was so
pointed as to be as harmless as a blank shot ; that the com-
mander of the ‘ Trent ’ was not required to go on board the
‘San Jacinto ’; that the persons taken bore pretended cre-
dentials and instructions, in law known as despatches ; and
that the officers of the ‘Trent ’ knew of the assumed cha-
racters and purposes of the four persons when they embarked
on the vessel. These persons were subsequently released
by the United States Government to the'British Govern-
ment, but the arrest raised the very important question,
viz. whether or not the persons arrested were ‘ contraband
of war.’ It was contended by the United States that mari—
time law so generally deals in ‘rem—‘that is, with property
——and so seldom with persons, that although it seems
a straining of the term ‘ contraband ’ to apply it to them,
nevertheless, persons, as well as property, may become
contraband, since the word means broadly ‘ contrary to
proclamation, prohibited, illegal, unlawful’ ; that all writers
and judges pronounce naval or military persons in the
service of the enemy contraband; that Vattel says, ‘ war
allows us to cut off from an enemy all his resources, and to
hinder him from sending ministers to solicit assistance ’ ; that
Sir William Scott says, in the case of the -‘ Caroline,’ 3
‘ you may stop the ambassador of your enemy on his pas—
sage,’ that despatches are not less clearly contraband, and
the bearers or couriers who undertake to carry them fall
under the same condemnation. The United States acknow-
ledged that a subtlety might be raised whether pretended
ministers of a usurping power, not recognised as legal by
either the belligerent or the neutral, could be held to be
contraband, but that it would disappear on being sub-
1 Historicus, Letters on International Law, pp. 187~198; the
‘ Trent,’ Pam/Z. Papers, 1862, vol. lxii.
‘2 Afterwards Admiral Wilkes. It is interesting to note that he
was a distant cousin of the editor of this work, Sir G. Sherston
Baker, Bt.
3 6 R019. 468.
on. x'xvm VIOLATION or NEUTRAL Dorms 327
jected to what is the true test in all cases, namely, the
spirit of the law; that Sir William Scott, speaking of civil
magistrates who were arrested and detained as contra—
band, says, ‘ It appears to me on principle to be but reason-
able that, when it is of sufficient importance to the enemy
that such persons shall be sent out on the public service at
the public expense, it should afford equal ground of for—
feiture against the vessel that may be let out for a purpose
so intimately connected with the hostile operations.’
On the other hand the British Government relied on the
grounds, that the general right and duty of a neutral power
to maintain its own communications and friendly relations
with both belligerents cannot be disputed. ‘ A neutral
nation,’ says Vattel, ‘ continues, with the two parties at
war, in the several relations nature has placed between
nations. It is ready to perform towards both of them all
the duties of humanity, reciprocally due from nation to
nation.’ For the performance of these duties, on both
sides, the neutral nation has itself a most direct and material
interest ; especially when it has numerous citizens resident
in the territories of both belligerents ; and when its citizens,
resident both there and at home, have property of great
value in the territories of the belligerents, which may be
exposed to danger from acts of confiscation and violence if
the protection of their own government should be with-
held.1
1 This was the case with respect to British subjects during the
late civil war in North America. _
Acting upon these principles, Sir William Scott, in the case of the
‘ Caroline,’ during the war between Great Britain and France,
decided that the carrying of despatches from the French ambassador,
resident in the United States, to the Government of France, by a
United States merchant ship, was no violation of the neutrality of
the United States in the war between Great Britain and France,
and that such despatches could not be treated as contraband of war.
‘ The neutral country,’ he said, ‘ has a right to preserve its relations
with the enemy, and you are not at liberty to conclude that any
communication between them can partake, in any degree, of the
nature of hostility against you. The enemy may have his hostile
projects to be attempted with the neutral State, but your reliance
is on the integrity of that neutral State, that it will not favour nor
participate in such designs, but, as far as its ' own councils and
actions are concerned, will oppose them. And if there should be
private reasons to suppose that this confidence in the good faith
of the neutral State has a doubtful foundation, that is matter for the
caution of the government, to be counteracted by just measures of
328 INTERNATIONAL LAW on.~-xxvm
It appeared to the British Government to be a neces~
sary and certain deduction from these principles, that the
conveyance of public agents of this character from Havanna
preventive policy; but it is no ground on which this court can
pronounce that the neutral carrier has violated his duty by bearing
despatches, which, as far as he can know, may be presumed to be
of an innocent nature, and in the maintenance of a pacific con—
nection.’
And he continues, shortly afterwards: ‘ It is to be considered
also, with regard to this question, what may be due to the con-
venience of the neutral State ; for its interests may require that the
intercourse of correspondence with the enemy’s country should not
be altogether interdicted. It might be thought to amount almost
to a declaration that an ambassador from the enemy shall not reside
in the neutral State, if he is declared to be debarred from the only
means of communicating with his own. For to what useful purpose
can he reside there without the opportunities of such a communica-
tion ? It is too much to say that all the business of the two States
shall be transacted by the minister of the neutral State resident in
the enemy’s country. The practice of nations has allowed to neutral
States the privilege of receiving ministers from the belligerent States,
and the use and convenience of an immediate negotiation with
_ them.’
That these principles must necessarily extend to every kind of
diplomatic communication between government and government,
whether by sending or receiving ambassadors or commissioners
personally, or by sending or receiving despatches from or to such
ambassadors or commissioners, or from or to the respective govern-
ments, is too plain to need argument, and it seems no less clear that
such communications must be as legitimate and innocent in their
first commencement as afterwards, and that the rule cannot be
restricted to the case in which diplomatic relations are already
formally established by the residence of an accredited minister
of the belligerent power in the neutral country. It is the neutrality
of the one party to the communications, and not either the mode
of the communication or the time when it first takes place, which
furnishes the test of the true application of the principle. The only
distinction arising out of the peculiar circumstances of a civil war,
and of the non-recognition of the independence of the de facto
government of one of the belligerents, either by the other belligerent
or by the neutral power, is this, that for the purpose of avoiding
theifdifficulties which might arise from a formal and positive solution
of these questions, diplomatic agents are frequently substituted,
who are clothed with the powers and enjoy the immunities of
ministers, though they are not invested with the representative
character, nor entitled to diplomatic honours. Upon this footing
Messrs. Mason and Slidell, who were expressly stated by Mr. Seward
to have been sent as pretended ministers plenipotentiary from
the Southern States to the Courts of St. James and of Paris, must
have been sent, and would have been, if at all, received ; and the
reception of these gentlemen upon this footing could not have been
justly regarded, according to the law of nations, as a hostile or
unfriendly act towards the United States. Nor, indeed, is it clear
that these gentlemen would have been clothed‘with any powers,
or have enjoyed any immunities, beyond those accorded to diplo-
matic agents, not officially recognised.
OH. XXVIII VIOLATION OF NEUTRAL DUTIES 329
to St.. Thomas, on their way to Great Britain and France,
and of their credentials or despatches (if any), on board
the ‘ Trent,’ was not, and could not be, a violation of the
duties of neutrality on the part of that vessel; and, both
for that reason, and also because the destination of these
persons, and of their despatches, was bona fide neutral, it
was, in the judgment of the British Government, clear and
certain that these persons were not contraband. The
doctrine of contraband has its whole foundation and origin
in the principle which is nowhere more accurately explained
than in the following passage of Bynkershoek. After
stating in general terms the duty of impartial neutrality
he adds :——‘ Et sane id quod modo dicebam, non tantum
ratio docet, sed et usus, inter omnes fere gentes recep-
tus. Quamvis enim libera sint cum amicorum nostrorum
hostibus commercia, usu tamen placuit, ne alterutrum his
rebus juvemus, quibus bellum contra amicos nostros
instruatur et foveatur. Non licet igitur alterutri advehere
ea, quibus in bello gerendo opus habet; ut sunt tormenta,
arma, et quorum praecipuus in bello usus, milites. . . .
Optimo jure interdictum est ne quid eorum hostibus sub—
ministremus ; quiahis rebus nos ipsi quodammodo videremur
amicis nostris bellum facere.’ 1
The principle of contraband of war is here clearly ex-
plained, and it is impossible that men, or despatches, which
do not come within that principle, can in this sense be
contraband. The penalty of knowingly carrying contraband
of war is, as Mr. Seward stated, nothing less than the con-
fiscation of the ship ; but it is impossible that this penalty
can be incurred when the neutral has done no more than
employ means, usual among nations, for maintaining his
_own proper relations with one of the belligerents. It is
of the very essence of the definition of contraband that the
articles should have a hostile, and not a neutral, destina-
tion. ‘ Goods,’ says Lord Stowell, ‘going to a neutral
port cannot come under the description of contraband,
all goods going there being equally lawful.’ 2 ‘ The rule
respecting contraband,’ he adds, ‘ as I have always under—
stood it, is, that articles must be taken in delicto, in the
actual prosecution of the voyage to an enemy’s port.’ On
1 Quaest. jur. Pub. lib. i. c. ix. 2 The ‘ Imina,’ 3 Rob. 167.
330 INTERNATIONAL LAW 0H. xxvm
what just principle can it be contended that a hostile destina-
tion is less necessary, or a neutral destination more noxious,
for constituting a contraband character in the case of public
agents or despatches, than in the case of arms and ammuni-
tion P Mr. Seward sought to support his conclusion on this
point by a reference to the Well-known dictum of Sir William
Scott, in the case of the ‘ Caroline,’ 1 that ‘ you may stop
the ambassador of your enemy on his passage,’ and to
another dictum of the same judge, in the case of the
‘ Orozembo,’ 2 that civil functionaries, ‘ if sent for a purpose
intimately connected with the hostile operations,’ may fall
under the same rule with persons whose employment is
directly military. These quotations seemed, to the British
Government to be irrelevant. The words of Sir W. Scott
were in both cases applied by Mr. Seward in a sense different
from that in which they were used.3 It was further argued
1 ‘6 Rob. 468. 2 Ibz'd. 434.
3 Sir William Scott does not say that an ambassador sent from
a belligerent to a neutral State may be stopped as contraband, while
on his passage on board a neutral vessel, belonging to that or any
other neutral State ; nor that, if he be not contraband, the other
belligerent would have any right to stophim on any voyage. The
sole object which Sir William Scott had in view ‘was to explain the
extent and limits of the doctrine of the inviolability of ambassadors,
in virtue of that character, for he says : ‘ The limits that are assigned
to the operations of war against them, by Vattel and other writers
upon these subjects, are, that you may exercise your right of war
against them wherever the character of hostility exists. You may
stop the ambassador of your enemy on his passage ; but when he
has arrived, and has taken upon him the functions of his office, and
has been admitted in his representative character, he becomes a sort
of middle man, entitled to peculiar privileges, as set apart for the
protection of the relations of amity and peace, in maintaining which
all nations are in some degree interested.’ There is certainly nothing
in this passage from which an inference can be drawn so totally
opposed to the general tenour of the whole judgment, as that an
ambassador proceeding to the country to which he is sent, and on
board a neutral vessel belonging to that country, can be stopped
on the ground that the conveyance of such an ambassador is a breach
of neutrality, which it must be if he be contraband of war. Sir W.
Scott is here expressing, not his own opinion merely, but. the doctrine
which he considers to have been laid down by writers of authority
upon the subject. N o writer of authority has ever suggested
that an ambassador proceeding to a neutral State on board one
of its merchant ships is contraband of war. The only writer named
by Sir William Scott is Vattel (lib. iv. c. vii. §8 5), whose words are.
these: ‘()n peut encore attaquer et arréter ses gens [i.e. gens de
l’ennemi], partout, on on a la liberté d’exercer des actes d’hostilité.
Non seulement done on peut justement refuser le passage aux
ministres qu’un ennemi envoie a d’autres souverains ; on les arréte
meme, s’ils entreprennent de passer secretement et sans permission
on. xxvm VIOLATION OF NEUTRAL DUTIES 331
by the United States Government that the ‘ Trent,’ though
she carried mails, was a contract, or merchant vessel, a
common carrier for hire; that maritime law knows only
three classes of vessels—viz. vessels of war, revenue vessels
and merchant vessels—-and that the ‘ Trent ’ falls within the
latter class ; that whatever disputes have existed concerning
a right of visitation or search in time of peace, none, they
supposed‘, had existed in modern times about the right of a
belligerent in time of war to capture contraband in neutral
and even friendly merchant vessels, and of the right of
visitation and search in order to determine whether they are
neutral and are documented as such according to the law
of nations. They assumed in the case of the ‘ Trent,’
according to their reading of British authorities, that the
circumstance that the ‘ Trent ’ was proceeding from a
neutral port to another neutral port did not modify the
dans les lieux dont on est maitre.’ And he adds as an example the
seizure of a French ambassador, when passing through the dominions
of Hanover during war between England and France, by the King
of England, who was also sovereign of Hanover.
The rule, therefore, to be collected from these authorities is, that
you may stop an enemy’s ambassador in any place of which you are
yourself the master, or in any other place where you have a right to
exercise acts of hostility. Your own territory, or ships of your
own country, are places of which you are yourself the master. The
enemy’s territory‘or the enemy’s ships are places in which you have
a right to exercise acts of hostility. Neutral vessels, guilty of no
violation of the laws of neutrality, are places where you have no
right to exercise acts of hostility. It would be an inversion of the
doctrine that ambassadors have peculiar privileges to argue that
they are less protected than other men. The right conclusion is,
that an ambassador sent to a neutral power is inviolable on the high
seas as well as in neutral waters while under the protection of the
neutral flag.
The other dictum of Sir William Scott, in the case of the
‘ Orozembo,’ is even less pertinent to the present question. That
related to the case of a neutral ship which, upon the effect of the
evidence given on the trial, was held by the court to have been
engaged as an enemy’s transport to convey the enemy’s military
officers, and some of his civil oflicers, whose duties were intimately
connected with military operations, from the enemy’s country
to one of the enemy’s colonies, which was about to be the theatre
of those operations, the whole being done under colour of a simulated
neutral destination. But as long as a neutral government, within
whose territory no military operations are carried on, adheres to
its profession of neutrality, the duties of civil officers on a mission to
that government and within its territory cannot possibly be ‘ con-
nected with ’ any ‘ military operations ’ in the sense in which these
words were used by Sir William Scott, as, indeed, is rendered quite
clear by the passages already cited from his own judgment in the
case of the. ‘ Caroline.’ -
332 INTERNATIONAL LAW OH. xxvrn
right of the belligerent captor. The reply of the British
Government to this is that according to the law as laid
down by British authorities, if the real destination of the
vessel be hostile (that is, to the enemy of the enemy’s
country), it cannot be covered and rendered innocent by
a fictitious destination to a neutral port; but if the real
terminus of the voyage be bona fide in a neutral territory,
no English, nor, indeed, is it believed any American authority
can be found which has ever given countenance to the
doctrine that either men or despatches can be subject
during such a voyage, and on board such a neutral vessel,
to belligerent capture as contraband of war. The British
Government regarded such a doctrine as wholly irrecon-
cileable with the true principles of maritime‘ law; and
certainly with those principles as they have been under-
stood in the courts of Great Britain. It is to be further
observed that packets engaged in the postal service, and
keeping up the regular and periodical communications
between the different countries of Europe and America,
and other parts of the world, though in the absence of treaty
stipulations they may not be exempted from visit and
search in time of war, nor from the penalties of any violation
of neutrality, if proved to have been knowingly committed,
are still, when sailing in the ordinary and innocent course
of their legitimate employment, which consists in the
conveyance of mails and passengers, entitled to peculiar
favour and protection from all governments in whose
service they are engaged. To detain, disturb, or interfere
with them, without the very gravest cause, would be an
act of a most noxious and injurious character, not only to
a vast number and variety of individual and private interests,
but to the public interests of neutral and friendly govern-
ments. If the American arguments were acted upon as
sound, the most injurious consequences might follow. For
instance, in the Civil War of 1861, according to that doctrine,
any packet ship carrying a Confederate agent from Dover
to Calais, or from Calais to Dover, might be captured and
carried to New York. In case of a war between Austria
and Italy, the conveyance of an Italian minister or agent
' might cause the capture of a neutral packet plying between
Malta and Marseilles, or between Malta and Gibraltar, the
on. xxvnr VIOLATION OF NEUTRAL DUTIES
333
condemnation of the ship at Trieste, and the confinement
of the minister or agent in an Austrian prison. So in
the war of 1854 between Great Britain and France on
the one hand, and Russia on the other, a Russian minister
going from Hamburg to Washington, in an American ship,
might have been brought to Portsmouth, the ship might
have been condemned, and the minister sent to the Tower of
London. So also a Confederate vessel of war might have
captured a Cunard steamer on its way from Halifax to
Liverpool, on the ground of its carrying despatches from
Mr. Seward to Mr. Adams.1
§20. It being the old policy of European States to Rules of
exclude foreign ships from trade with their colonies, if a
neutral engages in a commerce which is exclusively con-
fined to the subjects of another country, and which is inter-
dicted to all others, so that it cannot be carried on at all
in the name of a foreigner, such a commerce is considered
so entirely national as to follow the situation of the country,
and to impress its hostile character upon the property
engaged in it. This is the rule of I756. In the war of
that year, the French Government (enemy to Great Britain)
allowed the Dutch, then neutral, to carry on the commerce
between the mother country and her colonies, under special
licenses granted for this particular purpose, other neutrals
being excluded from the same trade. Dutch vessels so
employed were captured by British cruisers, and, together
with their cargoes, condemned by the British prize courts.
In the opinion of these courts the vessels were to be con-
1 In 1804 Mr. Madison, Secretary of State of the United States,
in his instructions to Mr. Munroe, the American minister in England,
says : ‘ Whenever property found in a neutral vessel is supposed to be
_ liable on any ground to capture and condemnation, the rule in all
cases is, that the question shall not be decided by the captor, but
be carried before a legal tribunal, where a regular trial may be had,
and where the captor himself is liable to damages for an abuse of
his power. _ Can it be reasonable, then, or just, that a belligerent
commander who is thus restricted, and thus responsible in a case
of mere property, of trivial amount, should be permitted, without
recurring to any tribunal whatever, to examine the crew of a neutral
vessel, to decide the important question of their respective allegiance,
and to carry that decision into execution by forcing every individual
he may choose into a service abhorrent to his feelings, cutting
him off from his most tender connections, exposing his mind and
his person to the most humiliating discipline, and his life itself to
the greatest dangers ? a Reason, justice, and humanity unite in
protesting against so extravagant. a proceeding.’
1756 and
1793
334 ' INTERNATIONAL LAW
OH. XXVII!
Explica-
tion of
them
sidered like transports in the enemy’s service, and the
property as so completely identified with the enemy’s
interests as to acquire a hostile character. The doctrine of
these decisions has been frequently affirmed by the prize
courts of England and America, and by the opinions of the
most eminent text-writers of other countries.1 Few now
contest the correctness of this rule, viz. that where neutrals,
by a special indulgence, are permitted, in time of war, to
engage in a commerce of the enemy which is purely national
and from which they are excluded in time of peace, they
are necessarily impressed with a hostile character. , But
during the wars of 1793 and 1801 France allowed all neutrals
to carry on the French colonial and coasting trades. This
Great Britain forbade, asserting that where a commerce,
which had been previously regarded as a national monopoly,
is thrown open in time of war to all nations, without reserve,
by a general and, on its face, a permanent regulation,
neutrals have no right to avail themselves of the concession,
but that their entrance into the trade thus opened is a
criminal departure from the impartiality they are bound to
observe. This is the rule of I793.
§ 2r. The general principle applied to cases of the inter—-
position of neutral merchants in the colonial trade has been,
that the fundamental maxim of the trade being founded on
a system of monopolising to the parent State the whole
trade to and from her colonies in time of peace, it is not
competent to neutral States in time of war to assume that
trade on particular indulgences, or on temporary relaxa—
tions arising from the state of war, and that such a trade
is not therefore entitled to the privileges and protection
of a neutral character. The application of this general
rule, however, has from time tov time been qualified by
some relaxations. It is upon the extent and. legal effect
of these, rather than on the existence or fitness of the
general principle itself, that the various discussions which
have. taken place on these subjects have principally been
employed. During the War between England and her
American colonies and the several Powers of Europe, that
1 Phillimore, 0% Int. Law, vol. iii. §§214, 225 ; Wheaton, Elem-
Int. Law, pt. iv. ch. iii. §27 ; Story, Lz'je 0]‘, vol. i. p. 288 ; Brymer v.
Atkyns, 1 H. Black. Rep. p. 191 ;the ‘ Immanuel,’ 2 Rob-186.
on. xxvm VIOLATION or NEUTRAL DUTIES 335
interfered to foment those differences, the principle was
altogether intermitted—and on this ground, that France
had professed, a short time before the commencement of
hostilities, to have altogether abandoned the principle of
monopoly, and meant, as a permanent regulation, to admit
neutral merchants to trade with the French colonies in the
West Indies. The event proved the falsehood of that
representation; but, for a time, the effect was the same.
The Court of Admiralty of Great Britain did not, during
that war, apply the principle or interrupt the intercourse
of neutral vessels in that branch of commerce more than in
i any other. Soon after the commencement of the war of
1793 the first set of instructions that issued were framed,
not on the exception of the American war, but on the ante?
cedent practice; and directed cruisers to ‘ bring in, for
lawful adjudication, all vessels laden with goods, the produce
of any colony of France, or carrying provisions or supplies
for the use of any such colony.’ The relaxations that have
since been adopted have originated chiefly in the change that
has taken place in the trade of that part of the world, since
the establishment of an independent government on the
continent of America. In consequence of that event,
American vessels had been admitted to trade in some
articles, and on certain conditions, with the colonies both
of Great Britain and France. Such a permission had become
a part of the general commercial arrangement, as the
ordinary state of their trade in time of peace. The com-
merce of America was therefore abridged by the foregoing
instructions, and debarred of the right generally ascribed
to neutral trade in time of war, that it may be continued
with particular exceptions on the basis of its ordinary
establishment. In consequence of representations made
by the American Government to this effect, new instruc-
tions to the British cruisers were issued on January 8, I794,
apparently designed to exempt American ships trading
between their own country and the colonies of France.
The directions were ‘ to bring in all vessels laden with goods,
the produce of the French West India Islands, and coming
directly from any port of the said islands to any port of
Europe.’ In consequence of. this relaxation of the general
principle, in favour of American vessels, a similar liberty
336 INTERNATIONAL LAW on. xxvm
of resorting to the colonial market for the supply of their
own consumption was conceded to the neutral States of
Europe. To this effect a third set of public instructions
was issued by Great Britain on January 25, 1798, which
recited, as the special cause of further alteration, ‘ the
present state of the commerce of this country, as well as
that of neutral countries,’ and directed cruisers ‘ to bring
in all vessels coming with cargoes, the produce of any
island or settlement belonging to France, Spain, or Holland,
and coming directly from any port of the said islands‘ or
settlements to any port of Europe, not being a port of this
kingdom, nor a port of the country to which. such ships,
being neutral ships, belonged.’ Neutral vessels were, by
this relaxation, allowed to carry on a direct commerce
between the colony of the enemy and their own country;
a concession rendered more reasonable by the events of
war, which, by annihilating the trade of France, Spain,
and Holland, had entirely deprived the States of Europe
of the opportunity of supplying themselves with the articles
of colonial produce in those markets. This is the sum of the
general rule, and of the relaxations in the order in which
they have occurred.1
' Duer, On I nsuranoe, vol. 1. pp. 699, 717 ; Wheaton, Hist. Law of
Nations, pp. 37 3 et seq. ; the ‘ Nancy,’ 4 Rob. Appen. vi. ; British
Orders in Council, November 6, I793 ; January 8, I794 ; February 2 5,
I 798 ; Heffter, Droit International, § 174.
Pritchard’s Admiralty Digest contains most of the judgments re-
ferred to in the text, but a note of the following cases may be of
interest, viz. :—
A ship going from the mother country of the enemy to their
colony under false papers and a false character, and coming back
again to the mother country, was to be subject to confiscation by
the other belligerent taking her, notwithstanding the clearest
evidence of neutral property. (The ‘Calypso,’ 2 Rob. 154 ; the
‘ Phoenix,’ 3 Rob. 186 ; the ’ Star,’ ibid. 193, n.)
Neutral property, passing in direct voyages between the mother
country of one enemy and the colony of another enemy, was to be
liable to condemnation. (The ‘ Rose,’ 2 Rob. 206.)
And this whether the trade was opened to the neutral by the
enemy or not. (The ‘ Immanuel,’ ibid. 205.)
A neutral ship and cargo, taken trading between the settlement
of one enemy and the colonial possession of an allied enemy, was
condemned, as included under the principle of a trade, between the
colony of the enemy and the parent State, which was illegal. (The
‘ New Adventure,’ and also the ‘ Oxolen ’ (Lords of Appeal), 4 Rob.
App. A, p. 4, note.)
Cargo on board a neutral ship, seized on a voyage from a colony of
the enemy to the mother country, notwithstanding an asserted
0H. xxvm VIOLATION OF NEUTRAL DUTIES 337
§22. The distinction between the rule of the war of Ilistinc.
1756, and that contended for by Great Britain, generally “"11 1”‘
tween‘
known as the rule of 1793, is thus spoken of by Wheaton : them
deviation from such destination, but under compulsion of a m's
major, condemned. Ship restored, but without freight. (The
‘ Minerva,’ 3 Rob. 229, and the ‘ Anne Dorothea,’ tbz'd. 229, 11.) But
the illegality of such voyages was subsequently held by the Lords
of Appeal to attach as strongly on the ship as on the cargo, and the
ship was condemned accordingly. (The ‘Yonge Thomas,’ 3 Rob.
2 32, n.)
A neutral ship and cargo, taken going from a colony of the enemy
to a port of Europe, not being a British port nor a port of the country
to which either the ship or cargo belonged (which trade, though
suggested by the claimant to have been, during peace, an open trade,
the court held itself bound, under the general rule of maritime States,
and in the absence of proof to the contrary by the claimant, to
consider as an exclusive trade monopolised by the parent State),
condemned on the ground of such trade being a breach of the general
law of nations, and not within the limits of the relaxations of the
general law allowed by the government of Great Britain. (The
Wilhelmina ’ (Lords of Appeal), 4 Rob. App.)
A neutral ship might lawfully go from her own port in Europe to
the colony of an enemy, and there lade a cargo, and return with it
to her own port. (The ‘Providentia,’ 2 Rob. 142 ; the ‘ Immanuel,’
tbz'd. r97 ;the ‘ Margaretha Magdalena,’ tbz'd. r38.)
Goods were shipped at a neutral port for the colony of the enemy,
but afterwards entered at a port of the enemy, where the ship had
stopped, and where part of the cargo was taken out and sent back to
the neutral port, similar goods being placed on board in lieu thereof.
It was held (but as to that part only of the goods originally shipped)
to be entitled, under the general prize law of nations, to be con-
sidered as exported direct from the neutral port, the original place of
their shipment. (The ‘ Immanuel,’ 2 Rob. 197.)
An American vessel taken bringing a cargo of produce from the
Havanna to Hamburg, merely touching in America for fresh papers,
without landing the cargo or paying duties, condemned, as also the
cargo, the touching in America being held to be a colourable and
collusive and not a bona fide importation, and the voyage direct from
the Havanna to Hamburg bemg illegal under the general law of
nations. (The ‘ Mercury ’ (Lords of Appeal), 4 Rob. App.)
The mere touching at an intermediate port, whether of the
country to which the vessel belonged or any other, without importing
the cargo into the common stock of that country, did not alter the
nature of the voyage, which continued the same in all respects,
and was considered as a voyage to the country to which the vessel
was actually going for the purpose of delivering the cargo at the
ultimate port. (The ‘ Maria,’ 5 Rob. 365.)
Perishable commodities, carried from the enemy’s country to a
neutral port, with a bona fide intention of disposing of them in that
port, were permitted to be exported to the enemy’s colonies, in
consequence of their being unable to be sold as intended. Restitu-
tion of ship and cargo, with captor’s expenses, decreed, reversing
the decision of the Vice-Admiralty Court of New Providence, con-
demning ship and cargo by reason of such trading. (The ‘ john,’
I Acton, 39.)
A plea of distress, set up to account for a neutral, trading from the
VOL. II. Z
3 38 - INTERNATIONAL LAW 011. xxvm
‘ There is all the difference between this principle and the
more modern doctrine which interdictsto neutrals, during
war, all trade not open to them in time of peace, that there
is between the granting by the enemy of special licenses
to the subjects of the opposite belligerent, protecting their
property from capture in a particular trade which the policy
of the ‘enemy induces him to tolerate, and a general exemp-
colony of the enemy, putting into a port of the mother country, was
held on the facts not to amount to a sufficient excuse for so doing.
Ship and cargo condemned accordingly. (The ~ ‘ Star,’ 3 Rob.
193, n.) - ' ' '
The general principle was not so strictly applied to trade with the
European settlements in the East, as in the New World, as the trade
of the East had been generally open to neutrals. (The ‘ juliana,’
4 Rob. 328.) - ' - - '
Trade with the French colony of Senegal was held to havelbeen
\suficiently opened by the French to neutrals before the war, to
exempt a vessel so trading from the operation of the principle
applied to the colonial trade of the enemy, under which property
taken in trade between the mother country and colony of the enemy
was held- liable to confiscation. Restitution ; captor’s expenses
allowed. (Ibz'a'.) V .
Neutrals were not to trade on freight between the ports of the
enemy. Freight and expenses to a neutral ship engaged in the
coasting trade of the enemy refused. (The ‘ Immanuel,’ I Rob. 302.)
In England and most other European countries, the coasting
trade had not to the date of this case been open to foreign vessels.
Habitual employment in the coasting trade of the enemy would
stamp a neutral vessel with a hostile character, but pursuing one
voyage in. such trade would not be sufficient. (The ‘ Welvaart,’
1 Rob. 124.)
See also the ‘ Atlas,’ 3 Rob. 299 ; the ‘ F ortuna,’ 4 Rob. 278 ; the
‘ Bremen Fliigge,’ z'bz'd. 90 ; Darby v. the ‘ Erstern,’ 2 Ball. 34 ; the
‘ William,’ 5 Rob. 385 ; and the ‘ Stephen Hart,’ Blatohf. Przze
Cases, 387. l = ' ' .
Carrying on the coasting trade of the enemy with false papers'was
a cause of condemnation. So held, notwithstanding the asserted
declarations of France, holding out an assurance that foreign vessels
should be admitted into the coasting trade of that country as a.
permanent regulation. (The -‘ Ebenezer,’ 6 Rob. 2 52.) ,.
The privilege of ‘ free ships free goods ’ under the Dutch treaty
was held to apply to coasting voyages. (The ‘ Yonge Jan,’ and
other ships, 6 Rob. 42, n.) _ '
For cases of condemnation of ships and cargoes on. the ground of
a trading, in violation of the prohibitory Act, with the American
States, then colonies of, but in a state of revolt from, Great Britain,
see the ‘ William and Grace,’ and cases therein cited, Hay and
M arrz'ott, 76 ; the ‘ Belle Sauvage,’ cited in the ‘ Friendship,’ z'bz‘d. 79 ;.
the ‘Sally,’ z'bz'd. 83. A
For cases of restitution, notwithstanding such a trading and the
statute,- on the ground of peculiarly favourable circumstances
applying to them, see the ‘ Friendship,’ 'z'bz'd. 78 ; the ‘ Commerce,’
z'bz'd. 80 ; the ‘ Rebecca,’ 2791101. 197.' . — .. -
As to insurances on a colonial or coasting trade, see Berens .11.
Rucker, 1 Wm. Black. 314. ~ ‘ . '- ~
OH. XXVIII VIOLATION OF- NEUTRAL DUTIES
339
tion of such trade from capture. The former is clearly
cause of confiscation, while the latter has never been deemed
to have such an effect. The rule of the war of 1756 was
originally founded upon the former principle ; it was suffered
to lie dormant during the war of the American revolution,
and, when revived at the commencement of the war against
France, in 1793, was applied with various relaxations and
modifications to the prohibition of all neutral traffic with the
colonies, and upon the coasts of the enemy.’ 1
§23. The application of this Rule of 1793, made by
Great Britain, fully illustrates its character. As explained
by the British courts of Admiralty, and relaxed by the
Orders in Council, it permitted the importation of the
produce of the enemy’s colonies into a neutral country,
and its exportation thence to other countries. A question,
however, arose as to what constituted. the evidence of
importation and exportation by the neutral. An American
vessel had imported goods from Havanna, which had been
landed in'the United States and duties on them paid to the
American Government. They had afterwards been carried
in the same vessel as a part of a cargo from a port of Massa-
chusetts to Spain. The vessel was captured by British
cruisers, and ‘the captors insisted upon a condemnation on
the ground of continuity of voyage; but Sir William Scott
dec'reedthe restoration of ship and cargo, on the ground that
the landing of the goods and the payment of duties in
a neutral port were sufficient evidence of an importation in
good faith. This decision was rendered in 1800; but in
I805 the Lords of Appeal decided that these criteria of
a bona fide importation might be fallacious, and therefore
were not to be held as conclusive evidence of a breach in the
voyage; if the circumstances of their re—exportation were
such as to indicate that the original importation into the
neutral port was intended for that purpose, the trade was
illegal, and the vessels and cargoes were condemned.2 The
effect of this application of the British rule to the continuity
1 Wheaton, Elem. Int. Law, pt. iv. ch. § 27 ; Wheaton, Hist.
Law of Nations, pp. 373 et seq. ; Wheaton, Rep.‘ vol. 1‘. Appendix
No. iii. p. 506 ; Duer, 0n Insurance, vol. i. pp. 707-717 ; Sir William
Temple's Works, p. 313. '
2 The ‘ Polly,’ decided in 1800, 2 Rob. 361 ; the ‘ Essex,’ decided
in 1805, 5 Rob. 369 ; the ‘ William,’ 5 Rob. 387.
Effect on
American
commerce
of the rule
of 1793
22
340 INTERNATIONAL LAW on. xxvm
Opinions
of Story
and of
Phillimore
Views of
American
Govern-
ment
of the voyage from an enemy’s colony to a. neutral port, and '
thence to the mother country, or to a port of a belligerent,
produced a most disastrous effect upon American com-
merce. The merchants of the United States, relying upon
the rule, recognised by Sir William Scott, that the landing
of the goods and the payment of the duties in the neutral port
would be regarded as conclusive evidence that the continuity
of the voyage had been broken so as to legalise a subsequent
exportation (although the language of the judge did not
fully warrant the inference), had engaged largely in trade
with the colonies of France and Spain, re—exporting the
same goods to European ports. When this trade had
existed without interruption for some years, the unexpected
decision of the Lords of Appeal on the continuity - of the
voyage caused the seizure and condemnation of a vast
number of American ships and cargoes.1
§24. Sir R. Phillimore adopts. Mr. Justice Story’s
opinion with respect to the Rules of 1756 and 1793. This
opinion was as follows: 1st, That the coasting trade of a
nation being by its nature exclusively national, neutrals
cannot engage in it, when thrown open during war; but
that the British extension of this doctrine to cases where
a neutral traded between ports of the enemy, with a cargo
taken in at a neutral country, was unjust; and 2nd, with
respect to colonial-trade, that, if a neutral engage in trade
between the mother country and the colony which is thrown
open merely in war, he is liable, in most instances, to the
same penalty. ‘ But,’ continues Story, ‘ the British have
extended this doctrine to all intercourse with the colony,
even from or to a neutral country, and herein it seems to me,
they have abused the Rule.- This, at present, appears to
>me to be the proper limits of the Rule, as to the colonial and
the coasting trade ; and the Rule of 1756 (as it was at that
time applied) seems to me well founded ; but its late exten-
sion is reprehensible.’ 2 .
§25. The British extension of the Rule of 1756 to the
doctrine of 1793, and its subsequent application to the
ruin of American commerce, drew from the Government of
1 Duer, On Insurance, vol. i. pp. 719-725 ; Kent, Com. on Am.
Law, vol. i. p. 85, note ; the ‘ Maria,’ 5 Rob. 365.
2 Phillimore, On Int. Law, vol. §§ 215, 225; Story, Life and
Letters, vol. i. pp. 287, 288. _
OH. XXVIII VIOLATION OF NEUTRAL DUTIES
341
the United States an earnest and energetic remonstrance.
Some writers have boldy attacked the doctrine of I756, as
unsanctioned by the law of nations, but it has now become
the settled conviction that its main principles when properly
limited and distinguished from that of I793, are just and
correct.1
§26. But there is very little probability that Great
Britain will attempt to revive the rule in any future war,
from the great change in British opinion on this subject,
and more particularly from the changes which have since
been made in the colonial system of the powers of Europe.
The colonial trade of England being now open to the
navigation of the world, the theory on which the restriction
of 1793 was based necessarily falls to the ground. It is
enacted by 39 and 40 Vict. c. 36 (re—enacting the pro-
visions of former statutes), that all trade by sea from any
one port of the United Kingdom to any other port thereof
shall be deemed to be a coasting trade, and all ships while
employed therein shall be deemed to be coasting ships,
and no port of the United Kingdom, however situated with
regard to any other port, shall be deemed in law with
reference to each other to be ports beyond the seas (s. 140).
Every foreign ship in the coasting trade is subject to the
same laws, rules, and regulations to which British ships
are subjected, and to no higher rates (s. I4I). Every
coasting ship is confined to the coasting voyage (s. 142),
subject to the exception allowed by s. 2 of 47 & 48 Vict. c. 62.
By 57 58 Vict. c. 60, s. 736 the legislature of a British
possession may by Act or ordinance regulate its own
coasting trade, subject to the provisions of this Act.
§27. The doctrine of continuous voyages was largely
extended by the Courts of the United States during the
American Civil War of 1861-63, and by them applied to con-
traband and to blockade. Vessels were captured while on
their voyage from one neutral port to another, and were con-
demned ; not for what they had done, which was prz'ma facz'e
innocent, but on the suspicion of an intention to do an unlaw—
1 Monroe, Letter to Lord Mulgraoe, Sept. 23, 1805; Madison,
Letter to Monroe and Pinkuey, May I 7, 1805 ; Wheaton, Elem. Irtt.
Law, pt. iv. ch. iii. §27 ; Wheaton, Hist. Law of Nations, pp. 374
et seq. ; Wheaton, Reports, vol. i. Appendix, note iii. p. 506 ; Story,
Life and Letters, vol. i. p. 287.
Change
British
colonial
policy
Extension
ofthe
doctrine
of con-
tinuous
voyages
by the
United
States
342 INTERNATIONAL LAW ‘ on. x‘xv'm
ful act. The decision in the case ofthe ‘ Springbok ’ (5 Wall. 1)
has been the subject of great discussion among publicists.
The ‘ Springbok ’ left London on December 9, 1862, for
Nassau, and when I 50 miles from the latter port was captured
by the Federal cruiser ‘ Sonoma,’ the ground being ‘that she
intended to run the blockade. The cargo belonged toone
owner, ‘some of it being contraband and some not. The
vessel and her cargo were condemned by the District Court
of New York, following the cases of the ‘ Neutralitet’
(3. Rob. 296); the ‘ Franklin ’ (tbz'al‘. 217); the ‘ Ranger ’
(6 Rob. 126) ; and the ‘ Baltic ’ (I Acton, 25). This decree
was reversed by the Supreme Court of the United States
in December I866, so far as concerns the ship, following the
case of the ‘ Bermuda ’ (3 Wall. 5I4), but it was affirmed
as to the cargo. There was nothing in the papers when
taken from the ‘ Springbok ’ to. show that the intention
was to run the blockade. The condemnation of the cargo
of the ‘ Springbok ’ was put by the Chief vjustice on the
alternative of either contraband or blockade-running. ‘ We
do not refer,’ he said, ‘ to the character of the cargo for the
purpose of determining whether it was liable to condem-
nation as contraband, but for the purpose of ascertaining its
real destination ; for, we repeat, contraband or not, it could
not be condemned if really destined for Nassau and not
beyond; and, contraband or not, it must be condemned if
destined to any rebel port, for all rebel ports were under
blockade. Upon the whole case we cannot doubt'that the
cargo was originally shipped with intent to violate the
blockade; that the owners of the cargo intended that it
should be trans-shipped at Nassau into some vessel more
likely to succeed in running safely to a blockaded port than
the “ Springbok ”; that the voyage from London to the
blockaded port was, as to cargo, both in law and in the
intent of the parties, one voyage, and that the liability to
condemnation, if captured during any part of that voyage,
attached to the cargo from the time of sailing.’ The
substance of the judgment of the court will be found in
the note below.1 4 TheBritish Foreign Office was advised on
1 Where the papers of a ship, sailing under a charter party, are
all genuine and regular, and show a voyage between ports neutral
within the meaning of international law ; where there has been no
concealment nor spoliation of them ; where the stipulations of
onxxvnr VIOLATION OF NEUTRAl. Dorms 343
March 13, I863, by Sir William Atherton, Sir Roundell
Palmer, and Phillimore (the then law officers of the
Crown) that ‘ there was nothing to justify the seizure of the
bark “ Springbok ” and her cargo, and that her Majesty’s
Government would be j ustified in demanding the immediate
restitution of the ship and cargo, without submitting to any
adjudication by an American prize court.’ The ruling of
the Supreme Court of the United States has inflicted a
serious blow on neutral rights, and is in conflict with
the charter party, in favour of the owners, are apparently in good
faith ; where the owners are neutrals, have no interest in the cargo,
and have not previously in any way violated neutral obligations,
and there is no sufficient proof that they have any knowledge of
the unlawful destination of the cargo—in such a case, its aspect being
otherwise fair, the vessel will not be condemned, because the neutral
port, to which it is sailing, has been constantly and notoriously
used as a port of call and trans-shipment, by ‘persons engaged in syste-
matic violation of blockade, and in the conveyance of contraband of
war, and was meant, by the owners of the cargo carried on the ship,
to be so used in regard to it. The fact that the master declared
himself ignorant as to what part of his cargo, of which invoices
were not on board (having been sent by mail to the port of destina-
tion), consisted—such part being contraband—and that he also
declared himself ignorant of the cause of capture, when his mate,
_ boatswain, and steward all testified that they understood it to be
the vessel’s having contraband on board, was held to be insufficient
of itself to infer guilt to the owners of the vessel, which was in no
way compromised with the cargo. But the misrepresentation of
the master, as to his knowledge of the ground of capture, was
held to deprive the owners of the costs on restoration. The cargo
was condemned for intent to run a blockade : the vessel was sailing
to’ a port such as that above described, the bills of lading disclosed
the contents of 619 out of 2,007 packages, which made the cargo,
the contents of the remaining I, 388 being not disclosed; both
they, and the manifest, made the cargo deliverable by order, the
master being directed by his letter of instructions to report himself,
on arrival at the neutral port, to H ., who ‘ would give him orders
as to the delivery of his cargo ; ’ a certain portion of the cargo,
whose contents were undisclosed, was specially fitted for the enemy’s
military use, and a larger part was capable of being adapted to it __;
- other vessels, owned by the owners of the cargo, and by the charterer,
and sailing ostensibly for neutral ports, were, on invocation, shown
to have been engaged in blockade-running, many packages on
one of the vessels, and numbered in a broken series of numbers,
finding manyof their complemental numbers on the vessel under
adjudication. (The ‘ Springbok,’ 5 Wall. 1.) Compare with this
the case of'the ‘ Bundesrath.’ In 1899, in the South African War,
England insisted on the right to detain the German as ‘Bundes-
rath,’ suspected of carrying contraband goods, in spite of the fact
that ‘the ‘Bundesrath was trading between neutral ports. Her
destination was the neutral Portuguese port of Lorenzo Marques,
and it was a matter of common knowledge that goods and reinforce-
ments for the Boer Army were passed through this port (Pal/l.
Papers, 1900.)
344 INTERNATIONAL LAW 0H. XXVIII
the views generally expressed by the United States.1
It was a most unfortunate decision. Similar condem-
nations under similar circumstances occurred in the Ameri-
can Courts about the same time, notably in he cases
of the ‘ Stephen Hart ’ 2 and ‘ Peterhoff.’ 9’ The facts
in the latter case, curiously enough, came under review in
the English Court of Common Pleas in the case of Hobbsv.
.Henningfi' The goods on board the ‘ Peterhoff ’ had been
insured, and on her capture the insured brought an action
against the insurers, in the above case. The defendants
pleaded that the goods were contraband of war, and were
shipped for the purpose of being imported into a port of
the Confederate States then at war with the United States,
and that the insurers were ignorant of the facts at the
time of granting the policy. It was held that this plea
afforded no defence. Chief Justice Erle, in giving judg—
ment (after showing that the plea was deficient so far as a
defence), went on to consider the effect of the allegation that
the goods were shipped to be imported to an enemy’s port.
This, he held, was only an allegation of mental process, and
he could not assume from it that the plaintiff had made
any contract or provided any means for the further trans-
mission of the goods into the enemy’s State ; the fact
that the plaintiff made the consignment to a neutral port
for mercantile profit, was quite consistent with the expecta-
tion he might have had that the goods would in reality be
purchased by the Confederate States ; if this were so, then,
although the goods were fit for use in war, yet as passing
between neutrals they were not justly liable to seizure ; to
warrant this they must be taken in delicto : that is, in the
actual prosecution of a voyage to the enemy’s port.
1 The decision of the Russian Prize Court during the Russo—
Japanese War, 1904, in the case of the as ‘ Allanton,’ seems contrary
to any view hitherto put forward. The vessel was on a voyage from
Japan to the neutral port of Shanghai with a cargo of coal, which
Russia had declared to be absolute contraband. It is impossible to
see how the doctrine of ‘ continuity of voyage ’ could apply to such
a case, as the vessel was not out of its course. (See the case discussed
in Smith and Sibley, Int. Law, p. 243.) An Italian Prize Court in
the war with Abyssinia (1896) upheld the seizure of the ‘ Doelwijk,’
a Dutch vessel bound for a French port, but carrying a cargo of
arms and ammunition ultimately destined for Abyssinia.
2 Blatch. Prize Gas. 387. 3 5 Wall. 28.
4 34 L.]. (NS) 117.
345
CHAPTER XXIX
PACIFIC INTERCOURSE or BELLIGERENTS
1. Object and character of commercia belli—z. General compacts
and conventions— 3. Suspension of arms, truces and armistices—
4. Authority to make them—5. Acts of individuals ignorant of
their existence—6. What may be done during a truce—7. Condi-
tional and special truces—8. Their interpretation—9. Renewal
of‘ hostilities—Io. Capitulations—rr. Individual promises—r 2.
Pass orts and safe-conducts—I3. When and how revoked—
14. heir violation, how punished—15. Safeguards—I6. Cartels
for prisoners—r7. Cartel ships—18. Their rights and duties-
19. Ransom of prisoners of war—20. Ransom of captured
property—21. In England—22. Ransom bill binding on allies——
23. If ransomed vessel be lost or stranded—24. Recapture of
ransomed vessel and ransom bill—2 5. Hostages for captures
and prisoners—26. Suits on contracts of ransom—27. Flags
of truce. - '
§ I. THE usage of civilised nations has introduced a certain
friendly intercourse in war, technically called commercia
belli, by which its violence may be allayed, so far as is
consistent with its object and purpose, anda way be kept
open which may lead, in time, to an adjustment of differences,
and ultimately to peace. Were all pacific communications
between armies absolutely cut off, war would not only
become unnecessarily cruel and destructive, but there
would be no chance of terminating it, short of the total
annihilation of the belligerents. Grotius has devoted
an entire chapter to prove, by the concurring testimony of
all ages and all nations, that good faith should always be
observed between enemies in war. Even Bynkershoek,
who adopted sentiments respecting the rights of war now
happily rejected by the whole civilised world, prohibits
perfidy towards an enemy, ‘ not,’ he says, ‘ because any-
thing is unlawful towards an enemy, but because, when
our faith has been pledged to him, so far as the promise
extends he ceases to be an enemy.’ Vattel says that the
faith of promises made to an enemy is absolutely essential
Object and
character
of com-
mercia
belli
346
INTERNATIONAL LAW 011. xxrx
Military
compacts
and con-
ventions
Suspen-
sions of
arms,
truces
and con-
ventions
for the common safety of mankind, and is, therefore, held
sacred by all civilised nations.1
_ § 2. Belligerent States, and their armies and fleets, fre-
quently have occasion, during the continuance of a war, to
enter into agreements of various kinds; sometimes for a
general or partial suspension of hostilities, for the capitula—
tion of a place, or the surrender of an army, for the exchange
of prisoners, or the ransom of captured property; and
sometimes for the purpose of regulating the general manner
of conducting hostilities, or the mode of carrying on
the war. All these agreements, of whatsoever kind, are
included under the general name of compacts or conven-
tions. These compacts, which relate to the pacific inter-
course of the belligerents, suppose the war to continue;
those which put an end to it, come under the general head of
treaties of peace, which have been considered in chapter ix.
§3. If the cessation of hostilities is only for a very
short period, or at a particular place, or for a temporary
purpose, such as for a parley, or a conference, or for removing
the wounded, and burying the dead, after a battle, it is
called a suspension 0]‘ arms. This kind of compact may be
formed between the immediate commanders of the opposing
forces, and is obligatory upon all persons under their
respective commands.
ments may enter into this kind of compact, but such an
agreement can only bind the detachment itself; it cannot
affect the operations of the main army, or of other troops
not under the authority of the officer making it. A suspen—
sion of arms is only for a temporary purpose, and for a
limited period. If the suspension of hostilities is for a
more considerable length of time, or for a more general
purpose, it is called a trace or an armistice. Truces are
either partial or general.2 A’ partial truce is limited to
1 Grotius, De fare Bell. a0 Pae. lib. iii. ch. xxi. ; Bynkershoek,
Quaest. fur. Pub. c. i. ; Vattel, Droit cles Gerts, liv. iii. ch, x. § I 74.
2 The following were among the regulations issued by the Navy
Department of the United States, August 7, 1876, for the government
of all persons attached to that service, and are still recognised by that
nation :
CHAPTER XXI. ‘ Section I.—r. A flag of truce is, in its nature, of
a sacred character, and the use of it to obtain knowledge or informa-
tion surreptitiously against the interests or wishes of an enemy ‘is
to abuse it, and will subject the bearer to punishment as a spy.
Even commanding officers of detach-r
0H. XXIX PACIFIC INTERCOURSE OF BELLIGERENT S
347
particular places, or to particular forces, as a suspension
of hostilities between a town or fortress and the forces by
which it is invested, or between two hostile armies or fleets.
But a general truce applies to the general operations of
the war, and whether it be for a longer or shorter period of
time, it extends to all the forces of the belligerent States,
and restrains the state of war from producing its proper
effects, leading the contending parties, and the questions
between them, in the same situation in which it found
them. Such a truce has sometimes been called a temporary
peace, ‘ but when we call it so,’ says Rutherford, ‘ we use
the word peace only in opposition to acts of war, and not
in opposition to a state of war.’ 1
§ 4. Such a general suspension of hostilities throughout
the nation, can only be made by the sovereignty of the
State, either directly or by authority specially delegated.
Such authority not being essential to enable a general or
‘ 2. The senior officer present is alone authorised to despatch, or
to admit communication by, a flag of truce ; a vessel in a position to
discover the approach of such a flag is to communicate the fact
promptly. ,
‘ 3. Flags of truce should never be permitted to approach
sufficiently near to acquire useful information. The firing of a gun,
by the flag or senior oflficer’s ship, is generally understood as a
warning not to approach nearer.
‘ 4. On the water, a flag of truce should be met at a suitable
distance, by a boat or vessel from the senior oflicer’s vessel, in charge
of a commissioned officer, having a white flag plainly displayed from
the time of leaving until her return. In despatching a flag of truce
the same precautions are to be observed.
‘ 5. When a flag of truce is admitted, the ensign is always to be
hoisted, and a white flag at the fore on board the vessel of the senior
officer present, when no engagement is in progress, and kept flying
until the flag of truce from the enemy has returned within his lines.
‘ 6. A flag of truce cannot insist on being admitted, and should
rarely be used, during an engagement ; if then admitted, there is no
breach of faith in retaining it. Firing is not necessarily to cease
on the appearance of a flag of truce during an engagement, and
should any person connected with it be killed, no complaint can be
made. If, however, the white flag should be exhibited as a token of
submission, firing is to cease.
‘ 7. An attacking force should avoid firing on hospitals, whenever
they are designated by flags or other symbols understood. It is an
act of bad faith, amounting to infamy, to hoist the hospital protec-
tive flag over any other building, unless the attacking force should
request or consent that it might be used, in order to spare edifices
dedicated to science or literature, or containing works of art.’
1 Rutherforth, Institutes, b. ii. ch. ix. § 22 ; Martens, Pre'cz's du
Droit des Gens, § 293 ; a league is an alliance, offensive or defensive,
but generally offensive. -
Authority
to make
them
348 INTERNATIONAL LAW on. xxrx
' commander to fulfil his official duties, is never implied, and,
in such a case, the enemy is bound to see that the agent is
specially authorised to bind his principal. But a partial
truce may be concluded between the military and naval
commanders of the respective forces, without any special
authority for that purpose, where, from the nature and extent
of their commands, such authority is necessarily implied,
as essential to the fulfilment of their ofi'icial duties. If the
commander, in making such a compact, has abused his
trust to the advantage of the enemy, he is accountable to
his own State for such abuse. ‘ The nature of his trust
implies,’ says Rutherforth, ‘ that he has power to enter into
a compact of this sort ; and this power is sufficient to render
the compact valid. The obligation that he is under, not
to abuse his trust, regards his own State only, and not the
enemy; and, consequently, it cannot affect the validity of
the compact which he makes with the enemy.’ A case
occurring in the former war between the United States and
Mexico, serves to point out the limitation of the foregoing
rule, with respect to the authority of a commander to make
a general truce or armistice. By the convention of
February 29, ratified by General Butler, March 5, and
published in general orders, No. 18, March 6, 1848, it was
stipulated that the Mexican civil authorities, political,
administrative, and judicial, were to be re-established
and installed in their respective offices. The terms of the
convention were general, and included the entire republic
of Mexico. But California, although a part of the Mexican
territory, had been organised into a separate military depart—
ment, entirely independent of the general commanding
in Mexico. Pico, the Mexican governor of California,
basing himself on the words of this convention, demanded
of the American military governor of that department
to be reinstated and recognised in his official position and
character. The American commander not only refused
to comply with Pico’s demand, but adopted pretty severe
measures to prevent any attempt on his part to exercise
authority in California. If the convention, entered into
by General Butler in the capital of Mexico, was really
intended to include California, as its terms would seem to
indicate, he, undoubtedly, exceeded his powers, and the
OH. XXIX
PACIFIC INTERCOURSE OF BELLIGERENTS 349
.munitions of war.
armistice, so far as concerned California, was utterly null
and void.1 _
§ 5. A truce binds the contracting parties from the time
of its conclusion, unless otherwise specially provided; but
it does not bind the individuals of the nation so as to make
them personally responsible for a breach of it, until they
have had actual or constructive notice. If, therefore,
individuals, without a knowledge of the suspension of
hostilities, kill an enemy or destroy his property, they do
not, by such acts, commit a crime, nor are they bound to
make pecuniary compensation ; but, if prisoners are taken,
or prizes captured, the sovereign is under obligation to
immediately release the former and to restore the latter.
To prevent the danger and damage that might arise from
acts committed in ignorance of the truce, it is usual to fix a
prospective period for the cessation of hostilities in different
places, with due reference to their distance, and the means
of communicating with them; it is also proper to provide
for cases which do not come within the ordinary rules of
notice, such as hostile vessels meeting at sea. But the
State is responsible for the acts of its subjects after actual
or constructive notice of the truce ; it must punish them for
the offence, and make ample compensation for the damage;
should the State neglect or refuse justice on the complaints
of the party injured, it becomes accessory to the wrong, an
violates the compact. -
§ 6. 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 repair—
ing or building fortifications, constructing and fitting
.out vessels, levying and disciplining troops, casting cannon
and manufacturing arms, and collecting provisions and
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 upon the ocean his vessels
of war. And, in the theatre of hostilities, and in the face
1 Butler, General Orders, ‘No; 18, March 6, 1848 ; Mason to
Adi-Gert, August 23, 1848 ;Ex. Doc. No. 17. H. R. 31 Cong. 1st sess.
pp. 601 et seq.; Puifendorf, De jure Nat. et Gent. lib. c. vii.
§ 15 ; Bello, Derecho Internacional, pt. c. ix. § 2; Riquelme,
Derecho Pub. Int. lib. i. tit. i. ch. xiii. ; Burlamaqui, Droit de la Nat.
et des Gens, t. v. pt. iv. ch. xii.
Acts of
indivi-
duals ig-
norant of
a truce
What may
be done
during a
truce
350 INTERNATIONAL LAW .A _ on. XXIX
of the enemy, he may do whatever, under all the circum-
stances, 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 safely have done if hostilities had
continued. For example, the besieged general may repair
‘his material of war, replenish his magazines, and strengthen
his works, if such works were beyond the reach of the
enemy at the beginning of the truce, and ifthe provisions
and succours are introduced into the town in a way or
through passages which the besieging army could not
have prevented.
Puffendorf says: ‘ I confess I am of opinion that acts
barely defensive are lawful in truces of any sort, though
perhaps the truce was desired and obtained upon some other
‘pretext. Thus, for instance, though a truce be granted
only to bury the slain, I should not think it unlawful to
make use of it to retreat to a place of better defence.”L
But Grotius, on the contrary, says : ‘There are also some
things unlawful during a truce from the special nature of
the agreement. As suppose a truce were granted only for
the burying of the dead: nothing ought to be changed.’ 2
Heffter agrees with Grotius. Albericus Gentilisf’ referring
to the instance given in Livy of the retreat of Philip with
his army, under a flag of truce, says that Philip offended
against the laws of war.at The case of Arabi Pasha at
Alexandria is very similar to the above. On the morning
of July 12, 1882, while the British fleet was lying off Alex-
andria, in support of the authority of the Khedive of Egypt,
and the rebels under Arabi Pasha were being driven to
great straits, a rebel boat, carrying ,a white flag of truce,
was observed approaching H.M.S. ‘ Invincible ’ from the
harbour, whereupon H.M. ships ‘ Téméraire ’ and ‘ In-
flexible,’ which had just commenced firing, were ordered
1 De fare Nat. et Gerzt. lib. viii. c. vi. § IO.
2 De fare Bell. a0 Pae. lib. iii. 0. xxi. § IO.
3 De jare Belli, lib. ii. 0. xiv.
4 ‘ Cum abire inde et fallere abiens hostem vellet, caduceatore
sub occasum solis ad consulem misso, qui inducias ad sepeliendos
equites peteret, frustratus hostem secunda vigilia, multis ignibus
per tota castra relictis, silenti agmine abiit.’ (Livy, lib. xxxi.
c. 38.) -
on. x'xrx PACIFIC INTERcoURsE 0F BELLIGERENTS 351
to suspend fire. So soon as the firing ceased the boat,
instead of going to the ‘ Invincible,’ returned to the harbour.
A flag of truce was simultaneously hoisted by the rebels
on the Ras-el-Tin fort. These deceits gave the rebels
time to leave the works and to retire through the town,
abandoning the forts, and withdrawing the whole of their
garrison, under the flag of truce. Furthermore they left
the Bedouin convicts to pillage and fire the town and
murder the Europeans. For these offences Arabi was
brought to trial by the Egyptian Government and con-
demned, with the full approval of the Government of Great
Britain.1
It cannot be doubted that a besieged general cannot
construct or repair works of defence, if he could not safely
have done this in case the hostilities had continued; nor
introduce provisions, military munitions or troops through
passages which were occupied or commanded by the enemy
at the time of the cessation of hostilities; nor can the
besiegers continue works of attack which might have been
prevented or interrupted by the besieged; for all acts of
this kind would be ' making a mischievous and fraudulent
use of the agreement, and violating its good faith and spirit ;
the general meaning of such compacts is, that all things
within the limits of the theatre of immediate operations
shall remain as they were at the moment of the conclusion
of the truce. To receive and harbour deserters within
such limits is an act of hostility, and, therefore, a violation
of the implied conditions of a truce.
§ 7. Where a truce is granted for a certain specified
object, its effects are limited to the purpose mentioned,
and if either party should attempt to perform any act to
1 Extract from the text of the charges against Arabi Pasha,
drafted by Borelli Bey on behalf of the prosecution :--‘ Ahmed
Arabi is accused : I. Of having, against the laws of war and in viola-
tion of the right of nations, hoisted the white flag at Alexandria on
the morning of July 12, and of having at the same moment withdrawn
his troops, and ordered the pillage and firing of the town of Alex-
andria. (‘ fait procéder au pillage et a l’incendie ’).’ Extract from
despatch of Earl Granville to Sir E. Malet (October 23, 1882) :—
“On September 8 you were informed that . . . H.M.’s Government
would not take steps to prevent execution in cases such as the
following: having been guilty of taking part in the burning of
Alexandria, of abusing the flag of truce on July 12, or of being
implicated in the murder of Europeans.’
Condi-
tional and
special
truces
352
INTERNATIONAL LAW 0H. XXIX
Their in-
terpreta-
tion
the disadvantage of the other, not comprehended in the
object of such truce, this other party has the undoubted
right to hinder it by force, notwithstanding the compact.
‘ Truces,’ says Rutherforth, ‘ may either be absolute or
conditional. A truce which is made without any conditions
annexed to it, though it binds the parties not to do any
hostile acts towards one another, leaves them at liberty to
fortify their towns, to raise new armies, to build ships, or in
any other respect to put themselves into a better posture
of defence than they were in before. For by agreeing
merely not to do any hostile act they cannot be understood
to have bound themselves not to guard, as well as they can,
against any future hostile acts which may be done against
them. Conditional truces are broken when one of the
parties does anything which is contrary to the conditions
that have been agreed upon. All truces granted for a
certain purpose are confined to the purpose ; and the party
who makes use of the cessation of hostilities, to do anything
that is not included within this purpose, and that is to the
disadvantage of the other party, breaks the truce. For
as this purpose is the sole reason of the compact, the right
arising from the compact can extend no further than this
purpose extends. And usually a breach of truce, on one
part, will justify the other part in beginning hostilities
again before the time of the truce would have otherwise
expired.’ 1
§ 8. Truces and other military compacts are to be
interpreted by the same rules as treaties or other agree-
ments. Most questions relating to such compacts may be
easily determined, either by considering the nature and
character of the compact itself, or by applying to it the
common rules of interpretation. Nevertheless, a difference
of opinion will often arise respecting the proper construction
to be given to particular terms, which are, in their nature,
ambiguous. Thus, writers on the laws of war have dis-
1 Rutherforth, Institutes, b. ii. ch. ix. § 22.
In the island of Cayenne, when the British were before Fort
Diamant, as a preliminary measure, Captain Yeo tried the effect of
a summons. The French general’s advanced guard allowed the gig
with the flag of truce to approach within a boat’s length, then
fired two volleys at Lieut. Mulcaster and his party, and quickly
retreated. Upon a second attempt a field piece was discharged
at them. (James, Nao. Hist. vol. v. 211.)
OH. XXIX
PACIFIC INTERCOURSE OF BELLIGERENT S 353
cussed the question whether a truce for a given period—as,
for instance, from the first of January to the first of Feb-
ruary—will include or exclude the first day of each of these
months. Grotius is of opinion, that the first day of January
would be excluded, and the whole of the first day of February
included. Puffendorf, Heineccius, and Vattel would in-
clude in the truce both the day of its commencement and
the day of its termination. Rutherforth can see no good
reason why one day should be excluded and the other
included. ‘ One would rather think,’ he says, ‘ that the
first day isthe limit of the truce at one end, as the last day
is the limit of it at the other end ; and, consequently,-that
there is the same reason for reckoning the first day, that
there is for reckoning the last day, as a part of the time
which is included in the truce.’ The rule, however, pro-
posed by the English commissioners in their report on the
practice of the English courts in 1831, is to compute the
first day exclusively, and the last day inclusively, in all cases.
The general rules laid down by text-writers, respecting the
interpretation and observance of truces and other com-
pacts in war, are necessarily somewhat indefinite, and
questions almost always arise in their application to
particular cases; it is, therefore, important that stipula-
tions should be inserted in such compacts specifying what
may and what may not be done by each party, both within
and without the limits of the place, in case of asiege, or of the
immediate theatre of military operations, if it be between
belligerent forces in the field. Moreover, if the cessation
of hostilities is for a given period of time, in order to avoid
all ambiguity, the time should be precisely stated, as from
a certain hour of a certain day to a certain hour of another
certain day; and if dates only are given, it should be
stated whether or not either or both are included.l
§ 9. As a truce, or armistice, merely suspends hostilities,
they are renewed at its expiration without any new declara-
tion or notice ; for as everyone is bound to know the effect
of such termination, no public declaration is required.
1 Vattel, Droit des Gens, liv. iii. ch. xvi. §§ 244, 245 ; Rutherforth, .
Institutes, b. ch. ix. § 22 ; Grotius, De jure Bell. ac Pac. lib. iii.
0. xxi. § 9; Puffendorf, De jure Nat. et Gent. lib. viii. 0. vii. § 8 ;
Heineccius, Elem. juris, lib. ii. 0. § 208.,
VOL. II. A A
Renewal
of hos-
tilities
354 ‘ INTERNATIONAL LAW
0H. XXIX
Capitula-
tions
But if the truce was for an indefinite period of time, justice
and good faith require due notice of intention by the party
who terminates it. If, however, the conditions of the truce
be broken by one belligerent, there is no doubt that the’
other may immediately resume hostilities without any
declaration. It is sometimes stipulated in the truce, that
the violator shall pay a certain penalty for the violation.
In such case the penalty should be demanded before a
return to war, and, if paid, the right of hostilities does not
occur. A truce is not broken by the acts of ‘private persons,
unless they are ordered or ratified by public authority. But,
unless the private offenders are punished or surrendered,
and unless the thing seized is restored, or compensated for,
it is legally presumed that the act of the private offender
was duly ordered or ratified.1 This is the rule of public
law.
§ IO. Capitalatioris ‘are agreements entered into by a
commanding officer for the surrender of his army, or by the
governor of a town, or a fortress, or particular district of
country, to surrender it into the hands of the enemy.2
1 During the war in 1807, the British squadron, under Sir Edward
Pellew, arrived off Point Pauka, and a commission, with a flag of
truce, was immediately sent to the commandant of the Dutch naval
force for the surrender of the ships of war lying at Gressie. The
Dutch commodore thought fit to detain the boat, and‘ to place in
arrest the persons on board of her. He then sent one of his officers
to Sir Edward, with information of the unwarrantable step he had
taken, accompanied with a flat refusal to deliver up the ships,
although they were all in a dismantled state, with their guns on
shore. The Governor and Council of Sourabaya, a settlement about
fifteen miles higher up the river, and to which Gressie was subor—
dinate, released the gentlemen of the commission and the boat’s
crew, disclaimed the violent measures pursued by the commodore,
and offered to treat. By the treaty the ships were delivered up to
the British, but as they had previously been scuttled by the Dutch
commodore, the British completed ‘their destruction by burning
them. (James, Nav. Hist. vol. iv. 3 58.) .
2 In 1870, the French being unable to defend Versailles, suffered
the first German troops to enter therein under the following con-
ditions, viz. :--‘ 1. Respect for persons and properties, for public
monuments and objects of art. 2. Preservation by the Garde
Natiortale alone of arms (without powder), uniforms and posts, for
the service of police in the town, and at the prison. 3. The German
troops will be lodged in the barracks, and in public buildings turned
into barracks. The officers will be lodged among the inhabitants,
if necessary (as also soldiers, if the barracks do not suffice). 4. The
civil and military hospitals will be respected, and the wounded not
imprisoned, according to the Convention of Geneva. 5. The ‘food
for marching and forage shall be delivered to the German troops,
OH. XXIX PACIFIC INTERCOURSE OF BELLIGERENTS
Capitulations usually contain stipulations with respect to
the inhabitants of the place which is surrendered, the
security of their religion, property, privileges, and franchises,
and also with respect to the troops or garrison, either
allowing them to march out with ther arms and baggage,
with the honours of war, or requiring them to lay down their
arms and surrender as prisoners of war. The general
phrase ‘ with all the honours of war,’ is usually construed
to include the right to march with colours displayed, drums
beating, &c. It is proper, however, that such matters
should be precisely stated in the articles of capitulation.
As an example of courtesy between belligerents, it may be
mentioned that in 1802, ‘on Captain Carden, of the British
ship ‘ Macedonian,’ presenting his sword to Commodore
Decatur, of the American ship the ‘ United States,’ that
officer declared he could never take the sword of a man who
had “so nobly defended the honour of it.1 The authority to
make capitulations falls within the scope of the general
powers of the chief commander of the military or naval
forces, or of the town, fortress, or district of country in-
cluded in the capitulation. The power of the general or
admiral to enter into an ordinary capitulation, the same
as in the case of a truce, is necessarily implied in his ofi’ice.
So of the chief officer of a town, fortress, or district of country.
‘ The governor of a town,’ says Rutherforth, ‘is the com-
mander of the garrison, that is, of an army employed for
the particular purpose of defending the town. The nature,
therefore, of his trust implies, that his compacts about
without any contribution of war. Done at the Hotel de Ville, the
19th of September, 1871.’
. This convention was signed, by a Major of the Prussian army,
subject to the ratification of the General of his Division. The next
day this General informed the Mayor, that this convention could not
be ratified, because Versailles was an open town, and not a fortress
or stronghold, and that this decision, which had been submitted to
the Crown Prince, was according to the laws of war. The articles
of convention were therefore null and void. The National Guard
were obliged to give up their arms. The Mayor was assured, that
the ‘laws-of humanity would be observed towards the inhabitants,
and that the public buildings, especially the museum, would be
res ected. Notwithstanding this, in consequence of the com-
plaints made to him of the robberies and violence on the part of the
soldiers, the Mayor was forced to complain to the General, that
very same evening. (Delerot, Versailles.)
1 James, Nao. Hz'st. vol. vi. 121.
AAZ
356 INTERNATIONAL LAW ._ on. XXIX
surrendering the town will bind himself and the garrison.
If he surrenders it when he might have defended it, or upon
worse terms than he might have made, he is accountable to
his own State for his misconduct; but the abuse of his
power does not affect any compact which he makes, in con-
sequence of that power.’ But if unusual and extraordinary
stipulations are inserted in the capitulation which are not
Within the ordinary and implied powers of the officer making
it, they are not binding either upon the State or upon the
troops. For example, if the general should stipulate that
his troops shall never bear arms against the same enemy,
or, if the governor of a place should agree to cede it to the
enemy as a conquest, such agreements, not coming within
his implied powers, would be null and void, unless special
authority to that effect had been given to him, or his acts
should subsequently receive the sanction of his government.1
1 See the Conventions of Closter Seven and of E1 Arish, supra,
vol. i. ch. viii. p. 297; Rutherforth, Institutes, b. ch. ix. §21 ;
Martens, Précis du Droit des Gens, §§ 291, 295 ; Burlamaqui, Droit
de la Nat. et des Gens, t. v. pt. iv. ch. xii.; Phillimore, On Int.
Law, vol. § 121 ; ‘La Gloire,’ 5 Rob. p. 197 ; Ompteda, Litteratur,
&c. t. p. 648; Moser, Versuch, &c., t. ix. pt. i. pp. 157, 176;
Heffter, Droit International, § 142.
In April 1865 General Grant wrote to General Lee that he pro-
posed to receive the surrender of the Army of Northern Virginia on
the following terms, viz. :-_-1. That rolls of all the 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 individual
paroles not to take arms against the Government of the United
States until properly exchanged, and each commander of a company
or regiment to sign a like parole for his men. The arms, artillery,
and public property to be packed and stacked, and turned over to
the officers appointed by the former to receive them. That this
does not include the side arms of the officers, 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 disturbed by the
United States authority so long as they observe their paroles and
the laws in force where they reside. General Lee accepted these
terms on the same day, and the other rebel armies subsequently
surrendered on substantially the same terms.
By an agreement made the same month between General John-
ston, commanding the Confederate army, and Major-General
Sherman, commanding the army of the United States, the Confede-
rate armies then in existence were to be disbanded and conducted
to their several State capitals, therein to deposit their arms and
public property in the State arsenal ; and each officer and man to
agree to cease from acts of war, and to abide the action of both State
and Federal authorities. The number of arms and munitions of
war to be reported to the Chief of Ordnance at Washington, subject
to the future action of the Congress of the United States, and in the
OH. XXIX PACIFIC INTERCOURSE OF BELLIGERENTS
357
§ II. Small detached parties or individuals, whether
belonging to the military service or not, who happen to
fall in with the enemy in a place distant from succour or
any superior officer, are left to their own discretion and
may, so far as concerns their own persons, do everything
which a commander might do with respect to himself and
the troops under his command. Promises made by in-
dividuals under such circumstances, if confined to their
own persons and within the sphere of a private individual,
are valid and binding, and the sovereign has no right to
release them from their obligations, or compel them to
violate the compact. For, when a subject can neither
receive his sovereign’s orders nor enjoy his protection, he
resumes his natural rights, and may provide for his safety
by vany just and honourable means in his power. In-
dividual promises of this kind, made with competent
powers, are of as binding a nature as truces and capitula-
tions, and the good of the State equally requires that faith
be kept on such occasions as in more formal agreements.
Thus‘, a prisoner who is released on parole, is bound to
observe it with scrupulous punctuality, nor can the sovereign
oppose such observance of his engagement. But if a soldier
. should be made prisoner in the vicinity of his commander
and while under his immediate orders, he is not properly
the master of his own acts or left to his own discretion, and,
under ordinary circumstances, he should wait as prisoner
of war, till his superiors can treat for his exchange or re-
lease. But if he fall into the hands of a barbarous enemy,
‘ and, to avoid a cruel imprisonment, or to save his life, he
promises a ransom or services not treasonable, his agree-
ment should be respected by his superiors.1
meantime to be used solely to maintain peace and order within the
borders of the different States. The Executive of the United States
to recognise the several State governments, on their officers and
legislatures taking the oaths prescribed by the Constitution of the
United States. The Federal Courts in the several States to be re-
established ;
guaranteed their political rights and franchise so far as the Executive
could do so. The Executive authority of the Government of the
United States not to disturb any of the people by reason of the war,
so long as they lived in peace and quiet. In fact, a general amnesty
to be established.
1 Vattel, Droit des Gens, liv. ch. xvi. § 264. ,
The terms of surrender included in the agreement of Sherman
the people and inhabitants of those States to be -
Indivi-
uel pro-
mises
358
INTERNATIONAL LAW OH. XXIX
Passports
and safe-
conducts
§ 12. A passport, or safe-conduct, is a document granting
persons or property an exemption from the operations of
war, for the time, and to the extent prescribed in the in-
and Johnston, by which it was stipulated that the Confederate
officers and men should not be molested by the authorities of the
United States, were granted in the exercise of a belligerent right
only, and not in the exercise of a sovereignty. The President could
only delegate to his subordinate oflicers such powers as were vested
in him as the military chief of the nation. The agreement was,
therefore, merely a military parole, and terminated with the war.
During the war the United States Circuit Court would not have
permitted a Confederate officer, included in the capitulation, to
have been arrested on its process, but after the war was ended,
such arrest on a charge of treason was lawful. (United States v.
Rucker, I Ara. Law Rev. 217.)
The following were among the regulations issued by the Navy
Department of the United States, August 7, 1876, for the govern-
ment of all persons attached to that service, and are still substantially
the same :
CHAPTER XXI. ‘ Section II.--I. Paroling must always take
place by the interchange of signed duplicates of a written document,
in which the names ‘and rank of the persons paroled are correctly
and distinctly stated. Anyone who intentionally misstates his rank
forfeits the benefit of his parole, and is liable to punishment.
‘2. None but commissioned officers can give parole for them-
selves and their command, and no inferior officer can give parole
without the authority of his superior, if within reach.
‘ 3. Paroling of entire bodies of men after a battle or capture,
and the dismissal of large numbers of prisoners, with a general
declaration that they are paroled, is not permitted.
‘ 4. An officer who gives a parole for himself, or his command,
without referring to his superior, when it is in his power to do so,
will be considered as giving aid and comfort to the enemy, and may
be regarded as a deserter and be punished accordingly.
‘ 5. For an officer the pledging of his parole is his individual act ;
but no wholesale paroling by an officer for a number of inferiors in
rank, in violation of paragraph I, is permitted, or will be considered
valid. '
‘ 6. No person belonging to the navy, or marine corps, can give
his parole except through a commissioned officer. Individual
paroles not given through an officer, are not only void, but make the
individuals giving them amenable to punishment as deserters. The
only admissible exception is, when individuals, separated from their
commanders, have suffered long confinement, without the possibility
of being paroled through an officer.
‘ 7. No prisoner can be forced by a hostile government to pledge
his parole, and threats or ill-treatment to force giving parole is
contrary to the laws of war.
‘ 8. No prisoner of war can enter into an engagement, incon-
sistent with his character and duties, as a citizen or subject of his
State. He can only bind himself not to bear arms against his captor
for a limited period, or until exchanged, and this only with the
stipulated or implied consent of his own government. If the
engagement which he makes is not approved by his government,
he is bound to return and surrender himself.
‘ 9. N o prisoner can give his parole that he will not bear arms
OH. XXIX PACIFIC INTERCOURSE OF BELLIGERENTS 359
strument itself. The term passport is applied to personal
permission to friends given on ordinary occasions, both in
peace and war, where there is no reason why the parties
named in them should not go where they please; while
safe-conduct is the name usually given to the instrument
which authorises an enemy, or an alien, to go into places
wherev he could not go without danger, or to carry on trade
forbidden by the laws of war. The word passport, however,
is more generally applied to persons, and safe-conduct to
both persons and things. A passport is not transferable
‘by the person named in the permission, for although there
were no objections to giving the privilege to him, there
might be very serious objections to the individual taking
his place. It, however, generally includes the servants and
personal baggage of the person to whom it is granted,
unless there should be particular objection to the passage
of such servants, or to the admission of the baggage ; but,
to save all doubt and difficulty in such matters, it is usual
to enumerate with precision every particular with respect
to the extent of the indulgence. A safe-conduct for effects,
without designating the person who is to introduce or
remove them, may be introduced or removed by any agent
of the owner, unless the agent selected should be personally
objected to, as an object of suspicion or danger. Instru-
ments of this kind are always to be taken strictly, and must
be confined to the persons, effects, purpose, place and time
for which they are granted. But, if the person who has
received a passport should be detained in an enemy’s country
by sickness or by force, beyond the specified time, he should
receive a new instrument, or be considered as still under
the protection of the old one. But no detention by business,
or by circumstances not entirely unavoidable, will entitle
him to such indulgence. If, for example, he should take
advantage of a suspension of hostilities to remain, he will
against the government of his captors, or their allies, beyond the
period of an exchange or release of prisoners, or during the period
of the existing war. _
‘ 10. While the pledging of the military parole is a voluntary
act of the individual, the capturing power is not obliged to grant it.
‘ 11. Parole not authorised by the law of war is not valid until
approved by the government of the individual so pledging it ; and
pledging an unauthorised military parole is a military offence,
punishable under the laws of war.’ .
360 INTERNATIONAL LAW 011. xxrx
When and
how re-
voked
Their
.- violation,
how
punished
do so at his peril, and if he should be found in an enemy’s
country at the termination of the truce, the‘ time named
in his passport having expired, he will be subject to the
ordinary laws of war, without any claim for special pro-
tection. Passports and safe-conducts are of two kinds——
those which are limited in their effects to particular places
or districts of country, and those which are general and
extend over a whole country.1 Those of the first class may
be granted by military and naval officers or governors of
towns, to have effect within the limits of their respective
commands, and such instruments must be respected by all
persons under their authority. The power to issue such
documents is implied in the nature of their trust. But a
general passport, or safe-conduct, to extend over the whole
country, must proceed from the supreme authority of the
State, either directly or by an agent duly empowered to
issue it.2 '-
§ 13. A passport, or safe-conduct, may, for good reasons,
be revoked by the authority which granted it, on the general
principle of the law of nations, that privileges may always
be revoked when they become detrimental to the State.
A permission granted by an officer may, for this reason, be
revoked by his superior, but, until so. revoked, it is as
binding upon the successor as upon the party who issued it.
The reasons for such revocation need not always be given ;
but permissions of this kind can never be used as snares
to get persons or effects into our power, and then, by a
revocation, hold the persons as prisoners, or confiscate the
property. Such conduct would be perfidy toward an
enemy, and contrary to the laws of war.3
§ 14. Any violation of the good faith and spirit of such
instruments entitles the injured party to indemnity against
all injurious consequences. Persons violating these instru-
1 See also ch. xxii. § 19, note, as to the Mediterranean pass,
which was the only paper recognised by the Barbary corsairs.
2 The Government of the United States declared, in August
1865, that paroled p~~isoners of the Confederate States who asked
for passports as citizens of the United States, and against whom no
special charges were pending, would be furnished with passports
upon application to the Department of State in the usual form.
3 Kent. Com. on Amer. Law, vol. i. . 163 ; Phillimore, On Int.
Law, vol. iii. § 101 ; Garden, De la Dip omatie, liv. vi. § 16 ; Bello,
Derecho I nternacional, pt. c. ix. § 4 ; Burlamaqui, Droit de la Nat.
et des Gens, t. v. pt. iv. ch. xi.
on. xxrx PACIFIC INTERCOURSE or BELLIGERENTS 361
ments are also subject to punishment by the municipal laws
of the State by which they are issued.1
§ 15. Safeguards are protections granted by a general
or other officer commanding belligerent forces, for persons
or property within the limits of their commands, and
against the operations of their own troops. Sometimes
they are delivered to the parties whose persons or property
are to be protected; at others they are posted upon the
property itself, as upon a church, museum, library, public
office, or private dwelling. They are particularly useful
in the assault of a place, or immediately after its capture,
or after the termination of a battle, to protect the persons
and property of friends from destruction by an excited
soldiery. Violations of such instruments are usually
punished with the utmost severity. A guard of men is
sometimes called a safeguard when detached to enforce the
safety of the persons and property thus protected. Such
guards are justified in resorting to the severest measures to
punish any violation of the safety of their trust. A safe-
guard, when used to express a kind of passport or safe-
_ conduct, is to be construed according to the rules of inter-
pretation applicable to such instruments?
§ 16. A cartel is an agreement between belligerents for
1 U.S. Statutes at Large, vol. i. p. 118 ; Brightly, Digest of
Laws of the U.S. p. 41. Section 4,062 of the Revised Statutes,
approved 1873-4, provides that, if any person shall violate any
safe-conduct or passport, duly obtained and issued under the
authority of the United States, such person so offending, on con-
viction, shall be imprisoned not exceeding three years, and fined
at the discretion of the court. If a soldier or subordinate officer
should violate a passport, or safe-conduct, issued by his superior,
he would, probably, also be subject to be punished for the military
offence under military law by a court-martial.
‘ In England,’ says Lord Coke (4 Inst. I 52), ‘ all leagues or safe-
conducts should be of record—that is, they ought to be enrolled in
Chancery or in the Wardrobe, as being matters of State, that each
subject may know who are in amity with the king and who are not,
who are enemies and can maintain no action, and who are in league
and may have actions personal.’
2 Garden, De la Diplomatie, liv. vi. § 16 ; U.S. Statutes at Large,
vol. ii. p. 366 ; U.S. Army Regulations of 18 57,§§ 769-773 ; Heffter,
Droit International, § 142 ; Dunlop, Digest of Laws of U.S. p. 381.
Article 55 of the rules and articles of war of the United States,
approved April 10, 1806, provides that ‘ whosoever, belonging to the
armies of the United States employed in foreign parts, shall force a
safeguard shall suffer death.’
To force a. safeguard (soldiers) is punishable with death under
section 6 of the British Army Act, 1881.
Safe?
guards
362 INTERNATIONAL LAw on. XXIX
Cartels for
prisoners
Cartel
ships
the exchange or ransom of prisoners of war. The actual
existence of a war is not essentially necessary to give effect
to cartels, but it is sufficient if they are entered into pro-
spectively and in expectation of approaching hostilities;
for the occasions for them may just'as naturally arise from
a view of approaching events, and parties may contract
to guard against the consequences of hostilities which they
may foresee. Both belligerents are bound to faithfully
observe such compacts, and a cartel party. sent under a flag
of truce to carry into execution the provisions of a cartel
is equally under the protection of both. ‘ Good faith and
humanity,’ says Wheaton, ‘ ought to preside over the
execution of these compacts, which are designed to mitigate
thev evils of war, without defeating its legitimate purposes.
By the modern usages of nations, commissaries are per-
mitted to reside in the respective belligerent countries, to
negotiate and carry into effect the arrangements necessary
for this object. Breach of good faith in these transactions
can be punished only by withholding from the party guilty
of such violation the advantages stipulated by the cartel;
or, in cases which may be supposed to warrant such a resort,
by reprisals or vindictive retaliation.’ In the United States
such compacts are not deemed treaties in the sense of the
Constitution ; a cartel for the exchange of prisoners,
between the United States and Great Britain, in I813, was
ratified by the American Secretary of State (May 14).1
§ I7. A cartel ship is a vessel commissioned for the
exchange or ransom of prisoners of war, or to carry pro-
posals from one belligerent to the ‘other, under a flag of
truce. Such commission and flag are considered to throw
over the vessel, and the persons engaged in her navigation,
the mantle of peace ; she is, pro hac vice, a neutral licensed
vessel, and her crew are also neutrals ; and so far as relates
to the particular service in which she is employed, she is
under the protection of both belligerents. But she can
carry no cargo, and no ammunition or implements of war,
1 Wheaton, Elerri. Irtt. Law, pt. iv. ch. ii. §‘ 3 ; the ‘ Carolina,’
6 Rob. 336 ; ‘ La Gloire,’ 5 Rob. 492 ; the ‘ Mary,’ 5 Rob. 200 ; Martens,
Pre'cis dit Droit des Geris, §27 5 ; Garden, De la Diplomatie, liv. vi.
§ 16. Cartels are of such force that the sovereign power cannot
annul them. (United States ex re Henderson 1). Wright, 2 Pittsb.
440-)
OH. XXIX PACIFIC INTERCOURSE OF BELLIGERENTS
363
except a single gun for firing signals. This is regarded as a
species of navigation which, on every consideration of
humanity and policy, should be conducted with the strictest
regard to the original purpose, and to the rules which are
built upon it, since, if this mode of intercourse be broken
off, it will be followed by calamitous results to individuals
of both belligerents. It is, therefore, said by high authority,
that cartel ships cannot be too narrowly watched ; and that
both parties should take care that the service should be
conducted in such a manner as not to become a subject of
jealousy and distrust between the two nations. The
authority to commission a cartel ship is supposed to emanate
from the supreme power of the State, but it may be issued
by a subordinate officer, in the due execution of a public
duty. When a cartel ship appears to have been employed
in the public service, and for the purposes of humanity,
it will be presumed that the commission under which she
acts was issued by the sanction of the councils of the State,
until renounced by the sovereignty from which it is supposed
to emanate. Thus, a cartel, granted by the commander
of the British forces, at Amboyna, to a Dutch vessel, was
held by Sir William Scott to be valid for the protection of the
vessel from capture and condemnation.1
§ 18. The rights, immunities, and duties of cartel ships
have been matters of discussion and judicial decision in
prize courts. Sir William Scott gave a very elaborate
opinion on this subject, in the case of the ‘ Daifjie.’ 2 With
respect to the character of the ships employed in such service,
he says it is generally immaterial whether they are merchant
ships or ships of war, but there may be extreme cases in
which the nature of the ship might be material; ‘ as, if a
fire ship was to be sent on such service to Portsmouth or
1 ‘Duer, On Insurance, vol. i. pp. 539, 540 ; the ‘ Carolina,’ 6 Rob.
336 ; the ‘ Venus,’ 4 Rob. 355. .
2 3 Rob. 141. A cartel ship may not trade, or carry a cargo,
under pain of the confiscation both of ship and cargo (‘ La Rosine,’
2 Rob. 372) ; but if appointed before the breaking out of war, will
not necessarily be condemned for having taken a cargo on board
since the war commenced. (The ‘ Carolina,’ supra.) Enemies
.carried on a cartel ship by their own consent must not engage in
any act of hostility whilst on board. (The, ‘ Mary,’ 5 Rob. 200.)
As to a cartel ship being a neutral licensed vessel, see Crawford 12.
William Penn, Peters Ctrc. C. R. 106.
Their
rights and
duties
364
INTERNATIONAL LAW 011. xxx
Ransom of
prisoners
of war
Plymouth, though she had prisoners on board, she would
undoubtedly be an unwelcome visitor to a naval arsenal,
and her particular character might fairly justify a refusal to
admit her.’ He was also of opinion that the cartel protected
such ships, not only in trajectu, ad eundum et redeundum,
but also in going from one port to another to be fitted up
and to take prisoners on board, although the passage of
ships from one port to another of the enemy is liable to
suspicion. Moreover, that a vessel going to be employed
as a cartel ship is not protected, by mere intention, on her
way, for the purpose of taking on herself that character
when she arrives. When it is necessary to send to another
port for vessels for such purpose, it is proper to apply to
the enemy’s Commissary of prisoners for a pass or special
safe-conduct. The principal question to be decided insuch
cases, is that of intention; if the vessel is actually com-
missioned and employed as a cartel ship, if she is fitted out
and conducts herself, in every respect, as a cartel ship, she
is protected as such ; but if she is acting fraudulently, she
is liable to condemnation. Imprudence and negligence do
not constitute fraud.
§ 19. The present usage of civilised nations is, as already
stated, to exchange prisoners of war, or to release them on
their parole, or word of honour, not to serve against the
captor again for a definite period, during the war, or till
properly exchanged.1 But it was formerly the frequent
practice for the State to leave to every prisoner, or at least
during the War, the care of redeeming himself, and the
captor had a lawful right to demand a ransom for the
release of his prisoners.2 This practice gave rise to certain
rules with respect to the interpretation of the particular
agreements of this kind. As the captor was held respon—
sible for the treatment of his prisoner, he could not divest
himself of this responsibility by transferring him to another ;
but, having agreed with his prisoner concerning the price
of his ransom, he could transfer this right to a third party,
for the agreement then becomes a perfect contract, binding
1 Paroles of prisoners of war are sacred obligations, and the
national faith is pledged to their fulfilment. (United States ex re
Henderson 1). Wright, 2 Pittsb. 440.)
2 See ante, ch. xx. § 8.
OH. XXIX PACIFIC INTERCOURSE OF BELLIGERENTS
365
upon both parties, and the right to receive the price may be
transferred by the captor to whomsoever he pleases. If the
prisoner should die before‘ being set at liberty, although the
price of the ransom should have been agreed upon, it was
not held to be due from his heirs ; but if he had obtained
his liberty at the time of his death, good faith would require
the payment of the price agreed upon. If he should be
retaken by his own party after making the compact of
ransom, but before its execution, it would not be due,
because he was not set at liberty in virtue of the agreement.
If he has concealed his rank and character when making
the agreement as to the price of ransom, he is guilty of fraud,
and, on its discovery, the captor is justified in annulling it.
If he has agreed to perform any particular act, if not incon-
sistent with his duty to his own State, as a consideration
for his release, he is bound to perform it, and he is deserving
of punishment for a neglect or refusal to fulfil his promise.
At one time, the wealth to be amassed by the ransom of
prisoners of war was one of the greatest inducements to
military service, and curious instances of the importance
which was attached to this consideration occur in history.
Thus when the Maid of Orleans was to be brought to her
disgraceful trial, the advisers of the measure thought it
right to pay her captors, whose property she had become,
a sum equal to what it was supposed they might be able
to make by her ransom.1
§ 20. The term ransom is now usually applied to pro-
perty taken from an enemy in war, and surrendered or
restored to the owner on the payment of, or agreement to
pay, a specified sum of money, which is called ransom money.
This term was formerly applied to the redemption of pro-
perty captured on land, as well as on the high seas ; but,
by general use, it is now understood to apply to the agree—
ment made between the commander of a captured vessel
or cargo, and the captor, by which the latter permits the
former to depart with his vessel, and gives him a safe-
1 Phillimore, 0n Int. Law, vol. iii. § 110; Martens, Recueil de
Traite’s, t. p. 361 ; Wheaton, Elem. Int. Law, pt. iv. ch. § 3 ;
Lingard, Hist. of England, vol. v. p. 118 ; U.S. Statutes at Large,
vol. iii. pp. 351, 778 ; Niles, Register, vol. ii. p. 382 ; Bello, Derecho
Internacional, pt. 0. ix. § 5 ; Riquelme, Derecho Pub. Int. lib. i.
tit. i. c. xiii. ; Dumont, Corps Diplomatique, t. vii. p. 231.
Ransom of
captured
property
366 INTERNATIONAL LAw on. XXIX
In Eng-
land
If given
by one
ally, is
binding
upon the
others
conduct, in consideration of a sum of money which the
former, in his own name, and in the name of the owners of
the vessel and cargo, promises to pay. at a future time
named. This contract is usually made in writing, in dupli-
cate, one copy of which is kept by the captor, which is pro~
perly called the ransom bill, and the other by the captured
vessel, which is its safe-conduct. The general law relating
to the ransom of captured property, is fully discussed by
Story.1
§ 21. The contract of ransom is considered in England
as tending to relax the energy of war, by depriving cruisers
of the chance of recapture, and several statutes in the reign
of George III. absolutely prohibited to British subjects the
privilege of ransom of property captured at sea, unless in a
case of extreme necessity, to be judged of by the Court of
Admiralty; but now by the Naval Prize Act, 1864, His
Majesty in Council may from time to time, in relation to
any war, make such orders as may seem expedient, accord-
ing to circumstances, for prohibiting or allowing, wholly
or in certain cases, or subject to any conditions or regulations
or otherwise, as may from time to time seem meet, the
ransoming or the entering into any contract or agreement
for the ransoming of any ship or goods belonging to any
of His Maj esty’s subjects, and taken as prize by any of His
Majesty’s enemies. ‘ Other maritime nations,’ says Kent,
‘ regard ransoms as binding, and to be classed among the
few legitimate commercia belli. They have never been
prohibited in the United States, and the Act of Congress of
August 2, I813, interdicting the use of ‘British licenses,
or passes, did not apply to the contract of ransom.’ 2
§ 22. The general authority to capture, which is dele-
gated by the belligerent State to its commissioned ‘cruiser,
involves the power to ransom captured property, unless
prohibited by the law of the captor’s own country. The
1 Maisonnaire v. Keating, 2 Gallis R. 337; Bouvier, Law Die.
verb. ‘ Ransom ’; Pothier, Droit de Prop. Nos. 134-144; Valin,
Des Prises, art. xix. ; Miller v. ‘ Resolution ’ 2 Dall. R. I 5.
2 45 Geo. III. 0. 72; Kent Com. on Am. Law, vol. i. p. 105 ;
Chitty, On Com. Law, vol. i. p.428 ; Goodrich 1;. Gordon, 15 johns.
R. 6; Girard v. Ware, I Peters, G. C. R. 142; the ‘ Saratoga,’ 2
Gallis R. 164 ; Brooks 1). Dorr, 2 Mass. R. 39 ; Spafford '0. Dodge,
14 Mass. R. 66 ; Ricord v. Bettenham, 3 Barr. I734.
OH. XXIX PACIFIC INTERCOURSE OF BELLIGERENTS
367
contract made for the ransom of enemy’s property taken at
sea is generally carried into effect by a safe-conduct issued
by vthe captor, permitting the captured vessel and cargo
to proceed to a designated port, by a prescribed route, and
within a limited time, and such a document furnishes a
complete legal protection against the cruisers of the same
belligerent State, or its allies, during the period and within
the terms prescribed in the safe-conduct. ‘ From the very
nature of the connection between allies,’ says Kent, ‘ their
compacts with the common enemy must bind each other,
when they tend to accomplish the objects of the alliance.
If they did not the ally would reap all the fruits of the
compact, without being subject to the terms and conditions
of it ; and the enemy with whom the agreement was made
would be exposed, in regard to the ally, to all the disadvan-
tages of it, without participating in the stipulated benefits.
Such an inequality of obligation is contrary to every principle
of reason and justice.’
§ 23. As a general rule, the captor, by the safe-conduct
implied in a ransom bill, simply guarantees the ransomed
vessel against being interrupted in its course, or retaken by
other cruisers of its own nation or of its allies, but not against
loss by the perils of the sea. There is no implied insurance
in the ransom bill against such losses. If, therefore, the
ransomed vessel should founder at sea, or be wrecked, and
become a total loss, the contract is still binding, and the
ransom bill payable to the captor. But it is sometimes
specified in the contract of ransom, that the loss of the vessel
by the perils of the sea shall discharge the captured party
from the payment of the ransom ; such a clause is restrained
to the case of a total loss on the high seas, and is not extended
to stranding, which might ‘afford the master a temptation
to fraudulently cast away his vessel, in order to save the
most valuable part of his cargo, and avoid the payment of
the ransom.1
§ 24. If the ransomed vessel should exceed the time,
or deviate from the course, prescribed in the contract, she
forfeits her safe-conduct, and is liable to recapture; and
if retaken, the debtors of the ransom are discharged from
1 Wheaton, Elem. Int. Law, pt. iv. ch. ii. § 28 ; Phillimore, 0n
Int. Law, vol. iii. p. 110.
If ran-
somed
vessel be
lost
If it be
recap-
tured
368 INTERNATIONAL LAW on. 111111:
If hostage
be cap-
tured
their obligation, which is merged in the prize, and the
amount is deducted from the net proceeds thereof and paid
to the first captor, whilst the residue is paid to the second
captor. But any variation from the course prescribed, or
the time limited, by the contract, caused by the stress of
weather, or unavoidable necessity, does not work a forfeiture
of the safe—conduct. If the captor, after having ransomed
an enemy’s vessel, is himself taken by the enemy, together
with the ransom bill of which he is the bearer, this ransom
bill becomes a part of the capture made by the enemy;
and the persons of the hostile nation, who were debtors of
the ransom, are thereby discharged from their obligation
under the ransom bill. But questions relating to mari-
time captures and recaptures will be more particularly
considered in the chapter on the rights and duties of
captors.1 ‘
§ 25. Sometimes a hostage is taken for the faithful per-
formance of the contract on the part of the captured. The
death or the recapture of the hostage does-not discharge the
contract of ransom, unless there is an express stipulation
to that effect; for the captor takes the hostage only as a
collateral security, and the loss of such collateral security
does not cancel the contract, or discharge the debtor from his
obligation to pay the ransom. ‘ The practice in France,’
says Kent, ‘ when a French vessel has been ransomed,
and a hostage given to the enemy, is for the officers of the
Admiralty to seize the vessel and her cargo, on her return
to port, in order to compel the owners to pay the ransom
debt, and relieve the hostage ; and this is a course dictated
by a prompt and liberal sense of justice.’ Vattel and others
have given very minute rules in relation to hostages for
prisoners. If a hostage be given in order to procure the
liberty of a prisoner, and the prisoner die, the hostage
should be set free ; but if the hostage die, the prisoner is not
thereby restored to his liberty. If, however, one prisoner
has been substituted for another, the death of one releases
the other. If a prisoner be released on condition of pro-
curing the release of another, and that other dies before his
liberty has been attained, it is said that the survivor is
1 Vide {90st, ch. xxxi.,
OH. XXIX PACIFIC INTERCOURSE OF BELLIGERENTS
369
N o civilised nation would
bound to return to his prison !
now impose such conditions.1
§_26. Contracts of ransom, like all other agreements
arising fure belli, and lawfully entered into between bel-
ligerents, suspend the character of enemy, so far as respects
the parties to the contract. There can, therefore, be no
just reason why the captor should not bring suit directly on
the ransom bill. And such appears to be the practice in
the maritime courts of the European continent. The
English courts, however, have decided that the subject of
an enemy is not permitted to sue in the British courts of
justice, in his own proper person, for the payment of a
ransom, on the technical objection of the want of a persona
standi in judicio, but that the payment could be forced
by an action brought by the imprisoned hostage in the courts
of his own country for the recovery of his freedom. This
technical objection is not based on principle, nor supported
by reason, and the decision has not the sanction of general
usage. ‘ The effect of this contract,’ says Wheaton, ‘like
that of every other which may be lawfully entered into
between belligerents, is to suspend the character of enemy,
so far as respects the parties to the ransom bill; and,
. consequently, the technical objection of the want of a
persona standi in judicio cannot, on principle, prevent a
suit being brought by the captor directly on the ransom
bill.’ Lord Mansfield considered this contract as worthy
to be sustained by sound morality and good policy, and as
governed by the law of nations and the eternal rules of
justice. Licenses to trade, which properly belong to
commercia belli, will be discussed in a separate chapter.2
§ 27. As flags of truce are sometimes sent from the
enemy to forces in position, or on the march, or in action,
1 Vattel, Droit des Gens, liv. ch. xvii. §§ 278-286; Kent,
Com. on Am. Law, vol. i. p. 107.
Hostages were taken, during the Franco-German War, 1870, in
districts theoretically, but not practically, occupied. The mayor of
N eufchatel and his adjunct, for instance, were made hostages for
having allowed the arrest of some provision dealers engaged in
supplying the German army. As a rule, where a fine was imposed
on a town, and not paid, these two chief officials were kept in custody
or under surveillance, until the money was forthcoming.
2 Wheaton, Elem. Int. Law, pt. iv. ch. § 28 ; Anthon 1). Fisher,
Doug. R. 649, note ; the ‘ Hoop,’ 1 Rob. R. 169 ; Corun 2). Blackburn,
1 Doug. R. 641 ; Ricard o. Bettenham, 3 Burr. R. 1734.
VOL. 115 B B
Suits on
contracts
of ransom
Flags of
truce
370 - INTERNATIONAL LAW on. xxrx
nominally for making some convention, as for a suspension
of arms, but really with the design of gaining information,
it is proper that restrictions should be placed upon such use.
Thus, if sent toran army in position, the bearer of such flag
should never be allowed to pass the outer line of sentinels,
nor even to approach within the range of their guns, without
permission. If warned away, and he should not instantly
depart, he may be fired on. Similar precautions may be
taken by an army on the march. After the battle of Monte—
bello, I859, the French refused to receive flags of truce from
the Austrian lines ; but this was essential in order to con-
ceal some manoeuvres. If the flag proceeds from the
enemy’s lines during a battle, the ranks which it leaves must
halt and cease their fire. When the bearer displays his flag,
. he will be signalled by the opposing force, either to advance,
or to retire; if the former, the forces he approaches will
cease firing; if the latter, he must instantly retire; for,
if he should not, he may be fired upon.1
1 Scott, Military Dic. p. 304.
In 1870 the Bishop of Strasburg, under a flag of truce, endea-
voured to obtain permission from General Werder for the women"
and children to leave that town, but he was stopped at the outposts
and informed that his application would be in vain. Eventually,
on the arrival of the delegates from Switzerland, 1,400 old men,
women, and children were allowed to leave for that country.
(Edwards, Germans in France.)
Rules of military warfare were proposed at the Brussels Con-
ference, 1874, which was attended by delegates from Germany,
Austria, Belgium, Denmark, France, Great Britain, Greece, Italy,
the Netherlands, Portugal, Russia, Spain, Switzerland, Sweden,
and Turkey. They will be found in full, as an appendix to this
chapter, in the 3rd edition of this work ; they were not adopted
by any nation. The United States was not represented. See the
International Convention with respect to the laws and customs of
war by land, signed at the Hague I899, ante, p. 42.
37I
CHAPTER XXX
LICENSES TO TRADE
1. Character of licenses to trade—2. General licenses—3. Special
licenses—4. Decisions on their authority and effect— 5. Want of
uniformity in British decisions—6. Representations of the
grantee—7. Intentions of grantor—S. Persons entitled to use
them—9. Where the grantee acts as agent for others—~10.
Character of the vessel—1 1. Exception of a particular flag——
12. Change of national character during voyage—13. Protection
before and after voyage—~14. Quantity and quality of goods——
15. Protection to enemy’s goods—~16. License to alien enemy-—
I 7. If cargo be injured—18. If it cannot be landed—~19. Com-
pulsory change of cargo—2o. For importation does not protect
re-exportation—~21. Course of voyage—~22. Change of port of
destination—2 3. Intended ulterior destination-24. Condition
to call for convoy—2 5. Capture before and after deviation-—
26. Time limited in license—27. License does not act retro-
spectively—28. If not on board, not endorsed, or altered—-
29. Breach of blockade, &c., by licensed vessel.
§ 1. A (LICENSE is a kind of safe-conduct, granted by a
belligerent State to its own subjects, to those of its enemy,
or to neutrals, to carry on a trade which is interdicted by the
laws of War, and it operates as a dispensation from the
penalties‘of those laws, with respect to the State granting
it, and so far as its terms can be fairly construed to extend.
The officers and tribunals of the State under whose authority
they are. issued, are bound to respect such documents as
lawful relaxations of the ordinary state of war; but the
adverse belligerent may justly consider them as per se a
ground of capture and confiscation. Licenses are neces-
sarily stricti juris, and cannot be carried beyond the evident
intention of those by whom they are granted ; nevertheless
they are not construed with pedantic accuracy, nor will
their fair effect be vitiated by every slight deviation from
their terms ~ and conditions. Much, however, will depend
upon the nature of the terms which are not complied with.
Thus a variation in the quality or character ofithe goods will
Licenses
to trade
B B 2
372 INTERNATIONAL LAW 011. xxx
often lead to more dangerous consequences than an excess
of quantity.~ Again, a license to trade, though safe in the
hands of one person, might become dangerous in those of
another ; so also with respect to the limitations of time and
place specified in a license. Such restrictions are often of
material importance, and cannot be deviated from with
safety.1 A license may be qualified, in which case the
party seeking to protect himself under it must conform
exactly to its requisitions. The questions which arose in
the English Common Law courts upon the constructions of
licenses, granted under statutes, are extremely various;
they turned in many cases upon the precise words used, and
most of these cases have been discussed in the Court of
Admiralty by the very learned judge Sir William Scott.
Licenses to trade were not issued by Great Britain during
the Crimean War, 1854, but certain modifications were
granted to neutral or friendly flags.2
1 Grotius, De ]ure Bell. ac Pac. lib. iii. 0. xxi. § 14 ; the ‘ Abigail,’
Stewart V. Ad. R. 360; the ‘Cosmopolite,’ 4 Rob. 8; the ‘Twee
Gebroeders,’ 1 Edie. R. 96 ; Schroeder v. Vaux, I 5 East. 52 ;Usparicha
11. Noble, 13 East. 332 ;Menett o. Bonham, 15 East. 477 ; Flint v.
Crokatt, ibid. 522.
2 It was declared by Order in Council of April 15, 18 54, that ‘ all
vessels under a neutral or friendly flag, being neutral or friendly
property, shall be permitted to import into any port or place in her
Majesty’s dominions all goods and merchandise whatsoever, to
whomsoever the same may belong ; and to export from any port or
place in her Majesty’s dominions to any port not blockaded any
cargo or goods, not being contraband of war, or not requiring
a special permission, to whomsoever the same may belong; and
save and except only, as aforesaid, all the subjects of her Majesty,
and the subjects or citizens of any neutral or friendly State shall
and may, during and notwithstanding the present hostilities with
Russia, freely trade with all ports and places wheresoever situate,
which shall not be in a state of blockade, save and except that no
British vessel shall under any circumstances whatsoever, either
under or by virtue of this order or otherwise, be permitted or em-
powered to enter or communicate with any port or place which shall
belong to, or be in possession or occupation of, her Maj esty’s enemies,’
An Ionian subject was held not to be in the same position as a
British subject for trading with Russia during the above-mentioned
war. (The ‘ Ionian Ships,’ 2 Spin/es Adm. and Boot. 212 ; but quali-
fied by the ‘San Spiridione,’ 2 ]ur. N. S. 1238.) See Esposito v.
Bowden (7 E. and B. 763), and the ‘ Odessa ’ (Stinks Pr. R. 208), as to
the effect of the above Order in Council (and of other similar pro-
clamations) on the trade of a British subject with the enemy. If the
license granted be conditional, it is incumbent on the party who seeks
to protect himself under it to conform to its requisitions. (Vandyke
o. Whitmore, 1 East. 475.) If the conditions be only colourably
complied with, the license will be avoided by reason of the fraud.
OH. XXX
LICENSES ro TRADE 373
§2. A general license is a suspension or relaxation of
the exercise of the rights of war, generally or partially, in
relation to any community or individuals, liable to be
affected by their operation. It must emanate from the
sovereignty of the State, for the supreme authority alone
is competent to decide what considerations of political or
commercial expediency. will justify a suspension or relaxa-
tion of its belligerent rights. That branch of the govern—
ment to which, from the form of its constitution, the power
of declaring or making war is entrusted, has an undoubted
right to regulate and modify, in its discretion, the hostilities
which it sanctions. This may be done by a general ordinance,
by instructions to armed vessels, or by licenses issued to
certain communities or individuals exempting them from
capture. In England, licenses are either granted directly
by the Crown, or by some subordinate officer, to whom
the authority of the Crown has been delegated, either by
special instructions or under the provisions of an Act of
Parliament. But the Lord-Lieutenant of Ireland as Viceroy
cannot by proclamation or otherwise authorise a trading
of British subjects with the enemy. In the United States,
as a general rule, licenses are issued under the authority of
an Act of Congress, but in special cases and for purposes
immediately connected with the prosecution of a war,
they may be granted by the authority of the President, as
commander-in-chief of the military and naval forces of the
United States.1
§ 3. For the same reasons, a special license to individuals
for a particular voyage, or for the importation or exporta-
(Gordon '0. Vaughan, 12 East. 302.) The licensing system was
. carried by England to a great extent, as an ex edient for supporting
her trade, in defiance of all obstacles created y the enemy, during
the long wars with the Continental Powers of Europe and with the
United)States in the reign of Geo. III. (The ‘ Goede Hoop,’ 1 Edw.
R. 327.
1 Duer, On Insurance, vol. i. pp. 355, 541, 594-619 ; Vandyke v.
W'hitmore, 1 East. 475 ; Taulman '0. Anderson, 1 Taunt. R. 227 ;
Shifiner 0. Gordon, 12 East. 296 ; the ‘ Charlotte,’ 1 Dad. R. 387.-
A general license must be applied by evidence to the particular
case in judgment ; it makes part of the title of the party claiming to
be licensed to show how he obtained possession of a license which
in the term of it is general ; it makes art of the plaintiff’s case
against the underwriter to connect himselgwith the property insured,
and to show that it was lawfully insured. ~ (Rawlinson and others 1).
Janson, 12 East. 223.)
A general
license
A special
‘ license
374
INTERNATIONAL LAW
0H. XXX
Judicial
decisions
on licenses
tion of particular goods, must, as a general rule, also emanate
from the supreme authority of the State. But there are
exceptions to this rule growing out of the particular circum-
stances of the war in particular places. The governor of a
province, the general of an army, or the admiral of a fleet
may grant licenses to trade within the limits of their own
commands, and such documents are binding upon them
and upon all persons who are under their authority, but they
afford no protection beyond the limits of the authority of
those who issue them. Thus, in the war between the
United States and the Republic of Mexico, the governor of
California and the commander of the Pacific squadron
issued such licenses, but it was not pretended that such
protection extended beyond the limits of their respective
commands. The peculiar circumstances of the case, the
great distance from the seat of the supreme federal authority,
the scarcity of provisions and supplies, and the want of _
American vessels on that coast were deemed sufficient
reasons for the exercise of that power?
§4. But though by the general maritime law of the
realm trading with an enemy is undoubtedly illegal, ‘ the
Crown,’ says Lord Ellenborough, C. J., ‘ may remit its
rights in whole or in part, as it shall see fit.’ 2 And this
power of remission is the foundation of the licensing system,
by which certain voyages with cargoes of enumerated
articles are legalised on the petition of merchants to the
Board of Trade; the licenses directing the commanders
of all British ships of war and privateers not to interrupt
the vessel therein named and so laden. In times of war
positive statutes are usually passed to prohibit commercial
intercourse with the enemy, and to regulate the issue of
licenses, which are always construed rigorously against the
grantees, so that any want of conformity in the terms and
conditions of a license is fatal to the protection which
would otherwise have been derived from it.
1 Wheaton, Elem. Int. Law, pt. iv. ch. § 27 ; Letter of Sectjnof
California, 31st Cong. 1st sess. H. ‘of R. Ex. Doc. No. 17, p. 671 ;
Cushing, Opinions of U.S. Attys.-Gen. vol. vi. p. 630.
2 M ante and Set. 29. King William III. in his declaration of, war
against France, excepted all the French Protestants. Wells 1).
Vgilliams, I Lord Raymond's Reports, 283 ; and see 2 Rob. Adm. R.
I 3.
OR. XXX LICENSES TO TRADE
375
Licenses have frequently been granted during the
operations of a war, not only for the protection of an enemy
trading in the country of a belligerent, but to authorise
subjects to trade with the enemy ; and the cases relative to
their authority and legal effect are numerous, both in the
reports of courts of Admiralty and of common law. The
leading case on this subject is that of the ‘ Hope,’ an .
American ship laden with corn and flour, and captured whilst
proceeding from the United States to the Spanish peninsula,
under the protection of instruments granted by the English
admiral on the Halifax station, and the British consul at
Boston. In pronouncing judgment in that case, Sir William
Scott remarked, that no consul in any country, particularly
in an enemy’s country, is vested with power, in virtue of his,
office, to exempt the property of enemies from the effects of
hostilities; and that an admiral could restrain the ships under
his immediate command from committing acts of hostility,
but could grant no safe-conduct of this kind beyond the
limits of his own station. But such acts might be regarded as
sponsiones, or agreements sub spe rati, to which a subsequent
ratification, by the proper authority, would give validity.
It was shown that these acts of its officers had been con-
firmed by an Order in Council, and a restitution of the
property was decreed accordingly. But, in the case of the
‘ Charles,’ and other similar cases, where the safe—conducts
had been signed by an English admiral, and also by the
Spanish minister in the United States, but not confirmed by
the British Government, it was decided that the licenses
afforded no protection, being issued without proper authority.
So, also, in cases of safe-conducts granted by the British
minister, in the United States, to American vessels sailing
with ‘provisions to the island of St. Bartholomew. All
were condemned where the licenses were not expressly
included within the terms of the confirmation by the Order
in Council.l ‘ ‘
§ 5. There are very few American decisions on the
subject of licenses, and there is some want of uniformity
in those of the British Admiralty. Prior to the peace of
Amiens licenses were regarded as an act of special grace,
and most strictly interpreted, but,‘ on the renewal of the
1 The ‘ Hope,’ 1 Dad. R. 226 ; Johnson 1). Sutton, Doug. R. 2 54.’
Want of
uniform-
ity in
English
decisions
376
INTERNATIONAL LAW 011. xxx
Represen-
tations of
grantee
War, the issuing of licenses by England was regarded as a
matter of national policy, rather than personal favour.
The courts, in consideration of ‘this policy, gave to these
instruments the largest interpretation possible, and in
many of them it is a matter of extreme difficulty to say,
whether the determination was governed by the character
of the war, or by reasons of general and permanent applica-
tion. It is evident that it would be useless to state occa-
sional exceptions, arising from a state of things so extra-
ordinary that it is highly improbable that they will ever
again occur.1L .
§6. The validity of a license depends not only on the
sufficiency of the authority by which it is granted, but also
on the good faith of the party to whom it is issued. Like
every other grant, although issued in due form, and by the
proper authority, a license may be vitiated by fraudulent
conduct in obtaining it. The misrepresentation or suppres-
sion of material facts—of facts that, if known, would
probably have influenced the discretion of the grantor—-
renders the license a nullity, and exposes the property it is
invoked to protect to certain condemnation. Nor is it
necessary, in order to invalidate the license, that such
misrepresentations or suppressions of material fact should,
in all cases, involve an imputation or suspicion of fraud.
Thus, Where the agent who procured the license was described
as a merchant of London, but it appeared on trial that,
when the license was granted, he was, in fact, a resident of
a foreign country, the error was held to invalidate the
license. So, where a license was granted to a personby
name, describing him as a British merchant, and it was
found that he, in person, visited Holland, at that time an
enemy’s country, mixed and incorporated himself, when
there, in the national commerce, and exported the goods as
a Dutch merchant, instead of importing them as an English
merchant, the license was regarded as invalidated and his
property confiscated.’ -
§7. Although a license may have been issued by com-
1 The ‘ Goede Hoop,’ 1 Edw. R. 328; the ‘ Juno,’ 2 Rob. 117 ;
Morgan 2). Oswald, 3 Taunt. R. 555 ; Flindt 11. Scott, 5 Taunt. R. 693.
2 The ‘Clio,’ 6 Rob. 69 ; the ‘ Jonge Klassina,’ 5 Rob. 269 ; Klin-
gender 11. Bond, 14 East. 484, in which case the objection is said to
have been considered immaterial at the licensing office in England.
0H. xxx LICENSES TO TRADE
377
petent authority, and on the good faith of the party
obtaining it, in order to render it available for the protec-
tion of the property to which it relates, the intentions of
the grantor, as expressed in the license, must be pursued in
its mode of execution, and there must be an entire good faith
on the part of the user in executing it. And although,
as before remarked, licenses are not to be construed with a
literal and pedantic accuracy, yet no greater latitude of
interpretation is permitted than corresponds with the
intentions of the grantor, fairly understood.l
§ 8. The first material circumstance to be considered in
the execution of a license, with respect to the intentions of
the grantor and the good faith of the user, is, the persons
entitled to use it. A license is not a subject of transfer or
assignment, and however general may be the terms in which
the grantees are described, those who claim for their property
its protection must show that the application on which it
was issued was made in their behalf, and that the applicant
named in the license was, in truth, their agent. But if
granted to a particular person by name, on behalf of himself
and others, it is not necessary that the person named should
have any share or interest in the property to which the
license relates ; it is sufficient if he acted as agent of those
to whom its exclusive use is appropriated. If the license is,
by express words, made negotiable, or if no mention what-
ever is made of the persons upon whose application it is
granted, or by whom it is to be used, it is a legitimate sub-
ject of transfer and sale, and the purchaser is as fully pro-
tected as if it had been granted to him on his personal
application?
1 Duer, On Insurance, vol. i. pp. 598, 599 ;the ‘ Jonge Johannes,’
4 Rob. 263 ; the ‘ Vriendschap,’ 4 Rob. 96.
2 Warin 1). Scott, 4 Taunt. R. 605 ; Robinson 2). Morris, 5 Taunt.
R. 725 ; Barlow o. M’Intosh, 12 East. 311 ; Busk v. Bell, 16 East. 3 ;
Rawlinson v. Janson, 12 East. 223 ; the ‘ Acteon,’ 2 Dad. R. 48 ;the
‘Louise Charlotte,’ 1 Dad. R. 308 ; Fenton 1). Pearson, 15 East. 419.
A license from the king to a particular person to import commo-
dities of a certain description, being the property of the person
specified, cannot be assigned so as to authorise the importation of
goods which are the property of the assignee. (Fleize 1). Thompson,
1 Taunt. 121.) So, where the goods licensed were, by the terms
of the license, to be ‘ the property of J. B. and Sons, as specified
in their bills of lading,’ it was considered that the goods were not
protected by a general bill of lading consigned to B., who possessed
Intentions
of grantor
Persons
entitled
to use a
license
378 INTERNATIONAL LAW
OH. XXX
Where the
grantee
acts as
agent for
others
Character
of vessel
§9. But where the license is not made negotiable, and‘
the persons named in the license obtained it in their own
names and not as the representatives and agents of others——
the license being for themselves, their agents, or holders of
their bills of lading—it cannot protect the property of others
for whom the grantees act as agents, and in which they are
not interested. Thus, a license to B. and S. and their
agents will not protect the property of others for whom
B. and S. may see fit to act as agents. But where a license
is issued to B., S., and Co., meaning under that denomina-
tion to include persons who had agreed to take part in the
shipment made under such license, such persons are held to
be protected? ,
§ IO. The second point to be considered, in determining
upon the proper execution of a license, is the character of the
vessel. The national character of the ship, as described in
the license, is, in most cases, a condition necessary to be
fulfilled. Where the license directs the employment of a
neutral vessel belonging to a particular nation, the sub-
stitution of a neutral ship of a different State, standing
in the same political relations to the belligerent powers,
would, probably, not be regarded as prejudicial. The same
not even a qualified property; the absolute bill of lading being
transmitted to other persons as the particular consignees. ('Fleize v.
Walters, 2 Tannt. 248.) A native Spaniard, domiciled in Great
Britain in time of war, between that country and Spain, having
been licensed in general terms by the king to ship goods in a neutral
vessel from thence to certain parts of Spain, was held competent
to effect an insurance on goods embarked in the protected commerce,
and to sue in his own name on such insurance, as well in respect
of his own interest as for the benefit of his correspondents abroad.
(Usparicha 12. Noble, I3 East. 332.) Where a license contains
the Words ‘ to whom the property may appear to belong ’ all inquiry
into the proprietary interest in the cargo is excluded ; so that even
goods of the enemy are protected and restored under such a clause.
But the Court never restores hostile property found on board a
licensed ship, unless the words in question occur in the license.
(The ‘ Cousine Marianne,’ I Edw. 346.) In Lemche v. Vaughan (1
Bing. 473) the party obtaining the license was a foreign merchant
who was therein described as ‘ of London.’ At the time of the issue
of the license he intended to reside in London, but had not actually
come ; and the Court of Common Pleas held that this misdescription
did not vitiate the license, Lord Gifford, C. J., stating that these
instruments were entitled to receive a liberal construction, as the
object of them was to legalise the adventure, rather than to qualify
the party applying. ‘
1 The ‘ Jonge Johannes,’ 4 Rob. R. 263 ; the ‘ Christina Sophia,’
4 Rob. 267. ‘
01!. XXX LICENSES TO TRADE
379
may be said of the employment of two ships, when the
terms of the license refer only to one, if both vessels bear
the same national character, and there be no variation in
the quantity or quality of the goods described in the license.
But, in both these changes, a good and satisfactory cause
must be shown. If a neutral ship is mentioned in the
license, the employment of a ship of the State issuing the
license is considered an essential deviation, which will lead to
a condemnation. So the employment of a ship belonging to
the enemy, when not authorised by the license, is in all
cases noxious and fatal. When the license authorises the
importation of goods from an enemy’s country, in an
enemy’s ship, although confined, in terms, to the goods, by
the just construction of law, it is extended to the vessel also.
For the necessary effect of such a license is to legalise the
voyage as described, in all its incidents, and hence the ship
is just as much a legitimate object of protection as the cargo
which is to be brought in it.1
§ 11. When the license authorises the transportation of
goods by any ship or ships except those under the flag of a
particular nation, the exception refers to the fact of the
nationality of the ship, not merely to the external signs.
Although the vessel may be documented as belonging to
and actually bear the flag of, another State, if it be shown
that she really belonged to the excepted nation, she will
not be protected by the license and the flag. The reason
of this rule is, that vessels of the excepted nation might
otherwise engage in the prohibited navigation, by sub-
stituting a foreign flag for their own. But the unauthorised
employment of such excepted vessels is not permitted to
affect the goods of shippers who were not privy to the
1 Kensington, 1) Inglis, 9 East. 273 ; the ‘ Dankbaarheit,’ 1 Dad.
R. 183 ; the ‘Vrow Cornelia,’ 1 Edw. R. 340 ; the ‘ Jonge Arend,’ 5
Rob. 14 ;the ‘ Goede Hofinung,’ I Dod. R. 257 ;the ‘ Bourse,’ 1 Ella).
R. 369; the ‘ Speculation,’ 1 Edw. R. 344 ; the ‘ Hoffnung,’ 2 Rob.
162. A privilege given by Act of Parliament to ships belonging to
any State in amity with Great Britain and manned with foreigners,
to import merchandise, otherwise prohibited, does not extend to
foreign-built ships, British owned. (Attorney-General 2). Wilson,
3 Price, 431.)
A ship, foreign-built (American), belonging wholly to a British
subject, and manned with foreign seamen (with an English mate),
was not within the 43 Geo. III. c. 153, entitled to import flax seed
from Russia. (Attorney-General 2). Wilson, 3 Price, 431.)
Exception
of a par-
ticular
flag
380 INTERNATIONAL LAW on. xxx
Change of
national
character
during
voyage
Protection
before and
after
voyage
Quality
and quan-
tity of
goods
deception, or cognisant of the fact. Where there is no
ground for imputing to them a voluntary departure from
the conditions of the license in this respect, their property,
if embraced by its terms, retains its protection. The
vessel itself is condemned?L
§ 12. Again, if the vessel was, in fact, not 01 the excepted
nation when she sailed, but became so during the voyage, by
some unexpected change of circumstances, as the conquest
or annexation of the country to which she belongs, by the
excepted State, such change of political relations will-not
deprive her of the protection of the license, where the
parties have acted fairly under it.2
§ 13. A license to a vessel to import a particular cargo is
held to protect a vessel, in ballast, on her way to the port of
lading, for the express purpose specified in the license.
So, also, a license to export a cargo to an enemy’s port
covers the ship, in ballast, on her return. In each of these
cases the voyage to which the license is extended by implica-
tion has a necessary connection with that to which it
expressly relates. But the protection extends no further
than is necessarily implied in the license.3
§14. The third point to be considered in the execu—
tion of a license is the quality and quantity of goods it protects.
A small excess in quantity, or the partial substitution of
those of a different quality, if free from the imputation of
concealment or fraud, will not absolutely vitiate the license,
under the colour of which they were introduced. The
goods not protected by it are condemned, while those
which it is admitted to embrace are restored. If the
excess in quantity be very small, and not attributable to
1 The ‘Bourse,’ 1 Edzo. R. 370 ; the ‘ Dankbaarheit,’ 1 Dod. R.
18 .
3But a license granted to a vessel to sail in ballast from London to
Holland, which country was at that time in a state of hostility,
notwithstanding anything contained in the British Order in Council
of April 20, 1809, was held not to protect a ship which was _the
property of an alien enemy, and the insurance on the vessel was
determined to be void. (Gregg 11. Scott, 4 Campb. 3 39.) . In this
case the license appears to be only a dispensation with the Order in
Council, and was not intended as a remission of the belligerent
rights of the Crown.
9 Duer, On Insurance, vol. i. pp. 599, 612.
3 Le Cheminant 0. Pearson, 4 Taunt. R. 367 ; the ‘ F reindschaft,’
Dod. R. 316. a
cs. xxx LICENSES TO TRADE 381
design, it is intimated by Sir William Scott, that it would
not be regarded as an essential deviation ; but any change
in the quality of the goods cannot be justified or excused,
and the articles not protected by the license are condemned.
The fraudulent application of a license to cover or conceal
goods not intended by the grantor renders it wholly void,
and exposes to confiscation even the goods that are embraced
in its terms.‘
§ 15. It was at one time held, that express words were
necessary to protect the property of an enemy; but it was
finally decided by the Exchequer Chamber, that a license
containing the words, ‘ to whomsoever the property may
appear to belong,’ included goods shipped on account of
enemy’s subjects. Duer expresses a doubt whether this
last decision was not to be referred to the peculiar circum-
stances of the war.2
§ 16. A license to an alien enemy removes all his personal
disabilities, so far as is necessary for his protection in the
1 Wildman, Int. Law, vol. pp. 256, 257 ; the ‘ Jonge Clara,’ 1
Edw. R.‘ 371 ; the ‘ Juffrow Catharina,’ 4 Rob. 141 ; the ‘ Nicoline,’
1 Edw. R. 363 ; the ‘ Vriendschap,’ 4 Rob. 96 ; the ‘ Goede Hoop,’
Edw. R. 336 ; the ‘ Catharina Maria,’ Edw. R. 337 ; the ‘ Wolfarth,’
1 Edw. R. 365 ; the ‘Seyerstadt,’ 1 Dod. R. 241 ; Kier o. Andrade,
6 Taunt. R. 498.
2 Duer, On Insurance, vol. i. pp. 604, 605 ;the ‘ Cousine Marianne,’
1 Edw. R. 346 ;the ‘ Hoffnung,’ 2 Rob. 162 ;the ‘ Beurse van Konings-
berg,’ 2 Rob. 169 ; Mennett o. Bohnam, 15 East. R. 477 ; Us aricha
11. Noble, 13 East. R. 332 ; Foyle v. Bourdillon, 3 Taunt. . 546 ;
Feise 11. Bell, 4 Taunt. R. 478 ; Anthony 21. Moline, 5 Taunt. R. 71 1 ;
Schnakoneg v. Andrews, 5 Taunt. R. 716 ; Robinson v. Touray, 1 M.
and Sel. R. 217; Hullman v. Whitmore, 3 M. and Sel. R. 337.
A license granted to certain British subjects on behalf of them-
selves and others to export in a specified ship, bearing any flag
except the French, a cargo from London to Archangel, being an
enemy’s port, and to import from thence, in the same ship, certain
articles 0 a particular description to any port in the United Kingdom,
notwithstanding -all the documents which accompanied the ship and
cargo may represent the same to be destined to any neutral or hostile
port, and to whomsoever such property may appear to belong
(Edw. 20), is considered capable of protecting a cargo, either outwards
or homewards, which is either in whole or in part the property of an
alien enemy. (Hullman o. Whitmore, 3 M. and S. 100, 307.)
So a license granted to C. and H. who were shipowners in London,
on behalf of themselves and British or neutral merchants, to load
and export a cargo on board the Russian ship ‘ Fortuna,’ from London
to any port in the Baltic not under blockade, was held to protect
Russian property exported from this country on a voyage to a
Russian port, Russia being at war with Great Britain. (Rucher o.
Anstey, 5 M. and S. 25.) »
Protection
to enemy’s
goods
License to
an alien
enemy
382 INTERNATIONAL LAW on. xxx
particular trade which is rendered lawful by the operation
of the license. In respect to the voyage and trade which
the license is intended to authorise and cover, he is not
to be regarded as an enemy, but has all the legal privileges
of a subject. So far as that particular voyage, trade, or
cargo is concerned, he has a persona standi in all the courts,
and may maintain suits in his own name, the same as a
subject. He is to be considered as if in amity with the
sovereign who grants the license?
1 Bynkershoek, Qawstiones jaris Piiblici, lib. i.. c. 3, cited 8 East.
R. 287 ;Morgan 2). Oswald, 3 Taant. R. 555 ; Usparicha 11. Noble, I3
East. R. 332; Flindt o. Scott,v 5 Taant. R. 674; I5 East. R. 525 ;
Fenton 1). Pearson, I 5 East. R. 419.
‘ His Majesty,’ says Lord Comyn, ‘ may grant letters of safe-con-
duct to an enemy, and by this means take him into his keeping and
protection ’ ; see Com. Dig. Prerog. B. 5 ; Wells 1). Williams, I Salk.
46 ; and independently of letters of safe-conduct or passports, a
person residing in this country by the license and under the protection
of the Sovereign is not to be regarded as an alien enemy. See Wells
1). Williams, I Ld. Raym. 282. In like manner, an insurance may be
effected upon the interest of an alien enemy under the protection of a
license from the Crown. (Hullman v. Whitmore, 3 M. and S. 338.)
In the course of the wars of I 8 TO, the conflicting relations in which
the different States of Europe were placed towards one another by
the overruling power of France rendered it necessary for, the interest
of Great Britain that the prerogative of granting licenses should be
frequently called into exertion. Acts of Parliament were also passed,
by which powers were given during the war, to the King in Council,
and to the Secretary of State, to a greater extent thanthe King’s
prerogative was alone sufiicient to authorise ; and, in particular,
of granting in certain conj unctures dispensations from the navigation
laws, which, being the statutes of the realm, could not be encroached
upon by the unassisted prerogative of the Crown. (See ‘Shiffner 22.
Gordon, 12 Rast. 296 ; and statutes of George III. 4, c. 3 ; 45,0. 34 ;‘
47, c. 37 ; 48, c. 47 ; 48, c. 153 ; 49, c. 25 ; 49, c. 60.) The licenses
so issued were in general granted to British subjects,.but sometimes
to alien enemies, and generally for certain voyages either to or
from an enemy’s country, either to export commodities with which
the British markets were overstocked, or to import such articles
as they stood in need of. Much contrariety» of opinion existed
with respect to the construction to be put on these licenses, and in
particular on the subject whether to any, and to what extent a
license of this kind operated to remove the personal disabilities of an
alien enemy who may be interested in the property : being a high
act of sovereignty, care must be taken that the license is not extended
beyond the intention of the power from which it emanated, and that
it is not by too great a latitude of interpretation made auxiliary
to the purpose of fraud. ' ' - '
But subject to this limitation the rule was that the license should
receive a liberal construction to effectuate the purpose for which
it was intended, and that the terms which. it contained were not
to be limited in construction where the adventure contemplated
had been fairly pursued. It should be remembered that a license
on. xxx LICENSES TO TRADE
383
§ 17. The protection of a license is not limited, in all
cases, to the cargo originally shipped; for if the original
cargo should be accidentally injured or spoiled, it may
be replaced by a second one, precisely corresponding with
that described in the license. A license was granted to a
neutral vessel to import a specified cargo from Amsterdam ;
the ship having taken on board her cargo, sailed from
Amsterdam, but was obliged to put into Medemblick, which
bears the same relative situation to Amsterdam that
Gravesend does to London. At Medemblick it was
necessary to unload the cargo, which was found to be so
much damaged that it was not fit to be put on board again.
The old cargo was therefore sold, and a new one- of the
same identical nature with the first, corresponding with it
both in substance and quality, was put on board. It was
held that, under these circumstances, the parties were not
deprived of the protection of the license. The case
would have been widely different, if goods of a different
description had been taken instead of the original cargo.
Here the original purpose was pursued; no new specu-
lation was originated, nor was there any change, except
such as was produced by time, and unavoidable acci-
dents.1
§18. A license to export goods to an enemy’s port,
although limited in terms to the outward voyage, is sufiicient
to protect both ship and cargo on the return, if the delivery
of the goods at the port of destination was prevented by
some inevitable accident, as a blockade, or a reasonable
apprehension of seizure. But to entitle himself to the
benefit of this liberal construction, the claimant must
is granted not so much for the benefit of the individual upon whom
it is conferred, as for the promotion of the national interest ; and the
strictness of interpretation, which may be applicable in the case
of a grant of property from the Crown, cannot be exercised towards
such an instrument. A license of this nature, legalising a particular
adventure, incidentally legalises all the measures necessary to be
adopted for its due and effectual prosecution ; it therefore implicitly
allows a person whose commerce it authorises, although he be an
alien enemy, to protect his interest by insurance ; and a British
agent, ‘in whose name the insurance is effected, may bring an action
upon the policy even during the continuance of war. ' (Kensington 1).
Ingles, 8 East. 273.) A _
1 Wildman, Int. Law, vol. ii. p. 258 ; the ‘ Wolfarth,’ 1 Dad. R.
305 ; Sifikin o. Glover, 4 Taunt. R. 717.
If cargo
be injured
If it can-
not he
landed
384 INTERNATIONAL LAW
OH. XXX
Compul-
sory
change
of cargo
License
to import
no protec-
tion for
re-expor-
tation
Course of
voyage
prove that the goods brought back are the identical goods
exported under the license.1
§ 19. It is never admitted as a valid excuse for receiving
on board goods not permitted in the license, that compul-
sion had been used by the hostile government, and that
they were received only to avoid the seizure of the vessel.
If such an excuse were admitted, it would open the door to
fraud and collusion, as it would be difficult, if not impossible,
to discover whether such a transaction, taking place in an
enemy’s port, were voluntary or not.2
§ 20. Where a license is given expressly for importation,
it can be used for that purpose only, and not for re-exporta-
tion. Although application should be made for a license
to import, for the particular and special purpose of re-
exportation, the permission to import would extend no
further than was expressed in the instrument itself. So,
also, a license to import for the purpose of exportation,
with condition of putting cargo in government warehouses,
as security for re-exportation, must be strictly complied
with. Such a license does not cover importations for
sale.3
§21. The fourth point to be considered in determining
the due execution of the license is, the course and route of the
voyage. The requisitions of a license as to the port of ship—
ment or delivery, of departure, or destination, must be
strictly followed. The same may be said, in general, with
respect to the course of the voyage. If the license directs
that the ship shall stop at a particular port for convoy, the
neglect or omission to comply with the direction invalidates
the license. The same result would follow the touching for
orders at an interdicted port ; but a deviation, for the same
purpose, to a neutral or other port not forbidden, although
not authorised, seems not to impair the legal effect of the
license. Any deviation from the prescribed course of the
voyage, if produced by stress of weather, or other unavoid-
1 The ‘ Jonge Frederick,’ 1 Edw. R. 357. In time of war Switzer-
land and other interior countries have been allowed to export and
import through an enemy’s port, but strict proof of property has
been required. (The ‘ Magnus,’ 1 Rob. 32.)
2 Duer, On Insurance, vol. i. p. 608 ; the ‘ Catharina Maria,’ Edzv.
R. 337 ; the ‘Seyerstadt,’ 1 Dod. R. 241.
3 The ‘ Vrouw Deborah,’ 1 Dod. R. 160.
OH. xxx LICENSES TO TRADE
385
able accident, does not invalidate the license ; if the necessity
is proved, it is deemed a valid excuse.‘
§ 22. An enemy’s ship and cargo, belonging to the
same owner, and licensed to go to Dublin, were taken
going to Leith, a place not named in the license, and reached
by a course totally different from that indicated ; both ship
and cargo‘were condemned. The party not being within
the‘ terms of the license, the character of enemy revived.2
" '§ 23. An intended ulterior destination does not vitiate
theprotection of a license, if the parties keep within the
terms expressed and intended by the instrument. Thus, a
vessel had a license to import a cargo into Leith from a port
of the enemy, with an ulterior destination to Bergen. Such
ulterior destination did not vitiate the license for the voyage
to Leith ; but had the vessel been captured after com-
pleting the licensed part of the voyage, and on the way from
Leith to Bergen, the license would have afforded her no
protection.3
§24. The condition introduced in the license, that the
vessel shall stop at'a particular port for convoy, is regarded
as fundamental, and the breach of it as fatal. The reason for
introducing the condition is that the vessel may be subject
to inspection in that part of her navigation. In a‘ case
where the admiral, under whose direction the convoy
was to be furnished, ordered a deviation for the purpose of
taking convoy at another place, the court felt itself ‘bound
to uphold the acts of the admiral. Such a deviation was
placed on the same ground as that caused by stress of
weather!‘
§25. The effect of a deviation from the direct voyage
described in the license, by touching at an intermediate
port, depends in some degree upon the time of capture. If
such vessel be seized on her way to such intermediate port,
the presumption of law is that she was going thither for the
purpose of violating the license. But if taken after leaving
1 The ‘ Europa," 1 Edw. R. 341 ; the ‘Minerva,’ 1 Edw. R. 375 ;
the ‘Emma,’ 1 Edw. R. 366 ; the ‘Twee Gebroeders,’ 1 Edzo. R. 97 ;
the ‘ Byfield,’ 1 Edw. R. 188. .
11 The ‘ Manly,’ 1 Dad. R. 257 ; the ‘ Edel Catharina,’ 1 Dod. R.
55 ;Wainhouse o. Cowie, 4 Taunt. R. 178. I
3 The ‘ Henrietta," 1 Edw. R. 363.‘ ' '
‘1 The ‘ Minerva,’ Edw. R. 375 ; the ‘ Anna Maria,’ 1 Dod. R. 209.
VOL. II. C C
Change of
destina-
tion
Intended
ulterior
destina-
tion
Condition
to call for
convoy
Capture
before and
after
deviation
386 INTERNATIONAL LAW on. xxx
Time
limited
in license
the intermediate port, with the identical cargo which she
carried in, and while actually} proceeding for her lawful
destination, the presumption of mala fides would be removed.
Touching at an interdicte-d port vitiates the license, unless
permitted in the license itself?
§ 26. The fifth point to be considered is the time limited
in the license. There is a material distinction between the
construction of a license for the exportation of goods to an
enemy’s port, and one for an importation merely. Where
the license requires that the goods to which it relates shall
be exported on or before a certain day, a delay for a single
day beyond that which is specified, renders the license wholly
void. But not so with respect to importations. If the
party having a license be prevented from commencing the
voyage, or be delayed in its prosecution by stress of weather,
the acts of a hostile government, or other similar cause,
over which he has no control, the time thus consumed is not
to be considered in computing the period that the govern-
ment intended to allow. But if he takes upon himself, at his
own discretion, to extend the period specified, he loses
the protection to which he would otherwise have been
entitled.2 I
Where, in a license to export from London to Calais IOO
hogsheads of tobacco, it was provided that the license should
remain in force for two months from the date, and no longer,
it was held to be not sufficient that the goods were shipped
before the expiration of the time; and the license having
expired before the voyage commenced, the Court of King’s
Bench decided that the exportation of the goods could not
be protected by it.3 Again, no mistake as to the necessity
of a license, and no presumption as to the harmlessness
of any particular commercial venture, will have the slightest
effect in saving British property from condemnation,
when captured on an unlicensed voyage of trade with the
1 The ‘ Europa,’ I Edw. R. 342 ;the ‘ Frau Magdalena,’ I Edw. R.
367 ;the ‘ Hoppet,’ I Edw. R. 369.
2 The ‘ Sarah Maria,’ I Edw. R. 361 ; the ‘ Diana,’ 2 Act. R. 34 ;
the ‘ ZEolus,’ I Dod. R. 300 ; Williams 0. Marshall, 6 Taant. R. 390 ;
Tullock v. Boyd, 7 Taant. R. 468 ; Freeland 12. Walker, 4 Taant. R.
478 ; Effurth v. Smith, 5 Taunt. R. 329 ; Siffken v. Glover, 4 Tamil.
R. 77 ; Leevin v. Cormac, 4 Taant. R. 483 ; Siffken v. Allnut, I M.
and Sel. 39 ;Groning v. Crockatt, 3 Camp. R. 55.
3 Vandyck v. Whitmore, I East. R. 475.
on. xxx LICENSES TO TRADE
387
enemy. ‘ By the law and constitution of this country,’
says Lord Stowell, ‘ the Sovereign alone has the power
of declaring war and peace. He alone, therefore, who has
the power of entirely removing the state of war, has the power
of removing it in part, by permitting, where he sees proper,
that commercial intercourse which is a partial suspension of
the war. There may be occasions on which such an inter-
course may be highly expedient. But it is not for individuals
to determine on the expediency of such occasions on their
own notions of commerce, and of commerce merely, and
possibly on ground of private advantage not very reconcile-
able with the general interest of the State.’ 1
§ 27. A license does not act retrospectively, and cannot
take away any interest which is vested by law in the captors.
Thus a vessel was captured on January 24, with an expired
license on board. Another license was obtained, and its
date carried back to January 20. It was held that the
vessel at the time of capture was not protected either by
the license which had expired or by that subsequently
obtained.’
§28. Moreover, a license, not on board at the time of
capture, but afterwards endorsed for it by the shipper, is no
protection. If the license be general in its terms, the mere
fact of its being found on board is not sufficient, unless it
1 Per Lord Stowell, 1 Rob. 199.
A license for a voyage from the enemy’s country, though granted
after the voyage is commenced, is sufficient to legalise the voyage
as against any persons who become captors after the date of the
license. (Henry '0. Stanniforth, 4 Campbell R. 270.) A vessel
homeward-bound on a licensed voyage is also not liable to con-
demnation while proceeding on such voyage, though the time
limited by the license has expired. (The ‘Actaeon,’ 2 Deal. R. 53.)
But in such a case proof must be given of circumstances, such as an
embargo, or the force of the elements, or other reasonable impedi-
ments, which will explain the delay, in order to protect from British
cruisers a vessel found at sea on an illegal voyage after her license
has expired. (The ‘ Goede Hoop,’ Edie. R. 327.) And as a general
rule it is to be understood that, where no fraud appears to have
been committed or meditated, and where the parties have been
prevented from carrying the license into literal execution by a power
which they could not control, they will be entitled to the benefit
of its protection against seizure, although the terms may not have
been literally and strictly fulfilled.
2 Duer, On Insurance, vol. i. p. 618 ; Wildman, Int. Law, vol. pg. 265 ; the ‘ Vrouw Deborah,’ 1 Dad. R. 160 ; the ‘ St. Ivan,’ Edw.
. 376 ; the ‘ Edel Catharina,’ 1 Dori. R. 45 ; Henry 11. Stanniforth,
4 Camp. R. 270.
A license
has no
retrospec-
tive ac-
tion
If not on
board, or
not en-
dorsed, or
if its date
be altered
CC2
388 INTERNATIONAL LAW on. xxx
Breach of
blockade,
&c., by a
licensed
vessel
has been appropriated to such ship by an endorsement to
that effect, or by some positive evidence that this application
was intended by the parties entitled to its use.’ A license
is vitiated and becomes a mere nullity by an alteration of its
date. In this respect licenses are governed by the same
rules as other grants issued by the supreme power of the
State; they are utterly vitiated by any fraudulent altera-
tion. Any change is prima facie fraudulent; it may,
however, be explained.’
§ 29. A license to trade with a port of the enemy does
not serve as a protection for a breach of blockade, in case
the port is blockaded ; nor does it afford any protection for
carrying contraband of war, enemy’s despatches, or military
persons, or for a resistance of the right of visitation and
search; it can cover no act not expressly mentioned in
the license or implied as a means necessary for its execu-
tion.3
1 The ‘ Speculation,’ Edzv. R. 344 ; the ‘ Fortuna,’ Edw. R. 236 ;
the ‘ Carl,’ Edw. R. 3 39. Where a license had been burnt intention-
ally, but under a mistake, the Vice-Admiralty Court of Nova Scotia,
upon proof of the fact, ordered the vessel to be restored, the captors’
expenses being first paid. (The ‘ Frederick Augustus ’ (1813),
]. Stewart's Vice-Ad. R. of Nova Scotia, 486.)
2 The ‘ Louise Charlotte,’ 1 Dod. R. 308 ; the ‘ Aurora,’ 4 Rob.
218 ; the ‘ Diana,’ 2 Act. R. 54.
3 The ‘ Nicoline,’ 1 Edw. R. 364; the ‘ Actaeon,’ 2 Dodi R. 54;
the ‘ Byfield,’ I Edw. R. 190.
389
CHAPTER XXXI
RIGHTS AND DUTIES OF CAPTORS
1. Of captures generally—2. Of maritime captures—3. The Naval
Prize Act, 1864—4. Title, when changed—5. Where prizes
must be taken—6. Of joint captures generally—7. Construc-
tive captures by public vessels of war—8. When actual sight
is not necessary—9. Of joint chase—10. Antecedent and sub-
sequent services—11. Ships associated in same enterprise-
12. Mere association not sufiicient—I3. Convoying ships—
14. Vessels detached from fleet—15. Joint captures by land
and sea forces—16. By public ships of allies—17. Constructive
joint captures not allowed to privateers—18. Revenue cutters
under letters of marque—19. Joint captures by boats—~20. By
tenders-21. _By prize masters—22. By non-commissioned
‘vessels—2 3. Public vessels of war and privateers, &c.——24.
Effect of fraud on claims to benefit of joint capture—2 5. Dis-
tribution of prize to joint captors—26. Distribution of head
money—27. Collusive captures—28. Forfeiture of, claims to
prize—~29. Probable cause—3o. Liability of captors for damages
and costs—31. Of owners of privateers—32. Duties and re-
sponsibilities of prize masters and prize agents.
§ 1. WE have discussed, in the preceding chapters, the
general rights of war over enemy’s property, or property
rendered hostile by the acts of its owners, or by the circum-
stances of its use or disposition; it remains to point out
more particularly the rights and duties of its captors. As
a general principle, capture is not dependent upon the
element on which it happens to be made; nevertheless,
usage and the decisions of courts have established rules for
maritime capture, very different from those applicable to
captures on land; and while the latter have, for a long
time, undergone very little change, the former have been
moulded into a system of regular practice.‘ This has
1 If the sovereign of the country to which a ship belongs, or
any other sovereign not at war with the former, from motives of
necessity arrest a ship either in port or at sea, with a view to restore
the ship and goods, or to pay the value to the owner, this is not
prize, but is ‘ an arrest or detention of princes.’ The arresting or
taking ships for the purpose of prize is ‘ capture.’ If a neutral
0f cap-
tures
generally
390 INTERNATIONAL LAW
on. xxxI
What
consti-
tutes a
maritime
capture
resulted, in part, from the fact that title to booty vests
almost immediately on possession, while that to prize is
acquired, as a general rule, only after condemnation by a
competent court. Another cause of this result is the very
small value of booty taken in modern wars, as compared
with the rich prizes captured on the ocean. Moreover,
matters connected with military operations on land have
usually been determined by the varying decisions of courts-
martial, and of the executive and ministerial departments
of government; while those springing from maritime
captures have been carefully investigated and decided by
judges learned in the law, whose opinions, preserved in
printed reports, are discussed by the tribunals of other
countries, and commented on by the text-writers of different
ages. We propose here to treat only of maritime captures,
leaving the subjects of military occupation and conquest
for another chapter.
§ 2. The courts have decided that an act of taking
possession is not indispensably necessary to a capture ; an
obedience to the summons of the hostile force, though none
of that force be actually on board, is sufficient. The real
surrender (deditio) of a vessel is dated from the time of
striking her colours. But there must be a manifest inten-
tion to retain as prize, as well as an intention to seize, other-
wise the capture will be regarded as abandoned. It is
therefore generally necessary for the officer who seizes a
prize to commit her to the care of a competent prize master
and crew, because of a want of a right to subject the cap-
tured crew to the authority of the captor’s officer. But the
capture is not abandoned, though only a prize master is
put on board, if the captured crew be subjects of the same
government as the captor. It has been shown that, as a
general rule, all property belonging to the enemy, found
afloat upon the high seas, and all property so afloat, belong-
ing to subjects, neutrals, or allies, who conduct themselves
as belligerents, may be lawfully captured. All property
condemned is, by fiction, or rather by intendment, of law, the
property of enemies—that is, of persons to be considered in -
ship be arrested at sea, and carried into a port, under pretence
that she belongs to an enemy, this is capture, because it is done as
an act of hostility.
on. xxx! RIGHTS AND DUTIES OF CAPTORS 391'
the particular transaction. Hence, prize acts and laws of
capture, with reference to enemy’s property, are construed to
include that of subjects, neutrals, and allies, who, in the par-
ticular transaction, are to be regarded as enemies. It has
also been shown that a belligerent can exercise no rights of
war within the territorial jurisdiction of a neutral State,
and that this jurisdiction extends, not only within ports,
headlands, bays, and the mouths of rivers, but to a distance
of three miles from the shore itself. All captures, therefore,
made by belligerents, within these limits, are, in themselves,
invalid. But this invalidity can be set up only by the
government of the neutral State, for as to it only is the
capture to be considered void; as between enemies, it is
deemed, to all intents and purposes, rightful. With respect
to the enemy, no right is thereby violated ; but with respect
to the neutral, an offence has been committed, and he may
restore the prize if in his power, or otherwise demand satis-
faction. But if he omits or declines to interpose any claim,
it is condemnable, jure belli, to the captors. Captures,
as already shown, may be made not only by public ships
of War and vessels commissioned as privateers, but also by
non- commissioned vessels, boats, tenders, &c. This general
right to make captures results from the law of war, which
places all the inhabitants of one belligerent State in the
position of pubic enemies toward all the inhabitants of the
other belligerent, State. There, however, is a marked
distinction between’ the rights of the captured property,
acquired by public and commissioned vessels, and by those
acting without any commission or authority.1 To enable
a vessel to make captures which shall enure to the benefit
of the captors, it is necessary that she should have a com-
mission ; but non-commissioned vessels of a belligerent
nation may not only make captures in their own defence,
but may, at all times, capture hostile ships and cargoes,
without being deemed by the law of nations to be pirates,
though they can have no interest in the prizes so captured.
‘ Phillimore, On Int. Law, vol. iii. §§ 345, 349; Pistoye et
Duverdy, Trait! des Prises, tit. ii. 4; Dalloz, Repertoire, verb.
‘ Prise Maritime,’ sec. art. 3; Merlin, Repertoire, verb. ‘ Prise
Maritime,’ §§ 2, 4 ; the ‘ Julia,’ 8 Cranch. R. 189 ; the ‘ Esperanza.’
1 Hagg. R. 91 ; the ‘ Hercules.’ 2 Dad. R. 63 ; the ‘ Resolution,’
6 Rob. 386.
392
‘ INTERNATIONAL LAW 011. xxxI
The Naval
Prize Act,
1864
Every capture, whether made by commissioned or non-
commissioned ships, is at the peril of the captors. If they
capture property without reasonable or justifiable cause,
they are liable to a suit for restitution, and may also’ be
mulcted in costs and damages. If the vessel and cargo, or
any part thereof, be good prize, they are completely justified.
And although the whole property may, upon a hearing,
be restored, yet, if there was possible cause of capture,
they are not responsible in damages. .
§ 3. The right to all captures vests primarily in the
sovereign. By the Naval Prize Act, 1864, 27 and 28 Vict.
c. 25, ‘ nothing in this Act shall give to the officers and
crew of any of [his] Maj esty’s ships of war any right or claim
in or to any ship or goods taken as prize, or the proceeds
‘thereof, it being the intent of this Act that such. officers and
crews shall continue to take only such interest (if any) in
the proceeds of prizes ’ as may be from time to time granted
to them by the Crown.’ By s. 39 of the same Act any ship
or goods taken as prize by any of the officers and crew of a
ship other than a ship of war shall, on condemnation,
belong to [his] Majesty in [his] ofiice of Admiralty.’ When the
1 By royal proclamation of May 16, 1871, ships or vessels being
in sight of a prize, as also of the captor, under circumstances to
cause intimidation to the prize and encouragement to the captor,
shall be alone entitled to share as joint captors. This proclama-
tion provides for the distribution of all net proceeds of prizes,
rewards, allowances, salvage awards, and of 'all bounties and grants
whatsoever distributable to the royal navy in the manner of prize
money. Under the repealed prize proclamations a captain of
marines who happened to be on board a man-of-war when she took a
prize, but who did not belong to her complement, only shared as a
passenger. (Wemys v. Linzee, 1 Dougl. 324.) A captainof a ship
being on board at the time that his ship took a prize was entitled to
prize money, even though he was in arrest, and another officer had
been sent on board to command. (Lumley 11. Sutton, 8 T. R. 224.)
2 The original right of the Crown to the entire disposal of all
maritime prize requires a brief explanation with reference to the
office of Lord High Admiral. This ofiice, when not held by a sub-
ject, reverts to the Sovereign, but in a capacity distinct from the
regal character, and thus continues to have an uninterrupted legal
existence. For the maintenancelof this high office, when conferred
upon a subject, an ancient royal grant was made of certain kinds
of maritime prize, which became wholly divested ‘from the Crown
and permanently attached as perquisites to the office of Lord High
Admiral. _These perquisites are called droits of the Admiralty;
and the ancient grant is recognised by an Order‘ of Council of King
Charles II. (1665-6). See Hay and Marriott’s Reports, 50; 2 and
3 Will. and Mary, c. 2 ; 7 and 8 Geo. IV. 0. 65. _, -
OH. XXXI RIGHTS AND DUTIES OF CAPTORS
393
capture enures to the benefit of individuals, it is in conse-
quence of a grant by the State. The distribution of the
proceeds of prizes, as has already been stated, must therefore
depend upon the regulations of each State. Some are much
more liberal in this respect than others. It has been held
by the British prize courts that the power of the Crown
to direct, before adjudication, the release of captured
property, is not taken away by any grant of prize in a prize
act, the preservation of such a power in the Crown being
necessary in its relations with foreign States. The laws
regulating the distribution of the proceeds of captures apply
only after condemnation.‘
§ 4. On the completion of the capture, the title to the
captured property vests in the captor, or rather in his
Sovereign ; and, as a general rule, capture is deemed com-
plete when the surrender has taken place, and the spes
recuperandi is gone. With respect to booty, it is universally
conceded that twenty-four hours’ possession completes the
title of the captor, and the same rule fonnerly prevailed
with respect to maritime captures ; but modern usage, after
much fluctuation, is likely to settle upon the principle,
that the captor acquires an inchoate title by possession
alone, and that, to make this complete and perfect, a
condemnation by a competent court of prize is necessary.2
By the ancient law of Europe, the perductio infra prasidia,
infra locum tutum, was considered necessary for the conver-
sion of the property captured ; but much difficulty arose as to
what constituted a perductio infra preesidia. By a later
usage a possession of twenty-four hours was sufficient to
divest the title of the former owner. This, according to
the commentaries of Grotius and Barbeyrac, is the meaning
of the 287th article of the Consolato del Mare. Bynkers-
hoek and Grotius express themselves to the same effect,
1 De Cussy, Droit Maritime, liv. i. tit. iii. § 26; the ‘ Elsebe,’
5 Rob. 173 ; the ‘Gertruyda,’ 2 Rob. 211 ; the ‘ Eutrusco,’ 4 Rob.
262 ; Ships taken at Genoa, 4 Rob. 388 ; the ‘ Thorshaven,’ Edw. R.
102 ; Thurgar o. Morley, 3 Merioale R. 20.
A captor of a prize may legally assign his share therein, before
condemnation. .(Morrough v. Comyns, 1 Wils. 211.)
2 It is a principle of the prize procedure of the United States,
that belligerent captors are discharged of ‘ liens, of equities, of
neutral creditors, resting upon the effects of an enemy seized at
sea. (The ‘ Sally Magee,’ Blatchf. Pr. Gas. 382.)
Title,
when
changed
394 INTERNATIONAL LAW on. xxx!
and Loccenius considered this rule as the general law of
Europe. Lord Stair decided this to be the rule of law
in Scotland, and, according to Valin, a similar practice
prevailed in France. It was also the ancient law of
England, that the former owner was divested of his property,
unless it was reclaimed ante occasum solis. But the Ordi-
nance of 1649 directed a restitution upon salvage to British
subjects, although the Common Law still prevailed where
the enemy had fitted out the prize as a vessel of war. As
England became more commercial, it becameher settled
policy to regard the property of a captured vessel as not
changed, without a regular sentence of condemnation, pro-
nounced by a court of competent jurisdiction, and the title,
from the time of capture, till such condemnation, as in
abeyance, and not capable ' of being transferred. This
principle is not only recognised by her prize courts, but is
now firmly incorporated into her Common Law. .
The rule, however, is not inflexible, and necessity requires
that occasional exceptions should be made to it; this was
done in the case of the ‘ Felicity,’ an American prize, taken
by H.M.S. ‘Endymion’ in 18I4, and destroyed by that
cruiser,1 the reason of this being that the captain of the
‘ Endymion ’ could not send his prize to any British port
for adjudication, without reducing his own force, the
reduction of which would have sacrificed an immediate
and important service on which he was detached. The
above rule is adopted by the courts and incorporated into
the statutes of the United States. But, as most of the
Continental States of Europe adhere, in a measure, to their
ancient practice, both Great Britain and the United States
adopt toward them, in case of recaptures, the rule of
reciprocity, giving to them the same measure of justice
which they mete out to others. But this question belongs
more properly to another branch of the subject, and will be
discussed in chapter xxxv., on the rights of postliminy and
recapture.2
‘ 2 Dods. R. 381 ; see also the ‘ Leucade,’ Spinks, 220.
2 Wheaton, Elem. Int. Law, pt. iv. ch. ii. §§ II, 12 ; Phillimore,
On Int. Law, vol. iii. §§ 407 et seq. ; Grotius, De jure Bell. ac Pac.
lib. iii. 0. vi. § 3; Bynkershoek, Quaest. jur. Pub. lib. i. c. v.;
Loccenius, jus Maritimum, ii. iv. vi. §§ 4, 8 ; Goss et al. v. Withers,
2 Burr. R. 693 ; the ‘Ceylon,’ I Dod. R. 105 ; ‘L’Actif,’ Edw. R.
0H. XXX! RIGHTS AND DUTIES OF CAPTORS 395
§ 5. It is incumbent on the captor to bring his prize, as Where
speedily as may be consistent with his other duties, within 53:?“
the jurisdiction of a court competent to adjudicate upon it.1 taken
185 ; Assievedo 11. Cambridge, IO Mod. R. 77 ; Brymer v. Atkins,
I H. Black. R. 189; the ‘Flodoyen,’ I Rob. 117 ; the ‘ Estrella,’
4 Wheat. R. 298.
1 Bello, Dezeaho Internacz'onal, pt. ii. c. v. § 5 ; the ‘ Peacock,’
4 Rob. 192 ; Jecker et al. 11. Montgomery, I 3 Howard R. 516 ; the
‘ Princi e,’ ‘Edw. R. 70 ; the Wilhelmina,’ 5 Rob. 143 ; the ‘ Wash-
ington, 6 Rob. 275 ; the ‘Madonna del Burso,’ 4 Rob. 169; the
‘ Corrier Maritimo,’ I Rob. 287.
In the United States the duties of captors of prize are pre- 3111“ of
scribed, by the Act of June 30, 1864, s. I, I 3 Stat. at L. 306. United
By the ‘ Regulations for the Government of the Navy of the States
United States,’ 1905, § 454, the captain shall, on taking possession Navy as
of a prize, adopt such measures as may be necessary to prevent t0 Prize
her from being recaptured. He shall remove such of the oflicers
and crew as may be necessary, and take great care to preserve the
log, all journals, signal-books, and signals, orders, instructions,
letters, ship’s papers, and any other documents of importance or
bearing upon the validity of the capture.
And by the United States ‘ Articles for the Government of the
Navy,’ §§ I6 and I 7, it is forbidden to remove property from a prize
or to maltreat persons on board a prize.
The existing regulations of the United States are silent on other
matters with regard to prize. Some light, however, may be thrown
on the subject by a perusal of the repealed regulations issued by
the Navy Department, August 7, 1876, for the government of all
persons attached to that service :—
CH. XX.-‘ 2. When a vessel is seized as a prize, it shall be the
duty of the commanding officer of the vessel making the capture
to cause all the hatches and passages leading to the cargo to be
secured and sealed, except such as it may be indispensably neces—
sary to keep open. The log-book, and all papers relating to the
vessel and cargo, shall also be sealed up, and placed in charge of
the prize-master, for delivery with the vessel and cargo.
‘ 3. Should it be necessary to take out of a vessel, seized as a
prize, any property, either for its better preservation or for the use
of the vessels or armed forces of the United States, a correct inven-
tory, and a careful appraisement of its value, by suitable ofiicers
qualified to judge, shall be made. This inventory and appraise-
ment to be made in duplicate, one of which is to be transmitted
to the Secretary of the Navy and the other to the judge or the
United States attorney of the district to which the prize may be
sent.
‘ 4. If it should become necessary to sell any portion of cap-
tured property, a full report of the facts must be made to the United
States attorney or judge of the district court to which the prize is
sent, and any proceeds of sale shall be held subject to the order of
the said judge. ‘
‘ 5. The prize-master will vigilantly guard the property entrusted
to his care from spoliation and theft, these offences leading to a
forfeiture of prize money, and such other punishment as a prize
court may inflict, both of the crew and the prize-master.
‘ 6. The commanding officer of any vessel making a capture
shall report to the Navy Department, and to the judge of the court
\
396 INTERNATIONAL LAW on. fun
But, as before stated, if prevented by imperious circum-
stances from bringing it in, he may be excused for taking it
to which the prize is sent, all the material facts, including the
names of all vessels within signal distance at the time, with all the
circumstances of their position.
‘ 7. The commanding officers of all vessels claiming to share in
a prize will cause the prize list to exhibit not only the name and
rank or rating, but also the rate of the annual or monthly pay of
each person borne on the books at the time of the capture to which
the list refers. They will also forward a statement of their, claims,
with the grounds upon which they are based, to the Navy Depart-
ment, and to the judge of the district court to which the prize
is sent.
‘ 8. The master of the captured or seized‘vessel, and as many
of the officers and crew as can properly be taken care of, shall be
sent in custody of the prize-master, who will report immediately
on his arrival to the United States attorney, as well as to the Navy
Department. The mate and supercargo, after the master, are the
most important witnesses before a prize court, and should always
be sent with the vessel, or carried into the port to which she may
be sent for adjudication, without delay.
‘ 9. In time of war the commanding officer of a vessel is to
exercise constant vigilance to prevent supplies of arms, munitions,
and contraband articles being conveyed to the enemy, yet under
no circumstances is he to seize any vessel within the waters of a
friendly nation. ‘
‘ 10. A commanding officer in time of war is to exercise the
right of visitation and search on all suspected vessels other than
neutral men-of-war, but in no case is he authorised to fire at a
vessel without showing colours and giving her notice of a- desire
to speak and to visit her; first, a blank cartridge is to be fired ; '
second, a shot fired wide of her ; third, a shot fired at the vessel ;
nor is he to fire at any such'vessel or commit an act of hostility
or of authority within a marine league of any foreign country with
which the United States is at peace. ' - I
‘ 11. When a visit is made, a vessel, if neutral, is not to be
seized without a search renders it reasonable to believe that she
is engaged in carryingv contraband of war for or to the enemy, and
to his ports, directly or indirectly, or unless she is attempting to
violate a blockade established by the United States. If, after any
visitation and search, it shall appear that the vessel is, in ‘good
faith and without contraband, actually bound and passing from
one neutral port to another, and not bound or proceeding to or
from a port in the possession of the enemy, then she cannot be
lawfully seized. It is the duty of the officer making the search to
endorse upon the ship’s register or license the fact of the visit, the
nature of the search, by what vessel made, the name of her com-
manding officer, the latitude and longitude, the time of detention,
and when released.
‘ 12. In order to avoid difficulty and error in relation to papers
found on board a neutral vessel that may have been seized, the
commanding officer will take care that official seals, or fastenings
of foreign authorities, are in no case broken, and that parcels covered
by them are never read by any naval authorities; but that‘ all
bags or other covering of such parcels are remitted to the prize
court. -
0H. XXXI RIGHTS AND DUTIES OF CAPTORS
to a foreign port, or for selling it, provided he afterwards
reasonably subjects its proceeds to the jurisdiction offia
‘ 13. The officers and crew of a neutral vessel seized are not to
be confined except by detention on board, unless by their own
conduct they should render further restraint necessary. Their
personal property is to be respected, and a full and proper allowance
of PI'O-VlSlOIlS is to be distributed to them. If any cruelty or un-
necessary force is used towards such crew, a prize court will decree
damages to the injured parties.
‘ 14. A neutral vessel seized is to wear the flag of her own
country until she is adjudged to be a lawful prize by a competent
court. The flag of the United States, however, may be exhibited
at the fore, to indicate that she is, for the time, in the possession
of officers of the United States.
‘ 15. The form of a letter of instructions to be given to prize
masters is as follows :—
‘ ‘ “ United States S

‘ s u Ofi_______.
‘ “ Sir,--You will take charge of the ——.-—--, captured on
the -- day of , 18--, by -———-—-, and proceed with
the said prize to the port of .—-———, and there deliver her with
the accompanying papers (which were all that were found on board),
' and the persons sent as witnesses, to the judge of the United States
district court, or to the United States prize commissioners at that
place, taking his or their receipt for the same. You will not deliver
either the vessel, the papers, or the witnesses to the order of any
other person or parties unless directed to act otherwise by the
Navy Department or flag oflicer commanding the squadron to
which you are attached.
‘ “ On your arrival at --————-- you will immediately report in
person to the commanding or senior navy officer of the navy yard
or station thereat, and show him these instructions ; and you will
report also, by letter, to the Secretary of the Navy, stating in full
the particulars of your passage home, and transmit to him, through
the commandant or senior ofiicer, the names of the officers and
men composing your prize crew, and any communications for the
Department with which you may be charged. You will on your
arrival allow no person to leave the vessel without permission from
the commandant of the station, nor go on shore yourself except
on your necessary duty. You will not sleep out of the vessel while
in charge, nor allow any but official boats to approach and only
official persons on duty to come on board. You will without delay
after reporting call upon the United States attorney at —-——-—-—,
show him these instructions which are issued by order of the Secre-
tary of the Navy, and give him all the information in your power
respecting the circumstances connected with the capture of the
' You will then report and show these instructions to

‘the naval prize commissioner of the district, who is hereby directed
to ascertain and notify you of the earliest date at which your attend-
ance shall no longer be required by the court, and to endorse the
notification on this paper. You will on being discharged from
attendance, if not in the meantime instructed, and whenever you
need instructions respecting yourself, officers, or prize crew, im-
mediately report to the commandant of the nearest yard or station
or senior officer for such instructions. You will particularly bear
in mind and strictly observe the injunctions of the law and of the
398
INTERNATIONAL LAW on. xxx:
. l (l _____-__
British
Admiralty
regula-
tions as to
prize
competent court of prize. The court within whose juris-
diction the proceeds of the sale are brought takes cognisance
department respecting captured property or persons under your
charge, and recollect that you will be held rigorously responsible
for any mismanagement of the trust confided to you. You, your
officers, and prize crew are hereby detached from the —---——,
and you will be careful to apply for and take with you their pay
accounts and your own, to be presented to the paymaster of the
yard or station at or nearest to the port to which you are ordered.
The sea pay of yourself and ofiicers will continue while in charge
of the prize or under the orders of a flag officer or senior navy officer
afloat, but your name will not be borne on the books of the vessel
from which you are detached, and you will not be entitled to share
in prizes made by such vessel after your detachment.
‘ “ (Signed) —--—— ,
Commanding the United States -----—.”

‘ 16. The prize master in whose charge instruments are placed,
or to whom arms are entrusted, will be held strictly accountable
for their condition, and in case of loss or damage by neglect, or
other cause not satisfactorily explained, the value will be charged
to his account. The oflicer appointing a prize master will require
him to give a. receipt in duplicate for the instruments and arms
with which he may be furnished, one to be forwarded to the com-
manding oflicer of the station to which the prize vessel is bound,
and the other to be retained by such appointing officer; and in
case of any deficiency in the delivery of, or palpable abuse of them,
the commanding officer of the station will at once have the matter
investigated, and report the result to the Navy Department.
‘ 17. Prisoners of war are to be treated with humanity ; their
personal property is to be carefully protected ; they shall have a
proper allowance of provisions, and every comfort of air and exer-
cise which circumstances will permit of. Every precaution must
be taken to prevent any hostile attempt on their part, and, if neces-
sary or expedient, they may be ironed or closely confined. If
officers give their parole not to attempt any hostile act on board
the vessel, and to conform to such requirements as the commanding
officer may consider necessary, they may be permitted any privi-
leges he may deem proper.
‘ 18. If any vessel shall be taken acting as a vessel of war, or
a privateer, without having a proper commission so to act, the
officers and crew shall be considered as pirates, and treated accord-
in l .’
gBy the King’s Regulations and Admiralty Instructions of 1906
it is ordered (§ 1868) that in all matters connected with naval prize
of war, officers are to be guided by such instructions as may be
furnished them by the Admiralty from time to time. The repealed
regulations of 1879, however, may afford some light on the subject.
They are as follows :—
‘ 1919. When any ship or vessel shall be captured or detained,
her hatches are to be securely fastened and sealed, and her lading
and furniture, and, in general, everything on board, are to be care-
fully secured from embezzlement; the officer placed in charge of
her shall prevent anything from being taken out of her until she
shall have been tried, and sentence shall have been passed on her
in a. Court of Admiralty or of Vice-Admiralty.
OH. XIXXI
RIGHTS AND DUTIES OF CAPTORS
of the case, and adjudicates not only upon the validity of
the original capture, but also upon the disposition which
has been made of the captured property. This subject will
be more particularly considered in chap. xxxii.
§ 6. ]oz'nt captures are those made by two or more
vessels acting in conjunction, or by one or more vessels with
the co-operation of land forces. Where all captured
property is condemned to the government, it is of very little
importance who are to be considered the real captors where
several lay claim to that title ; but where captured property
is condemned as prize to the benefit of the captors, it becomes
a question of special interest to determine who are, in law,
to be considered as captors, and, consequently, to share in
the prize. As a general rule, all the parties who are actually
engaged in the seizure, or who directly contribute to the
surrender, are properly to be considered as joint captors, and,
consequently, share in the prize, but the actual amount
of assistance necessary to constitute joint capture, under the
different circumstances of chase and surrender, as deter-
mined by the decisions of courts of prize, depends in a great
measure upon the character of the vessels and their position
at the time of actual seizure.
§ 7. We will first consider joint capture by public vessels
of war. All ships of war which are in sight at the time of
the actual seizure are deemed to be constructively assisting,
and, therefore, are entitled to share in the prize. The
reason of this rule is, that public ships are under a constant
‘ 1920. The captain of the capturing or detaining ship shall
cause the principal officers of the vessel detained, and such other
persons of the crew as he shall think fit, to be examined as witnesses,
in the Court of Admiralty or of- Vice-Admiralty, to prove to whom
the vessel and cargo belong ; and he shall send to the said Court
all passports, custom-house clearances, log books, and all other
ship’s papers which shall be found on board, without suffering any
of them to be on any pretence secreted or withheld.
‘ 1921. The captain and the prize master are to take particular
care that all prisoners of war are treated with humanity ; that their
personal property is carefully protected ; that they have their proper
allowance of provisions, viz. two-thirds of all species, except spirits,
wine, or beer, of which none shall ever be issued to them; and
that every comfort of air and exercise, which circumstances admit
of, be allowed them ; but, to prevent any hostile attempts on their
part, they are to be always attentively watched and guarded,
especially when many of the ship’s company may happen to be
employed aloft.’
0f joint
captures
generally
Construc-
tive cap-
tures by
public
vessels
400 INTERNATIONAL LAW 011. xxxr
obligation to attack the enemy wherever seen, and, there-
fore, from the mere circumstance of being in sight, a pre-
sumption is sufficiently raised‘ that they are there animo
capiendi; and this rule is additionally supported by the
obvious policy of promoting harmony in the naval service.
But the vessel claiming such constructive assistance must be
actually in sight at the time of capture, or at least at the
commencement of the engagement or chase, for there must
be some actual contribution of endeavour as well as of
general intention. If the circumstances of the case repel
the presumption of the animus capiendi, as where the public
ship is steering an opposite or a different course, inconsistent
with the notion of an intent to capture, the claim to joint
capture cannot be sustained. But the mere sailing on a
different course is not sufficient to defeat this claim ; for it
is not always necessary that two vessels should pursue the
same line, where, acting with a unity of purpose, the same
object is sometimes better accomplished by one vessel sail-
ing in one direction, and another in a different direction.
But if the ship claiming as joint captor has changed her
course before the actual capture, in such a manner as to show
that she had abandoned all design of continuing the pursuit,
the claim is defeated. So, also, if the prize has been merely
reconnoitred, without any attempt at pursuit. - It is very
doubtful whether merely seeing the prize from the masthead,
however clearly the animus capiendi may be proved, will
bring the case within the rule of being in sight. In all cases
of constructive joint capture, the onus probandi rests upon
the party claiming the benefit of the rule. Nor is it sufficient
to prove that the joint captor was in sight of the actual
captor ; it is also necessary that she was seen by the prize.
Both these facts must be established; the one by direct
evidence, and the other by implication and necessary
inference. Being in sight means being seen by the prize,
as well as by the actual captor, and thereby causing intimida-
tion to the enemy, and encouragement to the friend. One
of these will not do without the other.’
1 The ‘ Drie Gebroeders,’ 5 Rob. 3 39 ;the ‘ Jan Frederick,’ 5 Rob.
12o ; the ‘ Robert,’ 3 Rob. 194 ; the ‘Lord Middleton,’ 4 Rob. 153 ;
the ‘ Spankler,’ 1 Dod. R. 359 ; the ‘ Rattlesnake,’ 2 Dod. R. 3 5.
As to what constitutes ‘ signal distance ’ within the meaning of
the Act, regulating the distribution of prize money, see the ‘ Aries,’
CH. XXXI RIGHTS AND DUTIES OF CAPTORS 4OI
§ 8. But actual sight is not absolutely necessary to
constitute constructive joint capture. If it be shown that
the asserted joint captor was in sight when the darkness
came on, and that she continued steering in the same course
by which she was before nearing the prize, and that the
prize itself also continued the same course, it amounts almost
to a demonstration that the vessels would have seen, and
been seen by each other at the time of capture, if darkness
had not intervened. In such a case, the vessel so pursuing
is let into the benefit of joint capture. But, if the seizure
is made at such a distance from the asserted joint captor
that she could not have been in sight if it had been day, the
claim cannot be sustained.‘
§ 9. In respect to foint chase, much depends upon
whether the vessels are acting in association, or separately
with a common object in view. In the latter case, the
question of actual or constructive sight will generally deter-
mine the claim to joint capture, as stated in the preceding
paragraph. If the claimant, or the prize, changed her
course in the night, and, at the time of actual capture, could
not have been seen by each other in daylight, the mere fact
that the chase had the effect of throwing the prize into the
hands of the actual taker will not vary the case. Construc—
tive captures are never allowed to be deduced from such
assistance, whether designed or accidental.2
2 Sprague, 262 ; the ‘ St. John,’ ibid. 266 ; the ‘ Ella and Anna,’ ibid.
267 ;the ‘ Ella,’ 2 Int. R. R. 117.
The single fact, that a vessel is one of a common force, does not
entitle her to participate in the prize shares, obtained by the separate
members of the force. It must be shown, that such vessel was ‘ in
sight,’ or ‘ within signal distance ’ of the occurrence, out of which
the taking of the prize was realised. She must have been so situated,
as to be able, of her own accord, to contribute direct assistance to
the captors, by deterring the enemy from resistance, or by aiding
physically in overcoming such resistance, and the vessel to be aided
must have possessed the means of communicating intelligent direc-
tions to the one whose aid was needed. The Acts of Congress, on
the subject of distribution of prize money, contemplate that it shall
be shared among vessels which, at the time of the capture, were
in view of each other, so as to be able to receive and respond to
signals correctly. A vessel, claiming to share in the proceeds of
a capture, must show that she was within signal distance of the
vessel making the prize, in circumstances which might have justified
the capturing vessel in demanding and expecting her assistance.
(The ‘ Anglia,’ Blatchf. Pr. Gas. 566.)
1 The ‘ Union,’ 1 Dod. R. 346 ; the ‘ Financier,’ 1 Dod. R. 61.
“ The ‘Neimen,’ 1 Dod. R. 9 ; the ‘ Melanie,’ 2 Dod. R. 122.
VOL. II. D D
When
actual
sight is
not no-
cessary
0! joint
chase
402 INTERNATIONAL LAW OH. xxx1
Services
before and
after
capture
Vessels
associated
in same
service
§ IO. No antecedent or subsequent services in the expedi-
tion will entitle a party to the benefit, of joint capture,
where he would not otherwise be entitled to share. Thus, a
ship of war sent for reinforcements to Lord William Ben-
tinck, on hearing the firing of the fleet upon Genoa, returned
from Leghorn, and was in sight at the time of the capitula-
tion; but, as the ship was ignorantv of the object of the
attack, and the captors were ignorant of her approach, she
was not allowed to come in as a joint captor. So, of a ship
of war which was despatched to join the contingent expedi-
tion against Buenos Ayres, but did not arrive till after the
surrender?
§ II. In respect to captures made by ships which are.
associated in the same service or joint enterprise, under the
same superior officer, as a general rule all are entitled to
share as joint captors, although not in sight at the time of
capture. The fleet so associated is considered as one body,
acting together for one single object, and what is done by a
part enures to the benefit of all. The only question to be
considered is, whether the capturing ships at the time the
capture was made composed, de facto, a part of the par—
ticular fleet. Thus, where a capture was made by ships
composing part of a squadron employed in the blockade
of the Texel, out ‘of sight of the fleet and without any
- concurrence in chasing, the court held that the blockading
fleet were all joint captors. So, where a prize coming out
of or entering a blockaded port is taken by. one of the ships
of a blockading squadron stationed off the mouth of the
harbour, while the rest of the squadron, maintaining‘the
blockade, are stationed at some distance. In the case of the
‘Guillaume Tell,’ a squadron was stationed to watch the
harbour of La Vallette. The prize, in attempting to escape,
was pursued and taken by a part of the squadron, while
the others remained stationary. The claim to joint capture.
was allowed, notwithstanding the physical impossibility of
active co-operation, arising from the state of the wind.2
1 The ‘ Buenos Ayres,’ 1 Dad. R. 28; ‘Genoa and Lavona,’
2 Dad. R. 88.
2 The ‘ Harmonie,’ 3 Rob. 318 ; the ‘ Henriette,’ 2 Dod. §96;
the ‘ Guillaume Tell,’ Edw. R. 6 ;the ‘ Empress,’ 1 Dad. R. 368.
But where a capture was made of a blockade-runner, between the
several vessels forming the blockading squadron, but the capture
on. xxx: RIGHTS AND DUTIES 0Fv CAPTORS
403
§ 12. But mere association is not sufficient to entitle
vessels to share as constructive joint captors; they must
have a military character, and be capable of rendering
military service ; in other words, there must be an animus
capz'ende'. Thus, a ship forming part of a blockading
squadron, but totally unrigged, and incapable of rendering
any service at the time of capture, is held to be as much
excluded as one totally unconscious of the transaction;
because by no possibility could that ship be enabled to
co-operate in time. So of transports and store ships,
although associated in the same service with the actual
captor, if destitute of a military character, and incapable
of rendering assistance, they cannot be regarded as joint
captors. It is not sufficient that the enemy may have been
intimidated by the presence of such vessels. Mere intimida-
tion may be produced without any co-operation having been
given or intended. If a frigate were going to attack an
enemy’s vessel, and four or five large merchant ships, uncon-
scious of the transaction, should appear in sight, they might
be objects of terror to the enemy, but such terror would not
entitle them to share in the prize as joint captors.1
§ I 3. Convoying ships are under no disability of claiming
“as joint captors on account of their employment, if, in other
respects, entitled to share in the prize, unless the capture is
made at such a distance as would remove them from the
performance of the special duty of protecting their convoy.
Being military ships and capable of rendering assistance
(where not interfering with this special duty), they are
entitled to all the benefits of constructive capture, whether
the construction arises from association, sight, or other-
wise.
took place after a chase, which carried the runner and the capturing
vessel out of sight of the other members of the squadron—Held,
that the latter vessels were not entitled to share in the proceeds
of the prize, which is confined by the laws of the United States to
two classes of vessels, those making the capture, and those within
signal distance of the vessel making the capture. (The ‘ Cherokee,’
2 Sprague, 235.)
Vessels and cargoes seized for violation of the laws of blockade,
or as enemy’s property, are prizes of war under the law of nations,
rend i6igt )under municipal authority. (The ‘ Nassau,’ Blatekf. Pr.
as. _ 5.
1 The ‘ Cape‘ of Good Hope,’ 2 Rob. 274 ; the ‘ Twee Gesuster ’
and ‘ Le Franc,’ 2 Rob. 284, note.
Mere
associa-
tion not
sufiicient
Gonvoying
ships
n n 2
404
INTERNATIONAL LAW 011. xxx1
Detached
vessels
Joint cap-
tures by
land and
sea forces
But if the convoying ship desert her duty, she forfeits all
benefit of capture.1 1
§ 14. 'If a vessel be detached from the fleet at the time of
capture, so as to separate her from the'joint object, she
cannot be considered as a constituent part or member of the
association, and cannot claim thebenefit of joint capture
with the fleet, nor can the fleet be allowed to come in as
joint captors in any prize taken by her after she was detached.
Thus, where two vessels of a blockading squadron were sent
to look out for an enemy’s ship and captured her, the rest,
which maintained their station, were held not entitled to
share. So, where two vessels were detached, one by stress
of weather and another in chase, they were held not entitled
to share in a capture made in their absence. But where
two vessels were sent to chase and the rest of the fleet were
bearing up to support them, the claim of the latter to
joint capture was allowed. And a ship, forming a part of a
blockading squadron and continuing as such, although
temporarily detached at the time of the summons, and
not returning till after the capitulation of the place so
blockaded, was, nevertheless, entitled to share as joint
captor with the rest of the blockading force. 'So, a ship
in joint chase of one vessel, being ordered by a superior to
chase another, the two chasing vessels are regarded as
associated for the joint object of capturing both of those
chased, and, although only one is captured, they jointly
share in the prize. But if neither received nor was actually
under the orders of the other, or of a common superior, the
case would be different.’ _ '
§ 15. When land and sea forces act in conjunction, and
no express provision is made by statute for the distribution
of prizes taken by their joint operation, resort must be had
to the principles established by judicial decisions. It has
been held that a more general co-operation, in the same
general objects, will not be sufficient to make land forces
joint captors with a fleet ; there must be an actual assistance
and co-operation in the particular capture. Where there
1 The ‘ Waaksamheid,’ 3 Rob. 1 ; the ‘ Fury,’ 3 Rob. 9.
2 The ‘ Forsigheid,’ 3 Rob. 311 ; the ‘ Island of Trinidad,’ 5 Rob.
92 ; the ‘L’Etoile,’ 7 Dod. R. 106 ; the ‘ Naples Grant,’ 2 Dod. R.
27 3 ; the ‘ Nordstern,’ cited, Edw. R. 126 ; the ‘ Cherokee,’ 2 Sprague,
235
on.xxx1 RIGHTS AND norms or CAPTORS
405
is pre—concert, a very slight service is sufficient. So, where
‘soldiers are landed on the coast, to co-operate with a fleet,
in a conjunct expedition, or in a particular engagement,
they are entitled'to share in the capture. In the case of a
claim on the part of the army to share in a capture made
by the fleet, the onus probandi lies upon them to show that
there was an actual co-operation on their part, assisting to
produce the surrender. Without a pre-concert, or conjunct
expedition, they are not entitled to the benefit of construc—
tive capture ; therefore, to establish a claim of joint capture
between them, there must be a contribution of actual
assistance, and the mere presence, or being in sight, will
not be sufficient. Between public ships of war there is
always conceived to be a privity of purpose, which con-
stitutes a community of interest; and this community of
interest extends to public ships of different countries,
if allies ; but between land and sea forces, acting indepen—
dently of each other, no such privity can be presumed.
Hence, the difference of the rules applicable to the two
cases.‘ '
§ 16. The public ships of allies, serving together, are
entitled to share in captures, the same as those of a single
belligerent. There is no difference in this respect, whether
the benefit of joint capture goes to the government or to the
vessels, their commanders and crews. If, of two allied
joint captors, the government of one has made a grant
of the prize, and the other has not, the condemnation will
be, in the former case, directly to the joint captor, and in the
latter to the government, according to the share of each.
A ‘question may, however, arise, in case of joint capture by
allies, with respect to the court which shall be entitled to
adjudicate upon the capture.2
1 The ‘ Stella del Norte,’ 5 Rob. 349 ; the ‘ Dordrecht,’ 2 Rob. 55.
By 27 and 28 Vict. c. 25, s. 34, it is enacted that where, in an
expedition of any of her Maj esty’s naval or naval and military forces,
against a fortress or possession on land, goods belonging to the State
of the enemy or to a public trading company of the enemy, exercising
powers of government, are taken in the fortress or possession, or a
ship is. taken in waters defended by or belonging to the fortress or
possession, a prize court shall have jurisdiction as to the goods or
. ships so taken, and any goods taken on board the ship, as in case of
prize. ' w
2 Phillimore, On Int. Law, vol. iii. §§ 390-401 ; Ortolan, Diplo-
matic de la M er, t. ii. appen. special. An ally actually co-operating
By public
ships of
allies
406 INTERNATIONAL LAW 011. xxx!
Construc-
tive joint
captures
not al-
lowed to
privateers
§ 17. It has already been stated that, as public ships of
war are under a constant obligation to attack the enemy
wherever seen, and as a neglect of this duty is not to be
presumed, there is a privity of purpose, which constitutes
a community of interest, and the mere circumstance of
being in sight is sufficient to entitle such a vessel to the
benefit of joint capture. But as the same obligation does
not rest upon privateers, the law does not give them the
benefit of the same presumption of an animus capiendi.
They generally clothe themselves with commissions of war
for private advantage only; and, however allowable this
may be when combined with other considerations of public
policy, it will not lead to the same inference, as in the case
of public ships of war. Hence, the animus capiendi of a
privateer must be demonstrated by some overt act, by some
variation of conduct, which would not have taken place but
with reference to that particular object, and if the intention
of acting against the enemy had not been entertained. A A
different rule would induce ‘privateers to follow in the wake
of public ships of war, and keeping in sight of them, merely
to become entitled to the joint benefits of the captures
which they might make. But a public ship of war is entitled
to the benefit of constructive joint capture, where the actual
taker is a privateer, the same as though both were vessels of
war. The reason of this rule is obvious?
in effecting a capture cannot sue in the common law courts, but
must sue in the prize court. (Duckworth 2). Tucker, 2 Taunt. 7.)
By 27 and 28 Vict. c. 25, s. 35, ‘ where any ship or goods is or
are taken by any of her Majesty’s naval, or naval and military,
forces, while acting in conjunction with any forces of any of her
Majesty’s allies, a prize court shall have jurisdiction as to the same,
as in case of prize, and shall have power, after condemnation, to
apportion the due share of the proceeds to her Majesty’s ally, the
proportionate amount and the disposition of which share shall be
such as may from time to time be agreed between her Majesty and
her Majesty’s ally.’ By the convention of May 20, 1854, entered
into between France and England, it was stipulated (art. 2), that
when a joint capture shall be made by the naval forces of the two
countries, the adjudication shall belong to the jurisdiction of the
country whose flag shall have been borne by the officer having the
superior command in the action ; and (art. 3), that when a capture
shall have been made by a cruiser of either of the two allied nations,
in the presence and in the sight of a cruiser of the other, such cruiser
contributing to the capture, the adjudication of the case shall belong
to the jurisdiction of the country of the actual captor.
1 The ‘ L’Amitié,’ 6 Rob. 261 ; the ‘Santa Brigade,’ 3 Rob. 52 ~;
OH. XXXI
RIGHTS AND DUTIES OF CAPTORS
2107
§ I8. Revenue cutters are sometimes furnished with
letters of marque and cruise, beyond the ordinary limits of
their duty as coast-guards, for the purpose of capturing
enemy’s merchant vessels. They are public vessels, but not
public vessels of war, and, with respect to the benefits of
joint capture, are, by English courts, considered in the light
of privateers, and the rule of constructive assistance, from
being in sight, does not apply to them ; for, not being under
the same obligations as king’s ships to attack the enemy,
they are not entitled to the same presumption in their
favour.1
§ 19. With respect to captures made by boats, it is a
general rule, that the ships to which they belong are
entitled to share as joint captors ; or rather, the capture is
considered as made by the ship, the boats being a part of the
force of the ship. But if the capturing boat has been
detached from the ship to which it belongs, and attached
to another, only the ship to which it is attached at the time
of capture shares in the prize. Mere constructive capture
by boats, will hardly entitle the ships to which they belong,
to be allowed to come in as joint captors, for the fact of
boats being in sight does not necessarily raise the pre-
sumption of assistance, by the intimidation of the enemy,
and the encouragement of the friend. Thus where the
boats of a ship, lying in a harbour, were within sight of- a
capture, it was held that the ship could not be allowed to
share as joint captor.2 '
§ 20. Captures made by tenders are regulated by the
same rules as those made by boats, the ship to which the
Talbot 11. ‘ Three Briggs,’ I Dallas R. 95 ; ‘La Flore,’ 5 Rob. 2 38 ;
the ‘ Galen,’ 2 Dad. R. 19.
See, as to privateers, ch. § 25.
1 Phillimore, On Int. Law, vol. iii. § 395 ; the ‘ Bellona,’ Edw.
R. 63. '
When it appeared that the prize property was captured by a
United States steam transport ship, no other vessel co-operating
therein or being within signal distance at the time, and that the prize
vessel was of inferior force, the court, to carry into effect the Act of
June 30, 1864, allowing vessels not of the navy to share in a prize
in certain cases, referred it to a commissioner to report the names
and employments of the captors on board the transport ship present,
and engaged in the capture, and the relative compensation properly
allowable to them severally. (The ‘ Emma,’ Blatehf. Pr. Gas. 607.)
2 The ‘ Anna Maria," 3 Rob. 211 ; the ‘ Odin,’ 4 Rob. 318 ; the
‘ Mélomane,’ 5 Rob. 41. _ w _
Captures
by re-
venue
cutters
By boats
By tenders
408 - INTERNATIONAL LAW on. XXX!
By prize
masters
By non-
commis-
sioned
vessels
tender is attached being entitled to share, however distant
she may be at the time of capture. But, in order to sup-
port the averment that the claimant was the principal, and
the capturing vessel a mere tender, it must be shown,
either that there had been some express designation of her
as of that character, or that there had been a constant
employment and occupation in a manner peculiar to tenders,
equivalent to an express designation, and sufficient to
impress that character upon her.1
§ 21. Prizes hold the same relation to their captors, as
do the boats of the same vessel. Hence, prize interests
acquired by a prize master on board of a captured vessel,
enure to the benefit of the whole ship’s company. This
is the natural and reasonable result of that community of
interest existing between the prize master and prize crew,
and the capturing vessel, the former being merely tem-
porarily detached to take the prize into port, but without
any real separation of object or interest.’
§ 22. The general rules of joint capture for commis-
sioned privateers, are also applicable to non-commissioned
vessels; with this distinction :--that all captures by the
latter must be condemned to the government as droits of
Admiralty, the captors only receiving compensation in the
nature of salvage, which is usually awarded by the prize
court, where their conduct has been fair; and, in cases
where there has been great personal gallantry and merit,
the whole value of the prize is given them. Where a vessel
has a commission against one enemy, but none against
another whose property is captured, it is regarded as non-
commissioned with respect to that particular capture. If,
at the time of the capture by a vessel commissioned by a
letter of marque, the master of the capturing vessel be not
on board, the capture is considered as made without com-
mission, and enures to the government. So of a vessel
fitted out and manned by a ship of war, and acting without
any authority or commission; unless brought within the
definition of a tender, it is deemed a non-commissioned
1 Wildman, Int. Law, vol. ii. pp. 3 34, 335 ; the ‘Carl,’ Spinks R.
261 ; the ‘ Island of Curacoa,’ 5 Rob. 282, note.
2 The ‘ Anna Maria,’ 3 Rob. 211 ; the ‘.Mélo'mane,’ 5 Rob. 41 ;the
‘ Belle Coquette,’ I Dod. R. 18 ; the ‘ Nancy,’-4 Rob, 327, note.
OK. XXXI
RIGHTS AND norms OF CAPTORS 409
vessel, and its captures enure, not to the benefit of the
man-of-war, but to the government. But the question
whether the capture is made by a duly commissioned
captor, or not, is one between the government and the
captor, with which claimants have nothing to do; they
have no legal standing to assert the right of the State.‘
§ 23. Where a privateer or a non-commissioned vessel is
the actual captor, and a man-of-war only a joint captor,
the latter has no right to dispossess the former, but is
entitled to put some one on board to take care of the interests
she may have in the capture. It is not essential, but a
measure of proper precaution and of great convenience,
that an interest should be asserted at the time. Where
expenses were incurred by the actual captor in consequence
of an omission of this precaution, they were directed to be
paid out of the proceeds. Where a man-of-war and a
privateer were joint chasers, and the privateer came up
first, and struck the first blow, but the man-of-war was
1 The ‘Charlotte,’ 5 Rob. 280; the ‘Dos Hermanos,’ 2 Wheat.
R. 76 ; the ‘ Cape of Good Hope,’ 2 Rob. 274. '
The profits of a capture made by individuals, acting without a
commission, enure to the government, but it has not been the
practice to exact them. It has been their practice to recompense
gratuitous enterprise, courage, and patriotism, by assigning the
captor a part, and sometimes the whole of the prize. (1 Op. Alt.-
Gen. 463.) Under the Acts of March 25, 1862, and July 17, 1862
(12. Stat. at L. 37 5, 4 ; and 607, 6), an armed merchant vessel,'not in
_ the service of, and having no commission from, the United States,
although she is present at the capture of a prize and co-operates
therein, is not entitled to share in the proceeds. (The ‘ Merrimac,’
Blatchf. Pr. Cas. 584.)
The British Court of Admiralty, in 1814, held that the mere
employment of a ship in the military service of the enemy was not
a sufficient setting forth for war to entitle a recaptor to condemnation
under the terms of the existing prize act,~but that if there was a fair
semblance of authority in the person directing a vessel to be so
employed, and there was nothing upon the face of the proceedings
to invalidate it, the court would presume that he was duly authorised.
The commander of a single ship may be vested with this authority
as well as the commander of a squadron. (The ‘ Georgiana,’ 1
Dads. 397.) In the case of the ‘ Castor ’ (Lords of Appeal, 1795),
the authority of the commander of a fleet was considered sufficient.
In the case of the ‘ Ceylon ’ (1 Dods. 105), it was held that the em-
ployment of a ship for purposes of war under the authority of the
Governor of the Mauritius was suficient to constitute it a public
ship of war. No particular inconvenience can arise from. the practice ;
the only uestion is whether the prizes taken should be condemned
to the individual captor or to the government, but the decision either
way could afford but little consolation to the captured.
Public
vessels of
war and
privateers
410 INTERNATIONAL LAW ‘011. xxx:
Effect of
fraud on
claims for
joint
capture
the actual taker, they were held to be joint actual captors?
A man-of-war cannot dispossess a privateer, or a vessel
under letters of reprisals, or a non-commissioned ship,
which is an actual captor.2 If a prize be made by two or
more privateers, they share proportionally, according to
the number of men of which their respective crews consist?
§ 24. Any misconduct or fraud on the part of the cap-
turing vessel, intended to deceive another, in order to
prevent her from taking part in a capture, is generally
punished by admitting the claim of the latter to the benefit
of joint captor. Thus in the case of the ‘ Herman Parlo,’
the actual captor extinguished his lights in order to pre-
vent other ships from seeing the chase or capture. In the
case of ~ the ‘ Eendraught,’ the captor hoisted American
colours, and offered to protect the prize against the other
vessels who were chasing her; by this means, the actual
capture was deferred till the other vessels were out of
sight. In both these cases the claims to joint capture
were admitted, although the claimants were not in sight
when the capture took place. Moreover, in the latter
case the claimants were awarded costs against the actual
captor. Where two convoying ships were detached to
reconnoitre two ships in sight, which turned out to be a
British frigate and an enemy’s vessel, the frigate signalled
her number, but made no signal of an‘ enemy’s ship ahead,
thereby causing the convoying ships to be recalled. She
afterwards made the capture, and the convoying ships were
admitted as joint captors, on account of her neglect to
make the proper signal. So, where a non-commissioned
schooner which had had an engagement with an enemy’s
vessel, and though beaten off, was still hanging upon her,
was induced to sheer off by the actual captor coming up and
hoisting French colours, the claim of the Admiralty to joint
capture for the schooner was sustained by the prize court.‘1
1 The ‘ Marianne,’ 5 Rob. 13 ; the Sacra Familia,’ 5 Rob. 362 ;
the ‘ San José,’ 6 Rob. 244 ; ‘ L’Amitié,’ 6 Rob. 268 ; the ‘ Wanstead,’
Edw. R. 268.
2 The ‘ La Flore,’ 5 Rob. 268, 271 ;the ‘ Amor Parentum,’ 1 Rob.
3035 Roberts 21. Hartley, 1 Dougl. 311. _
‘1 The ‘Herman Parlo,’ 3 Rob. 8; the ‘Eendraught,’ 3 Rob.
appen. 35; the ‘Spankler,’ 1 Dad. R. 359; the ‘Waaksamheid,’
3 ob. 1 ; ‘ La Virginie,’ 5 Rob. 124 ; the ‘ Robert,’ 3 Rob. 194.
on. xxx: RIGHTS AND DUTIES OF CAPTORS 411
§ 25. The distribution of prize among joint captors is
usually regulated by proclamation, but in cases where such
does not exist resort is had to the general rule of prize law
established by the courts, which is that joint captors share
in proportion to their relative strength. And this relative
strength is usually determined by the number of men on
board the actual taker and the ships assisting in the cap--
ture. The same rule seems applicable to the case of a
joint capture by a public and private ship, whether the
latter be commissioned or not; as also where an ally co-
operates in the capture.1
§ 26. The foregoing remarks respecting joint capture
_ refer to benefit in prize; but some States also allow a
bounty, or head money, for the taking or destroying of
vessels of the enemy. Such provision is made by s. 42 of
the British vNaval Prize Act, I864, which provides for such
of the officers and crews of any British ships of war ‘ as
are actually present at the taking or destroying of any
armed ship ’ of the enemy. ‘As grants of this description
are considered as made to reward immediate personal
exertion, and, moreover, are public grants, the courts con-
strue them with much more rigour than they do the con-
fiicting claims of individuals for shares of prize money.
In these, as in all other public grants, the presumption is
in. favourof the grantor, and against the grantee. Hence,
all claims of constructive joint capture, as from sight,
association in chase, &c., are rejected. Originally the
reward was confined to actual combat only ; but the result
of cases decided in the early part of last century shows
that where a capture can be considered as a continuation
of a general action, the whole fleet is equally entitled to
head money, notwithstanding the particular combat and
formal taking or destroying by a single ship belonging to
the fleet ; that it is otherwise where the capture is not the
immediate consequence of the general action; that in a
general engagement there can be no distinction of com-
batants, the whole fleet is supposed to contend with the
whole opposing force ; that it is often so in fact, and" always
1 Roberts 21. Hartley, Doagl. R. 3~II ; Duckworth 0. Tucker, 2
Taunt. R. 7 ; the ‘ Despatch,’ 2 Galtz's R. 1 ; the ‘ Twee Gesuster,’
2 Rob. 284, note ; the ‘ Le Franc,’ 2 Rob. 285, note.
Distribu-
tion of
prize to
joint
captors
Of bounty
or head
money
412 INTERNATIONAL LAW on. xxxi
collusive
captures
so in supposition of the law; that if the capture is made
under such circumstances as to destroy all supposition of
a continuity of the general engagement, the court will
. pronounce against the claim of the fleet to share in the
head money.’ There is, however, some dissimilarity between
the wording of the older prize Acts and the existing one.
It was held in the-United States under s. 2 of the Act of
Congress of July 17, 1862,2 which provided for distribution
of prize money, according to the relative force of the vessel
or vessels making the capture, as compared with that of
the captured vessel, that it was prope‘rto consider as the
capturing force not only the flag-ship which, in fact, in-
flicted the damage received by the captured vessel, but
also any other vessels which, by diverting the fire of the
enemy, &c., contributed to the capture.’ But since 1899
the distribution of bounty and prize for destroying or
capturing enemy ships is no longer permitted in the United
States." '
§ 27. In all cases of collusive captures, the captors,
whether single or joint, acquire no title to the prize, and
the captured property is condemned to the government.
If collusion be alleged, the usual simplicity of the prize
proceedings is departed from in order to discover the fraud,
if any exist. Evidence invoked from other prize causes is
sometimes resorted to, as proof of collusion. Thus, where
the same vessel has been proved guilty of collusion in
another case, during the same cruise, the court will take
cognisance of that fact in the claim before it. . The rules of
maritime capture generally will decree forfeiture of the
- rights of prize, against the captors, for gross irregularity
or fraud, or for any other criminal conduct. Although the
1 The ‘Clarinde,’ 1 Dod. R. 436; ‘La Gloire,’ Edw. R. 280;
‘ L’Alerte,’ 6 Rob. 238 ; the ‘ Ville de Varsovie,’ 2 Dod. R. 301 ; .‘ El
Rayo,’ I Dod. R. 42 ; the ‘ Babilon,’ Edw. R. 39 ; ‘ L’Elise,’ I Dod.
R. 442; the ‘ Dutch Schuyts,’ 6 Rob. 48 ; the ‘ Matilda,’ 1 Dod. R.
367 ; the ‘San Joseph,’ 6 Rob. 331 ; the ‘ Uranie,’ 2 Dod. R. 172 ;
‘ La Francha,’ 1 Rob. I 57; the ‘ Santa Brigada,’ 3 Rob. 58; the
‘ Bellone,’ 2 Dod. R. 343. ‘
2 12 Stat. at Large, 606.
3 The ironclad ‘Atlanta,’ 3 Wall. 425, affirming 2 Am. ‘Law
Rep. N.S., 675.
‘1 See Act of Congress of March 3, 1899, for .‘ reorganising and
increasing the efficiency of the personnel of the navy and marine
corps of the United States ’ (sect. 13). ~
0H. XXXI RIGHTS AND DUTIES OF CAPTORS
4I3
capture may be a good prize, if there should prove to be
fraud and collusion between the captors and the captured,
the former will have forfeited their rights, and the property
is condemned to the government generally. Forfeiture
may, also, be declared in favour of the government for
other acts of misconduct, and for wilful and obstinate
violation of duty on the part of the captors.‘
§ 28. So, in all cases of forfeiture of interest in the prize
by the captors, the condemnation is .to the government.
The captor may forfeit his‘ right of prize in various ways :
as, by an unreasonable delay in bringing the question of
prize or no prize to an adjudication by a competent court ;
by unnecessarily taking the captured vessel to a neutral
port ; by cruel treatment of the captured crew ; by breaking
bulk on board, except in case of necessity; by embezzle-
ment ; by breach of instructions, or any offence against the
law of nations, &c. But irregularities on the part of captors,
originating in mere mistake or negligence, which work no
irreparable mischief, and are consistent with good faith,
will not forfeit their right of prize. In order that a prize
court may decree forfeiture or restitution, it is not neces-
sary that the prize itself be brought within its jurisdiction ;
it is sufficient that a proceeding be instituted by the claimants
against the captor. Thus, if the prize be lost at sea, the
court still has jurisdiction of the case, and may proceed
to its adjudication at the instance of either the captors or
the claimants. So, if captured property be converted by
the captors, the jurisdiction of the prize court over the
case continues; it may always proceed in rem, wherever
the prize, or the proceeds of the prize, can be traced to the
1 Kent, Com. on Am. Law, vol. i. p. 359 ; the ‘ Johanna Tholen,’
6 Rob. 72 ; the ‘ George,’ 1 Wheat. R. 408 ; Oswell o. Vigne, 15 East.
70 ; the ‘George,’ 2 Wheat. R. 278 ; the ‘ Experiment,’ 8 Wheat. R.
261 ; the ‘Bothnea’ and the ‘ Jahnstoff,’ 2 Wheat. R. 169. .
By section 37 of the Naval Prize Act, 1864 (27 and 28 Vict. c. 25),
a prize court, on proof of any offence against the law of nations, or
against this Act, or any Act relating to naval discipline, or against
any Order in Council, or royal proclamation, or of any breach of
her Majesty’s instructions relating to prize, or of any act of dis-
obedience to the orders of the Lords of the Admiralty, or to the
command of a superior officer, committed by the captors in relation
to any ship or goods taken as prize, or in relation to any person on
board. any such ship, may, on condemnation, reserve the prize to
her Majesty’s disposal, notwithstanding any grant that may have
been made by her Majesty in favour of captors.
Forfeiture
of claims
to prize
414 INTERNATIONAL LAW 011. xxxr
hands of any person Whatever; and this it may do, not-
withstanding any stipulation in the nature of bail already
taken for the property. But the court may exercise a
sound discretion whether it will interfere in favour of the
captors, in case the captured property has been unjustifi-
ably or illegally converted, and in case the disposition of
the captured vessel and crew has not been according to
duty. If no sufficient cause is shown to justify the sale,
‘ and the conduct of the captor has been unjust and oppres-
sive, the court may refuse to adjudicate upon the validity
of the capture, and award restitution and damages against
the captor ; although the seizure of the prize was originally
lawful, and made upon probable cause. And the same rule
prevails where the sale was justifiable, and the captor has
delayed, for an unreasonable time, to institute proceedings
to condemn it. Upon a libel filed by the captured, as for
a marine trespass, the courts of the United States will
refuse to award a monition to proceed to adjudication on
the question of prize or no prize, but will treat theqcaptor
as a Wrongdoer from the beginning.1
1 Wildman, Int. Law, vol. ii. p. 298 ; the ‘ Susannah,’ 6 Rob. 48 ;
the ‘ Falcon,’ 6 Rob. 194 ; ‘ L’Ecole,’ 6 Rob. 22o ; ‘ La Dame Cecile,’
6 Rob. 257 ;the ‘ Pomona,’ 1 Dad. R. 25 ;the ‘ Arabella and Madeira,’
1 Gallis. R. 368 ; Jecker et al. 11. Montgomery, 13 Howard R. 516.
The settled rule is to require the captors of a vessel to bring in
for examination her master and principal officers and some of her
crew (the ‘ Jane Campbell,’ Blatchf. Pr. Gas. 101), but, an omission
to do so is not a sufficient ground to defeat a capture made by a
government vessel. (The ‘ Shark,’ ibid. 215.) Captors are not
bound to allow the captured crew to navigate the ship, nor are the
latter bound to perform such duty. The captors are bound to put
on board a sufficient crew to navigate the ship. (The ‘ George,’
1 Mas. 24.) Persons found on board of a captured vessel do not pass
with the vessel and cargo into judicial custody. But they are
subject to the control of the court for the purpose of examination,
and their subsequent discharge or detention rests with the oflicers
of the naval service, according to its rules. (The ‘ Salvor,’ 4 Phil. .
40 -)
9Misconduct on the part of the captors, e.g. wrongful spoliation
of property on board a prize, or separation of officers and crew from
her, may destroy the legality of the capture, and may subject the
captors personally to unishment for the infringement of the laws
of maritime warfare. he right of seizure is dependent on its lawful
use. (The ‘Anna Maria,’ 2 Wheat. 327; the ‘ Jane Campbell,’
Blatchf. Pr. Gas. 101.)
Prize law prohibits, under penalty of the disallowance of the
right of prize to the captors, and the positive infliction of punish-
ment by penalties and costs, any irregularities against the property
OH. XXXI
RIGHTS AND DUTIES OF CAPTORS 415
§ 29. Probable cause of seizure is, by the general usage
of nations and the decisions in Admiralty, a sufficient
excuse in cases of capture ele 7'u1'e belli, and this question
belongs exclusively to the court, which has jurisdiction to
restore or condemn. The general principles, governing
cases of this character, were embodied in the statute laws
of the United States by the Act of June 26, 1812, s. 6, which
provides that the courts of the United States, in which
the case may be finally decided, ‘ shall and may decree
seized or the captured crew, especially where the latter are neutral.
(The ‘ Jane Campbell,’ supra.)
Where captures are made by public ships, the actual wrongdoer
alone is responsible for any wrong done or illegality committed on
the prize, except as respects acts done by members of the seizing
vessel, inobedience to the orders of their superiors. (The ‘ Louisa
Agnes,’ Blatehf. Pr. Gas. 107.)
Concerning the treatment of a captured crew, Sir W. Scott
remarks : ‘ There are two parts of the charge to which it is necessary
for me to advert. The first is the imputation of a practice which,
if proved to have existed to the extent alleged and without necessity,
must be pronounced to be disgraceful to the character of the country,
since no one who hears me will deny that to apply even to enemies
modes of restraint which are unnecessary and at the same time
convey personal indignity and personal suffering, is highly dishonour-
able. It is alleged that the Spanish crew, to the number of twenty-
two persons, were put in irons. This is a fact that certainly requires
much explanation, for I will not say there may not be cases in which
such restraint may be necessary, and therefore justifiable. But the
necessity must be urgent and evident. The captor when called
upon for his explanation has furnished no apology but that suggested
by his counsel. ‘Admitting the motive to be truly stated, that this
act was done for security, I am afraid it will not amount to a justifica-
tion, because it was incumbent on the captor to pursue a proper
purpose by proper means. It should be established, to the satis-
action of the court, that this species of security alone would have
been sufficient for his preservation. At the same time, I must say
that the misconduct appears to have proceeded, rather from an
improper notion of security, than from any intention to inflict pain
or personal indignity. If any such malignant motive had been
proved, I should have thought it my duty to pursue this matter
much further.’ (The ‘ Juan Baptista,’ &c., 5 Rob. 39 ; see also the
‘ Die Fire Damer,’ ibid. 3 5 7.)
The ‘ Java’s ’ men were treated by the American officers in a
disgraceful manner. The moment the prisoners were brought on
board the ‘ Constitution ’ they were handcuffed and pillaged of
almost everything they possessed. True, Lieut.-General Hislop
got back his valuable service of plate and other British ofiicers were
treated civilly. (james, Nav. Hist. vol. vi. I 36.)
After the -‘ Berwick ’ had been taken by the French squadron,
the ofiicers and crew were distributed about among the different
ships, without being allowed to take any clothes except those on
their backs, and were in every other respect most shamefully treated.
(Ibid. vol. i. 255.) , -
Probable
cause of
seizure
usually
suflicient
4I6 INTERNATIONAL LAW 011. xxxI
restitution, in whole or in part, when the capture shall
have.v been made without just cause; and if made without
probable cause, or otherwise unreasonably, may order and
decree damages and costs to the party injured.’ ’ If there
be a reasonable suspicion, it is proper to make the capture,
and submit the cause for adjudication before the proper
tribunal, and, although the court should acquit without
the formality of further proof, the capture will be justifi-
able, by reason of such probable cause; but where the
seizure is wholly without excuse, the captors are liable for
costs, and for the damages which ensue from the seizure,
and such damages and costs will be decreed to the party
injured. The liability of the captor for damages and costs
depends, in general, upon his good faith and intentions ; a
court will seldom impose damages for a mere error of judg-
ment, unless the irregularity is very gross, and works a
serious injury to the claimants. They are never responsible
for the neglect or error of the captured vessel. Thus, if a
vessel, although not liable to condemnation, has defective
documents on board, or does not show proper papers, the
captor is not liable for either costs or damages, but, on
the contrary, the court will generally allow him costs and
expenses, to be paid by the claimants to whom the restitu—
tion is made. But, if he unreasonably delay to procure an
adjudication, or is otherwise guilty of negligence or bad
faith, he is liable for costs and damages. The owners of
captured property, which is lost through the fault or negli-
gence of the captors, are entitled to compensation in
damages, and the value of the vessel, cost of cargo, with
all charges, and the premium of insurance if paid, are
allowed in ascertaining the amount of damages. Where a
ship was justifiably captured but not liable to be con-
demned, and was lost by the culpable negligence of the
prize master, restitution in the value of ship and freight
was decreed. Where freight is decreed, it is to be estimated
on the footing of a fair commercial profit. A captor is
1 Captors are not liable for damages in a case where the vessel
captured presents probable cause for the capture, even though she -
was led into the predicament in which she is found involuntarily,
and by the mistake of the revenue officers of the captors’ own
government. (The ‘ La Manche,’ 2 Sprague, 207.)
GE. xxx: RIGHTS AND DUTIES OF CAPTORS 417
liable for demurrage, in all cases of unjustifiable delay ; for
sending his prize into an inconvenient port ; for loss of the
ship if he refuses to take a pilot, but not where there. is
a regular pilot on board ; for deficiency of cargo ; but not,
without negligence or misconduct, for goods stolen from a
warehouse after commission of unlivery. All claims to
costs‘and damages are extinguished by accepting an un-
conditional release of the vessel.1
1 The ‘ Palmyra,’ '12 Wheat. R. I ; the ‘ George,’ I M ason R. 24 ;
Locke v. the United States, 7 Cram/z. R. 339 ; Shattuck v. Maley, I
Wash. R. 245 ; Jecker et al. 11. Montgomery, 13 Howard R. 505.
' As to what constitutes probable cause, which will justify a
ca ture, see the ‘ Dashing Wave,’ 5 Wall. 170; the ‘ George,’ I
as. 24 ; the ‘ La Manche,’ 2 Spragae, 207. Vessels which pick up
enemy’s goods, thrown overboard during a chase, are entitled to
them as a captors, and not as salvors. (The ‘ Victory,’ z'bz'd, 226.)
A ship of war which after search captures a merchant vessel with-
out reasonable grounds, and sends her in for adjudication as prize,
is answerable for the capture, not for the search. (‘ La Jeune
Eugenie,’ 2 M aso'n, 439.)
During the Crimean War of 1854, the ‘ Ostee,’ sailing under the
Mecklenburg flag from Cronstadt to Elsinore, was seized by a British
ship of war and sent to London for adjudication as prize. Upon the
ship's papers and the examination of the crew on the usual interro-
gatories, there appeared to be no ground for condemnation. The
ship and cargo were restored to the claimants, but without costs or
damages. On appeal to the Privy Council, their lordships observed
in the judgment, that the restitution of a ship and cargo may be
attended, according to the circumstances of the case, with any one
of the following consequences z—rst, the claimants may be ordered
to pay to the captors their costs and expenses ; or, 2nd, the restitution
may be simple restitution, without costs or expenses or damages
.to either party ; or, 3rd, the captors may be ordered to pay costs
and damages to the claimants. These provisions meet the various
circumstances, not ultimately ‘affording ground for condemnation,
under which captures may take place. A ship may by her own
misconduct have occasioned her capture, and in such a case it is
very reasonable that she should indemnify the captors against the
_ expenses which ,her misconduct ‘has occasioned; or she may be
involved, with little or no fault on her part, in such suspicion as to
. make it the right or even the duty of a belligerent to seize her.
There may be no fault either in the captor or the captured, or both
may be in fault; and in such cases there may be damn-am absque
z'm'm'z'a, and no ground for anything but simple restitution. Or
there may be a third case, where not only the ship is in no fault, but
she is not by any act of her own, voluntary or involuntary, open to
any fair ground of suspicion. In such a case a belligerent may seize
at his peril and take the chance of something appearing on investiga—
tion to justify the capture ; but if he fails in such a case it seems very
. fit that heshould pay the costs and damages which he has occasioned.
Their lordships considered that the case before them was brought
within the last of these rules, and gave the claimants their costs in
the court below, but no costs in the Appeal. They also gave them
damages, the amount to be referred to the Registrar and merchants.
VOL. II. E E
418 INTERNATIONAL LAW '
01!. XXX!
When
captors
are liable
for costs
and da-
mages
§ 30. Questions with respect to the liability of admirals
of fleets, and commanders of squadrons, for ‘captures made
by vessels and officers under their commands, and of owners
of privateers for the acts of their captains, have often been
adjudicated upon by the courts. The commander of ‘a
squadron, or the admiral of a fleet, is liable to individuals
for the trespasses of those under his command, in case-of
actual presence and co—operation,‘ or 'of positive orders.
Where, in such cases, the capture has actually taken place,
the prize master is considered as a bailee to the use of the
whole fleet or squadron, who are to share in the prize
money, and thus the commander may be made responsible;
but not so as to mere trespasses, unattended'with a con-
version to the use of the fleet or squadron. With respect
to costs and damages, it is a general rule in relation to public
ships, that the actual wrongdoer, and he alone, is responsible.
It is not meant by this that the crew of the capturing ship
are responsible for a seizure made in obedience to the
commands of their superior; but that the person actually
ordering the seizure is the one to be held liable for costs
and damages. Thus, the commander of a single vessel is
liable for the acts of all under his command, and the com-
mander of a fleet or squadron, in case of actual presence
and co-operation, or of positive orders. In the United
States he is also held responsible for acts done under his
permissive orders; but not so in England. The captain,
there, must be looked to as the actual wrongdoer, and the
The amount was subsequently paid by the British Government.
Costs and damages, when decreed against the captors, are not inflicted
as a punishment on the captors, but as affording compensation to
the injured party. In order to exempt captors from costs and
damages, in case of. restitution, there must be some circumstances
connected with the ship or cargo, affording reasonable ground for
belief that the ship or cargo might prove a lawful prize. What
amounts to such a probable cause, as to justify a capture, is in-
capable of definition, and is to be regulated by the peculiar cir-
cumstances in each case. It is not necessary to prove vexatious
conduct on the part of the captors, to subject them to condemna—
tion in costs and damages. Neither will honest mistake, though
occasioned by an act of government, relieve the captors from liability
to compensate a neutral for damages, which the captors by their
conduct have caused the neutral to sustain. In the course of the
judgment, their lordships further observed :—‘ The law which we
are to lay down, cannot be confined to the British Navy ; the rule
must be applied to captors of all nations. No country can be per-
mitted to establish an exceptional rule in its own favour, or in favour
on. xxxr' RIGHTS AND norms or CAPTORS 419 j‘
admiral is responsible to him if he has given express orders
for the particular seizure.1
of particular classes of its own subjects. On the Law of Nations,
foreign decisions are entitled to the same weight as those of the
country in which the tribunal sits. America has adopted almost
all her principles of prize law from the decisions of English courts,
and whatever may have been the case in former times, no authorities
are now cited in English courts, in cases to which they are applicable,
with ‘greater respect than those of the distinguished jurists of France
and America. Whatever is held in England to justify or excuse an
officer of the British Navy, will be held by the tribunals of every
country, both on this and the other side of the Atlantic, to justify
or excuse the captors of their own nations.’ (Schacht v. Otter,
9 M ooze, Privy Council Gas. 150.)
Prize courts deny damages, or costs, in cases of seizure made upon
‘ probable cause,’ that is to say, where there were circumstances
sufficient to warrant suspicion, though not to warrant condemnation.
(The ‘ Thompson,’ 3 Wall. 155 ;affirming S. C. Blatehf. Pr. Gas. 377.)
Where a ship is bona fide seized as a prize, and afterwards released
without any suit being instituted against her, the owner cannot
sustain an action at common law for the seizure. His remedy, if
any, is in the Court of Admiralty. (Faith 2}. Pearson, 6 Taunt. 4 39.)
N 0 action lies at common law for false imprisonment, where the
imprisonment was merely in consequence of taking a ship as prize,
although the ship has been acquitted. (Le Caux 21. Eden. 2 Dougl.
594-‘)
It was held a good defence, in an action for taking a steam vessel,
that the defendant was an admiral in the Portuguese navy, and that
he took the vessel as a prize, and that it became forfeited to the
Queen of Portugal, although he was a natural-born subject of Great
Britain and'had accepted his commission without license of the King
of England. (Dobree o. Napier, 3 Scott, 201.)
1 Kent, Com. on Am. Law, vol. i. p. 100 ;Phillimore, On Int. Law,
vol. iii. §45 7 ; the ‘ Mentor,’ 1 Rob. 177 ; the ‘ Diligentia,’ 1 Dad. R.
404 ; the ‘ Eleanor,’ 2 Wheat. R. 346.
An action between the single ships of two nations at peace is
rare. Still more rare is an action, under similar circumstances,
between two squadrons. Unfortunately an action was fought in
1804 between an English and Spanish squadron in open day ; not
through any accident, but under express orders from the govern-
ment of one of the combatants ; and, so far from the matter being
afterwards made up, it led to an almost immediate declaration of
war by the party who had to complain of the aggression. Towards
the end'v of the summer of 1804 the British Government received
intelligence (which, however, was afterwards disproved by the
Spanish Government) that an armament was fitting out in Ferrol,
that a considerable force was already collected there, and that the
F rench troops were near at hand. Immediately on this information
the British Admiralty despatched a squadron off Cadiz to intercept
and detain, by force or otherwise, the four Spanish frigates known to
be bound to that port with an immense quantity of specie, which
they were bringing from Monte Video. On Oct. 5 the four British
frigates sighted the Spanish frigates and immediately made sail in
chase, and upon the refusal of the Spanish commanding officer
to allow the squadron to be detained, an action was commenced,
during which one of the Spanish ships blew up and the other three
E r. 2
420 INTERNATIONAL LAW on. an
0f owners
of priva-
tears
§ 31. In the case of privateers, the owners, as well as
the masters, are responsible for the damages and costs
occasioned by illegal captures, and this to the extent of
the actual loss and injury, even if it exceed the amount -
of the bond usually given upon the taking out of the com-
mission. But such owners who are only constructively
liable are not bound to the extent of vindictive damages,
although the original wrongdoers, in case of gross and
wanton outrage in an illegal seizure, may be made re-
sponsible beyond the loss actually sustained. The sureties
to the bond are responsible only to the extent 'of the sum
in which they are bound. But, if a person appear on behalf
of the captain of a privateer, and give security in his own
name as principal in the stipulation, with other sureties,
he is liable, in the same manner as the captain, as principal.
A part owner of a privateer is not exempted from being a
party to the suit, in consequence of having made com-
pensation for his share to the claimant and received a release
from him. A person may be holden a part owner of a
privateer, although his name has never been inserted in
the bill of sale or in the ship’s register.’
were taken by the British ships. Their cargoes netted very little
short of a million sterling. Many persons, who concurred in the
expediency, doubted the right of detaining, these ships ; and many
again, to whom the legality of the act appeared clear, were of
opinion that a more formidable force should have been sent to
execute the service, in order to have justified the Spanish admiral
in surrendering without an appeal to arms. On Nov. 27 an order
was made to make reprisals on English property, and on Dec. 12
war was declared against England by Spain. ( j as. Nav. Hist.
vol. iii. 280.)
Where two vessels engaged in combat under a mutual mistake in
regard to each other’s character, and the vessel attacked captured
the other, it was held in the United States that the capture was not
unlawful, being apparently required in self-defence ; and that the
subsequent bringing in of the vessel for adjudication was not a cause
for giving damages. (The ‘Marianna Flora,’ 11 Wheat. i.)
1 See also ch. xxii. § 25 ; Riquelme, Derecho Pub. Int. lib. i. tit.
ii. 0. 13 ; Brown, Civil and Adm. Law, vol. ii. p. 140 ; Pothier, De
la Propriéte', N0. 92 ; Valin, Sur l’Ordonnance, liv. .iii. tit. ix. ; Talbot
v. Three Brigs, 1 Dal. R. 95 ; the ‘ Die Fire Damer,’ 5 Rob. 318;
the ‘Der Mohr,’ 3 Rob. 129 ; the ‘Gerolama,’ 3 Hagg. R. 187;
Del. Col. v. Arnold, 3 Dall. R. 333 ; the ‘ Anna Maria,’ 2 Wheat. R.
327 ; King v. Ferguson, Edw. R. 84; the ‘ Karasan,’ 5 Rob. 260;
the ‘ William,’ 4 Rob. 214 ; Bello, Derecho I nternacional, pt. ii. c. v.
§ 5 ; Code de Commerce, liv. _ii. tit. iii. art. 217; Bedarride, Droit
Com. §§ 300 et seq. The distribution of the prize proceeds is
generally directed by the agreement between the owners, officers,
0H. XXXI RIGHTS AND DUTIES OF CAPTORS 42]:
§ 32. It is the duty of the prize master, immediately
on his arrival in port, to institute proceedings in the proper
court for the adjudication of his prize. He should also
deliver over to the commissioner, or proper officer of the
court, all the papers and documents found on board, and,
at the same time, make affidavit that they are delivered
up as taken, without fraud, addition, subdivision, or em-
bezzlement. He should also have the master and principal
officers, and some of the crew, of the captured vessel,
brought in for examination. This examination should take
place as soon as possible after the arrival of the vessel.
Prize masters are considered as bailees to the use of the
captors, who are to share in prize money. If the prize be
lost by the misconduct of the prize master, or for neglecting
to take a pilot, or to put on board a proper prize crew, the
captors are held responsible. So, also, in claims for de-
murrage in not bringing in the prize in due time, or neglect-
ing to have the case adjudicated before a competent court.
Courts of prize have jurisdiction of all prize agents, and
determine upon the legality of their appointment, and the
disposition which they may make of the proceeds of sales
of prizes, &c. If they pay such proceeds over to the
captors without an order of the court, they are responsible
to the owners of the captured property for the net amounts
so received by them, in case restitution is received. The
duties and responsibilities of prize agents, where not regu-
lated by statutes, are usually determined by the rules and
orders of the courts.1
and crew; but if no agreement is executed, the Admiralty court
will make distribution in proportion to the number, interest, and
merits of the captors. (Keane v. the ‘ Gloucester,’ 2 Dall. 36.)
1 The ‘ Speculation,’ 2 Rob. 293 ; Del. Col. 21. Arnold, 3 Ball. R.
333 ;Wilcox i). U. Ins. Co. 2 Bz'mz. R. 574 ; Willis 21. Commissioners,
5 East. R. 22; the ‘Noysomhed,’ 7 Ves. R. 593 ; Smart 1). Wolff,
3 Dam. and East. 323 ; the ‘ Pomona,’ I Dod. R. 25 ; the ‘ Herkimer,’
Stew. R._328 ; the.‘ Louis,’ 5 Rob. r46 ; the ‘ Polly,’ 5 Rob. 147 note ;
the_‘Pr1ntz Henrick,’ 6 Rob. 95 ; the ‘Exeter,’ I Rob. I73 ; the
‘ Prmcesa,’ 2 Rob. 3r ; the ‘ St. Lawrence,’ 2 Gall/ls. R. 19; the
‘ Brutus,’ 2 Gallz's. R. 526; Bingham v. Cabbott, 3 Dallas R. 19;
Kean v. Brig ‘ Gloucester,’ 2 Ball. R. 36 ; Hill 11. Ross, 3 Ball. R. 331;
Penhallow v. Doane, 3 Ball. R. 54.
A sale of captured property, by authority of the captors, before
sentence of condemnation, if the property be afterwards condemned,
is valid. (Williams v. Armroyd, 7 Czanch. 423.)
The captor has no such interest in the vessel, which is re-captured
Duties of
prize
master
422 INTERNATIONAL LAW 0H. XXXI
before condemnation, as entitles him to require the government to
press a claim for damages against the neutral government, in one
‘ of whose courts the prize was illegally condemned. (Stewart 0.
U.S. 1 Ct. of Cl. R. Nott. 2 H. 113.)
The title of the absolute owner prevails in a prize court over the
interests of a lien holder, whatever the equities between those
parties may be. (The ‘ Winifred,’ Blatchf. Pr. Gas. 2.)
Where a merchant purchased a cargo of coffee for enemy corre—
spondents, partly with their funds and partly with his own, and
shipped "it under a bill of- lading by which it was to be delivered to
his order, and with a statement thereon that part of the coffee was
the property of neutrals,—-Held, that as he had the legal title and _
possession, he was not to be deemed a lien holder, but rather a
trustee with the right of retention until his advance should be
repaid. In such cases, a prize court will look beyond the legal title
dealing with the beneficiary interest. (The ‘Amy Warwick,’
2 Spmgue, 150.)
Cotton belonging to the Confederate Government was sold by a
person who came through the rebel lines for that purpose‘ to A. A.,
procuring the assistance of United States troops, proceeded to
where the cotton was stored in charge of an officer of the Confederate '
Government, secured it, and forwarded it to a military post of the
United States. The officer in command at this post seized the
cotton and turned it over to the quartermaster. Subsequently
the quartermaster delivered the cotton to A., who shipped it north.
Before it reached its destination it was again seized by military
authority. After the release of the cotton by the quartermaster,
and prior to the last seizure, A. sold it to third parties, who were
informed of the facts. It was held, that the title of the United
States related back to the time of original capture; that if the
surrender of the cotton to A. was through a fraudulent connivance
between him and the quartermaster, such surrender was not volun-
tary, within the legal meaning of the term ; that the third parties
(the claimants) having knowledge of the facts, were not protected,
and that the cotton must be condemned. (United States 1). Two
hundred and sixty-nine and a half Bales of Cotton, Rev. Gas. 2, 64.)
423-
CHAPTER XXXII
PRIZE COURTS, THEIR JURISDICTION AND PROCEEDINGS
1. Maritime capture how determined—2. Must be tried by prize
court of captor—3. Apparent exceptions to rule—4. Rule
varied by municipal regulations— 5. By treaty stipulations——
6. Prize courts in general—7. In Great Britain—8. In the
United States—9. The President cannot confer prize jurisdic-
tion—10. Court may sit in the country of captor or his ally—-
1 I. But not in neutral territory-12. In conquered territory—-
13. Extent of jurisdiction—14. Location of prize—15. Decision
conclusive—16., But state responsible for unjust condemna-
tion—I7. Cases of England and Prussia in 175 3, and the
United States and Denmark in 18 30-1 8. When jurisdiction
'may be inquired into—19. How far governed by municipal
laws—20. Character of proceedings, of proofs, &c.—21. Custody
of property—22. Conduct of suit by captors—23. Who may
appear as claimants—~24. Duties of claimants—2 5. Nature and
form of decrees. .
§ 1.. It has been shown in chapter xxi. that, in war on land,
the title to; personal and movable property is considered as
lost to- the, owner as soon as the captor has acquired a firm
possession, which, as a general rule, is considered as taking
place after a lapse of twenty-four hours ; but that this rule
' does. not, at least in Great Britain and the United States,
apply to maritime. captures, which are held in abeyance
’ till‘ the legality of the capture is determined by some court
of competent jurisdiction. A different principle, however,
is applied in case of the recapture of property of the Con-
tinental nations of Europe, who adhere to the old rule of
;berductio infra ‘prasitlia, or of reclamation ante occasum
solis. Kent, and other modern writers of authority, con-
tend for the absoluteness of the rule, as one fully established
by usage and incorporated into the code of international
jurisprudence, that ‘ the property is not changed in favour
of the neutral vendee or recaptor, so as to bar the original
owner, until a regular sentence of condemnation has been
pronounced by some court of competent jurisdiction,
Validity
of a
maritime
capture,
how de-
termined
424
INTERNATIONAL LAW
OH. XXXII
Why prize
courts of
other
countries
cannot
condemn
Internacional, pt. ii. c. v. § 4.
belonging to the sovereign of the captor ; and the purchaser
must be able to show documentary evidence of that fact
to support his title.’ Such is undoubtedly the practice of
Great Britain and the United States ; but with respect to
recaptures it is by no means universal, some States retaining
the ancient practice, and others adopting the rule of
reciprocity. But this question will be particularly con-
sidered in chapter xxxv. under the head of recaptures.l
§ 2. The validity of a maritime capture must be deter-
mined by a prize court of the government of the captor,
and cannot be adjudicated by the court of any other country.
The reason of this rule is based upon‘ the responsibility
which the law of nations imposes upon the government
of the captor in case of unlawful condemnation of the
captured property. If the court of any country other
than that of the captor were to condemn, the government
of ‘the captor could not be heldresponsible to the govern-
ment whose citizen is unlawfully deprived of his property.
This rule necessarily excludes the jurisdiction of a prize
court of an ally over captures made by his co-belligerent.
The Government of the captor is held responsible to other
States for the acts of his own subjects, but not for those
of his allies. It is, therefore, evident that the courts of an
ally cannot determine, whether captured property shall be
restored to the original owner, or whether the captor’s
government shall assume the responsibility of its condemna-
tion. Sir R. Phillimore asserts, that the question of prize
may be adjudicated in ‘ the court of the captor or of his
ally,’ on the ground that unam constituunt civitatem; but
none of the authorities to which he refers support hisv
position; they refer to the locality of the prize when con-
demned, or to the place where the court was sitting at the
time of condemnation, but not to the origin of the court
itself; in none of the cases to which he refers was it held
that the court of an ally may condemn. ‘On the contrary,
Chancellor Kent says ‘distinctly, ‘ The prize court of an
ally cannot condemn ; ’ ‘and Wheaton is equally distinct.
But where the property is carried into the port of an ally,
there is nothing to prevent the government of the latter,
1 Kent, Com. on Am. Law, vol. i.
pp. 101, 102 ; Bello,‘ Derecho
on.’ xxxn PRIZE COURTS 425
although it cannot itself condemn, from permitting an officer
of the other government to exercise that final act of hos-
tility.1 For the same reason, the condemnation of a capture
cannot be pronounced in the prize court of a neutral; for,
as the government of the captor is answerable to other States
for such condemnation, it is proper that it should be made
by itsown courts. Similarly, the liberty of a belligerent
tosell prizes in a neutral territory is not a perfect right,
but subject to the regulation of the neutral government.
Moreover, if the courts of neutral countries were allowed to
determine prize questions, their decisions would inevitably
involve their respective governments in hostilities with
one or the other of the belligerent parties, or with other
neutral States, the property of Whose citizens might be
condemned for some violation of neutral duties. Their
exclusion rests not only on the fact that the exercise of
this authority would be inconsistent with the neutral charac~
ter, but also on the well-established practice and the usage of
v nations? The, sentence of a court of Admiralty, sitting under
a commission from a belligerent power, in a neutral country,
will not be recognised in the British courts ; and this even
although, the forms of an independent neutral government
being preserved, the belligerent possesses the real sovereignty.3
.§' 3. There are two apparent exceptions to this exclusive
* Oddy v. Bovill, 2 East. 473.
2 Kent, Gain. on Am. Law, vol. i. p. 103 ; l/Vheaton, Elem. Int.
Law, pt. iv. ch. ii. §§ 13, 16; Phillimore, 0n Int. Law, vol. iii. §§ 365
et seq.; Hubner, De la Saz‘sz'e des Battments, &c., liv. i. ch. xi.
§ 8 ; Martens, Pre’cz's du Droz't des Gens, liv. viii. ch. § 312 ; the
‘Flad Oyen,’ 1 Rob. 135; the ‘Perseverance,’ 2 Rob. 240; the
‘ Kierlighett,’ 3 Rob. 95 ; Havelock o. Rockwood, 8 Burn. and East,
268 ; the ‘ Invincible,’ 2 Gallz's. R. 28 ; 1 Wheat. R. 238 ;Maissonnaire
o. Keating, 2 Gallz's. R. 224 ; the ‘ Finlay and William,’ 1 Peters R.
12 ; Wheelwright v. Depeyster, I johns. R. 471 ; Page 21. Lenox, 15
johns. R. 172. >
3 Donaldson 7). Thompson, I Camp. 429; Smith a. Surridge,
4 Esp. 25. '
On the breaking out of the war between Great Britain and
France in 1793 the British Government complained to the United
States that it was contrary to the usage of nations, and not warranted
by the stipulations of any treaty between the United States and
France, that a French consul in the United States should assume
judicial authority over, and condemn as legal prize, together with
their cargoes, British vessels captured by French ships of war. The
United States Government admitted that such proceeding on the
part of a French consul was an act of disrespect to the United States,
and declared that his procedure was a. mere nullity and utterly void.
426
INTERNATIONAL LAW on. xxx!-
Apparent
exceptions
to rule
jurisdiction of the prize courts of the captor’s country over
questions of prize: 1st, where the capture is made within
the territory of a neutral State, and, 2nd, where it is made
by a vessel fitted out within the territory of the neutral
State. In either of these cases the judicial tribunals of
the neutral State have jurisdiction to determine the validity
of captures so made, and to vindicate its own neutrality
by restoring the property of its own subjects, or of other
States in amity with it. ‘ A neutral nation,’ says the
Supreme Court of the United States, ‘ which knows its
duty, will not interfere between belligerents, so as to
obstruct them in the exercise of their undoubted right
to judge, through the medium of their own courts, of the
validity of every capture made under their respective
commissions, and to decide on every question of prize
law which may arise in the progress of such discussion.
But it is no departure from this obligation if, in a case in
which a captured vessel be brought, or voluntarily comes
‘infra prtesz'dta, the neutral nation extends its examination
so far as to ascertain whether a trespass has been com—
mitted on its own neutrality by the vessel which has made
the capture. So long as a nation does not interfere in the
war, but professes an exact impartiality toward both-
parties, it is its duty, as well as right, and its safety, good
faith, and honour demand of it, to be vigilant in preventing
its neutrality from being abused, for the purpose of hostility
against either of them. . . . In the performance of this
duty, all the belligerents must be supposed to have an equal
interest ; and a disregard, or neglect of it, would inevitably
expose a neutral nation to the charge of insincerity, and to
the just dissatisfaction and complaints of the belligerent,
the property of whose subjects should not, under Such
circumstances, ‘be restored.’ These are not, properly
considered, exceptions to the general rule of prize jurisdic-
tion, but are cases where the courts of a neutral State are
called upon to interfere forthe purpose of maintaining and
vindicating its neutrality.1
1 The ‘ Estrella,’ 4 Wheat. R. 298 ; the ‘ Santissima Trinidad,’
7 Wheat. R. 284; ‘La Amistad de Rues,’ 5 Wheat. R. 385 ; Brig
‘ Alert ’ and Cargo 2). Blas Moran, 9 Cm'hch. R. 359; ‘ La Concepcion,’
6 Wheat. R. 23 5- ;Talbotv. Jansen, 3 Dallas, R. I 3.3. '
_ on. xxxrr
PRIZE COURTS‘
427
4 § 4. Attempts have been made by some States to give to
their own tribunals prize jurisdiction of all captured property
brought within their territorial limits. Such a municipal
regulation was made by France, in 1681, and its justice was
defended on the ground of compensation for the privilege of
asylum granted to the captor and his prizes in a neutral port.
‘There can be no doubt,’ says Wheaten, ‘ that such a con-
dition may be annexed by the neutral State to the privilege
of bringing belligerent prizes into its ports, which it may
grant or refuse at its pleasure, provided it be done im-
partially to all the belligerent powers ; but such a condition
is not implied in a mere general permission to enter the
neutral ports. The captor who avails himself of such a
permission, does not thereby lose the military possession
of the captured property, which gives to the prize courts
- of his own country exclusive jurisdiction to determine
the lawfulness of the capture. . . . The claim of any
neutral proprietor, even a subject of the State into whose
ports the captured vessel or goods may have been carried,
must, in general, be. asserted in the prize court of the bel-
ligerent country, which alone has jurisdiction of the question
of prize orv no prize.’ 1
§5. The rule has sometimes been varied by treaty
stipulations. Thus, in the treaty between the United
States and the Republic of Columbia in 1825, art. 21., and
between the United States and Chile in 1832, art. 21, it
was agreed that the established courts for prize cases in
the country to which the prizes may be conducted, should
alone take cognisance of them. But it must be observed
that such stipulations can bind only those who make the
engagements. The courts of neutral States would not be
bound to exercise such jurisdiction, nor could States not
parties to the treaty be debarred from claiming the right of
trial by their own prize courts, which alone, under the
general law of nations,_have jurisdiction of prize causes.2
§6. There is. evidently a wide distinction between the
ordinary municipal tribunals of the State, proceeding
under the municipal laws as their rule of decision, and prize
* tribunals appointed by its authority, and professing to
1 Wheaton, Elem. Int. Law, pt. iv. ch. ii. ‘9’ 14.
2 United States Statutes at Large, vol. viii. pp. 316, 439.
Rule
varied by
municipal
regula-
tions
By treaty
stipula-
tions
Prize
courts in
general
428 . INTERNATIONAL LAW 011. xxxn
administer the law of nations to foreigners as well as subjects.
‘ The ordinary municipal tribunals,’ says Wheaton,’ ‘ acquire
jurisdiction over the person or property of a foreigner,
either expressed by his voluntarily bringing the suit, or
implied by the fact of his bringing his person or property
within their territory. But when courts of prize exercise
their jurisdiction over vessels captured at sea, the property
of foreigners is brought by force within the territory of the
State by which those tribunals are constituted.’ By natural
law, the tribunals of the captor’s country are no more the
rightful exclusive judges of captures in war, made on the
high seas from under the neutral flag, than are the tribunals
of the neutral country. The equality. of nations would,
on principle, seem to forbid the exercise of a jurisdiction
thus acquired by force and violence, and administered
by tribunals which cannot be impartial between the liti-
gating parties, because created by the sovereign of the one
to judge the other. Such, however, is the actual constitu-
tion of the tribunals in which, by the positive international
law, is vested the exclusive jurisdiction of prizes taken in
war. From this evident and wide distinction between
ordinary cases of litigation, under municipal law, and the
condemnation of maritime captures, under the law of
nations, there has resulted the rule that no court can have
prize jurisdiction unless it be expressly made a prize tribunal
by the authority of the State to which it belongs. But,
the organisation of the court, and the manner of exercising
this jurisdiction, must depend upon the constitution and
local laws of each State, and are different in different
countries.’ '
§7. The Admiralty Division of the High Court of
1 Elem. Int. Law, supra.
2 By the Prize Courts Act, 1894, any commission, warrant or
instructions from the king or the Admiralty may be issued during
the existence of peace for the commissioning of a prize court in a
British possession, which shall only act when the Vice-Admiral
of such possession has proclaimed a state of war to exist between
the king and a foreign State. The Vice-Admiral must satisfy
himself by information from a Secretary of State or otherwise that
a state of war does exist. By s. 3 ‘ the said commission and warrant
may authorize either a Vice-Admiralty Court or a Colonial Court
of Admiralty, within the meaning of the Colonial Courts of Admiralty
Act, 1 890, to act as a prize court, and may establish a Vice-Admiralty
Court for that purpose. 2
on. xxxn PRIZE COURTS 429
Justice, in England, is‘ theoretically divided into two English
tribunals, one of which is called the instance court, and the £331,
other the prize court; the former having generally all the
jurisdiction of the Admiralty, except in prize cases, and
the latter, acting under a special commission, distinct from
the usual commission given to judges of the Admiralty, to
enable the judge, in time of war, to assume the jurisdiction
of prizes. ‘ The manner of proceeding,’ says Lord Mans-
field, ‘is totally different; the whole system of litigation
and jurisprudence in the prize court is peculiar to itself;
it is no more like to the court of Admiralty than it is to any
other court in Westminster Hall. The courts of Westminster
Hall never have attempted to take cognisance of the
question, prize or no prize; not from the locality of being
done at sea, as I have said, but from their incompetence to
embrace the whole of the subject.’ 1
§8. The constitution of the United States extends the Prize
judicial power ‘ to all cases of Admiralty and maritime mi’:
jurisdiction.’ Under the general head of Admiralty jur'is- United
diction are included all captures and questions of prize, states
arising jure belli, as well as acts, torts, and inquiries strictly
of civil cognisance, independent of belligerent operations
and contracts, claims and services, purely maritime, and
rights and duties appertaining to commerce and naviga-
tion. Prize jurisdiction, therefore, as a branch of
Admiralty, belongs to the Federal courts.2 ‘It is obvious
upon the slightest consideration,’ says Story, ‘ that cog—
nisance of allquestions of prize, made under the authority
of the United States, ought to belong exclusively to the
1 Lindo 11. Rodney, Doug. R. 613 ;Ex ;barte Lynch, 1 Madd. R. 15.
The Court of Admiralty has jurisdiction to entertain prize pro-
ceedings commenced after the cessation of war. (Cargo ex
‘ Katharina,’ 30 L. ]. Adm. 21.) A court of Common Law cannot
even incidentally decide a question of prize. (Maissonnaire v.
Keating, 2 Gall. 325 ; Bingham v. Cabbott, 3 Dall. 19.) Questions
of rize, or no prize, are exclusively of Admiralty jurisdiction.
(I bid.) The question of prize, or no prize, or by whom taken, cannot
be tried at Common Law. (Mitchell 2). Rodney, 2 Bro. P. C.
423-)
2 A prize court is in its very constitution an international
tribunal, controlled by the law of nations, not by municipal law
(United States v. Bales of Cotton, Rev. Gas. 2), but a municipal
seizure is regulated by municipal law. (Hudson 1). Guestier,
4 Crunch. 293.) .. _
430 INTERNATIONAL LAW on. xxxn
national courts. How, otherwise, can the legality of ‘the
captures be satisfactorily ascertained, or deliberately vindi-
cated ? It seems not only a natural, but a necessary append-
age to the power of war, and negotiation with foreign nations.
It would otherwise follow, that the peace of the whole
nation might be put at hazard at any time, by the mis—
conduct of one of its members.’ The District courts of
the United States, as courts of Admiralty, are prize courts
as well as instance courts. Their prize jurisdiction, how-
ever, was originally much questioned, on the ground that
it was not an ordinary inherent branch of Admiralty juris-_
diction, but an extraordinary power, requiring, as in
England, a special commission, on the breaking out of the
war, to call it into action. This question came up directly
to the Supreme Court of the United States in I794, and it
was decided by the unanimous opinion of the judges, ‘ that
every District court of the United States possesses all the
powers of a court of Admiralty, whether considered as
an instance or a prize court.’ This decision was re-affirmed"
in other cases, and the jurisdiction claimed was expressly
sanctioned by the Prize Act of June 26, I812. The District
courts of the United States are therefore prize courts of
Admiralty, possessing all the powers incident ‘to their
character as such under the law of nations.1
1 Conkling, Treatise, &c. p. 135 ; Glass et al. v. the sloop ‘ Betsey ’
et al. 3 Dall. R. 6. In prize cases, the court of that district of the
United States into which the property is carried and .proceeded
against, has jurisdiction. The mere carrying of a vessel,,or of her
cargo, seized on the high seas as prize of war, into any particular
district, without institution there of any proceedings ‘in prize,
cannot affect or take away the jurisdiction over the property
of another district, in which the proceedings against the property
may be instituted after the property has been carried into such
other district. (The ‘Peterhoff,’ Blatchf. Pr. Gas. 493.) Cotton
captured as prize, and in the custody of the marshal, under 'a
warrant from the prize court, is not liable to be proceeded against
for the internal revenue tax, while in his custody. (The ‘- Victory,’
2 Spi/agae, 226.) A vessel was chased at sea while attempting
to break blockade, and was driven on shore in the enemy’s territory,
and then captured with her cargo, and was wrecked after capture.
Held, that a part of her cargo, which was brought into a district
of the United States, might be condemned as prize of war by the
District court. (The ‘ Pevensey,’ Blatehf. Pt’. Gas. 628.) The
officers and crew of a prize, in case of condemnation, are not entitled
to wages from the prize property. Where a prize is condemned,
the officers and crew who are sent in as witnesses in pursuance of
the law of nations, are not entitled to witness fees or compensation
on. xxm PRIZE COURTS
43‘I
1839. It has also been decided by the Supreme Court
of the United States that neither the President of the
United States, not any officer acting under his authority,
can give prize jurisdiction to courts not deriving their
authority from the constitution or laws of the United States.
The alcalde of Monterey, a port of Mexico, in the possession
and military occupation of the United States, as conquered
territory, was appointed by the governor of California a
judge of Admiralty with prize jurisdiction, and the appoint-
ment was ratified by the President, on the ground that
prize-crews could not be spared from the squadron to bring
captured vessels into a port of the United States. The
Supreme Court held that such a court could not decide
upon the rights of the United States, or of individuals, in
prize cases, nor administer the laws of nations, that its
sentence of condemnation was a mere nullity, and could
have no effect upon the rights of any party.1
§ IO. Having shown that the prize court of the captor’s
country has exclusive jurisdiction of the question of prize
or no prize, and that no mere municipal court can exercise
such jurisdiction, unless it is especially conferred by the
constitution or local laws of the State to which it belongs,2
we now come to the inquiry, where such court may sit or
exercise its authority. We have already seen that the
prize court of an ally cannot condemn ; but the objections
made to the jurisdiction of an ally’s court do not apply to a
court belonging to the country of the captor sitting in an
ally’s territory. It has been held by the English courts,
that a prize carried into a State in alliance with the captors,
and at war with the country to which the captured vessel
belongs, or into the country of the captors, may be legally
condemned there by a consul belonging to the nation of
the captors. It was at one time supposed, that the autho-
rity’ of the ‘ Flad Oyen,’ was against the legality of such a
for their necessary detention, from out of the prize property. (The
‘ Lilla,’ 2 Sprague, I77 ; the ‘ Britannia,’ ibid. 225.)
1 Jecker et al. 22. Montgomery, 13 Howard R. 498.
2 The proceedings of a prize court of the late Confederate States
were of no validity in the United States, and a condemnation and
sale by such a court did not convey any title to the purchaser, or
confer upon him any right to give a title to others. (The ‘ Lilla,’
2 Sprague. 177.
The
President
cannot
confer
prize
j urisdic-
tion
Court may
sit in
ceuntryfof
captor or
of ally
432 INTERNATIONAL LAW
OIL- XXXII
But not in
neutral
territory '
In con-
quered
territory
condemnation, but Lord Stowell subsequently pointed out
and explained the distinction‘.1 .. -
§11. But a prize court of the captors cannot sit in a
neutral territory, nor can its authority be delegated to any
tribunal sitting in neutral territory. The reason of this
rule is obvious. Neutral ports are not intended .to be
auxiliary to the operations of the belligerents, and it is not
only improper but dangerous to make them the theatre of .
hostile proceedings. A sentence of condemnation by a
belligerent prize court in a neutral port is, therefore, con-
sidered insufficient to transfer the ownership of vessels or
goods captured in war, and carried into such port .fof
adjudication. This question was first decided by the
Supreme Court of the United States in 1794, and in 1799
it was re-examined and discussed at much length by Sir
William Scott, who decided that an enemy’s prize court,
in neutral territory, could not lawfully condemn.’ . . '
§12. The objections made to the establishment of a
prize court in neutral territory would not apply to conquered
territory in the possession and military occupation of the
captors. Such territory is de facto withinthe jurisdiction
of the conqueror, and a condemnation regularly made by
a prize courtlegally established in such conquered territory
would not be set aside for that reason alone. The ~ legality
of the court may, however, be a question of some difficulty,
and must be determined by the constitution and local
laws of the captor’s country. It will, hereafter,-be shown
that, in this respect, the laws of ‘different countries are very
different; that the laws of Great Britain instantly extend
over conquered territory ; but that territory in the military
occupation of the United States is not a part of the Federal
union ; that when the conquest is confirmed, the inhabitants
of such territory become entitled to the rights, privileges,
and immunities guaranteed by the constitution, but that
1 The ‘ Flad Oyen,’ 1 Rob. I 3 5 ; the ‘ Christopher,’ 2 Rob. 209 ;
the ‘Harmony,’ the ‘ Adelaide,’ and the ‘ Betsey Kruger,’ 2 Rob.
210, note; Wheelwright v. Depeyster, I ]ohns..R. 471 ; Pistoye 'et
Duverdy, Des Prises, tit. 8.
2 Glass et al. v. the sloop ‘ Betsey ’ et al. 3 Dall. R. 6; the
‘ Henrick and Maria,’ 4 Rob. 45. _
2 Courts established in a foreign country, by the command of an
invading force, can have no jurisdiction in cases of prize. (Jecker
v. Montgomery, I 3 Howard R. 498.)
on. xxxn PRIZE COURTS
433
the action of Congress is requisite to extend the general
laws of the United States over territory, even after cession
or confirmation of conquest. Neither the executive nor
military authorities of the United States have power to
establish prize courts in conquered territory to administer the
law of nations. But it is different with Great Britain ; for,
as the limits of the Empire are extended, ipso facto, by the
conquest, and as the conquered territory becomes instantly
a dominion of the crown, the king, who issues prize com-
missions of his own authority, may erect courts there for the
exercise of such jurisdiction. In speaking of the island of
Heligoland, which had been taken possession of by British
forces, but had not been confirmed to Great Britain by
a treaty of peace, Sir William Scott remarked : ‘ It might
have erected a court there, for the exercise of Admiralty
jurisdiction ; and, if it did not, I presume it refrained from
so doing because it was not thought that the public con-
venience required it. The enemy certainly had no right to
say that a court of that kind should not be there erected.’ 1
§ 13. The ordinary prize jurisdiction of the British
Admiralty extends to all captures in war made on the high
seas; to captures made in foreign ports and harbours;
to captures made on land by naval forces ; to surrenders
made to naval forces alone, or acting conjointly with land
forces ; to captures made in rivers, creeks, ports, and
harbours of the captor’s own country in time of war, and to
seizures, reprisals, and embargoes, in anticipation of war.
It also extends to all ransom bills upon captures ; to money
received as a ransom, or commutation on a capitulation to
naval forces, alone or jointly with land forces : in fine, to
all uses of maritime capture arising jure belli, and to all
matters incidental thereto. Prize courts also have exclusive
jurisdiction and an enlarged discretion, as to allowance of
freight, damages, expenses, and costs, and as to all torts, per-
sonal injuries, ill-treatments, and abuse of power, connected
with maritime captures de jure belli, and they frequently
award large and liberal damages in such cases. This rule
rests upon the ground that where the prize court has the
sole and exclusive jurisdiction of the original -matter, it
1 Jecker let al. 2). Montgomery, 13 Howard R. 51.5 ; Cross et al.
v. Harrison, 16 Howard R. 165 ; the ‘ Flotina,’ 1 Dod. R. 452.
VOL. II. F F
Extent of
jurisdic-
tion of
prize
courts
434 _ INTERNATIONAL LAW 011. xxxn
ought also to have such jurisdiction of all its consequences,
and of everything necessarily incidental thereto. The
courts of Common Law in England have no jurisdiction at
all-of such incidental questions ; and this doctrine has been
reaffirmed by the courts of the United States. Indeed, so
far as questions have been decided by the Federal courts
of the United States, they have claimed and exercised a
jurisdiction equally as ample and extensive as the prize
courts of Great Britain. All cases of recapture are held to
be cases of prize, and are to be proceeded with as such. It
is understood in England that the Admiralty, merely by
its own inherent powers, never exercises jurisdiction of
captures, or seizures as prize, made on shore without the
co-operation of naval forces. Such were the views of
Lord Mansfield, and his opinion on this point was adopted
by Sir William Scott. As before remarked, we know
of no decision by the courts of the United States bearing
directly upon the question; in the case of the ‘ Emulous,’
although the court gave no opinion as to the right of the
Admiralty to take cognisance of mere captures made on the
land, exclusively by land forces, yet it was declared to be
very clear, that its jurisdiction was not confined to captures
at sea. But prize courts do not take jurisdiction of ques-
tions of mere booty, unless the jurisdiction has attached, that
is, if the capture be such as to bring it within the jurisdic-
tion of the Admiralty, and then the process of the prize
court will follow the goods on shore, and its jurisdiction
continues not only over the capture, but also over all
questions incident to it. The statute 3 and 4 Vict. c. 65,
s. 22 gives the Admiralty court of Great Britain jurisdiction
inall matters concerning booty, and to proceed therein as
in cases of prize.1 If the prize should be unwarrantably
carried into a foreign port and there given up by the captors
on security, then the prize court holds a firmer jurisdiction-
than the instance court ; for in cases of wreck and derelict,
if the goods are once on shore or landed, the cognisance
of the CommonLaw attaches.2
.1 See supra, ch. xxi. § 26.
2 Kent, Com. on Am.1Law, vol. i. p. 35, § 358 ; the ‘ Emulous,’ r
Gallis. R. 563; Phillimore, 0% Int. Law, vol. iii. §§ 126 et seq.;
Elphinstone v. Bedreechund, Knapp R. 316. *
Enemy’s property captured by a public vessel, in an enemy’s
on. xxxn PRIZE COURTS
435
§ 14. The next question for consideration is the locality
of the captured property. If it be carried into a port of the
captor’s country, there can be no doubt respecting the
jurisdiction of the prize court of the same country. But
what particular tribunal of that country shall exercise the
prize jurisdiction of a particular casewill depend, of course,
upon the local laws under which such tribunals are orga-
nised, and their respective ' jurisdictions are assigned and
limited. This is entirely a‘ question of local law. So,
also, if the captured property is carried into a port of the
captor’s co-belligerent, it may be adjudicated by a properly
constituted prize tribunal of the captor’s country ; for,
although the government of an ally cannot itself condemn,
there is nothing to prevent it from permitting the exercise
of that final act of hostility on the part of its co-belligerent,
the condemnation of property captured in a common war.
‘ There is a common interest,’ says Wheaton, ‘ between
the two governments, and both may be presumed to autho-
rise any measures conducing to give effect to their arms, and
port, although it was, when seized, stored in a warehouse on land
near the water, was held, under the facts, to be lawful prize.
(‘ Twelve hundred and fifty-three Bags of Rice,’ Blatohf. Pr. Gas.
2 1 1 .)
It is no legal ground of objection, to the jurisdiction of a prize
court, that the arrest was made out of its territorial authority.
The court has jurisdiction under the law of nations and by municipal
law when the subject matter of the suit is prize of war, without
regard to the locality of the arrest or cause of action, and it is unim-
portant to the question of prize or no prize whether the capturing
land and sea forces act in conjunction or separately. Where a com-
bined action exists between vessels of war and land forces in making
a capture, it is usually cast upon the latter to prove that their co-
operation was direct and positive to authorise their sharing in the
prize, and they are not ordinarily recognised as joint captors unless
it is proved on their art that the capture was produced by their
active interference. he Court has cognisance of all captures in
an enemy’s country made in creeks, havens, and rivers, when made
by a naval force solely or in co-operation with land forces. (The
two hundred and eighty-two Bales of Cotton, Blatohf. Pr. Gas. 302.)
Slaves cannot be libelled as prize, under the United States Act of
June 26, 1812, nor will the District court consider them as prisoners
of war, their disposition being exclusively a question of State policy
with which the judiciary cannot interfere. (See ‘ Almeida ’ 1).
Certain Slaves, 5 Am. Law, 2 N .S . 459.) Books intended for a
public library will notbe confiscated in a prize court. (The 3‘ Amelia,’
4 Phil. 417.) For example of the condemnation of an enemy’s
vessel, in the naval service of the enemy as a 'gunboat, see the ‘Ellis,’
.Blateh)‘. Pr. Cue-.348. ' - .- ‘ ‘ . ~
FFZ
Location
of prize
436 INTERNATIONAL LAW 011. xxxu
to consider each other’s ports as mutually subservient.
Such an adjudication is, therefore, sufficient in regard to
property taken in the course of the operations of a common
war.’ It was at one time supposed that a prize court,
though sitting in the country of its own sovereign, or of
his ally, had no jurisdiction over prizes lying in a neutral
port. Sir William Scott admitted that, on principle, the
exercise of such jurisdiction was irregular, as the court
wanted that possession which was deemed essential in
a proceeding in rem; but he considered that the English
Admiralty had gone too far in its practice, to be recalled to
the original principle. Sir William Grant, in delivering the
judgment of the Court of Appeals, in the same case, ex-
pressed the same opinion, and the English rule is now
considered as definitively settled. The Supreme Court
of the United States has followed the English rule, and has
held valid the condemnation, by a belligerent court, of
prizes carried into a neutral port and remaining there, the
practice being justifiable on the ground of convenience to
belligerents, as well as neutrals ; and though the prize was,
in fact, within neutral territory, it was still to be deemed
under the control, or sub potestate, of the captor, whose
possession is considered as that of his sovereign. It may,
also, be remarked, that the ‘rule thus established by the
highest courts of England and the United States, is sanc-
tioned by the practice of France, Spain, and Holland. But
several French publicists deny its legality. For the same
reason that a prize ‘court of the captor may condemn
captured property while in a neutral port, it may condemn
such property situate in any foreign port, which is in the
military possession of the captor. ‘ As a general rule,’
says Chief Justice Taney, delivering the opinion of the
Supreme Court, ‘it is the duty of the captor to bring it
within the jurisdiction of the prize court of the nation to
which it belongs, and to institute proceedings to have it
condemned. This is required by the Act of Congress, in
cases of capture by ships of war of the United States ; and
this Act merely enforces the performance of a duty, im-
posed upon the captor by the law of nations, which, in all
civilised countries, secures to the captured a trial in a court
of competent jurisdiction, before he can be finally deprived
on. xxxn PRIZE COURTS
437
of his property.’ 1 But there are cases where, from existing
circumstances, the captor may be excused from the per-
formance of this duty, and may sell, or otherwise dispose of,
the property, before condemnation. And where the
commander of a ship of war cannot, without weakening
inconveniently the force under his command, spare I a
sufficient prize crew to man the captured vessel, or where
the orders of his government prohibit him from doing so, he
may lawfully sell or otherwise dispose of the captured pro-
perty in a foreign country, and may afterwards proceed to
adjudication in a court of the United States.2
§ 15. The sentence of a competent prize court of the
captor’s country is conclusive upon the question of property
in the captured thing ; it forecloses all controversy respect-
ing the validity of the capture, as between the claimants
and the captors or those claiming under them, and terminates
all ordinary judicial inquiry upon the subject matter. The
captors cannot be held responsible in the court of any other
1 Wheaton, Hist. Law of Nations, p. 321 ; Jecker et al. v. Mont-
gomery, 13 Howard R. 516 ; the ‘ Peacock,’ 4 Rob. 185 ; Hudson 11.
Guestier, 4 Cranch. R. 293 ; Williams et al. v. Amroyd, 7 Cranch. R.
~ 523 ; the ‘ Arabella and Madeira,’ 2 Gallis. R. 368 ; the ‘ Henric and
Maria,’ 6 Rob. 138 note; the ‘Falcon,’ 6 Rob. 198; ‘La Dame
Cecile,’ 6 Rob. 257. It is fully within the usage of the prize courts
to entertain and perfect their jurisdiction over property captured
on board a vessel, without having the vessel itself brought within
their cognisance. In many cases, this is indispensable, as in the
case of enemy’s property captured in a neutral vessel, or when the
enemy’s vessel has been destroyed in capture. (The ‘ Edward
Barnard,’ Blatchf. Pr. Cas. 123.) A prize court may take judicial
cognisance of a capture, without at the time having the prize within
its territorial jurisdiction, and without its being brought there,
during the pendency of the suit. (The ‘ Zavalla,’ Blatchf. Pr. Gas.
1 7 3.) The possession of the captors in a neutral port is the posses-
sion of their sovereign, and gives jurisdiction to his courts. (Hudson
22. Guestier, 4 Cranch. 29 3.) The jurisdiction of the courts of France
as to seizures, is not confined to seizures made within two leagues of
the coast. (I bid.)
‘2 Under peculiar circumstances, the English prize court will
condemn a prize, which has been taken into and lies in a neutral
port, and allow it to be sold there. (The ‘ Polka,’ Spinks’ Prize
Cases, 57.) The right of adjudicating, on all captures and questions
of prize, belongs exclusively to the courts of the captor’s country ;
but it is an exception to the general rule that, where the captured
vessel is brought, or voluntarily comes infra praasidia of a neutral
power, that power has a right to inquire whether its own neutrality
has been violated by the cruiser which made the capture, and if
such violation has been committed, it is in duty bound to restore to
the original owner property capturedby cruisers, illegally equipped
in its ports. (The Estrella,’ 4 Wheat. 298.)
Decision
of compe-
tent court
conclusive
438 INTERNATIONAL LAW
CH. XXXII
State
responsi-
ble for
unjust
condemne-
tion
country, nor can the question of the ownership of the
captured property be made a matter of judicial investigation
when once decided by a competent prize court. A con-
trary rule, allowing the prize courts of one country to
review and reverse the decisions of the prize courts of
another country, would lead to great irregularities and
endless disputes and litigation. The competency of the
court and its jurisdiction may, however, as will be shown
hereafter, be made the subject of judicial inquiry.1 _
§ 16. ‘ Where the responsibility of the captor ceases,’
says Wheaton, ‘ that of the State begins. It is responsible
to other States for the acts of the captors under its com—
mission, the moment these acts are confirmed by the de-
finitive sentence of the tribunals which it has appointed to
1 Dalloz, Repertoire, verb. ‘ Prises Maritimes,’ § 7; Lothian 11.
Henderson, 3 B. and P. 545 ; Castrique v. Imrie, L. R. 4 H. L.
434—5 ; Geyer v. Aguilar, 7 T. R. 681. Although the decision of a
foreign prize court must be received in evidence, still it may be
examined, to see whether the fact, in proof of which it is adduced,
was clearly and certainly found by the court that gave it, and it is
for the court of that nation, in which the decision of the foreign
court is quoted, to ascertain what facts were so found, without
inquiring into the legal validity of the grounds of the judgment.
(Hobbs v. Henning, 5 New R. (1865), 406; 34 L. ]. (N.S.) 117.
See also Hughes 1). Cornelius, 2 Show. 232; Doe 1). Oliver, 2 5m.
L. C. 634 ; Geyer v. Aguilar, 7 T. R. 681 ; and Donaldson 1). Thompson,
I Camp. 429.) The sentence of a foreign court of Admiralty is
evidence only of what it positively and specifically afiirms in the
adjudicative part of it, not what may be gathered from it by way of
inference. (Fisher 11. Ogle, I Camp. 418 ; Christie 11. Secretan,
8 T. R. 192.) Therefore, a condemnation of a vessel, for attempting
,to violate a blockade, is not conclusive, unless it appear on the
face of the sentence, free from doubt, whether the ground of con-
demnation be a just one by the law of nations, or merely by the
municipal regulations of the condemning country. (Dalgleish v.
Hodgson, 7 Bing, 495.) In Bernardi v. Motteux (2 Dongl. R. ' 581).
an action on a policy of insurance, it was held by Lord Mansfield,
that a condemnation by a foreign Court of Admiralty is not conclu-
sive evidence that the ship was not neutral, unless it appear that the
condemnation went upon that ground. The supposed inconvenience
and controversy about the ground of a foreign sentence, would
be obviated, if foreign courts would say in their sentences, ‘ Con-
demned as enemy’s property.’ In Baring v. Clagett ( 3 B. and P. 20)
it was collected, that the ground of adjudication was the ship being
enemy’s property, and not the infringement of some positive
regulations of the foreign country. The court held such sentence
conclusive evidence against a warranty of neutrality. In Lothian
11. Henderson (ibid. 499) the House of Lords held, that a foreign
' sentence adjudging a ship, for whatever cause, to be enemy’s
property was conclusive against its neutrality.
on. xxxn PRIZE COURTS 439
determine the validity of captures in war.’ The sentence
of the judge is conclusive against the subjects of the State,
but it cannot have the same controlling efficiency toward
the‘ subjects of a foreign State. It prevents any further
judicial inquiry into the subject matter, but it does not
prevent, the foreign State from demanding indemnity for
the property of its subjects, which may have been unlaw-
fully condemned by the prize court of another nation.
The institution of these tribunals, so far from exempting,
or being intended to exempt, the sovereign of the belli-
gerent nation from responsibility for the acts of his com-
missioned cruisers, is designed to ascertain and fix that
responsibility. Those cruisers are responsible only to the
sovereigns whose commissions they bear. So long as
seizures are regularly made upon apparent grounds of just
suspicion, and followed by prompt adjudication in the usual
mode, and until the acts of the captors are confirmed by the
sovereign in the sentences of the tribunals appointed by him
to adjudicate in matters of prize, the neutral has no ground
of complaint, and what he suffers is the inevitable result of
the belligerent right of capture. But the moment the
decision of the tribunal of the last resort has been pro—
nounced (supposing it not to be warranted by the facts of
the case, and by the law of nations applied to those facts),
and justice has thus been finally denied, the capture and the
condemnation become the acts of the State, for which the
sovereign is responsible to the government of the claimant.
Not only may a State demand indemnity for the property
of its citizens unlawfully condemned by a foreign prize
court, but, if refused, it may resort to reprisals or even to
war. The right of redress in this case rests upon the same
grounds as the right of redress for injuries received, and a
denial of ‘justice persisted in. This principle is supported
by the authority of publicists, and by historical examples.
‘ If justice is not done to the other claimants by the prize
courts of the captors,’ says Rutherforth, ‘ they may apply
to their own State for a remedy; which may, consistently
‘with the law of nations, give them a remedy, either by
solemn war or reprisals. In order to determine when their
right to apply to their own State begins, we must inquire
when the exclusive right of the other State to judge in this
i 440
INTERNATIONAL LAW OH. xxxn
Cases of
England
and
Prussia in
1753 and
of the
United
States and
Denmark
in 1830
controversy ends. As this exclusive right is nothing else
but the right of the State, to which the captor belongs, to
examine into the conduct of its members before it becomes
answerable for what they have done, such exclusive right
cannot end until their conduct has been thoroughly
examined. Natural equity will not allow that the State
should be answerable for their acts, until those acts are
examined by all the ways which the State has appointed
for this purpose. Since, therefore, it is usual in maritime
countries to establish not only inferior courts of marine, but
likewise superior courts of review, to which the parties may
appeal, if they think themselves aggrieved by the inferior
courts, the subjects of a neutral State can have no right to
apply to their own State for a remedy against an erroneous
sentence of an inferior court, till they have appealed to the
superior court, or to the several superior courts, if there are
more courts of this sort than one, and till the sentence has
been confirmed in all of them. For these courts are so many
means appointed by the State, to which the captors belong,
to examine into their conduct ; and, till their conduct has
been examined by all these means, the State’s exclusive right
of judging continues. After the sentence of the inferior
courts has been thus confirmed, the foreign claimants may
apply to their own State for a remedy, if they think them-
selves aggrieved; but, the law of nations will not entitle
them to a remedy, unless they have been actually aggrieved.
When the matter has been carried thus far, the two States
become the parties to the controversy.’ 1
§ I7. In 1753, the King of Prussia undertook to set up
within his own dominions a commission to re-examine the
sentences pronounced against his subjects in the British
prize courts : this was deemed an innovation upon the
settled usage of nations. But, although the British govern-
ment asserted the proceedings of their prize tribunals to be
the only legitimate mode of determining the validity of
captures made in war, it did not consider these proceedings
as excluding the demand of Prussia for redress upon the
government itself. The King even resorted to reprisals, by
" stopping the interest upon a loan due to British subjects,
1 Wheaton, Elem. Int. Law, pt. iv. ch. ii. § 16; Rutherforth,
Institutes, b. ii. ch. ix. § 19.
on. xxxu PRIZE COURTS 441
and secured by hypothecation upon the revenues of Silesia.’-
So, also, under the treaty of 1794, between the United
States and Great Britain, a mixed commission was ap-
pointed to determine the claim of American citizens,
arising from the capture of their property by British cruisers
during the existing war with France, and a full satisfactory
indemnity was awarded in many cases where there had been
a final condemnation by courts of prize. Again, in the
negotiation between the Danish and American governments
respecting the captures of American vessels by the cruisers of
Denmark during the war between that power and England,
it was admitted that, although the jurisdiction of the
tribunals of the capturing nation was exclusive and com-
plete, and had the effect of closing for ever all private
‘controversy between the captors and the captured, still, the
‘American government might demand indemnity for any
unlawful condemnations. The demand which the United
States made upon the Danish Government was not for a
judicial reversal of the sentences pronounced by its tribunals,
but for indemnity in consequence of the alleged denial
of justice by the tribunal in the last resort, and of the
responsibility incurred by the Danish Government for the
acts of its cruisers and tribunals. The Danish Government
was, of course, free to adopt any measures it might think
proper to satisfy itself of the alleged injustice of those
sentences, one of which would be a re-examination and
discussion of the cases complained of, conducted by an
impartial tribunal, under the sanction of the two govern-
ments, not for the purpose of disturbing the question of title
to the specific property which had been irrevocably con-
demned, or of reviving the controversy between the
individual captors and claimants, which had been for ever
terminated, but for the purpose of determining between
government and government whether injustice had been
done by the tribunals of one power against the citizens of
the other, and of determining if any, and if so what
indemnity ought to be granted to the latter.
§ 18. The general principle is that the sentence of a
prize court, of competent jurisdiction, in rem, is conclusive
upon the title to the property condemned. It may be
1 See as to the Silesian loan vol. i. p. 593.
442 INTERNATIONAL LAW on. xxxn
when
jurisdic.
tion may
be in-
quired
into
How far
governed
by munici-
pal laws
added, that the general presumption is, that the juris-
diction exercised by a foreign tribunal is lawful.‘ But that
presumption may be refuted by competent evidence. Where
a claim is set up under a sentence of condemnation of a
foreign court, every court has a right to examine into the
jurisdiction of such foreign court, so far, at least, as to ascer-
tain its competency, in international law, to pronounce
the adjudication. Whenever the jurisdiction cannot, con-
sistently with the laws of nations, be exercised, the sentence
will be disregarded. If, therefore, a vessel be condemned
under circumstances which show‘ that the court could,
under the rules of international law, have no‘ jurisdiction,
such sentence will be regarded as a nullity. A condemnation
of a prize, by the consul of the belligerent, in a neutral
country, is deemed invalid, because such a jurisdiction
cannot be exercised consistently with the law of nations.
Moreover, the jurisdiction may be inquired into, not only
with respect to the subject matter, but also with respect to
the authority from which it has emanated; and if the
jurisdiction be unauthorised from either cause, it is a
decisive objection to the sentence.1
§ 19. We have already pointed out the distinction
between prize courts and municipal tribunals, with respect
to their constitution and character. The same distinction
exists with respect to the laws which they administer.
Prize courts are in no way bound to regard local ordinances
and municipal regulations, unless they are sanctioned by
the law of nations. Indeed, if such ordinances and regu-
lations are in contravention of the established rules of
international jurisprudence, prize courts must either violate
their duty, or entirely disregard them. They are not
binding on the prize courts, even of the country by which
they are issued. The stipulations of treaties, however,
are obligatory upon the nations which have entered vinto
them, and prize courts must observe them in adjudicating
between subjects or citizens of the contracting parties.
1 Phillips, On Insurance, vol. ii. pp. 680 et seq.; Amroyd v.
Williams, 2 Wash. R. 608; Cherrot v. Foussat, 3 Binn. R. 220;
Snell v. Foussat, 1 Wash. R. 271; Bradstreet v. Nep. Ins. Co. 3
Sumn. R. 600 ; Francis 21. Ocean Ins. Co. 6 Cowen R. 404 ; Cuculler
21. Lou. Ins. Co. 5 Matt. N. S. 464; Ocean Ins. Co. 11. Francis, 2
Wend. R. 65. a
(UH. XXXII PRIZE COURTS
The language of Sir William Scott, in delivering the judg-
ment of the court in the case of the ‘ Maria,’ 1 is peculiarly
just and appropriate. ‘In forming my judgment, I trust
it has not escaped my anxious recollection for one moment,
what it is that the duty of my station calls from me ; namely,
to consider myself as stationed here, not to deliver occasional
and shifting opinions, to serve present purposes of par-
ticular national interest, but to administer, with indiffer-
ence, that justice which the law of nations holds out, with-
out distinction, to independent States, some happening to
be neutral and some to be belligerent. The seat of judicial
authorityv is, indeed, locally here, in the belligerent country,
according to the known law and practice of nations; but
the law itself has no locality. It is the duty of the person
who sits here, to determine this question exactly as he
would determine the same question, if sitting at Stockholm ;
to assert no pretensions on the part of Great Britain, which
he would not allow to Sweden in the same circumstances ;
and to impose no duties on Sweden, as a neutral country,
which he would not admit to belong to Great Britain, in
the same character. If, therefore, I mistake the law in
this matter, I mistake that which I consider, and which
I mean should be considered, as universal law upon the
question.’ In speaking of the right of a prize court to
adjudicate upon maritime captures, Rutherforth remarks :
‘ The right which it exercises is not civil jurisdiction;
and the civil law, which is peculiar to its own territory,
is not the law by which it ought to proceed. Neither the
place where the controversy arose, nor the parties who
are concerned in it, are subject to this law. The only law
by which this controversy can be determined, is the law
of nature, applied to the collective bodies of civil societies,
that is, the law of nations.’ This, of course, is subject to
any particular treaties made between the two States, to
which the captors and the other claimants belong, mutually
binding them to depart from such rights as the law of nations
would otherwise have supported. Where such treaties
have been made, they are a law to the two States, as far
as they extend, and to all the members of them in their
intercourse with one another. The State, therefore, to which
1 1 Rob. 34o.
444 INTERNATIONAL LAW
OH. XXIII
Character
of pro-
ceedings
the captors belong, in determining what might or what
might not be lawfully taken, is to judge by these particular
treaties, and by the law of nations taken together.
§ 20. ‘ No proceedings,’ says Mr. Justice Story, ‘ can be
more unlike than those in the courts of Common Law and in
Admiralty. In prize courts, in an especial manner, the
allegations, the proofs, and the proceedings, are, in general,
modelled upon the civil law, with such additions and altera-
tions as the practice of nations and the rights of belligerents
and neutrals unavoidably impose.’ The parties in a prize
case are, therefore, not limited in their recovery, secundum
allegata e15 probata, as in the case of a declaration at common
law; but the court having jurisdiction over the property,
exerts its authority over all the incidents, and will shape its
decree as the circumstances of the case may require. After
the first hearing of the cause, orders are made for further
proof, not only in the court below, but also in the appellate
court. Not only the proceedings, but also the rules of
evidence, are, in many respects, different from those of courts
of common law ; and prize courts not only decide upon the
claims of the captors, but also upon their conduct in making
the capture, and subsequently, and not unfrequently,
declare a forfeiture of their rights, with vindictive damages.
The following are some of the decisions of the Supreme
Court of the United States on proceedings in prize cases,
and the duties and liabilities of captors. ‘In prize causes,
the evidence to acquit or condemn, must come, in the first
instance, from the papers and crew of the captured ship.
It is the duty of the captors to bring the ship’s papers into
the registry of the district court, verify them on oath, and to
have the examinations of the principal officers and seamen of
the captured ship taken on the standing interrogatories, and
not viva vooe. It is exclusively upon these papers and
examinations that the cause is to be heard in the first -
instance. If, from this evidence, the property clearly
appears to be hostile or neutral, condemnation or restitu-
tion immediately follows. If the property appears to be
doubtful, or the case suspicious, further proof may be
granted according to the rules which govern the legal
discretion of the court, if the claimant has not forfeited his
right to it by a breach of good faith. The Supreme Court
on. xxxn PRIZE COURTS 445
hears the cause, in the first instance, upon the evidence
transmitted from the Circuit court, and decides upon that,
whether it is proper to allow further proof. If the court
below has denied an order for further proof, when it ought
‘ to have been granted, or has allowed it, when it ought to
have been denied, and the objection was made by the party,
and appears on the record, the appellate court can administer
the proper relief. Where the national character does not
distinctly appear, or where the question of proprietary
interest is left in doubt, further proof is usually ordered.
It the parties have had the benefit of plenary proof in the
court below, an order for further proof ‘ is not allowed by the
appellate court, except under very special circumstances.
If there is reason to believe that the applicant has suppressed
important documentary evidence, or that the parties have
been guilty of gross fraud, or misconduct, or illegality, fur-
ther proof is not allowed. Further proof by the claimant,
inconsistent with that already in the case, is refused. Where
an order for further proof is made, and a party neglects to
1 A vessel, under Greek colours, was captured in the ofiing of
Odessa in 185 5, by an English ship of war, while attempting to enter
that port, then declared to be in a state of blockade. A claim for
her restitution was founded on the necessity of her attempting
that port, by reason of her leaky condition. It appeared that the
claimant was not in reality her owner. Further proof was allowed
by the English prize court, both for the claimant and the captors—the
one to prove, the other to disprove, that the intention to enter
the blockaded port arose from ‘imperious and overwhelming
necessity.’ The claim was also allowed to be amended, so as to show
who was the real owner.. (The ‘ Panagia Rhomba,’ 3 ]ur. N. 5. 2 3.)
Both parties were allowed to give further proof, as to the intention
to violate blockade, in the case of the ‘Jane Campbell,’ Blatchf.
Pr. Cas. 101. A claimant forfeits the right to ask to take further
proof, by any guilty concealments previously made in the case.
(The ‘ Grey ‘Jacket,’ 5 Wall. 342.) It is the ordinary course of prize
courts, upon an order for further proof, especially when it becomes
material to ascertain the circumstances of the capture, to allow the
,. attestations of the captors as evidence ; for in such cases the fact lies
as much within the knowledge of the captors as the captured, and
the objection of interest generally applies as strongly to the one
party as to the other. (The ‘ Anne,’ 3 Wheat. 435.)
It is enacted by 27 and 28 Vict. c. 2 5, s. 21, that ‘where, on
production of the preparatory examinations and ship papers, it
appears to the court doubtful whether the captured ship is good
rize or not, the court may direct further proof to be adduced, either
by aflidavit or by examination of witnesses, with or without plead-
ings, or by production of further documents, and on such further
proof being adduced, the court shall with all convenient speed
proceed to adjudication.’
446 INTERNATIONAL LAW on. xxxn
comply with it, courts of prize are in the habit of considering
such negligence as fatal to his claim. The concealment or
spoliation ofpapers by an enemy master carrying a cargo
chiefly hostile, does not thereby preclude a neutral claimant,
to whom no fraud is imputable, from further proof. The cir-
cumstances of goods being found on board an enemy’s ship,
raises, in general, a legal presumption that they are enemy’s
property, and the onus probandi of a neutral interest rests on
the claimant. Affidavits, to be used as a further proof, must
be taken under a commission. Depositions taken on further
proof, in one prize cause, cannot be invoked in another.
Where the‘ affidavits produced as further proof are positive,
but their credibility impaired by the non-production of
letters mentioned therein, a second order for further proof
will be allowed in the appellate court.1
1 The ‘ Dos Hermanos,’ 2 Wheat. R. v76 ; the ‘ Pizarro,’ 2 Wheat. R.
227 ; the ‘ Amiable Isabella,’ 6 Wheat. R. 1 ;the ‘London Packet,’ 2
Wheat. R. 371 ; schooner ‘ Adeline ’ and cargo, 9 Czanoh. R. 244;
the ‘Venus,’ 5 Wheat. R. 127; the ‘Atalanta,’ 5 Wheat. R. 433;
the ‘Fortuna,’ 3 Wheat. R. 236; the ‘ Euphrates,’ 8 Ct'aneh. R.
385 ; the ‘ Experiment,’ 4 Wheat. R. 84. The common law doctrines,
as to the competency of witnesses, are not applicable to prize pro-
ceedings. No person is incompetent in those courts, merely on the
ground of interest. His testimony is admissible, subject‘ to all
exceptions as to its credibility. (The ‘ Anne,’ 3 Wheat. 435.) The
rule that the testimony, for the condemnation of a prize, must be
obtained, in the first instance, directly from documents or witnesses
found on board the vessel at the time of her seizure, is always
adhered to, unless satisfactory reasons are shown for departing from
it in a particular instance. (The ‘ Zavalla,’ Blatehf. P7’. Cas. I 7 3 ;
the ‘ Jane Campbell,’ ibid. 101.) Where all the persons on board
escaped before the capture of a vessel, and the capture was‘ made
while she was attempting to violate a blockade, it was held that,
upon satisfactory proof that the vessel and cargo were enemy’s
property, a decree might be entered against them in the absence of
an examination of the papers and crew. (The ‘ Gipsy,’ Blatehf.
P1’. Gas. 126.) A vessel, after her capture, was appropriated to
the use of the United States, and was not sent into port. Her cargo
was sent in by another vessel, and was arrested in the suit. None
of her company were sent in as witnesses. A person present at
the capture was, by order of the court, examined as a witness, and
the cargo condemned; but the vessel was discharged for want of
legal arrest and prosecution. (The ‘ Wave,’ Blatehf. Pt’. Cas. 329.)
Where none of the officers or crew of the vessel were sent into port
with her, or produced with her to be examined as witnesses, it was
held, that the subsequent appearance and examination in prepara-
tozio of the master cured the irregularity. (The ‘ Henry Middleton,’
Blatchf. Pt’. Gas. 121.) A vessel and cargo were condemned as
enemy’s property, upon proof of the spoliation of papers at the
moment of capture, and that a former enemy ‘owner remained in
possession as master of the vessel for a year, through two alleged
on. xxxn PRIZE COURTS
447
§ 21'. A vessel libelled as prize is in the custody of the law
and under the control of the court. The prize court in
which proceedings were instituted has power to order a sale,
even after an appeal; and although such sale, after an
appeal, is irregular, this irregularity will not render the
captors liable to pay the amount of the sales, which did not
come into their hands, but were under the control of the
court. A sale made before condemnation, by one acting
under the possession of the captor, does not divest the
prize court of its jurisdiction, to decide the question of prize,
and the subsequent condemnation relates back to the
capture, affirms its legality, and establishes the title of
the purchaser. In the United States a warrant imme-
diately goes to the marshal to take possession of the property,
and he is bound to keep it in salad et arctd custodid ; and if
any loss happen by his negligence he is responsible for it to
the'court. In England, it formerly remained in the actual
custody of the court, and does so still in contemplation of
law; although the Admiralty, for convenience, allow the
captors to retain the possession as agents of the court, not
by right of property. And the court still retains its custody,
notwithstanding an unlading and deposit in public ware-
houses.l
sales to neutrals, and alleged neutral owners, who resided near the
place where the vessel and cargo were libelled, leaving the whole
defence to such former owner. (The ‘ Andromeda,’ 2 Wall. 481.)
1 Smart 1). Wolff, 3 Burn. and East. 323, 329 ; the ‘ Herkimer,’
Stewart R. 128; the ‘Rendsberg,’ 6 Rob. 142; the ‘Concord,’ 9
Crunch. R. 387; the ‘Nereide,’ I Wheat. R. 171 ; the ‘Hoop,’ 4
Rob. 14 5. Application for a sale of prize property, before hearing, on
the ground that it was in a perishing condition, granted, under the
circumstances of the case. (Stoddart o. Read, 2 Dall. 4o ; the
‘ Pioneer,’ Blatchf. Pr. Gas. 61.) On a motion, for the sale of a cargo
pending the hearing, on the ground that it is in a perishing con-
dition, the judgment. of the prize commissioners, founded on their in—
spection, as evidenced by their report, will prevail, unless controlling
evidence is produced counteracting their judgment. (The ‘ Nassau,’
Blatchf. Pr. Gas. 198.)‘ The application for the sale of prize property,
in a perishing condition, was refused in the case of the ‘ Alliance,’
Blatchf. Pr. Gas. 186; compare Harlan 2). the ‘ Nassau,’ ibid. 220.
A sale of prize property was allowed before a hearing, under the
circumstances of the case, of the ‘ Sarah and Caroline,’ Blatchf. Pr.
Gas. 123 ; and of the ‘ Nymph} ibid. 564. A libel in a prize case
need contain no further averment than that the property seized is
prize of war. (The ‘ Sally Magee,’ Blatchf. Pr. Gas. 382.) When
a sale will be ordered, pending an appeal, see the ‘ Crenshaw,’
Blatchf. Pr. Gas. 631 ; the ‘ Hiawatha,’ ibid. 632 ; the ‘ Sunbeam,’
ibid, 638. g .
Custody of
property
448 INTERNATIONAL LAW on. xxxfl
Conduct of
suit by
captors
§22. It is the duty of the captors to send their prize
into a convenient port of their own country, and to immedi-
ately bring the case before the proper court for adjudica-
tion. If they fail to do this, the claimant may apply to
the court for a monition to the captors to proceed forth—
with for adjudication, and if they neglect to do so after
service and return of such monition, the court will, if a
proper case be laid before it, proceed to award not only
restitution, but also damages and costs. Even if the
captors agree to a restitution, if they have unreasonably
delayed to make it, demurrage will be allowed against
them. The libel filed by the captors is usually in very
general terms, setting forth the facts of the capture, and
alleging the captured property to be a subject of prize
rights ; but the captors are not required at the commence-
ment of the suit to allege the particular grounds upon
which they base their claim to a condemnation. But
the court may, in its discretion, afterwards order special
pleadings. In case of joint captures, the libel is filed by
the actual seizers, and those claiming the benefit of joint
capture afterwards file their claim, giving bonds to the
required amount for costs. On the filing of the libel,
the usual practice is to issue a monition, citing all persons
who are interested to appear by a given day, and show
cause why the specified property should not be condemned
as prize, &c.1 The rules governing prize courts are set out
in the appendix to this chapter.
1 The ‘Betsey,’ 1 Rob. 93; the ‘Mentor,’ I Rob. 181; the
‘Huldah,’ 3 Rob. 239 ; the ‘ Der Mohr,’ 3 Rob. 129 ; the ‘ George,’
3 Rob. 212 ; the ‘William,’ 4 Rob. 215 ; the ‘Susanna,’ 6 Rob. 48 ;
the ‘Adeline,’ 9 Cranch. 244; the ‘Fortuna,’ I Dod. R. 81 ; the
‘ Conqueror,’ 2 Rob. 303.
Goods are usually condemned, for want of a claim, after a year
and a day have elapsed from the date of the return of the monition.
During the Crimean War, 1854, this time was reduced to three
months by the I 7 and I8 Vict. c. 18, s. 37, liberty being reserved
to the Judicial Committee to allow the appeal to be prosecuted
after the expiration of that period. But the motion by the claimant,
the owner of a cargo, upon notice to the captor for leave to appeal
from a sentence of the Admiralty Court in England, pronounced
. in paenam aontumaoz'ce, fifteen months after the capture, was granted
subject to the presentment of a petition of leave to appeal, on pay-
.ment. of costs, and on the terms of prosecuting the appeal within
three months, bail being given for payment of the captor’s costs.
The proceedings in England were unknown to the owner of the
cargo, and the sentence of condemnation not having been com!
on. xxxn PRIZE COURTS
449
§ 23. As a general rule, the subject of the enemy cannot
appear as a claimant, for he has no persona standi in the
court. But if the captured vessel was sailing under a
cartel, or flag of vtruce, and was captured by mistake or
under circumstances of suspicion, it is considered to form
municated by the captors to the owner, he had no knowledge thereof,
until long after the time for appealing had expired. (The ‘ Aspasia,’
11 Moore P. C. C. 80. See also the Achilles,’ 11 ibid. 86.)
It is enacted by the 27 and 28 Vict. c. 2 5, s. 36, that ‘ before
condemnation, a petition on behalf of asserted joint captors shall
not (except by special leave of the court) be admitted, unless and
until they give security, to the satisfaction of the court, to con-
tribute to the actual captors a just proportion of any costs, charges,
expenses, or damages that may be incurred by, or awarded against,
the actual captors on account of the capture and detention of the
prize. After condemnation, such a petition shall not (except by
special leave of the court) be admitted, unless and until the asserted
joint captors pay to the actual captors a just proportion of the
costs, charges, and expenses incurred by the actual captors in the
case, and give such security as aforesaid, and show sufficient cause
to the court why their petition was not presented before condemna-
tion.’ Then follows an exception with regard to flag officers.
A British prize court, ‘ on proof of any offence against the law of
nations or against this Act, or any Act relating to naval discipline,
or against any Order in Council or Royal Proclamation, or of any
breach of her Majesty’s instructions relating to prize, or of any
Act of disobedience to the orders of the Lords of the Admiralty, or
to the command of a superior officer, committed by the captors in
relation to any ship or goods taken as prize, or in relation to any
person on board any such ship, may on condemnation reserve the
prize to her Majesty’s disposal, notwithstanding any grant that
may have been made by her Majesty in favour of captors.’ (27 and
28 Vict. c. 25, s. 37.)
The practice in American prize courts is, in general, to make
final condemnation of enemy’s property at the hearing of the cause,
upon the ship’s papers and the evidence in preparatorio. The
suspension of proceedings for a year and a day, after a default, is
allowed only in cases where it is doubtful upon the evidence, whether
the captured property belong to the enemy or is neutral. (The
‘ Falcon,’ Blatchf. Pr. Cas. 52.)
The rule of the prize courts, to allow a year and a day in case of
neutral vessels, for claimants to appear, is not a vested right in
neutrals. It is allowed as of right, where the condemnation, if
decreed, must be solely on the ground of default. If the captors
show a clear case of enemy property, or of contraband, or of breach
of blockade, the court may condemn the vessel or cargo, although
they are under neutral flag and papers, in the absence of claimants,
without waiting a year and a day. So if it shall be proved, that the
neutral owners have had notice and opportunity to appear, con-
demnation may go at once, solely on the ground of default, and the
presumptions arising therefrom, without other proof. (The ‘ Julia,’
2 Sprague, 164.) As to what order may be made, where the
libellants in a prize cause are chargeable with wrongful delay in
the prosecution of the cause, see jecker 11. Montgomery, 13 How.
498 ; the ‘ Springbok,’ Blatchf. Pr. Cas. 349.
VOL. II. G G
Who may
appear as
claimants
450 INTERNATIONAL LAW on. xxxrr
an exception to this rule, and the enemy master is allowed
to appear and claim restitution. A party to be entitled
to assert a claim in a prize court must be the general owner
of the property ; a person who has a mere lien on the property
for a debt, whether liquidated or unliquidated, is not
entitled to assert his claim ; nor can the mortgagee assert
any claim, where the mortgagor has been left in possession.
An appearance by a proctor for the claimants, duly entered,
cures all defects of process, such as the want of monition
or of due notice. And, even assuming that one partner
has no authority to appoint a proctor for all the parties,
yet a general appearance for all by a proctor is good and
legally binding. A claim must be made by the parties
interested, if present, or, in their absence, by the master
of the ship, or some agent of the owners. A mere stranger
will not be permitted to interpose a claim merely to specu-
late on the chances of an acquittal.l
1 The ‘ Falcon,’ 6 Rob. 199 ;the ‘ Daifjie,’ 3 Rob. 143 ;the ‘ Mary ’
5 Rob. 199; the ‘Eenrom,’ 2 Rob. I ; the ‘Tobago, 5 Rob. 218;
the ‘ Frances,’ 8 Czaneh. R. 355 ; the ‘Marianna,’ 6 Rob. 24 ; Balch
2). Darrel, Bees. R. 74 ; Penhallow v. Doane, 2 Dallas R. 54 ; Hills 11.
Ross, 3 Dallas R. 231.
' Whether a maritime lien for work and materials, alleged to have
been furnished to a vessel prior to her capture fin/e belli, is lost by
such capture, is a proper subject for investigation and decision by the
prize court, before which the captured vessel is brought for adjudica-
tion, and which the parties setting up such lien can, on proper
presentation of their claim to that tribunal, have decided. But if
such parties do not so present, and ask to have it decided, the
question is not properly before the Supreme Court for review, in
a case where the District court only dismissed the libel as improperly
filed on its instance side. (The ‘ Nassau,’ 4 Wall. 634 ; Harlan 2).
the ‘ Nassau,’ Blatehf. P7’. Gas. 220.) A mortgagee of captured
property has no right to assert his mortgage in a prize court, and
demand its payment out of the proceeds of the property, if con-
demned.‘ All liens upon captured property, which are not in their
very nature open and apparent, like that for freight upon the cargo
laden on board a captured vessel, are utterly disregarded by prize
courts. (The ‘Delta,’ Blatehf. Pt’. Cas. I 33.) In proceedings in
prize, and under principles of international law, mortgages on
vessels captured fin/e belli are to be treated only as liens, subject
to being overridden by the capture ; not as jam in we, capable of an
enforcement superior to the claims of the captors. (The ‘ Hampton,’
5 Wall. 372.) Demands, against property captured as prize of war,
must be adjusted in a prize court. The property arrested as prize
is not attachable at the suit of private parties. If such parties
have claims which, in their view, override the rights of captors,
they must present them to the prize court for settlement. (The
‘ Nassau,’ 4 Wall. 634; Harlan v. the ‘Nassau,’ Blatchf. Pt’. Gas.
220.) .
on. xxxn PRIZE COURTS
451
§24. A claimant who wishes to procure the restitution
of any property captured as prize, must after the libel is
filed, and at or before the return of the monition thereon, or
within the time assigned by the court, enter his claim for
such property, accompanied with an affidavit, stating
briefly the facts respecting the claim and its verity. If
the parties themselves are not within the jurisdiction of
the court, or at a very great distance, the claim may be
sworn to by an agent. Before the claim duly sworn to is
put in, the claimants are not, as a general rule, permitted
to examine the ship’s papers, as this might lead to great
abuses, but sometimes, on special application, the court
will permit so many of the papers to be examined as it
may deem proper, in order to enable the claimant to set
forth the particular grounds of his claim. The pleadings
both on the part of the captors and claimants are of a very
simple character, formed upon the rules and practice of the
Roman law. Both the libel and claim are of a general
character, special allegations of particular circumstances
not being usually made. With respect to the reception of
evidence, courts allow every- relaxation of technical rules
which .are permitted to prevail in the country in which it is
taken. As a general rule no claim is admitted which stands
in entire opposition to the ship’s papers and to the pre-
paratory examinations. Nor can any person be permitted
to claim in a' prize where the transaction in which he is
engaged is in violation of the municipal law of his own
country, or,of that where the court is sitting. Claimants
must give bonds for costs and expenses to the amount
required by statute or the rules of the court.l
1 The ‘ Port Mary,’ 3 Rob. 233 ; the ‘ La Flora,’ 6 Rob. I ; the
‘ Walsingham Packet,’ 2 Rob. 77 ; the ‘ Etrusco,’ 4 Rob. 262 ; the
‘ Comelis and Maria,’ 4 Rob. 23 ; the ‘ Peacock,’ 4 Rob. 18 5 ; the
‘ Arabella and Madeira,’ 2 Gallis. R. 368.
It is not competent for a neutral consul, without the special
authority of his government, to interpose a claim in a case of prize,
on account of a violation of the territorial jurisdiction of his country
in the capture. (Supreme Ct. 1818, the ‘Anne,’ 3 Wheat. 435.)
Where, after condemnation of a vessel and cargo, the decree as to
the vessel was opened by consent on the application of the owners
of the vessel, who showed that she had been previously captured
from them by a privateer of the enemy—Held, that the vessel should
be restored, on payment of one-eighth of her value as salvage to
the captors. (The ‘ Hattie,’ Blatchf. Pr. Gas. 579.) Cargo on
board enemy’s vessel, being neutral property on transportation in
Duties of
claimants
o c 2
452 INTERNATIONAL LAW 011. xxxn
Nature '
and form
of decrees
§ 25. When a sentence is pronounced either of acquittal
or condemnation, it is generally, in the English prize court,
by an interlocutory decree, but in the United States it is the
more common practice to reserve a decree until a final
decision of all the questions before the court. Decrees of
acquittal may be either with or without damages and costs,
or on condition of paying costs and expenses. If the
specific property remains in the custody of the court and
restitution is decreed, it is directed to be delivered to the
claimant ; but if disposed of the proceeds are so delivered.
In case of condemnation in favour of a privateer, it is usual
in England to deliver a decree, with a proper commission
to the master of the privateer to make sale of the prize and
return an account to the court; but in the United States
all sales before and after condemnation are made by the
marshal, who returns the funds to the court to be distributed
by its order.1
a lawful trade, released without costs to the captors, there having
been no probable cause for its arrest. (The ‘ Velasco,’ Blatckf. Pr.
Cas. 54.) Where there was probable cause for the seizure, but the
vessel was neutral property, on a lawful voyage, and was making
for a blockaded port for repairs, she was restored to the claimants
without costs. (The ‘ Jane Campbell,’ Blatchf. Pr. Cas. 101.‘)
Instances of the vessel and cargo released and restored to the
claimants upon the facts in the case. (See the ‘ Tropic Wind,’
Blatckf. Pr. Cas. 64 ; the ‘ Labuan,’ ibid. 165 ; the ‘ Glen,’ ibid. 375 ;
the ‘Sybil,’ ibid. 615; the ‘Sarah M. Newhall,’ ibid. 629; the
‘ Argonaut,’ ibid. 62 ; the ‘ Hannah M. Johnson,’ ibid. 2 ; the ‘ Forest
King,’ ibid. 2; the ‘ Gondar,’ ibid. 649, 669, reversing S. C. ibid.
266; the ‘Science,’ 5 Wall. 178; the ‘Teres-ita,’ ibid. 181; the
‘Volant,’ ibid. 179.)
1 Phillimore, On Int. Law, vol. iii. §§ 493-497 ; Marriott’s Forms,
pp. 194, 196. The master of an enemy’s vessel condemned as prize
is not entitled to be repaid out of the proceeds of the vessel, for
disbursements made by him for her use. (The ‘ Velasco,’ Blatchf.
Pr. Cas. 54.) Prize cargoes sent in for adjudication in a transport
chartered by the government, are not chargeable with the payment
of freight or any part of the vessel. (The ‘ Undaunted,’ 2 Sprague,
194-)
on. xxxn PRIZE COURTS 453
APPENDIX
PROCEEDINGS IN BRITISH PRIZE COURTS
The following opinion, on the general principles of proceeding proceed.
in prize courts, was drawn up in the form of a letter to Mr. Jay, ings in
on the behalf and at the request of the Government of the United British
States, by Sir W. Scott and Sir ]. Nichol, in 1794, as follows :-— prize
~ ‘ We .have the honour of transmitting, agreeably to your Ex~ courts
cellency’s request, a statement of the general principles of pro-
ceeding in prize causes, in British courts of Admiralty, and of the
measures proper to be taken when a ship and cargo are brought
in as prize within their jurisdiction.
‘ The general principles of proceeding cannot, in our judgment,
be stated more correctly or succinctly than we find them laid down
in the following extract from a report made to his late Majesty
in the year 175 3, by Sir G. Lee, then judge of the Prerogative
Court, Dr. Paul, his Majesty’s Advocate-General, Sir D. Rider, his
Majesty’s Attorney-General, and Mr. Murray (afterwards Lord
Mansfield), his Maj esty’s Solicitor-General :--
‘ “ When two powers are at war, they have a right to make
prizes of the ships, goods, and effects of each other, upon the high
seas. Whatever is the property of the enemy, may be acquired
by capture at sea; but the property of a friend cannot be taken,
provided he observes his neutrality.
‘ “ Hence the law of nations has established—
‘ “ That the goods of an enemy, on board the ship of a friend,
may be taken ;
‘ “That the lawful goods of a friend, on board the ship of an
enemy, ought to be restored ;
‘ “ That contraband goods, going to the enemy, though the
property of a friend, may be taken as prizes; because supplying
the enemy with what enables him better to carry on the war, is
a departure from neutrality.
‘ “ By the maritime law of nations, universally and immemorially
received, there is an established method of determination, whether
the capture be, or be not. lawful prize.
‘ “ Before the ship, or goods, can be disposed of by the captor,
there must be a regular judicial proceeding, wherein both parties
may be heard, and condemnation thereupon as prize, in a court
of Admiralty, judging by the law of nations and treaties.
‘ “ The proper and regular court for these condemnations is the
court of that State to whom the captor belongs.
‘ “ The evidence to acquit or condemn, with or without costs or
damages, must, in the first instance, come merely from the ship
taken—viz. the papers on board, and the examination on oath
of the master, and other principal officers ; for which purpose there
are officers of Admiralty in all the considerable sea ports of every
maritime power at war, to examine the captains, and other principal
officers of every ship, brought in as a prize, upon general and im-
partial interrogatories : if there do not appear from thence ground
to condemn, as enemy’s property, or contraband goods going to
the enemy, there must be an acquittal, unless from the aforesaid
evidence the property shall appear so doubtful, that it is reason-
able to go into further proof thereof.
454 INTERNATIONAL LAW on. xxxrr
‘ “A claim of ship, or goods, must be supported by the oath
of somebody, at least as to belief.
‘ “ The law of nations requires good faith : therefore every ship
must be provided with complete and genuine papers; and the
master, at least, should be privy to the truth of the transaction.
‘ " To enforce these rules, if there be false or colourable pa ers ;
if any papers be thrown overboard; if the master and o cers
examined in {Ji/epat'atozio grossly prevaricate ; if proper ship’s papers
are not on board ; or if the master and crew cannot say, whether
the ship or cargo be the property of a friend or enemy, the law of
nations allows, according to the different degrees of misbehaviour,
or suspicion, arising from the fault of the ship taken, and other
circumstances of the case, costs to be paid, or not to be received,
by the claimant, in case of acquittal and restitution : on the other
hand, if a seizure is made without probable cause, the captor is
adjudged to pay costs and damages. For which purpose all
privateers are obliged to give security for their good behaviour;
and this is referred to, and expressly stipulated by many treaties.
‘ “ Though from the ship’s pa ers, and the preparatory examina-
tions, the property does not su ciently appear to be neutral, the
claimant is often indulged with time to send over affidavits, to
supply that defect ; if he will not show the roperty by sufficient
affidavits, to be neutral, it is presumed to gelong to the enemy.
Where the property appears from evidence not on board the ship,
the captor is justified in bringing her in, and excused paying costs,
because he is not in fault; or, according to the circumstances of
the case, may be justly entitled to receive his costs.
‘ “ If the sentence of the court of Admiralty is thought to be
erroneous, there is in every maritime country a superior court of
review, consisting of the most considerable persons, to which the
parties who think themselves aggrieved may appeal ; and this
superior court judges by the same rule which governs the court of
Admiralty—viz. the law of nations, and the treaties subsisting with
that neutral power, whose subject is a party before them.
‘ “ If no appeal is offered, it is an acknowledgment of the justice
of the sentence by the parties themselves, and conclusive.
‘ “This manner of trial and adjudication is supported, alluded
to, and enforced, by many treaties.
‘ “ In this method, all captures at sea were tried, during the last
war, by Great Britain, France, and Spain, and submitted to by
the neutral powers. In this method, by courts of Admiralty acting
according to the law of nations and particular treaties, all captures
at sea have immemorially been judged of, in every country in
Europe. Any other method of trial would be manifestly unjust,
absurd, and impracticable.”
‘ Such are the principles which govern the proceedings of the
prize courts. -
‘ The following are the measures which ought to be taken by
the captor, and by the neutral claimant, upon a ship and cargo
being brought in as a prize. The captor immediately, upon bringing
his prize into port, sends up, or delivers upon oath, to the registry
of the court 0 Admiralty, all papers found on board the captured
ship. In the course of a few days, the examinations in pi/epai'atoi'io
of the captain and some of the crew of the captured ship are taken,
upon a set of standing interrogatories, before the commissioners
of the port to which the prize is brought, and which are also for-
warded to the registry of the Admiralty as soon as taken. A
monition is extracted by the captor from the registry, and served
on. xxxn PRIZE COURTS 455
upon the Royal Exchange, notifying the capture, and calling upon
all persons interested to appear and show cause, why the ship and
goods should not be condemned. At' the expiration of twenty
days, the monition is returned into the registry, with a certificate
of its service, and if any claim has been given, the cause is then
ready for hearing, upon the evidence arising out of the ship’s papers,
and preparatory examinations.
‘ he measures taken, on the part of the neutral master or
proprietor of the cargo, are as follows: Upon being brought into
port, the master usually makes a protest, which he forwards to
London, as instructions (or with such further directions as he thinks
proper) either to the correspondent of his owners, or to the consul
of his nation, in order to claim the ship and such parts of the cargo
as belong to his owners, or with which he was particularly en-
trusted; or the master himself, as soon as he has undergone his
examination, goes to London to take the necessary steps.
‘ The master, correspondent, or consul, applies to a proctor,
who prepares a claim supported by an affidavit of the claimant,
stating briefly to whom, as he believes, the ship and goods claimed
belong, and that no enemy has any right or interest in them.
Security must be given to the amount of sixty pounds to answer
costs, if the case should appear so grossly fraudulent on the part
of the claimant as to subject him to be condemned therein. If
the captor has neglected in the meantime to take the usual steps
(but which seldom happens, as he is strictly enjoined both by his
instructions, and by the Prize Act, to proceed immediately to
adjudication), a process issues against him on the application of _,
the claimant’s proctor, to bring in the ship’s papers and prepara-
tory examinations, and to proceed in the usual way.
‘ As soon as the claim is given, copies of the ship’s papers and
examinations are procured from the registry, and upon the return
of the monition the cause may be heard. It, however, seldom
happens (owing to the great pressure of business, especially at the
commencement of a war) that causes can possibly be prepared for
hearing immediately upon the expiration of the time for the return
of the monition ; in that case, each cause must necessarily take its
regular turn. Correspondent measures must be taken by the
neutral master, if carried within the jurisdiction of a V ice-Admiralty
court, by giving a claim supported by his aflidavit, and offering
security for costs, if the claim should be pronounced grossly fraudu-
lent.
‘ If the claimant be dissatisfied with the sentence, his proctor
enters an appeal in the registry of the court where the sentence
was given, or before a notary public (which regularly should be
entered within fourteen days after the sentence), and he afterwards
applies at the registry of the Lords of Appeal in prize causes, which
is held at the same place as the registry of the High Court of
Admiralty, for an instrument called an inhibition, and which should
be taken out within three months, if the sentence be in the High
Court of Admiralty, and within nine months if in a Vice-Admiralty
court ; but may be taken out at later periods, if a reasonable cause
can be assigned for the delay that has intervened. This instru—
ment directs the judge whose sentence is appealed from, to pro-
ceed no further in the cause ; directs the registrar to transmit a
copy of all the proceedings of the inferior court ; and it directs the
party who has obtained the sentence to appear before the superior
tribunal to answer to the appeal. On applying for this inhibition,
security is given on the part of the appellant to the amount of two
456 INTERNATIONAL LAW 011. xxxn
hundred pounds to answer costs, in case it should appear to the
Court of Appeal that the appeal is merely vexatious. The inhibi-
tion is to be served upon the judge, the registrar, and the adverse
party and his proctor, by showing the instrument under seal, and
delivering a note or copy of the contents. ‘ If the party cannot be
found, and the proctor will not accept the service, the instrument
is to be served viis et niodis—that is, by affixing it to the door of
the last place of residence, or by hanging it up on the pillars of the
Royal Exchange.
‘ That part of the process above described, which is to be executed
abroad, may be performed by any person to whom it is committed,
and the formal part at home is executed by the oflicer of the court.
A certificate of the service is endorsed upon the back of the instru-
ment, sworn before a surrogate of the superior court, or before a
notary public, if the service is abroad.
‘ If the cause be adjudged in a Vice-Admiralty court, it is usual,
upon entering an appeal there, to procure a copy of the proceedings,
which the appellant sends over to his correspondent in England,
who carries it to a proctor ; and the same steps are taken to pro-
cure and serve the inhibition as where the cause has been adjudged
in the High Court of Admiralty. But if a copy of the proceedings
cannot be procured in due time, an inhibition may be obtained
by sending over a copy of the instrument of appeal, or by writing
to the correspondent an account only of the time and substance
of the sentence.
‘ Upon an appeal, fresh evidence may be introduced, if upon
hearing the cause the Lords of Appeal shall be of opinion that the
case is of such doubt as that further proof ought to have been
ordered by the court below. Further proof usually consists of
afiidavits made by the asserted proprietors of the goods, in which
they are sometimes joined by their clerks and others acquainted
with the transaction, and with the real property of the goods
claimed. In corroboration of these, affidavits may be annexed,
original correspondence, duplicates of bills of lading, invoices,
extracts from books, &c. These papers must be proved by the
affidavits of persons who can speak to their authenticity; and if
copies or extracts, they should be collated and certified by- public
notaries. The affidavits are sworn before the magistrates, or
others competent to administer oaths in the country where they
are made, and authenticated by a certificate from the British
Consul.
‘ The degree of proof to be required depends upon the degree
of suspicion and doubt that belongs to the case. In cases of heavy
suspicion and great importance, the court may order what is called
“plea and proof ”—that is, instead of admitting affidavits and
documents, introduced by the claimant only, each party is at
liberty to allege in regular pleadings such circumstances as may
tend to acquit or to condemn the capture, and to examine witnesses
in support of the allegations to whom the adverse party may
administer interrogatories. The depositions of the witnesses are
taken in writing. If the witnesses are to be examined abroad, a
commission issues for that purpose ; but in no case is it necessary
for them to come to England. These solemn proceedings are not
often resorted to.
‘ Standing commissions may be sentv to America, for the general
purpose of receiving examinations of witnesses in all cases where
the court may find it necessary, for the purposes of justice, to decree
an inquiry to be conducted in that manner. ~
on. .xxxn
PRIZE. COURTS 457
‘ With respect to captures and condemnations at Martinico,
which are the subjects of another inquiry contained in your note,
we can only answer in general, that we are not informed of the
particulars of such captures and condemnations ; but as we know
of no legal court of Admiralty established at Martinico, we are
clearly of opinion that the legality of any prizes taken there must
be tried in the High Court of Admiralty of England upon claims
given in the manner above described, by such persons as may think
themselves aggrieved by the said captures.’

PRACTICE IN PRIZE COURTS
[This was written in 1816, and isv extracted from Wheaton’s ‘ Reports,’ vol. i.
note p. 494. It was, in fact, written by Judge Story, as appears from the
‘ Life of Judge Story,’ by his son (London, Chapman, 1851).]
As soon as a vessel or other thing captured as a prize arrives
in our ports, notice should be given thereof by the captors to the
district judge, or to the commissioners appointed by him, that the
examinations of the captured crew, who are brought in, may be
regularly taken in writing, upon oath, in answer to the standing
interrogatories. These are usually prepared under the direction of
the district judge, and should contain sifting inquiries upon all
points which can affect the question of prize. The standing inter-
rogatories used in the English High Courts of Admiralty (1 Rob.
381) have been drawn up with great care, precision, and accuracy,
and are an excellent model for other courts. They were generally
adopted during the late war by the district judges in the principal
States, with a few additions and scarcely any variations. The
examinations upon these interrogatories are rarely taken by the
district judge in person ; for, in almost all the principal ports within
his district, he appoints standing commissioners for prize proceedings,
upon whom this duty devolves. It is also the duty of the prize
master to deliver up to the district judge or commissioner all the
papers and documents found on board, and, at the same time, to
make an affidavit that they are delivered up as taken, without
fraud, addition, subduction, or embezzlement. In general, the
master and principal officers and some of the crew of the captured
vessel should be brought in for examination. This is a settled
rule of the prize courts, and was, during the late war, enforced by
the special instructions of the President. The examination must
be confined to persons on board at the time of the capture, unless
the special permission of the court is obtained for the examina-
tions of others (6 Rob. 185, the ‘ Eliza and Katy ’ ; 4 Rob. 43, 57,
the ‘ Henrick and Maria ’). In order to guard as much as possible
against frauds and misstatements from after contrivances, the
examination should take place as soon as possible after the arrival
of the vessel, and the witnesses are not allowed to have communica-
tion with, or to be instructed by, counsel. The captors should
also introduce all their witnesses in succession; for if the com-
missioners have taken the depositions of some of the crew, and
transmitted them to the judge, they will not be at liberty, without
a special order, to examine others who are afterwards brought by
the captors before them (2 Rob. 243. the ‘ Speculation ’). On the
Practice
in prize
courts
4 58 INTERNATIONAL LAW on. xxxrr
other hand, an equal strictness is held over the conduct of the
claimants. If they keep back any one of the captured crew for
two or three days after the vessel comes into port, and then offer
him, together with papers in his possession, the commissioners will
be justified in not examining him (1 Rob. 331 ; and see 4 Rob. 381,
the ‘ William and Mary ’). The ship’s papers and other documents
found on board, which are not delivered up to the district judge,
or the commissioners, before, or at the time of, the examinations,
will not be admitted as evidence (ibid.).
Although the examinations are to be on standing interrogatories,
without the instruction of counsel, yet the witnesses are produced
in the presence of the agents of the parties, before the commissioners,
whose duty it is to superintend the regularity of the proceedings,
and protect the witnesses from surprise or misrepresentation.
Where the deposition is taken, each sheet is afterwards read over
to the witness, and separately signed by him (5 Rob. 286, the
‘Apollo ’). And the commissioners should be careful that the
various answers are taken fully and perfectly, so as to meet the
stress of every question, and should not suffer the witness to evade
a sifting inquiry by vague and obscure statements. If the witness
refuse to answer at all, or to answer fully, the commissioners are to
certify the fact to the court; and, in addition to the other penal
consequences to the owners of the ship and cargo from a suppres-
sion of evidence, he will be liable to close imprisonment for the
contempt. The witnesses should be examined separately, and not
in presence of each other, so as to prevent any fraudulent concert
between them.
As soon as the examinations are completed they are to be sealed
up and directed to the proper district court, together with all the
ship’s papers which have not been already lodged by the captors
in the registry of the court.
It is upon the ship’s papers and depositions thus taken and
transmitted that the cause is, in the first instance, to be heard
and tried (1 Rob. 1, the ‘ Vigilantia ’). This is not a mere matter
of practice or form : it is of the very essence of the administration
of prize law; and it is a great mistake to admit the common law
notions, in respect to evidence, to prevail in proceedings which
have no analogy to those at common law. In some few of the
district courts it was not unusual, during the late war, to allow the
witnesses to be examined, orally, at the bar of the court, long after
their preparatory examinations had been taken, and full oppor-
tunities had been given to enable the parties to shape any new
defence, or explain away any asserted facts. This was, unques-
tionably, a great irregularity, and, in many instances, must have
been attended with great public mischiefs. By the law of prize
the evidence to acquit or condemn must, in the first instance,
come from the papers and crew of the captured vessel. The captors
are not, unless under peculiar circumstances, entitled to adduce
any intrinsic testimony. It is, therefore, of the last importance to
preserve the most rigid exactness as to the admission of evidence ;
since temptations would otherwise be held out to the captured
crew to defeat the just rights of the captors by subsequent con—
trivances, explanations, and frauds. There can be no honest reason
why the whole truth should not be told by the captured persons,
at the first examination ; and if they then prevaricate, or suppress
important facts, it must be from motives which would materially
impair the credibility of their subsequent statements. Where the
justice of the case requires the admission of new evidence, that
on. xxxrr PRIZE COURTS 459
may always be’ obtained, except'where, by the rules of law, or the
misconduct of the parties, the right to further proof has been for-
feited. But whether such further proof be necessary or admissible
can never be ascertained until the cause has been fully heard upon
the facts, and the law arising out of the facts already in evidence.
And, in the Supreme Court, during the whole of the late war, no
further proof was ever admitted until the cause had been first
heard upon the original evidence, although various applications
were made to procure a relaxation of the rule. We shall have
occasion hereafter to state some of the cases in which further proof
is allowed or denied. If a person wishes to procure the restitution
of any property captured as prize, it is necessary that he should,
after the prize libel is filed, and at, or- before, the return of the
monition thereon, or time assigned for the trial, enter his claim
for such property before the proper court. And if the captors omit,
or unreasonably delay, to institute prize proceedings, any person
claiming an interest in the captured property may obtain a monition
against them, citing them to proceed to adjudication; which if
they omit to do, or to show cause why the property should be
condemned, it will be restored to the claimants proving an interest
therein. And the same process is often resorted to where the
property is lost or destroyed, through the fault or negligence of the
captors, in order to obtain a compensation in damages for the
unjust seizure and detention. (I Rob. 93, the ‘Betsey ’; I Rob.
181, the ‘ Mentor ’ ; 3 Rob. 239, the ‘ Huldah ’ ; z'bz'd. 129, the ‘ Der
Mohr ’ ; z'bz'd. 212, the ‘ George ’ ; 4 Rob. 215, the ‘ William ’ ; 6 Rob.
48, the ‘ Susanna’) The claim should be made by the parties
interested, if present, or, in theirabsence, by the master of the
ship, or some agent of the owners. A mere stranger will not be
permitted to interpose a claim merely to speculate on the chances
of an acquittal. ' The claim must be accompanied with an aflidavit
stating briefly the facts respecting the claim and its verity. This
affidavit should be sworn to by the parties themselves, if they are
within jurisdiction; but if they are absent from the country, or
at a very great distance from the place where the court is held,
the affidavit may be sworn to by an agent. Before a claim is
made, the affidavit put in (which should always be special if the
case stands on peculiar grounds), it is not permitted to the parties
to examine the ship’s papers and the preparatory examinations in
order to shape their claims ; for this might lead to great abuses.
But if it be necessary to ascertain the particulars of a claim, the
court will, upon a special application, suffer so many of the papers
to be examined as directly relate to such claim; but a suflicient
reason is always expected to be shown on afiidavit to sustain such
an application. (3 Rob. 233, the ‘ Port Marv’) It is a general
rule that no claim is to be admitted which stands in entire opposi-
tion to the ship’s papers and to the preparatory examinations.
(5 Rob. I 5, 19, the ‘ Vrow Anna Catharina ’ ; 6 Rob. 1, ‘ La Flora’)
But this only applies to cases arising during the war (5 Rob. 15,
the ‘ Anna Catharina ’) ; and it is not so inflexible as to exclude
the interest of a citizen or subject, Where there is an absolute neces-
sity to simulate papers, as in the case of a trade with the enemy
licensed by the State. (6 Rob. I, ‘ La Flora.’) It is also a general
principle that no citizen or subject can be admitted to claim in a
prize court, where the transaction in which he is engaged is in
violation of the municipal laws of his own country. (2 Rob. 77,
the ‘ Walsingham Packet ’; 4 Rob. 262, note, the ‘ Etrusco ’;
5 Rob. 23, the ‘ Cornelis and Maria ’ ; z'bz'd. 251, the ‘ Abby ’ ; 6 Rob.
460 INTERNATIONAL LAW 011. xxxrr
341, the ‘ Recovery’) Nor can a person be admitted to claim
where the trade in which he is taken is forbidden by the law of
nature, and by the municipal laws of his own country, and that
where the court is sitting. (‘ Edinburgh Review,’ vol. xvi. No. 21,
p. 426, the ‘ Amédie.’) Nor can an enemy interpose a claim, unless
under the protection of a flag of truce, a cartel, license, pass, treaty,
or some other act of the public authority suspending his hostile
character. (1 Rob. 196, the ‘Hoop.’) And even in a case where
the capture has been made in violation of the territorial jurisdiction
of a neutral country, the claim for restitution must be made, not
by the enemy proprietor, but the neutral government. (5 Rob. 15,
the ‘\Vrow Anna Catharina ’ ; 3 Rob. 162, note.)
Where no claim is interposed, it is not now usual to condemn the
goods for want of a claim, until a year and a day have elapsed from
the time of the return of the monition, except in cases where there
is a strong presumption, and reasonable proof that the property
actually belongs to an enemy. (1 Rob. 26, 29, the ‘ Staadt Embden.’
And see 4 Rob. 43, the ‘ Henrick and Maria.’ Colt. Mar. 88, note.)
But after a year and a day have elapsed condemnation goes of
course, if there be no claim interposed. After a claim is once put
in, it is not amendable of course ; but if an amendment is wanted
to correct the generality of the original claim it will not be allowed
unless a proper case is made out, andsufficient reasons given for the
omission in the first instance. (3 Rob. 109, the ‘ Graaf Bernstorff.’
And see 3 Rob. 179, the ‘ Sally.’) It often happens that persons
whose property has been captured apply to the court for a delivery
upon bail, and under a mistaken notion that such a delivery after
an appraisement was a matter of course, or was to be governed by
the same rules as are prescribed in the case of municipal forfeitures,
under the Act of March 2, 1799, ch. 128. Some of the district
courts have allowed such applications, before any hearing of the
cause ; and parties have thereby, sometimes, fraudulently obtained
possession of goods at an under-valuation where their title was
totally defective, or grossly illegal. It is a settled rule of the prize
court, not to deliver a cargo on bail, before the cause has been
fully heard, unless by the consent of all parties ; and if any incon-
venience should result from this rule, as if the property be perish-
able, it may easily be avoided by an interlocutory sale. (3 Rob.
1.78, the ‘ Copenhagen’) After the hearing, if the claimant obtain
a decree in his favour, or an order for further proof, the court will
listen to an application for a delivery on bail ; but if this claim he
rejected, or be affected by the imputation of fraudulent or unlawful
conduct, the application will not be allowed, notwithstanding an
appeal is interposed. Where there is a decree of condemnation,
the captors are, in general, entitled to a delivery of the property,
or the proceeds thereof, upon bail. On an appeal to the circuit
court the property follows the appeal into that court, and is no
longer subject to the interlocutory orders of the district court.
It is otherwise with regard to the Supreme Court, whose decrees
are always remanded to the circuit court for execution ;- and
therefore the property always remains in the custody of the latter.
In cases of delivery on bail, a stipulation, according to the course
of the Admiralty, and not a bond, should be taken. Where further
proof is admissible, it may, in the discretion of the court, be by
affidavits and other papers introduced without any formal allega—
tions, or by way of plea and proof, where formal allegations are
made by each party in the nature of special pleadings ; and it may
7 be opened to the claimants only, or to the captors as well as claimants.
on. xxxn PRIZE COURTS 461
Upon a simple order for further proof the captors are not entitled
to adduce any new evidence, unless by the special direction of the
court ; but upon plea and proof both parties are at liberty to intro-
duce new evidence to support their respective allegations and the
points in issue. (1 Rob. 313, the ‘ Adriana’)
The court is in no case concluded by the original evidence, but
may order further proof on a doubt arising from any course or
quarter (6 Rob. 351, the ‘ Romeo ’) ; and it will sometimes direct
it where suspicion is produced by extrinsic evidence. (I bid.) But
this is rarely done, unless there be something in the original evidence
which lays a suggestion for prosecuting the enquiry further (3 Rob.
330, the ‘ Sarah ’) ; and where the case is perfectly clear, and not
liable to any just suspicion, the disposition of the court leans strongly
against the introduction of extraneous matter, and against permitting
the captors to enter upon further enquiry. The most ordinary
cases of further proof are where the cause appears doubtful upon
the original papers and the answers to the standing interrogatories ;
and in such cases, if the parties have conducted themselves with
good faith, and the error or deficiency may be referred to honest
ignorance or mistake, the court will indulge them with time to supply
the defects by the introduction of new evidence. But further
proof is, in no case, a matter of right, and rests in the sound discretion
of the court. Further proof is in all cases necessary where the
master does not swear to, or give account of, the property (2 Rob.
1, the ‘ Eenrom; ’ 2 Rob. 121, the ‘ Juno; ’ 4 Rob. 201, the ‘ Con-
venientia ’) ; where the shipment, though stated to be on neutral
account, is not stated to be on acount of any particular person
(4 Rob. 79, the ‘ Jonge Pieter ’) ; where the ship has been purchased
in the enemy’s country (1 Rob. 122, the ‘ Welvaart ’) ; where
there has been any loss or suppression of material papers (2 Rob.
261, the ‘ Polly ’) ; and, indeed, in all cases where the defects of the
papers, the conduct of the parties, the nature of the voyage, or the
original evidence in general induces any doubt of the proprietary
interest, the legality of the trade, or the integrity of the transactions.
But it is not in every case where further proof is necessary that the
parties will be permitted to introduce it, for the privilege may be
forfeited by fraud or gross misconduct. And in cases where further
proof is necessary, if it is not allowed, the penal consequences are
as fatal as if the property were originally hostile, since a condemna-
tion certainly follows the denial. (1 Rob. 122, the ‘ Welvaart ; ’
1 Rob. 125, the ‘ Jufirouw Anna ’ ; 3 Rob. 109, the ‘ Graaf Bern-
storff ; ’ 2 Rob. 1, the ‘ Eenrom.’) Further proof is never allowed to
the claimants where fraudulent papers have been used (1 Rob. 122,
the ‘ Welvaart ; ’ I Rob. 125, the ‘ Iuflrouw Anna ; ’ 1 Rob. 127,
the ‘ Juffrouw Elbrecht ’); where there has been a spoliation of
papers (2 Rob. 104 the ‘ Rising Sun ’) ; where there has been
a fraudulent covering or suppression of an enemy’s interest (3 Rob.
109, the ‘ Graaf Bernstorff ’) ; where there is a false destination
and false papers (3 Rob. 122, the ‘ Nancy ; ’ 6 Rob. 79, the ‘ Mars ’) ;
nor in general where the case appears incapable of fair explanation
(1 Rob. 163, the ‘ Vrow Hermina ’), or where there has been gross
prevarication, or an attempt to impose spurious claims upon the
court, or such a want of good faith as shows that the parties cannot
safely be trusted with an order for further proof. » If, upon further
proof ordered, no proof ‘is adduced, or, the proof be defective, or
the parties ‘refuse to swear, or swear evasively, it is deemed con-
clusive evidence of hostile interests, or of such misconduct as autho-
rises condemnation. And it is a general rule of the prize court that
462 INTERNATIoNAL LAW on. xxxrr
the onus probandi that the property is neutral rests upon the
‘claimant ; and if he fails to show it condemnation ensues. (2 Rob.
77, the ‘ Walsingham Packet ; ’ 2 Rob. 343, the ‘ Rosalie and
Betty ; ’ 4 Rob. 283, the ‘ Countess of Lauderdale.’)
In case where further proof is admitted on behalf of the captors
they may introduce papers taken on board of another ship, if they
are properly verified by affidavit. (6 Rob. 351, the ‘ Romeo,’ I Rob.
340, the ‘ Maria’) And they may also invoke papers from another
prize cause. (6 Rob. 350, the ‘ Romeo ; ’ 3 Rob. 3 30, the ‘ Sarah ; ’
4 Rob. 166, the ‘ Vriendschap.’) It has even been permitted to the
captors to invoke the depositions of the claimant given in, in another
cause, to prove his domicile at the first hearing, and without an order
for further proof. (4 Rob. 166, the ‘ Vriendschap.’) And upon an
order for further proof the affidavits of the captors, as ‘to facts within
their own knowledge, are admissible evidence. (1 Rob. 340, the
‘ Maria ; ’ 6 Rob. I 3, the ‘ Resolution’)
ADDITIONAL NoTE 0N THE SAME SUBJECT.
[This also was written by Judge Story; it is extracted from Wheaton’s
‘ Reports,’ vol. i-i. note i. p. 429.]
The ordinary prize jurisdiction of the Admiralty extends to all
captures made on the sea, jute belli (the ‘ Two Friends,’ I Rob. 271,
284) ; to captures in foreign ports and harbours (Lindo 1). Rodney,
Dong. 613, note) ; to captures made on land by naval forces, and
upon surrenders to naval forces, either solely or by joint operations
with land forces (Lindo 2). Rodney, Dong. 613, note ; ‘ Chinsurah,’
I Acton, I79) ; and this whether the property so captured be goods,
ships, or mere ohoses in action (ibid.) ; to captures made in rivers,
ports, and harbours, of the captor’s own country (W. B. o. Latimer,
4 Dall. App. I ; Le Caux 1). Eden, Dong. 608 ; Lindo 1). Rodney,
Dong. 613, note) ; to money received as a ransom or commutation
‘on a capitulation to naval forces alone, or jointly with land forces.
(Ships taken at Genoa, 4 Rob. 338.) But the Admiralty, merely by
its own inherent powers, never exercises jurisdiction as to captures
or seizures as prize made on shore without the co-operation of naval
forces, whether made in our own or in a foreign territory (Anthon
2). Fisher, Dong. 649, note (I); Maisonnaire v. Keating, 2 Gallis.
325) ; whenever such a jurisdiction is exercised it is by virtue of
powers derived alinnde. And though when the jurisdiction has once
attached it may be lost by a hostile recapture, escape, or voluntary
discharge (the ‘Two Friends,’ 1 Rob. 271, 284; the ‘Emulous,’
1 Gallis. 563), yet it remains notwithstanding the goods are landed ;
for it does not depend on their local situation after capture ; but
the court will follow the goods or their proceeds with its process,
wherever they may be found, or under whatever title acquired.
(Hudson 11. Guestier. 4 Czanch. 293.) Therefore, where the property
is carried into a foreign port, and there delivered upon bail by the
captors, the prize court does not lose its‘ jurisdiction, but. may pro-
ceed to adjudication and enforce the stipulation. (Home 2). Cam-
den, 2 H. Bl. 533 ; 4 Term Rep. 383 ; Willis 21. Commissioners of
Prize, 5 East, 22 ; the ‘ Noysomhed,’ 7 Ves. 593 ; the brig ‘Louis,’
5 Rob. I46 ; the ‘ Two Friends,’ I Rob. 271 ; the ‘Eliza,’ I Acton,
336; Smart 1). Wolff, 3 Term Rep. 223 ; the ‘ Pomona,’ I Dodson,
25.) So, if a prize be lost at sea, the court may, nevertheless, pro-
ceed to adjudication, either at the instance of the captors or of the
claimants (the ‘Susannah,’ 6 Rob. 48 ; the ‘ Peacock,’ 4 Rob. 18 5) ;
on. xxxII PRIZE COURTS 463
so, although the property may be actually lying within a foreign
neutral territory, the court may proceed to adjudication (Hudson
11. Guestier, 4 Craneh. 293; the ‘Christopher,’ 2 Rob. 209; the
‘ Henrick and Maria,’ 4 Rob. 43; the ‘Comet.’ 5 Rob., 285; the
‘ Victoria,’ Edwards, 97) ; so, although the property has been sold by
the captors, or has passed into other hands (the ‘ Falcon,’ 6 Rob.
194; the ‘ Pomona,’ I Dodson, 25); but it rests in the sound dis-
cretion of the court whether, when property has been sold or con-
verted by the captors, it will proceed to adjudication in their favour ;
for it is only in cases where the same has been justifiably or legally
converted by the captors that they can claim its aid. The court
withhold that aid where there has been a conversion by the
captors without necessity or reasonable cause. (‘ L’Eole,’ 6 Rob.
220; ‘ La Dame Cecile,’ 6 Rob. 257; the ‘ Arabella and Madeira,’
2 Gallz's. 368.) When once the prize court has acquired jurisdiction
over the principal cause, it will exert its authority over all the
incidents. It will follow, as has been already observed, prize pro-
ceeds into the hands of agents or other persons holding them for the
captors, or by any other title; and in proper cases will decree the
parties to pay over the proceeds, with interest upon the same for
the time they have been in their hands. (Smart 1). Wolff, 3 Term
Rep. 313 ; Home 1). Camden, 2 H. Bl. 533 ; 4 Term Rep. 382 ; jennings
11. Carson, 4 Craneh. 1; the ‘ Two Friends,’ I Rob. 273; Willis Commissioners of Prizes, 5 East, 22 ; the ‘ Noysomhed,’ 7 Ves. 593 ;
the ‘ Princesa,’ 2 Rob. 31 ; the ‘ Louis,’ 6 Rob. 146.) It may also
enforce its decrees against persons having the proceeds of prizes
in their hands, notwithstanding no stipulation, or an insuflicient
stipulation, has been taken on a delivery on bail ; for it may always
proceed in rem where the res can be found, and it is not confined
to the remedy on the stipulation (per Buller, 1., in 3 Term Rep.
323 ; per Grose, 1., in 5 East, 22; the ‘ Pomona,’ I Dodson, 25 ; the
‘ Herkimer,’ Stewart, 128; S. C. 2 Hall, Am. Law journal, 133);
and in these cases the court may proceed upon its own authority
ex ofiioz'o, as well as upon the application of parties (the ‘ Herkimer,’
Stewart, 128 ; S. C. 2 Hall, Am. Law journal, 133) ; nor is the court
jnnclas ofi‘iez'o after sentence pronounced, for it may proceed to
enforce all rights, and issue process therefor, so long as anything
remains to be done touching the subject matter. (Home 1). Camden,
2 H. Bl. 533 ; and cases abz' supra.)
The prize court has also exclusive jurisdiction as to the question
who are the captors and joint captors entitled to share in the dis-
tribution, and its decree is conclusive upon all parties. (Home 2).
Camden, 2 H. Bl. 533; 4 Term Rep. 382; the ‘ Herkimer,’ Stewart,
128; S. C. 2 Hall, Am. Law journal, I33; Duckworth 2). Tucker,
2 Taanton, 7.) It has the same exclusive authority as to the allow-
ance of freight, damages, expenses, and costs in all cases of captures
(Le Caux 11. Eden, Doug. 594; Lindo 11. Rodney, Doug. 613 ; Smart
0. Wolff, 3 Term Rep. 223; the ‘Copenhagen,’ I Rob. 289; the
‘ St. Juan Baptista,’ 5 Rob. 33; the ‘ Die Frie Damer,’ 5 Rob. 357;
the ‘ Betsey,’ 1 Rob. 93; Duckworth 2). Tucker, 2 Taunt. 7; ]en—
nings 11. Carson, 4 Craneh. 2; Bingham v. Cabot, 3 Dall. 19; the
United States v. Peters, 3 Dall. 121 ; Talbot 11. Johnson, 3 Dall. I 33 ;
2 Brown’s Cz'o. and Adm. Law, 208), and though a mere maritime
tort unconnected with capture jnre bellz' may be cognisable by a
Court of Common Law ; yet it is clearly established that all captures
fare belle, and all torts connected therewith, are exclusively cognisable
1n the prize court. And the prize court will not only entertain suits
for restitution and damages in case of wrongful capture, and award
464 INTERNATIONAL LAW 011. xxxrr
damages therefor; but it will also allow damages for all personal
torts, and that upon a proper case laid before the court as a mere
incident to the possession of the principal cause. And in such
a case it will not confine itself to the actual wrongdoer ; but it will
apply the rule of respondeat superior, and decree damages (against
the owners of the offending privateer (Del. Col. 2). Arnold, 3 Dall.
333 ; the ‘ Anna Maria,’ 2 Wheaton, 3.27 ; Bynk. Q. ]. Pub. lib. i. ch.
19 ; Du Ponceau’s translation, I47) and where the captured crew
have been grossly ill—treated, the court will award a liberal recom-
pense. (The ‘ St. Juan Baptista,’ 5 Rob. 33 ; the ‘Die Frie Damer,’
5 Rob. 3 5 7 ; the ‘ Lively,’ I Gallis. 315.) As the prize court has an
unquestionable jurisdiction to apply confiscation by way of penalty
for falsity, fraud, and misconduct of citizens as well as of neutrals
(the ‘ Johanna Tholen,’ 6 Rob. .72; Oswell '0. Vigne, 15 East. 70),
so it may, in like manner, decree a forfeiture of the rights of prize
against captors, where they have been guilty of gross irregularity,
or criminal neglect, or wanton impropriety and fraud. It is a part
of the ancient law of the Admiralty, independent of any statute,
that captors may, by their misconduct, forfeit the rights of prize ,-
and in such cases the property is condemned to the Government
generally. And this penalty has been frequently enforced, not
only where the captors have been guilty of fraud (8 Cranch. 421,
the ‘ George,’ 2 'Wkeat. 278), but also ‘where they have violated the
instructions of Government relative to bringing in the prize crew,
and have proceeded without necessity to dispose of the property
before condemnation (‘ La Reine des Anges,’ Stewart, 9) ; so where
the captors have rescued a prize ship from the custody of the marshal,
after a monition duly served. (The ‘ Cossack,’ Stewart, 513.) In
short, the court is the constitutional guardian of the public interests
in relation to matters of prize ; and wherever there is any deviation
from the regular course of proceedings, it expects to have a sufficient
reason shown for that deviation, before it will give the captors any
of the ordinary benefits of prizes captured by them. The usual
course of the court is by way of monition ; and if that process be
disobeyed, an attachment issues against the parties in contempt.
But the court may, ‘in all cases, proceed, in the first instance, by
warrant of arrest of the person or property, to compel security to
abide its decree. '
465
CHAPTER XXXIII ' RIGHTS or MILITARY OCCUPATION
1. Military occupation and complete conquest distinguished—2.
When rights of military occupation begin—3. Submission
sufficient—4. Effect upon political laws—5. Upon municipal
laws—6. Punishment of crimes in such territory—7. Laws of
England instantly extend over conquered territory—8. Terri-
tory occupied by the American Union—9. Distinction between
Great Britain and the United States—Io. American decisions
—11. Powers of the President respecting alien revenues-12.
Change of ownership of private property during military occupa-
tion—13. Laws relating to such transfers—14. Allegiance of
inhabitants of occupied territory—15. Lawful resistance and
insurrection—~16. Implied obligation of the conquered—17.
Of the conqueror—~18. Right of revolution--I9. Right of
insurrection in war—20. Punishing military insurrections—
21. Historical examples—22. Alienations of territory occu-
pied by an enemy—2 3. Alienations made in anticipation of
_ conquest—24. ‘Private grants so made—2 5 . Transfer of territory
to neutrals—26. Effect of military occupation on incorporeal
rights-27. Debts due to the government of the territory
occupied—‘~28. If former government be restored—29. Ex-
amples from ancient history—3o. Examples from modern
history. .
§I. THE term conquest, as it is ordinarily used, is ap+
’ plicable to conquered territory the moment it is taken from
the enemy ; but, in its more limited and technical meaning,
it includes only the real property to which the conqueror
has acquired a complete title. Until the ownership of such
property so taken is confirmed or made complete, it is held
by the right of military occupation (occupatio bellica), which,
by the usage of nations and the laws of war, differs from, and
falls far short of, the right of complete conquest (debellatio,
ultima victoria). These will form the subjects of the next
two chapters. The right of one belligerent to occupy» and
govern the territory of the enemy while in its military
possession, is one of the incidents of war, and flows directly
from the right to conquer. We, therefore, do not look
VOL. II. ' I n H ’
Dis-
tinction
between
military
occupa-
tion and
complete
conquest
466 INTERNATioNAL LAW 011. xxxm
to the constitution, or political institutions of the conqueror,
for authority to establish a government for the territory of
the enemy in his possession, during its military occupation,
nor for the rules by which the powers of such government
are regulated and limited. Such authority, and such rules,
are derived directly from the laws ofwar, as established by
the usage of the world, and confirmed by the writings of
publicists, and the decisions of courts—in fine, from the
law of nations. But when the conquest is made complete, '
in whatsoever mode, the right to govern the acquired
territory follows as the inevitable consequence of the
right of acquisition, and the character, form, and powers of
the government established over such conquered territory
vare determined by the constitution and laws of the State
which acquires it, or with which it is incorporated. The
government established over an enemy’s territory during
its military occupation, may exercise all the powers given
by the laws of war to the conqueror over the conquered,
and is subject to all the restrictions which that code imposes.
It is of little consequence whether such government he called
a military or a civil government ; its character is the same,
and the source of its authority the same ; in either case it
is a government imposed by the laws of war, and so far as
it concerns the inhabitants of such territory, or the rest of
the world, those laws alone determine the legality or‘ ille-
gality of its acts. But the conquering State may, of its
own will, whether expressed in its constitution, or in its
laws, impose restrictions additional to those established by
the usage of nations, conferring upon the inhabitants of the
territory so occupied privileges and rights to which they
are not strictly entitled by the laws of war; and, if such
government of military occupation violate these additional
restrictions so imposed, it is accountable to the power which
established it, but not to the rest of the world.1L
1 Cocceius, .De jure Victoria, passim; Hefiter, Droit Interna-
tional, §§ 131, 186 ; Fleming et al. v. Page, 9 Howard R. 603 ; Cross
at al. 0. Harrison, 16 Howard R. 164 ; Marcy to Kearny,£lune 1-1,
1847, Ex. Doc. No. I 7, 31st Cong. 1st sess. H. R. ; Kamptz, itteratur
des Vo'lk. § 307 ; Isambert, Ann. Pol. et Dips. Int. p. I I5 ; Cushing,
Opinions U .S. Attys.—Gen. vol. viii. p. 365 ; Gardner, Institutes,
. 208 ; Puffendorf, De jute Nat. et Gent. lib. viii. c. vi. §§ 17, 2.7 ;
glattel, Droit des Gens, liv. iii. ch. xiii. § ‘197.
OH. xxxm RIGHTS OF MILITARY OCCUPATION
467
§ 2. We will here consider the question, when do the
rights of military occupation begin, or how are we to fix
the date of a conquest? Bouvier defines a conquest to
be, ‘ the acquisition of the sovereignty of a country by
vj‘orce of arms, exercised by an independent power, which
reduces the vanquished to the submission of its empire.’
It follows, then, that the rights of military occupation
extend over the enemy’s territory only so far as the inhabi-
tants are vanquished or reduced to submissionto the rule
of -the conqueror. Thus, a fort, town, city, harbour,
island, province, or particular section of country belonging
to one belligerent, is forced to submit to the arms of the
other, such place or territory instantly becomes a con-
quest, and is subject to the laws which the conqueror may
impose on it ; although he has not yet acquired the plenum
dominz'arn et atz'le, he has the temporary right of possession
and government. As this temporary title derives its
validity entirely from the force of arms on the one side, and
submission to such force on the other, it necessarily follows
that it vextends no further, and continues no longer, than
such subjugation and submission extend and continue.
Thus, if one belligerent take possession of a port, or town,
or province of the other, he cannot, therefore, pretend to
extend his government and laws over places or provinces
which he has not yet reduced to submission, or, by reason
of a particular possession, to claim a general control and
authority. By occupying a port of an enemy’s coast, we
have a right, so long as we retain its possession, to exclude
neutral vessels from such port, or admit them on such
terms as to us may seem fit and proper; but we cannot
exclude neutral vessels, or impose our regulations upon
neutral commerce in ports of the enemy which are not
in our possession. To extend the rights of military occupa-
tion, or the limits of conquest, by mere intention, implica-
tion, or proclamation, would be establishing a paper conquest,
infinitely more objectionable in its character and effects
than a paper blockade. The rule is that the whole is possessed
by the occupation of a part, if an intention to appropriate
the Whole accompany such occupation, and all others be
excluded from occupying the residue. Otherwise, possession
of real property would be impossible, as it does not admit
When
rights of
military
occupa-
tion
begin
HH2
468 INTERNATIONAL LAW on. xxxm
of manual apprehension or corporal incumbency in all its
parts. Two persons cannot have several possessions of
the same thing at the same time: such possession of one
excludes the possession of another. Hence, if one be in
possession, and another enter upon part which is not in
the actual possession of the first, by such entry he gains
possession of no more than he actually occupies. The
constructive occupation of the owner is defeated by actual
occupation, so far as it extends. It is said by Celsus, if an
enemy enter a territory by force of arms, it is in possession
of so much only as it occupies. When he speaks of force,
he supposes resistance on behalf of the sovereign, in defence
of his possession. An army only possesses a country so far
as it compels the enemy’s forces to retire. The meaning of
Paulus is probably the same, when he says that possession
of part with an appropriating mind, is possession of the
whole, up to its boundary. By boundary, he signifies
the commencement of another’s possession. Upon these
principles, the extent of hostile possession may be dis-
tinctly defined. If an army be in possession of a principal.
town of a province, it is not thereby in possession of the
towns and forts within the same, which hold out for the
enemy. Forcible possession extends so far only as there
is an absence of resistance. The occupation of part by
right of conquest, with intent to appropriate the whole,
gives possession of the whole, if the enemy maintain military
possession of no portion of the residue. Under such circum-
stances, military possession of a capital would be possession
of a whole kingdom. But if any part hold out, so much
only is possessed as is actually conquered. Both the States-
General and the King of Spain maintained, during the
controversies that arose out of . the truce between Spain
and the United Provinces, that the possession of the sur-
rounding. country follows the possession of a town. The
military possessors of a town must necessarily have the
surrounding" country in their power, unless there be a
fortress within it; in which case, the country commanded
by the fortress would not be in their possession. These
principles show the absurdity of the pretensions of the
Western and Eastern empires that have been founded on
the possession of Rome and Constantinople. The same
OK. XXXIII RIGHTS OF MILITARY OCCUPATION
469
principles are recognised in the decision of Calvin’s case.
‘ Now come we,’ says Lord Coke, ‘ to France and the
members thereof, as Calais, Guynes, Toumay, &c., which
descended to King Edward 111., as son and heir to Isabel,
daughter and heir to Philip le Beau, King of France.
Certain it is, whilst King Henry VI. had both England and
the heart and greatest part of France under his actual legi-
ance and obedience (for he was crowned King of France in
Paris), that they that were then born in those parts of France
that were under actual legiance and obedience, were no aliens,
but capable of, and heritable to, lands in England. Those
born in parts of France not under actual legiance and
obedience, and prior to King Henry’s recognition and
coronation, were regarded as antenati, and received letters
patent of denisation, as in the case of Reynel.’ 1
§3. It must not be inferred from the above that the
conqueror can have no control or government of hostile
territory unless he actually occupies it with an armed
force. It is sufficient that it submits to him and recognises
his authority as a conqueror ; for conquests are in this way
extended over the territory of an enemy without actual
occupation with armed force. But so much of such
territory as refuses to submit, or to recognise the authority
of the conqueror, and is not forcibly occupied by him, cannot
be regarded as under his control or within the limits of his
conquest; and he therefore cannot pretend to govern it,
or to claim the temporary allegiance of its inhabitants, or
in any way to direct or restrict its intercourse with neutrals.
It remains as the territory of its former sovereign—hostile
to him, as a belligerent, and friendly to others, as neutrals.
The government of the conqueror being de facto and not
de jure, it must always rest upon the fact of possession, which
is adverse to the former sovereign, and therefore can never
be inferred or presumed. In other words, the rights of
the conqueror are those of possession, and not of title, and
whenever brought in question they must be proved, and
cannot be presumed. Not only must the possession be
1 Wildman, Int. Law, vol. i. pp. 163, 164 ; Calvin’s case, Coke R.
pt.'vii. p. 220; Justinian, Pandects, xli. 2 ; xviii. 4 ; Schwartz, De
jure Vic. in Res Incorp.‘ th. 27 ; Bouvier, Law Die. verb. ‘ can‘
quest ’ ; Duponceau, Translation of Bynkershoek, p. 116, note.
Submis-
sion
sufficient
470 INTERNATIoNAL LAW on. xxxm
Effect
upon
political
laws
usually paid to the former sovereign.
actually acquired but it must be maintained. The moment-
it is lost, the rights of military occupation over it are also
lost. In the words of Chief Justice Taney, ‘ By the laws
and usages of nations, conquest is a valid title while the
victor maintains the exclusive possession of the conquered
country.’1
§ 4. Political laws, as a general rule, are suspended
during the military occupation of a conquered territory.
The political connection between the people of such terri—
tory and the State to which they belong is not entirely
severed, but is interrupted or suspended so long as the
occupation continues. Their lands and immovable pro-
perty are, therefore, not subject to the taxes, rents, &c.,
These, as we have
said elsewhere, belong of right to the conqueror, and he
may demand and receive their payment to himself. They
are a part of the spoils of War, and the people of the cap-
tured province or town can no more pay them to the former
government than they can contribute funds or military
munitions to assist that government to prosecute the war.
To do so would be a breach of the implied conditions under
which the people of a conquered territory are allowed to
enjoy their private property, and to pursue their ordinary
occupations, and would render the offender liable to punish-
ment. They are subject to the laws of the conqueror, and
not to the orders of the displaced government. Of lands
and immovable property belonging to the conquered State,
the conqueror has, by the rights of war, acquired the use
so long as he holds them. The fruits, rents, and profits are,
therefore, his, and he may lawfully claim and receive them.
1 Fleming et al. v. Page, 9 Howard R. 614. During the Franco.-
German war, 1870, the Germans declared that their passage through
a French district placed that part of the territory under their military
code. Further, they pretended that they ‘ theoretically occupied a.
district ’-—that is to say, without any formal declaration, and even
without placing chalk marks on the doors of the houses (a sign which
they adopted to designate where their troops were billetted), they
declared a district to be occupied by them, on the mere fact of having
entered it. (Edwards, Germans in France.) It may be with reason
asserted that the British occupation of the South African Republic
was effective by the year 1901, inasmuch as the war had degenerated
into guerilla warfare, whilst all the towns were occupied by the
British army. It is true, however, that there‘ were only 250,000
British soldiers in a territory covering 500,000 square miles.
OH. xxxm RIGHTS. OF MILITARY OCCUPATION 471
Any contracts or agreements, however, which he may
make with individuals farming out such property, will
continue only so long as he retains control of them, and
will cease on their restoration to, or recovery by, their
former owner.1
§ 5. The municipal laws of a conquered territory, or the
laws which regulate private rights, continue in force during
military occupation, except so far as they are suspended or
changed by the acts of the conqueror. Important changes
of this kind are seldom made, as the conqueror has no
interest in interfering with the municipal laws of the country
which he holds by the temporary rights of military occupa-
tion. He nevertheless has all the powers of a de facto
government, and can, at his pleasure, either change the
existing laws or make new ones. Such changes, however,
are, in general, only of a temporary character, and end
with the government which made them. On the confirma-
tion of the conquest by a treaty of peace, the inhabitants
1 Am. Ins. Co. v. Canter, 1 Peters R. 542 ; Burlamaqui, Droz't de
la Nat. et des Gens, t. v. pt. iv. ch.
During the Franco-German war, I 8 70, open letters were forwarded
by the German ‘ F eldpost ’ to French towns in their occupation.
Also, to facilitate regular purchases in such towns, they published a
table of exchange, declaring, with perfect fairness, the currency
value of German money. (Edwards, Germans in France.)
Whilst they were occupying Versailles, no person could go in or
out of ‘that town without a permit from the German military autho-
rities. The French mayor continued his civil duties, and the
French flag remained over the maz'rz'e all the time. (Delerot,
Versailles. )
Regulations such as the following were issued by the Germans, as
to the general conduct of the inhabitants in occupied districts :
viz. that they give up their arms ; that they put out their lights at
a certain hour, and in case of a disturbance at night show lights in
all their windows ; that they hold no communication with ‘ the
enemy,’ or with any person in the unoccupied part of the country ;
that they do not act voluntarily as guides to ‘ the enemy ’ ; if called
upon to act as guides to the occupying troops, they will mislead them
at their peril ; that they do not join the hostile army, nor form bands
on their own account ; that they do not cut the telegraph or injure
the railway ; the penalty for disobedience in such case is death ; if
the railway or telegraph is injured and the offender cannot be dis-
covered, a fine is imposed on the town or commune ; and if the fine
or the usual money contribution be not forthcoming, hostages are
taken and detained until it is paid. The townspeople are to remain
tranquil ; all in the neighbourhood are to remain tranquil ; they are
to furnish the requisitions demanded from them and help the local
authorities to pay the money contribution, and their lives and persons
will be safe and their property protected. (Edwards, supra.)
Upon
municipal
laws
472 ‘ INTERNATIONAL LAW vH- xxxni
of such territory are, as a general rule, remitted to the
municipal laws and usages which prevailed among them
prior to the conquest. Neither the civil nor the criminal
jurisdiction of the conquering State is considered, in inter-
national law, as extending over the conquered territory
during military occupation. Although the national jurisa
diction of the conquered power is replaced by that of mili-
tary occupation, it by no means follows that this new
jurisdiction is the same as that of the conquering State.-
On the contrary, it is usuallyvery different in its character,
and always distinct in its origin. Hence, the ordinary
jurisdiction of the conquering State does not‘ extend to
matters of procedure, whether civil or criminal, Originating
in the occupied territory. ‘ Military occupation and mili-
tary government,’ says Ortolan, ‘ are not sufficient to change
the national jurisdiction, and to substitute the jurisdiction
of the occupying State for that of the territory temporarily
occupied. Such an effect is produced only by incorpora-
tion or definitive occupation. We refer here only to the
jurisdiction of Common Law, and the ordinary and usual
cognisance of cases, without in any manner diminishing the
rights derived from war, and the measures necessary for the
government of military occupation.’ The author then refers
to a decision of the Court of Cassation on appeal from the
Court of Assizes of the Pyrénées Orientales, in the case of
Villasseque, a Frenchman, charged with the crime of
assassination committed in the territory of Catalonia,
Spain, during the military occupation by France, in the
summer of 1811. It was contended by the prosecution
that, inasmuch as Catalonia was occupied by French troops,
and the government administered by French authorities,
it must be considered as French territory; but the court
in its decision (Arret du 22 ]anvier 1818) said : ‘ This occu-
pation and this administration by French troops and
French authorities had not communicated to the inhabi-
tants of Catalonia the title of Frenchmen, nor to their
territory the quality of French territory ; this communica-
tion could result only from an act of union emanating from
the public authority, which never existed.’ The same view
has been taken by the Attorney-General of the United
States with respect to crimes committed in Mexico during
0H. XXXIII
RIGHTS OF MILITARY OCCUPATION
the military occupation of that country by the United
States.1 ‘
§ 6. How, then, are crimes to be punished which are
committed in territory occupied by force of arms, but
which are not of a military character nor provided for in
the military code of the conquering State? To solve this
question it will be sufficient to recur to the principles
already laid down. Although the laws and jurisdiction of
the conquering State do not extend over such foreign
territory, yet the laws of war confer upon it ample power
to govern such territory, and to punish all offences and
crimes therein by whomsoever committed. The trial and
punishment of the guilty parties may be left to the ordinary
courts and authorities of the country, or they may be re-
ferred to special tribunals administering martial law,2
1 Heffter, Droit International, § 131 ; Ortolan, Diplomatic de la
Mer, liv. ii. ch. xiii. ; Campbell 21. Hall, I Cowp. R. 204; Toucey,
Opinions U.S. Attys.-Gen. vol. v. p. 55 ; Kamptz, Literatur des
V o'lkerrechts, § 307 ; Cocceius, De jure Vict. in Res. Incorp. passim.
2 ‘ The proclamation of martial law renders every man liable to
be treated as a soldier. The instant the necessity ceases, that
instant the state of soldiership ought to cease, and the rights with
the relations of civil life to be restored.’ (Per Lord Brougham,
Debate on the trial of the Rev. John Smith by court-martial, Parl.
Debates, 1824.) In the field, all followers and retainers of an army
become subject to the restraint of military law ; and the custom of
war and the necessity of the case also justifies the punishment, by
sentence of court-martial, of certain crimes against the safety of the
army, or the person or the property of individuals belonging to it,
or entitled to its protection, when the offenders themselves neither
belong to nor are connected with the service. The declaration of
martial law renders all persons amenable to courts-martial, on the
order of the military authority, so long as the civil judicature is not
in force. There is also a modified exercise of martial law, when, by
special intervention of the authority exercising the legislative power,
courts-martial have been erected into tribunals for the trial of
persons not subject to military law for certain specified offences,
although the ordinary course of law may have been partially re-
stored, or had never been altogether stayed. As instances of the
special laws creating this exceptional jurisdiction may be mentioned
-—the Statute (Ir.) 39 Geo. III. c. II, passed in Ireland in 1798,
which was revived by the Irish Act, 40 Geo. III. c. 2, and further
continued by the 41 Geo. III. c. 14; ‘the Statute 43 Geo. III. c.
117, which was passed in the Imperial Parliament in 1803, re-
enacting the principal provisions of that before mentioned ; and the
Ordinance (Canada) 2 Vict. c. 3, passed in Canada in 18 38. These
Acts authorise the exercise of the powers which they may confer on
the executive, ‘ whether the ordinary courts shall or shall not be
open,’ and do not lay down any deviation from the ordinary manner
of proceeding in the case of courts-martial held under them. The
Irish Coercion Act, passed in 18 3 3 (3 and 4 Will. IV. c. 4), regulated
Punish-
ment of
crimes in
such terri-
tory
474 . INTERNATIONAL LAW 011. xxxrn
organised for that purpose by the government of military
occupation; and, where they are so referred to special
tribunals, the ordinary jurisdiction is to be considered as
suspended gaoad hoe. It must be remembered that the
authority of such tribunals has its source, not in the laws
of the conquering, nor in those of the conquered State, but,
like any other powers of the government of military occupa-
tion, in the laws of War ; and, in all cases not provided for
by the laws actually in force in the conquered territory,
such tribunals must be governed and guided by the prin-
ciples of universal public jurisprudence. How far the laws
of the former government continue in force after the con-
quest, and how far they are replaced by those of the con-
quering State, by those enacted by the government de
facto, or by new principles of jurisprudence, or usages and
customs introduced with the conquerors, is considered in
other places, and need not be repeated here. In the war
between the United States and the Republic of Mexico,
it was found that no provisions had been made in the
United States Rules and Articles of war for numerous
cases, civil and criminal, between citizens of the United
States and between such citizens and foreigners, in Mexican
territory occupied by the troops of, but without the juris-
diction of any court of, the United States. All such cases,
of a criminal character, arising in the territory of Mexico
occupied by the ‘ main army ’ under General Scott, were
referred by him to ‘ military commissions,’ which _ were
the rank of the members, the punishment to be awarded, and,‘
among other peculiar enactments, provided (sec. 14) that the parties
before the court might have the assistance of counsel and attorneys.
In Great Britain the preamble of each successive Army (annual)
Act reasserts the illegality of martial law in time of peace, by reciting
from the Petition of Right that no man ‘ be forejudged of life or
limb, or subjected in time of peace to any kind of punishment
within this realm by martial law.’ Indirectly, therefore, it recog-
nises the legality of resorting to this expedient, in time of war and
intestine commotion. No legal dogma can be clearer, and being
each year recognised by Parliament, it is entitled to all the deference
which may be due to an- Act of the legislature so repeatedly revised
and considered. The legal right, or, more properly, the power of
the sovereign, or the representative of Majesty, to proclaim martial
law, has been fully set forth in many Statutes, and the acknowledged
prerogative of the Crown to resort to the exercise of martial law
against open enemies or traitors is expressly declared. (See also
vol. i. p. 598.)
OH. XXXIII RIGHTS OF MILITARY OCCUPATION
special tribunals constituted and appointed for that pur-
pose ; in California they were usually left to be decided by
the ordinary tribunals of the country, although special
tribunals were there organised, in a few special cases, by
the government of military occupation. This was in con-
formity with principle; the martial law of the conqueror
being the governing rule, while the civil or special tribunal
was the instrument of, or acted in subordination to, this
military power; the limitations to this martial law being
the laws of war.1L But the military commissions, organised
1 Gardner, Inst. of Am. Int. Law, p. 208 ; Cushing, Opinions of
U5. A.-G. pp. 365 et seq.; Hansard, Parl. Deb. N.S. vol. cxv.
p‘. 880-; Scott, General Orders, No. 20, Feb. 19, 1847 ; Marcy to Scott,
eb. 1.5, 1847; Cong. Doe. No. 60, 30th Cong. 1st sess. H. of R.
. 874.
p In 1865 one Lambdin P. Milligan presented a petition to the
Circuit Court of the United States, for the district of Indiana, to be
discharged from an alleged unlawful imprisonment. The case
made. by the petitioner was this :--Milligan was a citizen of the
United States ; had lived for twenty years in Indiana, and at the
time of the grievances complained of was not, and never had been,
in the military or naval service of the United States. On Oct. 5,
1864, while at home, he had been arrested by order of General
Hovey, commanding the military district of Indiana, and had been
kept in close confinement. On the 21st of that month he was
brought before a military commission, convened at Indianapolis by
order of General Hovey, tried on certain charges and specifications,
found guilty, and sentenced to be hanged. On the matter being
eventually brought before the Supreme Court, in December 1866,
Mr. Justice Davis, in delivering the opinion of the Court, remarked
that no ‘ graver question had ever been considered by that Court
than the one then before them, viz. Had the military commission
jurisdiction legally to try and sentence the petitioner ? There is
no question which more nearly concerns the rights of the whole
people of the United States, for it is the birthright of every American
citizen, when charged with crime, to be tried and to be punished
according to law. This Court has judicial knowledge that, in Indiana,
the Federal authority was always unopposed, and its courts always
open to hear criminal accusations and to redress grievances during
the Civil War. No usage of war could sanction a military trial
there, for any offence whatever of a citizen in civil life, in no wise
connected with the military service ; Congress could grant no such
power ; and to the honour of the legislature it may be said that it
had never been provoked by the state of the country even to attempt
to exercise it. One of the plainest constitutional provisions was,
therefore, infringed when Milligan was tried by a court not ordained
and established by Congress, and not composed of judges appointed
during good behaviour. . . . The discipline necessary to . the
efficiency of the army and navy requires other and swifter modes
of trial than are furnished by the Common Law courts ; and in
pursuance of the power conferred by the Constitution, Congress has
declared the kinds of trial, and the manner in which they shall be
conducted, for offences committed while the party is in the military
476 INTERNATIONAL LAw on. xxxm'
during the Civil War of 1863 in the United States, in a
State not invaded and not engaged in rebellion, in which
or naval service. Every one connected with these branches of the
public service, is amenable to the jurisdiction which Congress has
created for their government, and while thus serving surrenders
his right to be tried by the civil courts. All other persons, citizens
of States where the courts are open, if charged with crime, are
guaranteed the inestimable privilege of trial by jury. . . . It is
claimed that martial law covers, with its broad mantle, the pro-
ceedings of a military commission. The proposition is this: that
in a time of war the commander of an armed force (if, in his opinion,
the exigencies of the ‘country demand it, and of which he is to judge)
has the power, within the lines of his military district, to suspend
all civil rights and their remedies, and subject citizens as well as
soldiers to the rule of his will; and in the exercise of his lawful
authority cannot be restrained, except by his superior officer 'or the
President of the United States. If this position be sound to the
extent claimed, then when war exists, foreign or domestic, and the
country is subdivided into military departments for mere con-
venience, the commander of one of them can, if he chooses, within
his limits, on the plea of necessity, with the approval of the execu-
tive, substitute military force for and to the exclusion of the laws,
punish all persons as he thinks right and proper, without fixed or
certain rules. The statement of this proposition shows its importa
ance, for, if true, Republican government is a failure, and there isv
an end of liberty regulated by law. Martial law, established on such
a basis, destroys every guarantee of a constitution, and effectually
renders the “ military independent of and superior to the civil
power,” a reason assigned by the United States to the world as one
of the causes which impelled them to declare their independence.
Civil liberty, and this kind of martial law, cannot endure together ;
the antagonism is irreconcileable, and in the conflict one or the
other must perish. . . . It follows, from what has been said on this
subject, that there are occasions when martial rule can be properly
applied. If in foreign invasion or civil war the courts are actually
closed and it is impossible to administer criminal justice according
to law, then on the theatre of active military operations, where war
really prevails, there is a necessity to furnish a substitute for the civil
authority thus overthrown to preserve the safety of the army and
society ; and as no power is left but the military, it is allowed to
govern by martial rule until the laws can have their free course.
As necessity creates the rule, so it limits its duration ; for if this
government is continued after the courts are reinstated, it is a gross
usurpation of power. Martial rule can never exist where courts
are open, and in the proper and unobstructed exercise of their
jurisdiction. It is also confined to the locality of actual war. Be-
cause during the late rebellion it could have been enforced in Virginia,
where the national authority was overturned and the courts driven
out, it does not follow that it should obtain in Indiana, where'that
authority was never disputed and justice was always administered.
And so in the case of a foreign invasion martial rule may become a
necessity in one State, when in another it would be “ mere lawless
violence.” ’ (Ex ;barte Milligan, 4 Wall. 1 31 ; see also Geofiroy’s Case
in France, Forsyth, Cases and Opinions, 483 ; Phillipps, v. Eyre,
L. R. 6 Q. B. 1.)
In February 1866 it was resolved by Congress that the condition
OK. XXXIII
RIGHTS OF MILITARY OCCUPATION 477
naval service.
‘the Federal Courts were open, and in the proper and un-
obstructed exercise of their judicial functions, had no
jurisdiction to try, convict, or sentence for any criminal
offence a citizen who was neither a resident of a rebellious
State nor a prisoner of war, nor a person in the military or
Congress could not invest a military com-
mission with such power, owing to the Constitution of the
United States. For the same reason the American Courts
hold that suspension of the privilege of the writ of habeas
corpus does not ‘suspend the writ itself.
§ 7. When a country has been conquered by British arms,
it immediately becomes a dominion of the King in right of
his Crown, and the inhabitants of such conquered territory,
once received under the King’s protection, become his
subjects, and are universally regarded in that light, and not
as enemies or aliens. As no other act than that of con-
quest is requisite to make the conquered territory a dominion
of the Crown, and nothing more than the submission to
the King’s authority and protection, on the part of the
inhabitants of such territory, is necessary to make them
subjects of the King, such territory is no longer to be re-_
garded, either by otherjnations or by other parts of the
British empire, as a foreign country, or its inhabitants as
aliens; In other words, foreign territory becomes. a dominion,
and its inhabitants the subjects of the King, ipso facto,
by the conquest made by the British arms, without any
action of the legislature—the Parliament of Great Britain.1
' § 8. But a different rule holds in the United States.
The peculiar character of that government, and the powers
vested in it by the Federal Constitution, have given rise to
rules somewhat peculiar and anomalous, with respect to
the government of conquered territory. The President‘, in
the exercise of his constitutional power as commander-in-
chief of the army, may, when war has been declared, seize
of the former Confederate States fully justified the President in
maintaining the suspension of the writ of habeas corpus in those
States, and‘ that the condition of those States fully justified the
President in maintaining the military possession and control of them.
1 Calvin’s case, Coke R. part vii. ; Elphinstone o. Bedreechund,
Knapp. R. 338 ; Campbell 11. Hall, 23 State Trials, 322 ; Fabrigas v.
Moslyn, I Cowp. R. 165; Callet 21. Lord Keith, 2 East R. 260;
Blankard v. Guldy, 4 Mod. R. 225. '
Effect of
military
occupa-
tion
under the
laws of
England
Under the
constitu~
tion of
the United
States
478 INTERNATIoNAL LAW on. xxxm
the enemy’s possessions, and establish a government and
laws for the territory so seized and occupied. Such terri-
tory is subject to the sovereignty and dominion of the
United States so soon as the enemy is driven out or submits
to their arms. But the President cannot extend the limits,
or enlarge the boundaries of the Union. This can only be
done by Congress. As the institutions and laws of the
United States do not extend beyond the limits before
assigned to them by the legislative power, the inhabitants
of a conquered territory, during its military occupation by
the United States, can claim none of the rights and privi-
leges established by such laws. And even where these
institutions and laws are adopted by the government of
military occupation, the rights which they confer upon the
inhabitants of the conquered territory do not extend to
the States or territories of the United States. The con-
quered territory is under the sovereignty and authority of
the Union; but it is not a part of the United States ; nor
does it cease to be a foreign country, or its inhabitants cease
to be aliens, in the sense in which these words are used in
the laws of the United States. They, are to be governed
by martial law, as regulated and limited by public law.
Such territory forms no part of the Union, and its inhabitants
have none of the rights, immunities, and privileges of citizens
of the United States, under the Federal Constitution and
laws; nevertheless, other nations are bound to regard the
conquered territory, while in the possession of the United
States, as its territory, and to respect it as such, and to
regard its inhabitants as under its protection and govern-
ment ; ‘for, by the laws and usages of nations,’ says Chief
Justice Taney, ‘ conquest is a valid title, while the victor
maintains the exclusive possession of the conquered country.
The citizens of no other nation, therefore, have a right to
enter it without the permission of the American authori—
ties, nor to hold intercourse with its inhabitants, or to
trade with them. As regards all other nations, it is a
part of the United States, and belongs to them as exclu~
sively as the territory included in its established boun-
daries.’ 1 '
1 Fleming et al. v. Page, ‘9 Howard R. '61 5 ; Cross et al. v. Harrison,
16 Howard R. 164 ; Gardner, I nstitntes, p. 208.
on. xxxm RIGHTS or MILITARY OCCUPATION
479 ,
§ 9. This distinction between conquered territory in the
military occupation of the United States, and territory of
the United States within the limits of the Federal union,
as established by Congress, is a very important one, and
leads to very important consequences. It has been recog-
nised and established by the highest judicial authority, and
must be regarded as the law of the land. The relations
between the inhabitants of such conquered territory and
foreign nations are, therefore, very different from the
relations between the people of the United States and such
nations, as previously established by treaties and com-
mercial law. The intercourse of foreign nations with such
territory is regulated by the government of occupation,
under the direction of the President of the United States, as
commander-in-chief of the army, or, in other words, by martial
law. Hence, the difference between the scale of duties, on
goods imported into the conquered territory, and the ton-
nage on vessels and goods brought into the United States.
The victor may either prohibit all commercial intercourse with
his conquest, or place upon it such restrictions and condi-
tions as may be deemed suitable to his purpose. To allow
intercourse at allis a relaxation of the rights of war. So,
also, the rules of intercourse "and trade, between the inhabi-
tants of the United States and such conquered territory,
may be very different from the rules regulating the inter-
course and trade between different parts of the union. An
American vessel entering the port of the conquered terri-
tory, during its military occupation by the United States,
must conform to the regulations, and pay the duties exacted
by the government of such territory; and an American
vessel, returning to the United States from a port of such
territory, is regarded as coming from a foreign port, and not
as engaged in the coasting trade ; the cargo is not exempt
from the payment of duties as fixed by the laws of the
United States for goods imported from a foreign country.
The right of the victor to the revenues of the conquered
territory is firmly established and recognised by the laws
of war and the usage of nations. It is immaterial whether
these revenues arise from import taxes, rents of public
property, duties on imports and exports, or from any other
source; they are a part of the conquest, and rightfully
Distinc-
tion con-
cerning
relations
of inha-
bitants
with
regard to
foreign
States
480 INTERNATIONAL LAw cu. xxxm
belong to the conqueror. Those who are permitted to hold
commercial intercourse with such territory, whether they
be subjects of the conqueror, or of foreign States, must
conform to the regulations, and pay the duties established
by the conquering power; and, in case of conquest by the
United'States, the President, in the absence of legislative
enactments, exercises this power.1
:11 é‘ggtard § Io.'The effect of military occupation, by one bel-
0% m: “8 ligerent, of a portion of the territory of the other, so far as
Uni“ respects revenue laws, has been adjudicated upon by the
Supreme Court of the United States : 1st, with respect to
neutral territory in possession of the enemy; 2nd, with
respect to territory of the United States in possession of
the enemy; and 3rd, with respect to the enemy’s territory
in the possession of the United States. I. In the case of
the island of Santa Cruz, belonging to the Kingdom of Den-
mark, but in the military occupation of British forces, the
Supreme Court says : ‘Although acquisitions made during
war are not considered as permanent until confirmed by
treaty, yet, for every commercial and belligerent purpose,
they are considered as a part of the domain of the con-
queror, so long as he retains the possession and government
of them. The island of Santa Cruz, after its capitulation,
remained a British island until it was restored to Den-
mark.’ 2. Castine, in the United States, was captured by
the British forces on the first day of September, 1814, and
remained in their exclusive possession until after the'ratifi-
cation of the treaty of peace, in February 1815. ‘ By, the
conquest and military occupation of Castine,’ says, the
Supreme Court, ‘ the enemy acquired that firm possession
which enabled him to exercise the fullest rights of sove—
reignty over that place. The‘ sovereignty of the United
States over the territory was, of course, suspended, and the
laws - of the United’ States could no longer be rightfully
enforced there, or be obligatory upon the inhabitants who
remained and submitted to _the conquerors. By the sur-
render, the inhabitants passed under a temporary allegiance
to the British government, and were bound by such laws,
and such only, as it chose to recognise and impose. From
1 Burlamaqui, Droit de la Nat. et des Gens, ,t. v. pt.‘ iv. ch. vii,
Cushing, Opinions U, S. Attys.-Gen. vol. viii. §§ 365 et seq.
OH. xxxm RIGHTS OF MILITARY OCCUPATION
481
the nature of the case, no other laws could be obligatory
upon them ; for where there is no protection or allegiance,
or sovereignty, there can be no claim to obedience. Castine
was, therefore, during this period, so far as respected our
revenue laws, to be deemed a foreign port, and goods im-
ported into it by the inhabitants were subject to such duties
only as the British Government chose to require. Such
goods were in no correct sense imported into the United
States.’ 3. In the case of Tampico, in Mexico, which was
captured and occupied by the arms of the United States,
during the war with Mexico, the Supreme Court held that
cargoes of goods landed there were liable to the duties
charged on them by the military authorities of the United
States, whether shipped from the United States or from
foreign countries.1 '
§ 11. In the absence of any laws of Congress on this sub-
ject, the regulating and collecting of such revenues, in
enemy’s territory in the possession of the United States,
devolves upon the President, as the constitutional com-
mander—in-chief, and upon the -military and naval officers
under his direction. The moneys derived from these sources
may be used for the support of the government of the
conquered territory, or for the expenses of the war. They
are war revenues and do not belong to the treasury of the
United States until so directed by a law of Congress. Being
no part of the moneys of the Treasury of the United States,
their expenditure is not regulated by the general laws of
the United States, but by the direction of the President,
under whose authority they were collected.
During the war of 1846, between the United States and
Mexico, and on the conquest of the ports of the latter
republic on the Gulf of Mexico, the President of the United
States formed a tariff of duties on goods from the United
States and foreign countries, admitted into such ports in
his military possession. A different one, however, had
been previously adopted for California, by the military and
naval commanders on the Pacific coast and Gulf of Cali-
fornia, which, with certain modifications, was, with the
tacit approval of the President, continued to the end of
1 Thirty Hogsheads of Sugar 2). Boyle, 9 Cranch. R. 191 ; United
States 2). Rice, 4 Wheat. R. 246.
VOL. II. I I
Collection
and use of
revenues
in such
territory
482 INTERNATIONAL LAW on. xxxm
Transfer
of private
property
Laws
relating
to such
transfers
the war. Certain missions and other public property in
California were rented by the military commander and
governor, and certain movable property belonging to the
Californian government was sold by their authority. The
moneys derived from these sources constituted the‘ ‘ mili-
tary contribution fund,’ which was used for the expenses
Of the government of occupation, and for carrying on the
war. By subsequent Acts of Congress the moneys so
collected, and not expended, were made to form a portion
of funds in the Treasury of the United States, and the
expenditures were settled and audited by the proper officers
of the Treasury Department.1
§ 12. As military occupation produces no effect (except
in special cases, and in the application of the severe right
of war, by imposing military contributions and confisca-
tions) upon private property, it follows, as a necessary con-
sequence, that the ownership of such property may be
changed during such occupation by one belligerent of the
territory of the other, precisely the same as though war
did not exist. The right to alienate is incident to the right
of ownership, and unless the ownership be restricted or
qualified by the victor, the right of alienation continues
the same during his military possession of the territory in
which it is situate, as it was prior to his taking the posses-
sion. A municipality or corporation has the same right
as a natural born person to dispose of its property during
a war, and all such transfers are, primd facie, as valid as
if made in time of peace. If forbidden by the conqueror,
the prohibition is an exception to the general rule of public
law, and must be clearly established.2
§ 13. It has been stated elsewhere, that the lex loci rei
sitee governs in everything relating to the tenure, title, and
transfer of real property; also, that the municipal laws of
a conquered territory continue in force during military
occupation, except so far as they are suspended or changed
by the acts of the conqueror. It is not necessary, how-
2 EggfilgolgniggittZfmécliedwifvzdlis Riquelme, Derecho Pztb.
Int. lib. i. tit. i. c. xii. ; Cobraz v. Raisin, 3 Cala. R. 445 ; Welch v.
Sullivan, 8 Cala. R. 165 ; Isambert, Am. Pol. et Dip. Int. p. 115 ;
Kamptz, Literatnr, &c., § 307 ; Hart 11. Burnett, I5 Cala. R. 559 ;
Payne and Dewey v. Treadwell, 16 Cala. R. 220.
on xxxIII RIGHTS or MILITARY OCCUPATION 483
ever, that such change should be made by special decree :
it may be done by the introduction of a different system
of jurisprudence, or a different usage and custom. As a
general rule, there can be no custom in relation to a matter
regulated by positive law, as custom derives its force from
the tacit consent of the legislative power and the people.
But the sovereign will may be implied or presumed, as well
as expressed by words. A series of facts, as a public,
uniform, general, and continued usage, constitutes a custom,
which has the force of law, because the sovereign will is
therein implied. Time is the important element of cus-
tomary or common law, in an established and continuous
government. But where a new government, with different
institutions, a different system of laws, and different
customs, is suddenly established by the operations of war,
and the rights of conquest, the same effect upon the common
law of the country may be immediately produced, which,
under other circumstances, would require ‘ time, whereof
the memory of man runneth not to the contrary.’ During
the military occupation of California by the forces of the
United States, the use of Mexican stamped paper was
necessarily dispensed with, for conveyances, and other
oflicial writings and private contracts. And, as the local
officers of the then existing government of California were
generally ignorant of the Spanish language and Spanish
forms of conveyancing, real estate was usually transferred
by the simple deeds of conveyance commonly used in the
United States. As such conveyances were seldom executed
in conformity with the requisitions of Mexican municipal
law, their validity rested upon the usage introduced with
the government of military occupation. Titles to many
millions of property in that country were transferred in
this way, and the usage continued after the restoration of
peace, and, until the enactment of other laws by the local
government, after its organisation as a State. Conveyances
so made and executed have always been regarded as valid
and sufficient for the transfer of real property. In the first
place, the law requiring the use of stamped paper was a
law for revenue, and, consequently, was suspended, with
other political laws, ipso faeto, by the conquest, and com-
pletely abrogated by the cession. In the second place, the
112
484
INTERNATIONAL LAW 01!. xxxnr
Allegi-
ance
of inha-
bitants of
occupied
territory
Lawful
resistance
and insur-
rection
lex loci rei sitaz, with respect to the forms and execution of
conveyances of real property, was also suspended in its
operation, by the introduction of a different usage with the
government of the conquerors, and, from the nature of
the case, the inhabitants of California could hardly be
considered as remitted to this law by the restoration of
peace. But this point will be more particularly discussed
in the next chapter.1
§ 14. It may be stated, as a general proposition, that
the duty of allegiance is reciprocal to the duty of protec-
tion. When, therefore, a State is unable to protect a
portion of its territory from the superior force of an enemy,
it loses, for the time, its claim to the allegiance of those
whom it fails to protect, and the inhabitants of the con-
quered territory pass under a temporary or qualified allegi-
ance to the conqueror. The sovereignty of the State which
is thus unable to protect its territory is displaced, and that
of the conquered is substituted in its stead. But this
change of sovereignty may be only of a temporary character,
for the conquered territory may be recaptured by the
former owner, or it may be restored to him by a treaty of
peace. During mere military occupation the sovereignty
of the conqueror is unstable and incomplete. Hence the
allegiance of the inhabitants of the territory. so occupied is
a temporary and qualified allegiance, which becomes com-
plete only on the confirmation of the conquest, and with
the express or implied consent of the conquered.2
§ 15. But when does this change of temporary allegiance
actually take place P And under what circumstances may
the inhabitants of a conquered city or province take up
arms to repel the conqueror, and assist their former sove-
reign in recovering his lost possessions P These are delicate
questions, not always easy of decision. And yet their
resolution involves matters of the utmost importance; for
the decision of the first fixes the line between justifiable
1 Boyer, Universal Pub. Law, ch. xvi. ; Febrero Mexicano, tit.
prelim. 0. iv. _ ‘ '
2 Burlamaqui, Droit de la Nat. et des Gens, t. v. pt. 1v. ch. vi. ;
American Ins. Co. v. Canter, 2 Peters R. 542 ; Calvin’s case, Coke R.
pt. vii. ; Rayneval, Inst. du Droit Nat. &c. liv. iii. ch. xx. ; Hefiter,
Droit International, §§ 132, 186 ; Pufiendorf, De ]ure Nat. et Gent.
lib. viii. ch. vi. § 21.
OH. X11111 RIGHTS OF MILITARY OCCUPATION
485
homicide and murder, and that of the second will deter-
mine whether those taken in arms are to be treated as
prisoners of war, or may be executed as military insur-
gents. As a general rule, the inhabitants of a place lose
their right to resist on its complete capture or formal sur-
render, and the conqueror then loses his right to kill. Those
who retain their arms, and refuse to surrender, are still
enemies, exercising the rights of war, and subject to its
consequences; but those who submit are bound by the
conditions, express or implied, of such submission. Obedi—
ence to the laws which the conqueror may impose by the
right of conquest is undoubtedly one of these implied
conditions. But is there no limit to such obedience, and
may not those who have thus submitted to the authority
of the victorious enemy throw off, at any time, this tem-
porary allegiance to the conqueror, and restore the former
and rightful sovereignty ? In other words, does not their
duty to their own country involve the right of insurrection
against that of the conqueror? In order to arrive at a
satisfactory answer to this question, it may be well to
consider the more general right of revolution. For, although
there is a broad and obvious distinction between an in-
surrection of a conquered city or province against the
conqueror, and a revolution against an established govern-
ment, yet it will be found, on examination, that both rest
upon the same general principle—the relation of protec—
tion and allegiance, or the reciprocity of right and obliga-
tion.1
§ ‘16. In ancient times, when a city or district of country
was conquered, the principal male inhabitants, capable of
resistance, were put to the sword. This was an exercise of
the extreme right of war, and justified on the ground of
necessity, as the hostility and continued resistance of the
inhabitants of the conquered place would otherwise pre-
vent the conqueror from pursuing his military operations,
for the purpose of securing the object ‘of the war. But, in
more civilised ages, when a place was taken by one of the
belligerents, and the people laid down their arms, they
1 Vattel, Droit des Gens, liv. ch. viii. §§ 163 ; Wheaton,
Elem. Int. Law, pt. iv. ch. ii. §§ I, 2 ; Lieber, Political Ethics, b. iii.
oh. i. § 1.
Implied
obliga-
tions of
the con-
quered
486 ' INTERNATIONAL LAW on. xxxm
0f the
con-
queror
were allowed to continue their ordinary peaceful occupa-
tions, without hindrance or restraint, but with the tacit
or implied agreement, that they would opposeino further
resistance to the power of the conqueror. They were and
are virtually in the condition of prisoners of war on parole.
No word of honour has been given, but it is implied ; for
only on that condition would the conqueror have relin-
quished the extreme right of war which he held over their
lives, and have suffered them freely and peacefully to
pursue their ordinary avocations. But this implied obliga-
tion does not bind those who remain in arms, or those who
are retained as prisoners of war; their right of resistance
continues. It is only those who enjoy the favours of the
conqueror, by a relaxation of the right of war for their
benefit, that are tacitly bound by the acceptance of such
favours. If they decline the favour, they do not assume
the obligation. Thus, _ a prisoner of war who refuses to
give his parole may kill his guard and effect his escape,
without any violation of the laws of war, or the obliga-
tions of honour and morality.l
§ 17. It must also be observed, that this tacit agreement
is mutual and equally binding upon both parties. If the
conquered are under the implied obligation to make no
further resistance to the conqueror, it is only in considera
tion of the favours and privileges they are to derive from
a relaxation of the extreme rights of war, by being allowed
peacefully to pursue their ordinary occupations, without
any further restraint than may be necessary for the safety
of the conqueror. But if the conqueror should impose
unusual and unnecessary restraints, should treat them with
unmerited harshness, should destroy or confiscate their
1 Grotius, De Jm'e Bell. a0 Pas. lib. iii. cap‘. viii. ; Heffter, Droz't
' International, §§ 119-124.
Attacks by or with the presumed aid of the French inhabitants
were never left unpunished by the Germans, in the war of 1870.
At Mézieres, near Nantes, half a village was consumed, because a
parting shot was fired at some Bavarians. At Foucancourt a third
of the houses were consumed, because the inhabitants were accused
of being in collusion with some francs-tireurs, who had fired. on the
Germans at the entrance to the village, under cover of a thick fog.
Vernon (on the road to Rouen), though an open town, was shelled
by the Germans, because some gamekeepers had fired at them across
the river, and the bridges being broken they could not recross.
(Edwards, supra, p. 437.)
on. xxxnr RIGHTS or MILITARY OCCUPATION
487
' changed for light and transient causes.
property, taking away the liberty of some and the lives of
others, such conduct on his part would release them from
the obligation of non-resistance, and restore to them the
rights of belligerents in actual war. Insurrections, in such
‘cases, are justified by the law of necessity and the natural
right of protecting life, liberty, and property.1
§ 18. The abstract question of the right of a people to
take up arms against the authorities of an established
government has often been discussed by speculative writers.
However opposed it may be to the general theory of political
organisation and government, it can hardly be doubted
that a revolution, in certain circumstances, would be justifi-
able. But under What circumstances P Here opinions
diverge, and doubts and difliculties increase as we advance,
till all hope of a satisfactory conclusion is lost.
ing, then, all chance of deciding what constitutes justifi-
able causes of civil revolutions, we must judge of them by
their effects. If we turn to history, we find that they
form some of its brightest and some of its darkest pages.
Sometimes nations have been benefited by them, and
sometimes they have proved the utter ruin of whole States.
While, therefore, the right of revolution is opposed by the
jur'isconsult on technical grounds, and admitted by the
philosopher on the ground of necessity, all agree that such
a terrible rupture of the framework of civil society should
be resorted to only where all other means of redress have
failed. ‘ Governments, long established, should not be
. . . But when a
long train of abuses and usurpations, pursuing invariably
the same object, evinces a design to reduce them under an
absolute despotism, it is their right, it is their duty, to
throw off such government, and to provide new guards for
their future security.’ 2
§ 19. The right of insurrection in war, therefore, rests
upon the same principles as the right of revolution against
an established government. The general duty of obedience
1 Lieber, Pol. Ethics, b. oh. i. §. 1 ; b. iv. ch. § 29 ; Abegg,
Untersuchnngen, p. 86 ; Heffter, Lehrbnch des Criminalrechtes, § 37.
2 Vattel, Droit des Gens, liv. ch. xviii. §§ 290, 291 ; Taylor,
On Revolutions, passim ; Burlamaqui, Droit de la Nat. et des Gens,
t. v. pt. ch. vi. ; Declaration of American Independence ,' Encyclo—
paedia Americana, verb. ‘ Insurrection.’
Abandon- _
Right of
revolu-
tion
Military
insurrec-
tions
488
INTERNATIONAL LAW 011. mm
Punishing
military
insurrec-
tions
to the laws, results from the protection they afford to the
lives and property of the citizens and subjects; but when
a civil government fails to afford that protection, and
obstinately persists in a course injurious to the people,
and when the probable evils accompanying the change are
not greater than the blessings to be obtained by it, revolu-
tion becomes a duty as well as a right. So, also, with re—
spect to the military government of occupation established
by the conqueror; its course may be so injurious to the
conquered people as to render submission intolerable, and
to justify them in resorting to the necessary but cruel
alternative of insurrection. The principle is plain and
clear, but there is great difficulty in its application to
particular cases. The historians of the conquered power
almost invariably justify such insurrections on the score of
patriotism, while those of the opposite party as uniformly
condemn them as in violation of the laws of war, and the
implied obligation of submission ; as, in revolutions, success
or failure usually gives to a military insurrection the popular
character of patriotic resistance, or of a cruel and un-
justifiable sacrifice of human life.1
§ 20. As the conquered inhabitants, in a military in-
surrection, throw off all implied obligations of submission
to the authority of the conqueror, and resort to the extreme
rights of war, it follows that the conqueror may, in such a
case, resume towards the insurgent enemy the severe and
extreme rights of the same code over life and property.
The insurgents taken in arms, as well as their instigators,
may therefore be put to death, and their property con-
fiscated or destroyed. But this extreme right of the con-
queror over military insurgents is limited by the laws of
humanity, and he is not justified if he resort to cruel and
unnecessary punishments. Hence, in modern wars, only
the leaders and instigators of a military insurrection are
usually punished with death, while the common people
who are engaged in it are more leniently dealt with. Some-
times heavy' contributions are levied by way of punish-
ment upon the place or district of country where the in-
surrection occurs. This practice is justified on the ground
1 Abegg, Untersuchungen, &c., p. 86; Lieber, Political Ethics,
b. iv ch. iii. 28 ; Alison, Hist. of Europe, vol. i. pp. 405, 468.
CE X11111 RIGHTS OF MILITARY OCCUPATION
489
that the instigators and leaders, being usually the originators
of the insurrection, should suffer the punishment due to
the offence, and that a community is to be held responsible
for the acts of its members where the individual offenders
cannot be otherwise reached. But there is a tribunal of
public opinion to which all are subject.1
§ 21. History abounds in examples of insurrection, and
of punishments inflicted by the conqueror upon insurgents.
Without recurring to the wars of the Middle Ages, of the
Reformation, of Charles V., Louis XIV., and Frederick 11.,
before the principles of International law were fully esta-
blished or generally recognised, we find numerous examples
in the wars of Buonaparte, in Europe, and of the English,
in India. In the Italian campaign of 1796, the inhabitants
of‘ Pavia rose against the French troops, and made them
prisoners. Lannes routed a portion of the insurgents, and
burnt the village of Brescia; but, as this severe example
failed in producing intimidation, Napoleon himself returned
to the revolted city, shot the leaders of the insurrection,
and delivered up the place to plunder. ‘ This terrible
example,’ says Alison, ‘ crushed the insurrection over the
whole of Lombardy.’ In the campaign of 1797, a Venetian
insurrection was organised on the Adige; four hundred
wounded French in the hospital of Verona were killed in
cold blood, and the French garrison of Fort Chiusa, which
capitulated for want of provisions, was inhumanly put to
death. The insurrection was immediately suppressed, its
authors shot, and a contribution of one million one hun-
dred thousand francs levied on the city. In the Peninsular
war many of the Spaniards and Portuguese, after sub-
mitting to the French, took advantage of every opportunity
to rise upon a small garrison or detachment, and to murder
all stragglers. They were punished with severity. ‘ So
many complaints,’ says Napier, ‘ were made of the cruelty
committed by Massena’s army while at Santarem, that
Lord Wellington had some thoughts of reprisals ; but having
first caused strict inquiry to be made, it was discovered
that, in most cases, the ordenancas, after having submitted
to the French, and received their protection, took advan-
1 Vide ante, ch. xx. and xxi. ; Vattel, Droit des Gens, liv. ch. xviii. §§ 290, 291 ; Berbeyrac, Note sur Pufiendorf, t. ii. p. 474.
Historical
examples
490 ~
INTERNATIONAL LAW CH. xxxnr
Aliena-
tions of
territory
occupied
by an
enemy
Aliena-
tions
made in
anticipa-
tion of
conquest
tage of it to destroy the stragglers and small detachments,
and the cruelty complained of was only the infliction of
legitimate punishment for such conduct; the projected
retaliation was therefore changed for an injunction to the
ordenangas to cease from such a warfare.’ 1 .
§ 22. Military occupation, as has already been stated,
suspends the sovereignty and dominion of the former
owner so long as the conquered territory remains in the
possession of the conqueror, or in that of his allies. The
temporary dominion of the latter completely excludes, vtor
the time being, the original dominion of the former.- The
vanquished sovereign, therefore, has no power, as against
the conqueror, to alienate any part of his own territory
which may be at the time in the possession of the latter.
If the conquest be completed, or confirmed, the title passes
to the conqueror precisely as it was when the latter first
acquired the possession. No other party can claim any
rights over it arising from any conveyance or transfer from
the vanquished while it was in the conqueror’s possession.
But, if it be surrendered up to the former owner, or re—
covered by him, such conveyances would become valid, for
the alienor would not be permitted to deny his own act.
It is a principle of jurisprudence that the {us all rem (the
possession of) and the ills in re (the right to) the thing
alienated are necessary in the grantor in order‘ to con-
stitute a complete title. During military occupation-‘these
exist together neither in the original owner nor in the
conqueror. The title conveyed by either is therefore im—
perfect ; if, by the former, it is made good by a restoration
of the conquest; and if, by the latter, it is completed by
a confirmation of the conquest, whether by treaty or by
any other mode recognised in international law.2 7
§ 23. But if war be declared and actually commenced,
and one of the belligerents has made manifest his intention
to effect the permanent acquisition of a particular portion
1 Napier, Hist. ‘Peninsular War, vol. ii. p. 451 ; Jomini, Des ,
Guewes de la Revolution, ch. lxxiii. ; Thiers, Revolution Fnmgaz'se,
t. viii. ch. iv. ; t. ix. ch. ii. ; Alison, Hz'st. 0]‘ Europe, vol. i. pp. 405,
468 ;Napoleon, Me’moz'res, t. iii. p. 195 ; t. iv. p. 149. - ~
2 The ‘ Flotina,’ 1 Dad. R., 450 ; the ‘ Fama,’ 5 Rob. 97 ; Grotius,
De jua/e Bell. ac Pae. lib. ii. ch. vi. § 1 7; Puffendorf, De jmle Nat. et
Gent. lib. iv. ch. ix. § 8. ' - - .
OH. XXXHI RIGHTS OF MILITARY OCCUPATION 491
of the territory of the other (which intention is afterwards
accomplished by actual conquest), and after the declaration
of such intention, and while preparation is being made to
carry it out, the original owner alienates that territory, in
whole or in part, is the conqueror bound to regard such
alienation as a valid transfer, or may he disregard it in
toto, as being an illegal attempt to deprive him of the rights
of war? In other words, did not his avowed determina-
tion to effect the permanent acquisition of such territory,
his preparation to make the conquest, and his ability to
' effect it, as proved by the result, give to the conqueror
some inchoate or inceptive right to the territory sub-
sequently conquered ; or did they not at least suspend the
right of the original owner to alienate it? In order to
obtain a satisfactory solution of this question, we will
recur to fundamental principles. The rights of conquest
are derived from force alone. They begin with possession,
and end with the loss of possession. The possession is
acquired by force, either from its actual exercise, or from
the intimidation it produces. There can be no antecedent
claim or title, from which any right of possession is derived :
for if so, it would not be a conquest. The assertion and
enforcement of a right to possess a particular territory do
not constitute a conquest of that territory. By the term
conquest, we understand the forcible acquisition of territory
admitted to belong to the enemy. It expresses, not a
right, but a fact, from which rights are derived. Until the
fact of conquest occurs, there can be no rights of con-
quest. A title acquired by a conquest cannot, therefore,
relate back to a period anterior to the conquest. The title
-_of the original owner prior to the conquest is, by the very
nature of- the case, admitted to be valid. His rights. are,
therefore, suspended by force alone. If that force be over-
come, and the original owner resumes his possession, his
rights revive, and are deemed to have been uninterrupted.
It, therefore, cannot be said, that the original owner loses
any of his rights of sovereignty, or that the conqueror
acquires any rights whatever, in the conquered territory,
anterior to actual conquest. The former are suspended
by, and the latter derived from, the fact of conquest, and,
in order to determine the date of such ‘suspension or acquisi-
492
INTERNATIONAL LAw a. mu
Private
grants
so made
tion of rights, we must refer to the fact of conquest, and
not to any prior intention or determination of the con-
queror. If these propositions be true, it follows that
grants to individuals made, after the commencement of
hostilities, by the original sovereign of lands lying in terri-
tory, of which he still retains the dominion and ownership,
rest upon the same foundation as those made before the
war. If the title thus conveyed is, by municipal law,
complete and perfect, the land becomes private property,
and must be so regarded by the conqueror. If it be in-
choate and imperfect, but bond fide and equitable, it never-
theless constitutes ‘ property ’ in the sense in which that
term is used in international law. It is. true that, by the
extreme rights of war, the conqueror may disregard in-
dividual ownership, and take private property and convert
it to his own use. But such a proceeding is contrary to
modern practice, and cannot be resorted to, except in
particular cases and under peculiar circumstances. As
neither actual hostilities, nor a formal declaration of war,
can suspend or terminate the sovereignty of the original
owner, he retains and may exercise his dominion over every
portion of his territory, till actual conquest.l
§ 24. But if the vanquished power, while the conqueror
is actually taking forcible possession of a part of its terri-
tory, should send its agent with the retreating army, and,
as the hostile force advances its standard from district to
district, should deliver to individual subjects title~deeds of
the territory at the moment it was about to fall into, the
possession of the advancing foe, with the evident intention
to deprive him of the fruits of his conquest. Must the con-
queror recognise such grants as valid ; and if not, how shall
he draw the line of distinction between them and other
titles issued by the same authority after the commence-
ment of hostilities and before actual conquest P The want
of good faith on the part of such grantees, as well as on the
part of the grantor, would deprive them of the rights of
bond fide purchasers. The distinction between such titles
vand those acquired in good faith and granted in good faith,
and in the ordinary exercise of the rights of original sove-
1 Bouvier, Law Dictionary, verb. ‘ Conquest ; ’_.Phillimore, On
Int. Law, vol. iii. § 223 ; Vattel, Droit des Gens, liv. 11. ch. § 197.
on. xxxur RIGHTS OF‘ MILITARY OCCUPATION
493
reignty, is abundantly manifest. The fraudulent intent
vitiates' the entire transaction. But it must be observed
that the same rule applies to grants made prior to the
war; if not bond fide, the conqueror is not bound to recog-
nise them as valid. The fact of the conqueror being in
possession of a part of the country, produces no effect upon
the part which remains in the possession of the former
sovereign.l
§ 25. Again, suppose a belligerent should, after a de-
claration of war, and in anticipation that a particular por-
tion of its territory will necessarily fall into the power of
the other party, transfer it to a neutral for the manifest
purpose of depriving his enemy of an opportunity to acquire
it by conquest : is the latter bound to recognise the validity
of such transfer P Every sovereign and independent State
has an undoubted right to alienate any part of its own
territory, so long as it retains the ownership and dominion ;
and other sovereign States have an equal right to acquire
such ownership and dominion by any of the modes recog-
nised in international law. But a mere treaty cession of
a province or territory by one power to another can never
operate, by itself, as an immediate and complete transfer
of the ownership and dominion of the land, or of the allegi-
ance of its inhabitants. To produce such effect, a solemn
delivery of the possession by the ceding power, and an
assumption of the dominion and government by that to
which the cession is made, are indispensable. Until then,
the territory continues to belong to the original sovereign
owner, and its inhabitants remain the subjects of the
power to whichv their allegiance‘ was due prior to such
treaty cession. But suppose the transfer be completed by
a formal delivery of the possession to the neutral grantee,
and the assumption by him of the dominion and govern-
ment of the ceded territory P If the transaction is evidently
mald fide and the transfer is made with the manifest intent
to defraud the belligerent of the rights of conquest, the
pretended ownership of the neutral sovereign will not be
recognised by the conqueror. Moreover, such an attempt
on‘ the part of a neutral to hold territory for the benefit
of one of the parties to a war, and in fraud of the belligerent
‘ Mass 1). Riddle and Co., 5 Cranch. R. 357.
Transfer
of terri-
tory to
neutrals
494
INTERNATIONAL LAW on. xxxm
Effect of
military
occupa-
tion on
incorpo-
real
rights
rights of the other party, is regarded as a violation of
neutral duty, and as an act of hostility toward the party
whose rights he thus attempts to defeat. Such transfers
are mere nullities, for fraud vitiates the transactions of
States as well as of individuals. But the general right of
neutrals to purchase the property of belligerents, flagrante
bello, if the sale be bond fide, is universally conceded. The
character of each transaction must be decided upon its
own merits. Although the transfer may have been made
with the evident intent to defraud the belligerent of the
rights to which he is entitled by the laws of war, never-
theless policy may induce him to treat it as a bona fide
transaction, rather than to involve himself in hostilities
with the pretended purchaser.1
§ 26. We have next to consider the effect of- military
occupation upon incorporeal things and rights, as debts,
&c. Of these it has been justly remarked : ‘ They cannot
in themselves be the subject of actual possession ; they are '
not external things on which the conqueror can lay his
armed hand. They are rights which exist in mental appre-
hension as connected with a given subject to which they
are attached, and with a material object upon which they
can be exercised.’ Therefore the Roman law philosophic-
ally said, ipsmn ins obligationis incorporale est, and again,
nee possideri videtnr ins ineorporale.’ It is, theiefore, only
by the actual possession of corporeal things to which the
incorporeal right attaches that the conqueror can be con-
sidered as occupying the latter; if he possess himself of
the former, he is considered to be in possession of both.
A distinction, however, is made between incorporeal rights
attached to a corporeal thing and those attached to a person.
Man, it is said, as the subject of rights, cannot be com-
pared to a thing ; his rights do not, so to speak, hang upon
him as they hang upon a piece of land; they rather pro-
ceed from him ; they constitute his intellectual or spiritual
property, which cannot, by the agency of what Grotius
calls a nndam ;bactnm, be separated, without his consent,
' 1 Heffter, Droit International, § 131 ; Duer, On Insurance, vol. i.
pp. 437, 438; the ‘Fama,’ 5 Rob., 97; the ‘Johanna Emelia,’
29 Eng. Law and Equity, R., 562 ; Cushing, Opinions of Attys.-Gen.,
vol. vi. p. 638. _
01!. XXXIII RIGHTS OF MILITARY OCCUPATION
495
' from his person.
It follows, therefore, that when a person
to whom certain rights belong is captured by ‘an enemy,
such capture gives to the captor only the corporeal and
actual things in the possession of the prisoner ; the posses-
sion of the creditor’s person does not give a {as exigendi of
his debts. It therefore follows, that incorporeal things,
such as debts, do not accrue to the conqueror as a con-
sequence of his possession of the person who is entitled
to them. The rule was somewhat different when prisoners
of war were made slaves. But what of instruments or
documents which contain the legal statement of the obliga-
tion of the obligor, as promissory notes, or mortgages?
Such documents are only evidences of debts, not the debts
themselves; the mere fact of their possession does not
authorise the possessor to exact payment from the pro-
misor. The original creditor may be entitled to recover
his debt though these instruments be lost or destroyed.1
§ 27. Does a military occupation of "a State carry with
it the incorporeal rights of the State, such as debts? In
other words, do these rights so attach themselves to the
territory that the military possession of the latter carries
with it the right to possess the former? There are two
distinct cases here to be considered: first, where the im-
perium of the conqueror is established over the whole
State (oictoria universalis); and second, where it is esta-
blished over only a part, as the capital, a province, or a
colony (oictoria particularis). All rights of military occupa-
tion arise from actual possession, and not from constructive
conquests ; they are defacto, and not de jure rights. Hence,
by a conquest of part of a country, the government of that
country, or the State, is not in the possession of the con-
queror, and therefore cannot claim the incorporeal rights
which attach to the Whole country as a State. But, by the
military possession of a part, it will acquire the same claim
to the incorporeal rights which attach to that part, as it
would, by the military occupation of the whole, acquire
to those which attach to the whole. We must also dis-
‘ 1 Digests, i. t. viii. I ; xli. t. iii. 4, § 27 ; xli. t. 3 ; Brunleyer,
Dis. de Occupatione Bellica, Argent. 1792 ; Pfeiffer, Das Recht der
Kriegseroberung, &c., pp. 44—60 ; Phillimore, 0n Int. Law, vol. iii.
§§ 545-548 ; Burlamaqui, Droit de la Nat. et des Gens, t. v. pt. iv.
ch. iii. § 14.
Debts due
to the
displaced
govern-
ment
496 INTERNATIONAL LAw on. xxxm
If former
govern-
ment be
restored
tinguish with respect to the situations of the debts, or
rather the locality of the debtors from whom they are
owing, whether in the conquered country, in that of the
conqueror, or in that of a neutral. If situated in the con-
quered territory, or in that of the conqueror, there is no
doubt but that the conqueror may, by the rights of ‘military
occupation, enforce the collection of debts actually‘ due
to the displaced government, for the de facto government
has, in this respect, all the powers of that which preceded
_it. But if situated in a neutral State, the power of the
conqueror, being derived from force alone, does _not reach
them, and he cannot enforce payment. It rests with the
neutral to decide whether he will, or will ‘not, recognise
the demand as a legal one, or, in other words, whether he
will regard the government of military occupation as suffi-
ciently permanent to be entitled to the rights of the original
creditor. He owes the debt, and the only question with
him is, who is entitled. to receive it? In deciding this
question he will necessarily be determined by the particular
circumstances of the case.1
§ 28. If the debt, from whomsoever owing, be paid to
the government of military occupation, and the conquest
is afterward made complete, no question as to the legality
of the payment can subsequently arise. But should the
former sovereign or government, after a lapse of time, be
restored, and the debtor receive his discharge, may the
original creditor demand a second payment ? The burthen
of proof, in such a case, lies upon the debtor ; and in order
to render the payment valid, and make it operate as a
complete discharge of the debt, he must show: 1st, that
the sum was actually paid, for an acquittance or a receipt,
without actual payment, is no bar to the demand of the
original creditor; 2nd, that the debt was actually due at
the time when it was paid; 3rd, that the payment has
not been delayed by a mora on the part of the debtor,
which had thus operated to defeat the claim of the original
creditor. If the debtor be a citizen of the conquered
country, or a subject of the conqueror, he must also show :
1 Real, Science du Gouvernement, t. v. ch. ii. § 5 ; Wolfius, ]us
Gentium, c. vii; §§ 833, 864 ; Vattel, Droit des Gens, liv. ch. xiv.
§ 213 ; Lauterbach, Colleg. Pandect. lib. xlix. t. xv. § 7.
GE. XXXIII‘ RIGHTS OF MILITARY OCCUPATION
497
4th, that the payment was compulsory—the effect of a
112's major upon the debtor—not necessarily extorted by
the use of physical force, but paid under an order, the
disobedience of which was threatened with punishment.
If the debtor be a neutral or stranger, he cannot plead
compulsion as a justification of his making payment to the
conqueror, but he must also show: 5th, that the constitu-
tional law of the State recognised the payment, as made
by him, “to be valid; in other words, that it was made in
good faith, and to the de facto authority.
sary condition, but it is a substantive defence against the
original creditor, that the money has been applied to his
benefit ; thus, in the case of a State creditor, if the money
has been applied to the benefit of the State—if there has
been what the civilians term a versz'o in rem—the payment
will be regarded as valid.1L
§ 29. The earliest historical example of the effect of
military occupation or conquest, on the payment or can-
celling of debts due to the conquered State, is that of the
hundred talents borrowed by the Thessalonians from
Thebes, and remitted by Alexander, as has been stated in
chapter xxi. This case, however, belongs rather to com-
plete conquests, than to mere military occupation ; for the
debt not being paid, but remitted, as a gift, the validity of
the gift could be sustained only on the ground that Alex-
ander had become so entirely and absolutely master of
Thebes, as to constitute him the universal successor to the
defunct and extinguished State. In the civil war between
Caesar and Pompey, the former remitted to the city of
Dyrrachium the payment of a debt which it owed to Caius
Flavius, the friend of Decius Brutus. The jurists who have
commented on this transaction, agree that the debt was
not legally discharged: Ist, because in a civil war there
could be, properly speaking, no occupation; and 2nd,
because it was a private and not a public debt. Another
classical example is that of the confiscation of Rhodian
1 Phillimore, 0% Int. Law, vol. iii. §§ 157, I58 ; Kluber, Em'op.
Vo'lkeweoht, §§ 258, 259 ; J. Voet, Com. ad Pcmdeotas, lib. xix. tit. ii.
§ 28. The United States refused to recognise any liability in respect
to the public debt of Cuba after the war of 1898 with Spain. This
attitude was taken up on the ground that it was not intended
that Cuba should form part of the United States.
VOL. H. K K
It is not a neces- '
Examples
from
ancient
history
498
INTERNATIONAL LAW on. xxxm
Examples
from
modern
history
houses and debts within the Syrian dominions, by Antiochus,
king of Syria; but this was settled by the peace which
provided for the status quo ante belluni.1 . . '
§ 30. The first example in modern times, referred to by
jurists, occurred in 1349. A Fleming lent a Frenchman a
thousand crowns; the latter contrived to delay the pay-
ment until war broke out between Flanders and France,‘
and then paid the money into the French treasury. After
the peace the Fleming again demanded his debt, but the
Frenchman defended himself by alleging the payment to
the royal treasury. He, however, was condemned to pay
back so much of the thousand crowns as he should ‘be
proved to have expended to his own benefit; in other
words, the court of his own country relieved him only to
the extent of the sum actually paid. The fraudulent mom
does not seem to have entered into the judicial investiga-
tion of this case. In a war between Pisa and Florence,
toward the close of the 15th century, the former com-
pelled, by threats of punishment, its subjects, who were
debtors to Florentine subjects, to pay their debts into the
Pisan treasury. A Pisan debtor, named Ludovicus, who
had so paid his debt, was nevertheless sued for it by his
Florentine creditor; the question was referred to Philip
Decius, a Milanese jurist of the highest reputation, who,
reciting the premises, concludes thatLudovicus was freed :
‘ Ex quibus omnibus concludo et indubitanter existimo,
quod Ludovicus mediante tali solutione fuerit liberatus.’
In the year I495, when Charles VIII. of France overran
Italy, and temporarily replaced the house of Anjou upon
the throne of Naples, the debts due to the State from the
opposite faction were called in, as a means of enriching the
Angevin party. Some of the debtors paid honestly their
debts ; others paid a portion, and obtained a receipt in full ;
others again obtained a written discharge, without paying
anything. Four months afterwards, Ferdinand of Aragon
was restored to power, and the French and Angevins driven
out ; and the validity of these payments was sharply con-
1 Quintilian, Inst. Orat. lib. v. c. x. ; Albericus Gentilis, De jure
Belli, lib. iii. 0. v. ; Cocceius, Grotius I llustratus, t. iii. pp. 202, 2 36 ;
Polybius, H istor. Exeerptaz Legationes, c.‘xxxv. ; Tittman, U eber den
Bund ales Amph. p. I35 ; Kamptz, Literatur, &c., § 307.
com xxxm RIGHTS OF MILITARY OCCUPATION
tested. The opinion of Matthæus de Afflictis, a jurist of
the highest authority, was invoked, which concluded in the
following words : ‘ Pm'ma conclusioa quod illi debitores regum
de Arragonia, qui fuerunt in mora solvendi dictis regibus
pecuniam debitam in genere, et jussu regis Caroli et suorum
oflicialium solverunt ipsis donatariis, non sunt liberatz', et
tenentur solvere dictis regibusa veris creditoribus Secunda
conclusio sit ista, quod illi debitores qui non fuerunt in
mora solvendi dictis creditoribusa sed jussi fuerunt ab
officialibus regis Franciae, quod solvant illis Gallis, virtute
largitatis regis, et ipsi fecerunt, quidquid eis fuit possibile,
ut non solverent, et realiter eis solverunt propter jussum
poenalem, et isti sunt liberati fci/tiu conclusio sit istaa
quod si debitor fuit in mora, sed erat infra tempus pur-
gandi moram, et infra illud tempus sit exactus ab illis
Gallis jussu magistratus, tunc solvendo Gallis perinde
habetur ac si non esset in mora, et sic erit liberatus quarta
conclusio sit ista, quod debitor, qui solvit Gallis illam
pecuniam debitam regibus de Arragonia virtute jussus
magistratus, cui non potuit resistere, et pecuniam illam
debitam post diem solutionis faciendæ erat soliturn, quod
ipsi debitores penes se retinebant pro expensis occur-
rentibus in administratione officii nomine regio, si ipsam
pecuniam Gallis solverunt, sunt Zz'beratz', etiam quod fuerint
in mora. Quinta conclusio sit ista, quod illi debitores, qui
solutionem probant per confessionem Gallorum publicam
vel privatam, ita quod non probant veram numerationem
pecuniæ eis factama non sunt liberatip sed debent solvere
veris creditoribusy quantumcunque ostenderint dictum
jussum. Scxtu conclusioi quod illi debitores, qui se con-
cordaverunt, et non ostendurit veram solutionem in totum
vel in partern, non sunt liberati Exitus rei approbavit istas
conclusiones.’ The case of the debtors of the Prince of
llesse-cassela which has furnished such a fruitful subject
for discussion by modern jurists, belongs rather to com-
plete conquests than mere military occupation, and will,
therefore, be considered in the next chapter. The only
additional case in modern times, to which We shall here
refer, occurred during the war between the United States
and the republic of Mexico. The Laurents, British sub-
jects domiciled in Mexico, had purchased of the Mexican
K K 2
500 7 INTERNATIONAL LAW 011. xxxm
‘government, in 1847, certain church property, the sale of
which had been previously authorised by a law of the
Mexican Congress. The contract of sale was duly signed
by the Laurents as purchasers, and by the agents of the
government as the sellers, and the purchase money de-.-.
posited in the hands of a banker, vto await the execution of
the conveyance by the proper government officer. By
some neglect the instrument had not been signed, but the
purchasers were in possession of the property, and the
money still remained on deposit when the city of Mexico
was captured by the American forces. This money was
seized and confiscated by General Scott as the property of
the Mexican government. On the return of peace the
church reclaimed the property, and, on suit, recovered its
possession from the Laurents, not on the ground of a default
of payment, but of illegality of sale. The Laurents then
made a reclamation against the United States for the
money confiscated, as British subjects, before the joint
commission of the two governments. The commissioners
being unable to agree, the case was referred to the umpire,
who decided that, according to the rules of international
law, the claimants were, at least for the time being, to be-
regarded as Mexican citizens, and not British subjects.
Their claim was, therefore, rejected.1
1 Paponius, Recueil d’Arre’ts, liv. v. tit. vi. Arrét 2 ; Phillimore,
On Int. Law, vol. iii. §§ 565-569; Commission of Claims between
U.S. and G. Britain, pp. 120—160 ; Philip Decius, Consilia, c. xxv. ;.
Matthaeus de Afflictis, Decisiones Nap, Dec. 150; Pfeiffer, Das
Recht der Kriegseroberung, pp. 191, 192.
501
CHAPTER XXXIV
RIGHTS OF COMPLETE CONQUEST
r. Conquests, how completed—2. Acquisition of parts of a State—-
- 3. Subj ugation of an entire State—4. Retroactive effect of
confirmation of conquest—5. Transfer of personal allegiance
by conquest—6. The assent of the subject required—7. Such
assent determined by domicile—8. Case of Hallemund—g.
Application to naturalised citizens and foreign subjects—-
10. Rule varied by treaty and by municipal law—I I. Right
to citizenship under new sovereignty—r 2. English law on
this subject—13. American decisions—I4. Laws of the con-
quered territory—r 5. Conquered territory under British laws--
16. Under the United States-17. Laws of conquered State,
how affected by the new sovereignty—18. How affected by
laws of military occupation—19. What laws of new sovereignty
extend over it—zo. Conquests and discoveries—21. Laws
contrary to fundamental principles of new sovereignty-—
22. American decisions—2 3. Revenue laws in California—24.
Conquest changes political rights, but not rights of property—-
2 5. Title to private estate—26. Necessity of remedial laws
for such titles—~27. Effect of conquest on the property of the
State—~28. Alienated domains of Hesse-Cassel—29. Debts of
Hesse-Cassel.
§ I. AS already remarked, the conqueror’s title to im-
movable property taken from the enemy may be completed
in various ways, as by a treaty of peace or of cession, by
entire subjugation and the incorporation with the con-
quering State, by civil revolution and the consent of the
inhabitants, or by mere lapse of time and the inability of
the former sovereignty to recover its lost possessions. We
will proceed to consider these different modes of confirma-
tion. The title to conquered territory is made complete
by a treaty of peace, either by express provisions of cession,
or by the implied condition of mi possz'detzsl If the stipu-
lation of cession be introduced in the treaty, it is usual to
require of the conqueror certain stipulations with respect
to the inhabitants of the ceded conquered territory, in order
to secure to them rights not guaranteed by the positive
1 Clark 11. United States, 3 Wash. C. C., 101.
Conquests,
how com-
pleted
502 INTERNATIONAL LAW 011. um
law of nations. But the conqueror’s title is equally made
complete by the silent operation of a general treaty of
peace ; for, as the principle of uti possidetis is the basis of
every such treaty, the conquered territory, unless the con--
trary be expressed, remains with the conqueror, and his
title cannot afterwards be called in question. But a treaty
is not the only mode in which the rights of conquest are
confirmed and made valid. If the State. to which the con-'
quered territory belonged is entirely subjugated, and its;
power destroyed, the title of. the conqueror is considered
complete from the date of the subjugation of the former‘
sovereign owner, In this case there could be no treaty of‘
cession or confirmation, for, by supposition, the former
owner no longer exists as a Sovereign State; it, therefore,
can neither confirm nor call in question the conqueror’s
title. So, also, if the State to which the conquered terri-
tory belonged be so weakened by the war as to afford no
reasonable hope of ever being able to recover its lost terri-
tory, but, from pride or obstinacy, it refuses to make any
formal treaty of peace, although destitute of the requisite
means of prolonging the contest, the conqueror is not
obliged to continue the war in order to force the other party
into a treaty. He may content himself with the conquest
already made, and annex it to, or incorporate it with, his
own territory. His title will be considered complete from
the time he proves his ability to maintain his sovereignty
over his conquest, and manifests, by some authoritative
act, as of annexation or incorporation, his intention to
retain it as a part of his own territory. Both of these
requisites—ability to maintain and intention to retain—are
necessary to complete the conquest; and the latter must
be manifested by some unequivocal act, as annexation or‘
incorporation, made by the sovereign authority of the-
conquering State. Without some such authoritative act,
the conquered territory is held by the rights of military
occupation only, and not as a complete conquest. So far
as neutrals are concerned, it belongs to the conquering
State, but does not form a part of it. It is held by the
right of possession and not by complete title, and is there-
fore subject to the rights of postliminy. Again, if the
conquest be accompanied by a civil revolution and a change
on. xxxrv RIGHTS or COMPLETE CONQUEST 503
of internal government, as where a colony or province
revolts against the former sovereign, and, with the assist-
ance of the conqueror, establishes its ‘own independence,
and unites itself to the conqueror, the sovereignty of the
former owner may be regarded as extinguished by the act
of separation, independence and voluntary annexation or
incorporation, and without a treaty of peace, or of cession.
The new internal government so organised and recognised
acts for itself, independently of its former sovereign. Such
cases, however, are of rare occurrence. In whatever way
the conquest is completed, the institutions of the con-
quering power usually require some definitive act in order
to annex or incorporate the conquered territory, so as to
complete the conquest and perfect the title. In such cases
no alienation to a third party can be made complete till
the conquest itself is perfected by such definitive act.
Thus, the President of the United States, when war is duly
declared, may conquer and take possession of foreign terri-
tory, but the joint action of the President and Senate is
required to complete it by treaty, and Congress alone can
annex it, or incorporate it into the Union. Without such
act of treaty confirmation, or of lawful annexation or
incorporation, the title to any conquest made by the United
States would still be considered in international law as
incomplete.1
§ 2. The conqueror who acquires a province or town
from the enemy, acquires thereby the same rights which
were possessed by the State from which it is taken. If it
formed a constituent part of the hostile State, and was
fully and completely under its dominion, it passes into the
power of the conqueror upon the same footing. It is
united with the new State upon the same terms on which
it belonged to the old one ; that is, with only such political
rights as the constitution and laws of the new State may
see fit to give it. It retains no political privileges or im—
1 Wheaton, Elem. Int. Law, pt. ii. ch. iv. § 5 ; Fleming et al. v.
Page, 9 H award R. 603 ; Heffter, Droz'zf International, §§ 69, I 3 3, I78.
185 ; Phillimore, On Int. Law, vol. iii. §§ 568 et seq. ; Riquelme,
Derecho PzZb. Int. lib. i. t. i. c. xii. ; Meerman, Von dem Reeht der
Eroberung, passim; Kluber, Droz't des Gens M0d., § 256 ; Martens,
Pre’ez's du Droz't des Gens, § 277 ; Sirey, Reeuez'l, &c., xvii. I, 217 ;
xxx. 1. 280 ; the ‘ Boedes Lust,’ 5 Rob. 23 3 ; the ‘ Flotina,’ 1 Dad.
R. 450.
Acquisi~
tion of
parts of
a State
504 INTERNATIONAL LAW
on. xxxrv
munities, but may acquire those it never possessed before.
In political rights it may be the gainer or the loser by the
change; if from being a part of an absolute monarchy it
becomes a part of a republic, its liberties will be enlarged,
or, if ‘the reverse, they will be restricted. But such re-
striction, in any case, must be in conformity with _the
rights of conquest and the laws of war.‘ When New Mexico
formed a part of the Mexican Republic, it enjoyed the right
of representation in the Mexican Congress‘; on the con-
quest of that territory by the arms ‘of the United States,
under Gen. Kearny, a clause was introduced into the new
organic law for sending a representative to the Congress
of the United States. This part of the organic law was
disapproved by the President, and even without such dis-
approval, it was utterly inoperative, for this right of repre-
sentation was a political right, ‘which was lost by the very
act of conquest, and could be restored to it only by the
action of Congress, after its permanent incorporation into
the conquering republic. The case, however, is different
where the enemy possessed only a quasi-sovereignty, or
limited political rights, over the conquered province or
town. The conqueror acquires no other rights than such
as belonged to the State against which he has taken up
arms. ‘ War,’ says Vattel, ‘ authorises him to possess him-
self of what belongs to his enemy. If he deprives that
enemy of the sovereignty of a town or province, he acquires
it, such as it is, with all its limitations and modifications.
Accordingly, care is ' usually taken to stipulate, both in
particular capitulations and in treaties of peace, that the
towns and countries ceded shall retain all their liberties.
privileges, and immunities.’ But where such conquered
provinces and towns have themselves taken up arms against
him, thus making themselves directly his enemies, the con-
queror may regard them as vanquished foes and treat
them precisely as he would treat other conquered territory.1
§ 3. If the hostile nation be subdued and the entire
State conquered, a question arises, as to the manner in
which the conqueror may treat it without _transgressing the
subjuga-
tion of an
entire
State
' 1 Cross 11. Harrison, 16H ow. R. 194 ; American Ins. Co. v. Cahter,
I Peters R. 542 ; Marcy to Kearny, Jan. II, 1847, Ex. Doc., No. 17,
31st Cong, 1st sess. H. R. _
OH. XXXIV
RIGHTS or COMPLETE CONQUEST 505
' keep them under subjection.’
just bounds established by the rights of conquest. If he
simply replaces the former sovereign, and, on the submis-
sion of the ‘people, governs them according to the laws of
the State, they can have no cause of complaint. Again, if
he incorporate them with his former States, giving to them
the rights, privileges, and immunities of his own subjects,
he does for them all that is due from a humane and equit-
able conqueror to his vanquished foes. But if the con-
quered are a fierce, savage, and restless people, he may,
according to" the degree of their indocility, govern them
with a tighter rein, so as to curb their ‘ impetuosity, and to
Moreover, the rights of con-
quest may, in certain cases, justify him in imposing a
tribute or other burthen, either a compensation for the
expenses of the war, or as a punishment for the injustice
he has suffered from them. But if he attempts to reduce
the conquered people to a state of absolute subjection, or
slavery, there is no complete conquest, for the state of
warfare between the nation and himself is perpetuated.
The Scythians said to Alexander the Great : ‘ There is never
any friendship between the master and the slave. In the
midst of peace the rights of war still subsist.’ 1
§ 4. We have already remarked, that when one bel-
ligerent acquires military possession of territory belonging
to an enemy, the sovereignty and dominion of the latter is
suspended. If such possession be retained till the com-
pletion or confirmation of the conquest, the temporary
dominion thus acquired by the conqueror becomes full and
complete, plenum domz'm'um et utile. Moreover, this con-
firmation or completion of the conquest has, so far as
ownership is concerned, a retroactive effect, confirming the
conqueror’s title from the date of the conquest,2 and,
therefore, making definitely valid his acts of ownership—
1 Vattel, Droit des Gens, liv. ch. xiii. § 201 ; Pufiendorf, De
jure N at. et Gent. lib. viii. 0. vi. § 24 ; Réal, Science du Gouoemement,
t. v. ch. ii. § 5 ;Abegg, Untersuohungen, &c., p. 86.
2 Conquest gives a title, which the courts of the conqueror
cannot deny, whatever may be the speculative opinions of indi-
viduals, respecting the original justice of the claim, which has been
successfully asserted. But although this title is acquired and
maintained by force, humanity, acting on public opinion, has
prescribed rules and limits by which it may be governed. Thus, it
is a rule that the captured shall not be wantonly oppressed, and
Retro-
active
effect of
confirma-
tion of
conquest
506 INTERNATIONAL LAW on. xxxlv
Transfer
of per-
sonal alle-
giance by
conquest
alienation included-during his military occupation. But
it can hardly be said, that the confirmation of the con-'-
queror’s title, by such retroactive effect, changes the pre—
vious legal condition of the conquered territory, and
especially in its external relations. That is, the confirma-
tion of the conquest does not make it a part of the con—
quering State during the time it was held simply under the
rights of military occupation. Thus, a the duties imposed
on foreign goods, imported into such territory during
military occupation, may have been very different from
those which the conqueror could have imposed upon the
same goods, when imported into his own State; if the
confirmation of the conquest made such territory, in all
respects, a part of the conquering State, from the date of
its military occupation, it would be necessary to refund
the difference between the collections made in it, as simply
a foreign conquered territory, and those which could have
been made in it, as a constituent part of the conquering
State. This could hardly be claimed. The true theory is,
that the retroaction of complete conquest only goes so far
as to give permanency to the acts of the conqueror, done
during military occupation.
§ 5. It is a general rule of international law that, on
the transfer of territory by complete conquest or cession,
the allegiance of the inhabitants of the conquered or ceded
territory is transferred to the new sovereign.1 Even the
perpetual allegiance of the English Common Law yields to
treaty, and it is held that when the king cedes by treaty,
that their condition shall remain as eligible as is compatible with the
objects of the conquest. Most usually, they are incorporated with
the victorious nation, and become subjects or citizens of the govern-
ment with which they are connected. The new and old members
of the society mingle with each other, the distinction between them
is gradually lost, and they become one people. Where this incor-
poration is practicable, humanity demands, and a. wise policy
requires, that the rights of the conquered to property should remain
unimpaired, that the new subjects should be governed as equitably
as the old, and that confidence in their security should gradually
banish the painful sense of their being separated from their ancient
connections, and united by force to strangers. When the conquest
is complete, and the conquered inhabitants can be blended with the
conquerors, or safely governed as a distinct people, public opinion,
which not even the conqueror can disregard, imposes those restraints
upon him, and he cannot neglect them without injury to his name
and hazard of his power. (Johnson v. McIntosh, 8 Wheat. 543.)
1 Vide ante, ch. xii. §§ 3o, 31.
on.xxx1v RIGHTS OF COMPLETE CONQUEST 507
the inhabitants of the ceded territory become aliens. In
the absence of express treaty stipulations, or legislation by
the conqueror, the relations between the conquered and
the conqueror are determined by the law of nations, which
establishes the general rule, that the allegiance of the con-
quered is transferred to the new sovereign. It was held
'by the early civilians that such transfer of allegiance was
absolute and unconditional, unless otherwise provided by
some treaty stipulation; but the rule, as now understood
and interpreted, is more liberal and just towards the in-
habitants of the conquered territory. Burlamaqui very
justly remarks that ‘ the end of a just war does not always
demand that the conqueror should acquire an absolute and
perpetual right of sovereignty over the conquered. It is
only a favourable occasion of obtaining it, and for that
purpose there must be an express or tacit consent of the
vanquished. Otherwise, the state of war still subsisting,
the sovereignty of the conquered has no other title than
that of force, and lasts no longer than the vanquished are
unable to throw off the yoke.’ It has been shown in the
preceding chapter, that on mere military conquest, the
conquered may, but do not necessarily, cease to be regarded
as aliens to the government of the conqueror; that mere
military occupation does not, of itself, transfer the allegi-
ance of the inhabitants of the territory so occupied abso-
lutely and unconditionally to the conqueror. It only sus—
pends their allegiance to their former sovereign, and im-
poses on them a temporary or limited allegiance to the
government ‘of military occupation. If the conquest is
surrendered to the former owner, the temporary allegiance
of the inhabitants ends with the temporary sovereignty of
the conqueror, and the former owner, in recovering his
sovereignty, recovers his claim to the allegiance of the
inhabitants, and resumes the duty of protecting them.
But, if the conquest is confirmed, the allegiance to the former
sovereign is entirely severed, and that to the conqueror
remains as it is, or becomes absolute, according to the
relations which the inhabitants of the conquered territory
hold towards the new sovereignty.1
1 Vattel, Droz't des Gens, liv. iii. ch. xiii. § zoo ; Grotius, De jut/e
Bell. ac Pae. lib. iii. c. viii. ; Burlamaqui, Droz't de la Nat. et des
508 INTERNATIONAL LAW on. xxxrv
The assent
of the
subject
required
§ 6. The rule of public law, with respect to the allegiance
of the inhabitants of a conquered territory, is, therefore, no
longer to be interpreted as meaning that it is absolutely
and unconditionally acquired by conquest, or transferred
and handed over by treaty, as a thing assignable by con-
tract, and without the assent of the subject. On the con-
trary, the express or implied consent of the subject is now
regarded as essential to a complete new allegiance. The
ligament which bound him to the, former sovereign is dis-
solved by the transfer of the territory, for that sovereign
can no longer afford him any protection in that territory.
But he is still an alien to the new sovereign, and owes to
him only that kind of allegiance called in law local or
temporary, and which is due from any alien, while resident
in a foreign country, for the protection which is afforded
him by the government of such country. If the inhabitants
of the ceded conquered territory choose to leave it on its
transfer, and to adhere to their former sovereign, they have,
in general, a right to do so. None but an absolute and
tyrannical sovereign would force them to remain and
become his unwilling subjects. By doing so he holds them
in a kind of slavery, and, as justly remarked by Burla-
maqui, continues the state of war between him and them.
The rule of international law with respect to the transfer
of the allegiance of the inhabitants of conquered territory,
as established by the present usage of nations, is thus
stated by Chief Justice Marshall, in delivering the opinion
of the Supreme Court of the United States : ‘ On the transfer
of territory, the relations of its inhabitants with the former
sovereign are dissolved : the same act which transfers their
country, transfers the allegiance of those who remain in it.’
The allegiance of those who do not remain, of.course, is not
so transferred with the territory. In other words, they do
not, by the transfer of the country, become the citizens or
Gens, t. iv. pt. ii. ch. iii. ; Puffendorf, De ]ure Nat. et Gent. lib. viii.
c. vi. § 24 ; Doe d. Thoman o. Acklam, 2 B. C. R. 795 ; Woodeson,
vol. 1. lect. xiv. p. 382, cited, 2 Cranch. R. 290; United States v.
- Perchman, 7 Peters R. 86 ; Inglis'v. the S. S. ‘ Harbour,’ 3 Peters R.
122 ; Lucas 1). Strother, 12 Peters R. 436 ; Campbell 1). Hall, I Cowp.
R. 208 ; Talbot 1). Jansen, 3 Dallas R. 1 5 2 ; Lynch 1). Clarke,
I Sand)‘. R. 644; M‘Ilvaine o. Coxe’s Lessee, 4 Cranch. R. 211 ;
Rayneval, Inst. du Droit N at., &c., liv. iii. ch. xx. ; Westlake, Prioa
Int. Law, § 27 ; Riquelme, Derecho Pub. Int. lib. i. tit. i. c. i. _ -
OH. RIGHTS OF COMPLETE CONQUEST 509
. of the United States.
subjects of the conqueror, nor has he acquired any ‘ abso-
lute and perpetual right of sovereignty ’ over them. There
is no ‘ consent,’ either ‘ express or tacit,’ on their part,
in order to make the transfer of allegiance complete and
binding. But it is said that they deprive themselves of
protection to their property, except so far as it may be
secured by treaty.1 The American States, during the War
of Revolution, insisted upon the allegiance of all born
within the States respectively, and Great Britain asserted
an equally exclusive claim. When Great Britain acknow-
ledged the independence of the States a question arose
which gave birth to many legal opinions 2—-viz. whether
the inhabitants who had remained loyal to the English
Crown during the contest were, in consequence of the
success of the rebellion, to’ lose their rights and privileges
as British subjects. The treaty of Paris, in 1783, provided
that there should be no confiscations or prosecutions against
any persons for the part they had taken in the war, and
that no persons should suffer on that account any future
loss or damage ; but it was silent on the subject of future
allegiance, further than his Britannic Majesty relinquished
all claim to the government, property, and territorial rights
Similarly, at the close of the Franco-
German war, 1870, those natives of Alsace and Lorraine
who retained their French nationality were forced to leave
the ceded provinces, but nevertheless were permitted by
the treaty of Frankfort to keep possession of their lands
within the conquered territory.
§ 7. From the above rule of international law it appears
that the transfer of territory establishes its inhabitants in
such a position toward the new sovereignty, that they
may elect to become, or not to become, its subjects. Their
obligations to the former government are cancelled, and
they may, or may not, become the subjects of the new
government, according to their own choice. If they re-
main in the territory after this transfer, they are deemed
to have elected to become its subjects, and thus have
consented to the transfer of their allegiance to the new
sovereignty. If they leave, sine aniino ie'uen‘endi, they are
’ United States v. Repentigny, 5 Wall. 2Ir.
" Forsyth, Constit. Opinions, 336.
Such as-
sent deter-
mined by
domicile
510 INTERNATIONAL LAW 0H. xxxxv
Case of
Halle-
mund
deemed to have elected to continue aliens to the new~
sovereignty. The status of the inhabitants of the con-
quered and transferred territory is thus determined by their
own acts. This rule is the most just, reasonable, and
convenient, which could be adopted. It is reasonable on
the part of the conqueror, who is entitled to know who
become his subjects, and who prefer to continue aliens;
it is very convenient for those who wish to become the
subjects of the new State ; and is not unjust toward those
who determine not to become its subjects. According to
this rule, domicile, as understood and defined in public
law, determines the question of transfer of allegiance, or
rather, is the rule of evidence by which that question is to
be decided.L
§ 8. This rule of evidence, with respect to the allegiance
of the inhabitants of ceded conquered territory, may be
inconvenient to those who do’ not become subjects of the
new sovereignty, as it requires them to change their domi-
cile; but it is necessary for the protection of the rights of
those who elect to become subjects of the new government,
and especially necessary for determining the rights and
duties of the government whichv acquires their allegiance,
and is bound to afford them its protection. It would not
be proper to leave the status of the inhabitants of the
acquired territory undetermined, and to suffer a man’s
citizenship to continue an open question, subject to be
disputed by any person at any time, and to change with
his own intentions, as might best suit his interest. The
reason of the rule is manifest. If we abandon the old
principle of a forcible transfer of allegiance, and adopt
that of an express or implied consent, it is necessary to
adopt some rule of "evidence by which that consent is to
be determined; we know of no better rule than that of
domicile, as laid down by the Supreme Court of the United
States, and approved by the best writers on public law?
1 Foelix, Droit Int. Prive’, §§ 35, 36 ; Westlake, Private Int. Law,
§ 27 ; Doe v. Acklam, 2 B. and C. R. 779 ; Doe v. Mulchester, 5 B.
and C. R. 771 ; Doe v. Arkwright, 5 C. and P. R. 575 ; Jepson v.
Riera, 3 Knapp R. 130 ; In re Bruce, 2 C. and ]. R. 436; Com. 0.
Devreaux, r3 Sim. R. 14 ; Thompson 1). Adm-Gen.‘ I 3 Sim. R. 152 ;
12 Cl. and F. R. 1.
2 Am. Ins. Co. v. Canter, 1 Peters R. 542 ; M‘Ilvaine v. Coxe’s
OH. xxxrv RIGHTS OF COMPLETE CONQUEST SII
The following is an excellent illustration : Count Platen
Hallemund was prime minister of Hanover at the time of
the capitulation of its army to Prussia in I866. Hanover
was afterwards forcibly annexed to Prussia, but before the
annexation Count Platen left Hanover in the suite of the
ex-King, who, by the terms of the capitulation, was allowed
to choose his own residence, together with a suite of atten-
dants. ‘They took up their abode at Vienna; and, while
there, Count Platen was summoned to appear before the
Supreme Court of Judicature (Kammergericht) in Berlin,
on a charge of high treason, alleged to have been committed
by him abroad ‘ as a royal Prussian subject,’ after he had
ceased to reside in Hanover. According to the law of
Prussia only a Prussian subject can be prosecuted before
a Prussian court for an act of high treason committed
abroad, and it was therefore necessary to assume that
Count Platen had become a Prussian subject in consequence
of the annexation of Hanover by Prussia. He by his
counsel pleaded to the jurisdiction of the court on the
ground that he had never become a Prussian subject ; and
elaborate opinions were given by two German jurists (Pro-
fessor Zacharias of Gottingen and Professor Neumann of
Vienna) to the effect that he had not. The court, how-
ever, overruled the plea, and proceeded against the Count
in contitinaciain, sentencing him to penal servitude for
fifteen years. The propositions which Professors Zacharias
and Neumann maintained in their opinions with much
learning were, that the mere fact of conquest or forcible
annexation did not create the relation of sovereign and
subject between the conqueror and the conquered, but that
there must be either an express or tacit submission for the
purpose, and in ‘ tacit submission ’ would be included the
remaining Within the sphere of the power of the new
dominion and fulfilling the duties of subjects ; but that it
must be entirely left to the choice of the subjects of the
subdued State whether they would acknowledge the new
sovereign power or not. Consequently they are at liberty
to emigrate, but if they remain ‘ they thereby tacitly
Lessee, 4 Cranch. R. 21,1 ; Inglis v. the S. S. ‘ Harbour,’ 3 Peters R.
122 ; Riquelme, Dereaho Pzib. Int. lib. i. tit. i. c. I ; Westlake, Private
International Law, § 27 ; Foelix, Droit Int. Prior’, §§ 3 5, 36.
5I2 INTERNATIONAL LAw on. xxxrv
Its appli-
cation to
foreign
residents
declare that they enter the new State and population
community ; that is, the fact of their remaining is, accord-
ing to the present law, considered as a silent declaration to
that effect.’ ‘
§ 9. The modern construction of the law of nations, with
respect to the allegiance of the inhabitants of conquered or
ceded territory, avoids all questions of the right of the one
State to transfer, and of the other to claim, the allegiance of
subjects of neutral States who are naturalised or domiciled
in the territory transferred by conquest or treaty. All are
alike aliens to the new sovereignty, if they elect to continue
so, and all become its subjects, if it consents to receive them
and they, by remaining in the transferred territory, signify
their election to become such. The new State has the same
undoubted right to receive the voluntary allegiance of the
subjects of a neutral power, who are naturalised or domiciled
in the acquired territory, as of the subjects of that power
when they voluntarily enter the State and become its
citizens by the ordinary modes of naturalisation. The
former government, by the act of cession or confirmation of
conquest, has relinquished all its claim to the allegiance of
the inhabitants of the transferred territory, whether natives,
naturalised citizens, or domiciled aliens. The old State,
by the transfer of the territory, relinquishes its claim to the
allegiance of its inhabitants, and the new State, by their
tacit consent, receives them as its subjects. The neutral
State can no more complain of the conqueror, for receiving
as citizens its subjects who were naturalised by the con-
quered State, than it had to complain of the latter for
naturalising them. Naturalisation by conquest and in-
corporation can no more be complained of than naturalisa-
tion by any other mode] so long as it is voluntary on the part
of the person naturalised. And the transfer of allegiance.
by the rule of domicile, or animo manendi, in the conquered
territory, is certainly voluntary on the part of those who so
remain.2
§ IO. The inconvenience to those who do not transfer
1 Forsyth, Constit. Opinions, 3 3 5; Heffter, Das Europa'ische
Vb'lkerrecht, §§ 178, 185 ; Schwarz, De ]ure Victoris in Res Incor-
porales (I720) ; Vattel, liv. iii. 0. 13, § 201.
2 Dubois case, 1 Martin R. 285 ; United States I). Laverty et al.
Martin R. 747 ; Pothier, Traite' des Personnes, tit. ii. § 1.
0H. XXXIV RIGHTS OF COMPLETE CONQUEST
513
their allegiance, arising from making the law of domicile
the rule of evidence by which to determine the consent of the
conquered, may be avoided by treaty stipulations, or by the
municipal laws of the conqueror. Provisions are some-
times made in treaties for special modes by which the
inhabitants of ceded territory shall exercise their right of
election othewise than by domicile, such as judicial declara-
tions and public registrations of intentions. Thus, in the
eighth article of the treaty of Guadalupe-Hidalgo, between
the United States and the Republic of Mexico, in I848, it was
provided that Mexican citizens established in the ceded
territory might retain the character of Mexicans by declar-
ing their intentions to that effect, within one year from the
date of the exchange of ratifications; but without such
declaration within such time, they were to be considered as
having elected to become citizens of the United States.
But no provisions of this kind were made in the treaties by
which Louisiana and Florida were acquired; it, therefore,
became necessary, in deciding questions of citizenship, in
the absence of any special modes, to resort to the general
rule of international law, which makes domicile the evidence
of assent or refusal, on the part of the inhabitants, to transfer
their allegiance to the new sovereignty. In the treaties of
1814 and 1815, by which certain portions of territory
acquired since I791 by France were re-ceded to the allies,
it was stipulated that the inhabitants of such territory
who wished to remain in France might become Frenchmen
by declaring their intention within a specified time. But
this stipulation was objected to by French publicists as
being harsh and illiberal, because it assumed that the
national character of the inhabitants was forcibly changed
by the transfer of the territory, leaving them no option to
retain by domicile in French territory their character of
Frenchmen.1
§ II. It may be laid down as a general rule, that the in-
habitants of a conquered territory who remain in it, become
citizens of the new State ; for justice would seem to require
that the rights of citizenship should be given them in return
for their allegiance. But this general rule of justice must
yield to the conditions upon which the conquered are
1 U. S. Statutes at Large, vol. viii. pp. 202, 256.
VOL. II. L L
Rule may
be varied
by treaty
or munici-
pal law
Right to
citizen-
ship under
new sove‘
reignty
514 INTERNATIONAL LAw “ on. XXXIV
English
law on
this sub-
incorporated into the new State, and to the peculiar character
of the institutions and municipal laws of the conqueror. It
could not reasonably be expected that the conquering
State would modify or change its laws and political institu-
tions by the mere fact of incorporating into it the inhabi-
tants of a conquered territory. The inhabitants so incor-
porated, therefore, may, or may not, acquire all the rights
of citizens of the new government, according to its consti-
tution and laws. It may, and sometimes does, happen,
that a certain class of the citizens of the conquered territory
are, by the laws of the new State, precluded from ever
acquiring the full political rights of citizenship. This is the
necessary and unavoidable result of the different systems
of law which prevail in different States. Thus, certain
persons who were citizens of Mexico, in California and
new Mexico, on the transfer of those territories to the
United States, by the treaty of Guadalupe-Hidalgo, never
have and never can become citizens of the United States.
Such citizenship is repugnant to the Federal Constitution
and Federal organisation. Nevertheless, they may be
citizens of California or New Mexico, according to the local
constitutions and laws which those countries have already
adopted, or which they may hereafter adopt.l
§ 12. As has already been remarked, the laws of different
countries with respect to the relations between the con-
queror and the inhabitants of an acquired conquered
territory, are very different. The rules of English law on
this subject are, that ‘ a country conquered by the British
arms becomes a dominion of the king in the right of his
crown, that the conquered inhabitants once received under
the king’s protection, become subjects, and are to be
universally considered in that light, not as enemies or
aliens.’
and are entitled to the protection of subjects, it does not
follow that they are entitled to all the political rights of an
Englishman in England. They have the rights of British
subjects in the conquered territory, but not necessarily the
political rights of British subjects in other parts of the empire.
It is said that ‘ an Englishman in Ireland, Minorca, the
1 Dred Scott 1). Sandford, 19 Howard R. 393 ; Talbot 11. Janson;
3 Dallas R.'153. ' ' ‘
Although they owe the allegiance of subjects, '
on. xxxrv RIGHTS OF COMPLETE CONQUEST
515
Isle of Man, or thePlantations, has no privilege distinct
from the natives.’ But an Englishman in Minorca has not
the political rights of an Englishman in England. The
inhabitants of a conquered territory are therefore British
subjects, with the local rights of British subjects, but not
with all the rights of Englishmen in the realm.l
§ 13. The Supreme Court of the United States seems to
have based its decisions upon the same general principles.
The 6th Article of the treaty by which Spain ceded the
Floridas to the United States, is as follows : ‘ The inhabi-
tants of the territories which his Catholic Majesty cedes to
the United States, by this treaty, shall be incorporated in
the Union of the United States, as soon as may be con-
sistent with the principles of the Federal Constitution,_
and admitted to all the privileges, rights, and immunities
of citizens of the United States.’ In delivering the opinion
of the Supreme Court on this clause, Chief Justice Marshall
remarks: ‘ This treaty is the law of the land, and admits
the inhabitants of Florida to the enjoyment of the privileges,
rights, and immunities of the citizens of the United States.
It is unnecessary to inquire, whether that is not their condi-
tion, independent of treaty stipulation. They do not,
however, participate in political power; they do not share
in the government, till Florida shall become a State.’ The
Word citizen is here used in its more extended sense, as un-
derstood in the law of nations, including men, women, and
children, and not in the more restricted meaning attached
to it in municipal law; that is, a person who, under the
Constitution and laws of the United States, has a right to
vote for representatives in Congress and other public
officers, who is qualified to fill oflices under the Federal
Government, and who may sue and be sued as a citizen
of the United States. There can be little or no doubt
that the inhabitants of Florida, as intimated by Chief
Justice Marshall, were entitled, without the treaty stipula-
tion, to the ‘ privileges, rights, and immunities ’ of citizens,
in this more extended sense of the term; but their right
to be incorporated in the Union, and participate in political
1 Wildman, Int. Law, vol. i. p. 162 ; the ‘ Flotina,’ 1 Dad. R. 450 ;
Calvin’s case, Coke R. pt. vii. ; Callet .0. Lord Keith, 2 East. 260;
Blankard v. Guldy, 4 Mod. R. 225. __
American
decisions
LL2
516 INTERNATIONAL LAW 011. xxxrv
Laws of
the con-
quered
territory
power, was derived from the treaty, and not a necessary
consequence, under the law of nations, of the transfer of
their country and of their allegiance. Their political
power under the Federal Constitution and the laws of the
United States, resulted from the admission of Florida into
the Union as a State, and the political rights of citizenship
of the United States thereby acquired were determined
and limited, with respect to age, sex, colour, and condition,
by its institutions and laws. It must also be remarked
that a man may become a citizen of the United States
without being a citizen of any particular State, or may
become a citizen of a particular State without being a citizen
of the United States.1
§ 14. ‘ The laws of a conquered country,’ said Lord
Mansfield, ‘ continue in force until they are altered by the
conqueror; the absurd exceptions as to pagans, mentioned
in Calvin’s case, shows the universality and antiquity
of the maxim. For that distinction could not exist before
the Christian era, and in all probability arose from the mad
enthusiasm of the crusades.’ This refers to the municipal
laws of the conquered country, but not to its political
laws, or to the relations of the inhabitants with the govern-
ment. On the transfer of territory, it has never been
held that the relations of the inhabitants with each other
undergo any change. Their relations with their former
sovereign are dissolved, and new relations are created
between them and the government which has acquired
their territory ;——the law, which may be denominated
political, is necessarily changed, although that which
regulates the intercourse and general conduct of individuals
remains in force until altered by the newly created power
of the State. ‘This is a well-settled-rule of the law of nations.
Its provisions are clear and simple, and easily understood ;
but it is not so easy to distinguish between what are political
and what are municipal laws, and to determine when and
how far the constitution and laws of the conqueror change
or replace those of the conquered. In case the government
of the new State is a Constitutional government, of limited
and divided powers, questions necessarily arise respecting
1 U. S. Statutes at Large, vol. viii. ‘- . 256, 257 ;Lynch 1). Clarke,
1 Sand)‘. R. 644. a PP A
OH. XXXIV RIGHTSv OF COMPLETE CONQUEST
517
the authority, which, in the absence of legislative action,
can be exercised in the conquered territory after the cessa-
tion of war, and the conclusion of a treaty of peace. The
determination of these questions depends upon the insti-
tutions and laws of the new sovereign, which, though con-
formable to the general rule of the law of nations, affect the
construction and application of that rule to particular
cases.1
§ I5. It seems to be a well-settled principle of English
law, that a country conquered by British arms becomes a
dominion of the king, in right of his Crown, and therefore
necessarily subject to the legislature, the Parliament of
Great Britain; that the king, without the concurrence
of Parliament, may change a part or the whole of the
political form of the government of a conquered dominion,
and alter the old, or introduce new laws into the conquered
country ; but that all this must be done subordinate to his
own authority in Parliament, that is, subordinate to legis-
lation; and that he cannot make any change contrary to
fundamental principles ; that he cannot, for instance,
exempt the inhabitants of the conquered territory from
the power of Parliament, or the laws of trade, or give them
privileges exclusive of his other subjects. Thus, Ireland
received the laws of England by the charters and commands
of Henry 11., John, Henry 111., Edward I., and the sub-
sequent kings, without the interposition of the Parliament
of England. The same is said of Wales, Berwick, Gascony,
Guienne, Calais, Gibraltar, and Minorca. So of New York ;
after its conquest from the Dutch, Charles II. changed its
constitution and political government by letters patent to the
Duke of York. If the king comes to a kingdom by con-
quest, he may change and alter the laws of that kingdom ;
but if he comes to it by title and descent, he cannot change
the laws of himself without the consent of Parliament.
The constitutions of most English provinces, immediately
1 Rex v. Vaughan, 4 Barr R. 2500 ; Calvin’s case, Coke R. pt. vii. ;
Am. Atty.-Gen. 71. Stewart, 2 M eriv. R. 154; Sprague '0. Stone,
Doug. R. 38; Sheddon o. Goodrich, 8 Vesey R. 482; Mostyn v.
Fabrigas, I Cowp. R. 165 ; Smith 12. Brown, 2 Salk. R. 666 ; Evelyn
v. Forster, 8 Vesey R. 481 ; Clark, Colonial Law, p. 4; Bowyer, Uni-
versal Public Law, ch. xvi. p. r 58 ;. Burge, Commentaries, vol. i.
pp. 31, 32 ;Morley, Digest 0]‘ Indian Cases, pp. 169, I 70.
Conquered
territory
under
British
laws
518 INTERNATIONAL LAW _ on. XXXIV
Under the
United
States
under the king, have arisen not from grants, but from
commissions to governors to call assemblies. In 1722,
Sir Philip Yorke and Sir Clement Wearge reported, on the
Assembly of Jamaica’s withholding the usual supplies,
that ‘if Jamaica was still to be considered a conquered
island, the king had a right to levy taxes upon the inhabi-
tants; but if it was to be considered in the same light
as the other colonies, no tax could be imposed on the in-
habitants but by an Assembly of the island or by an Act of
Parliament.’ They considered, says Lord Mansfield, the
distinction in law as clear, and an indisputable consequence
of the island being in the one state or in the other. Whether
it remained a conquest, or was made a colony, they did not
examine. A maxim of constitutional law, as declared
by all the judges in Calvin’s case, and which such men,
in modern times, as Sir Philip Yorke and Sir Clement
Wearge took for granted, will require some authorities
to shake. But, on the other side, no book, no saying,
no opinion has been cited, and no instance in any period
of history produced, where a doubt has been raised con-
cerning it. The right of the king to change the laws of a
conquered territory, after the war, results, according
to the decisions of English courts, from his constitutional
power to make a treaty of peace, and consequently to
yield up the conquest, or to retain it upon whatever terms
he pleases, provided those terms are not in violation of
fundamental principles.1
§ 16. The President of the United States can make no
treaty without the concurrence of two-thirds of the Senate,
and his authority over ceded conquered territory, though
derived from the law of nations, is limited by the Constitu-
tion and subordinate to the laws of Congress. It, however,
is well settled by the Supreme Court, that, as constitutional
commander-in—chief, he is authorised to form a civil or
military government for the conquered territory during the
war, and that when such territory is ceded to the United
States, as a conquest, the existing government, so established,
does not cease as a matter of course or as a consequence
of the restoration of peace; that, on the contrary, such
1- Campbell 1:. Hall, I Garcia. R. 205 ; Fabrigas v. Mostyn, I Cowp.
R. 165 ; Callet 11. Lord Keith, 2 East. R. 260. '
OH. XXXIV RIGHTS OF COMPLETE CONQUEST 5T9
government is rightfully continued after the peace, and till
Congress legislates otherwise; but that the President may
virtually dissolve this government by withdrawing the
officers who administer it; provided, he does not thereby
neglect his constitutional obligation ‘ to take care that the
laws be faithfully executed.’ He is bound, for example,
to prevent the landing of foreign goods in the United
States out of any collection district and without the pay-
ment of duties, and to do this he must employ the consti-
tutional means at his disposal. He may do this through
the government which he has established during the war,
by the right of conquest, and which existed when that
conquest was ratified by peace, or, if he dissolve that govern-
ment, the constitutional obligation remains to be performed
by other means. So long as that government continues,
with the express or implied sanction of the President, it
represents the sovereignty of the United States, and has
the legal authority to enforce and execute the laws which
extend over such territory. Congress may, at any time,
put an end to this government of the conquered territory,
and organise a new one; or it may permit the people of
such territory to form a constitution, and admit it as a
new State into the Union. The power of Congress over such
territory is clearly exclusive and universal, and their legis-
lation is subject to no other control or limit than the stipu-
lations of cession and the Constitution. But, connected
with these general rights and powers of Congress, there are
also obligations and duties. These are to be ascertained
from the law of nations, the stipulations of cession, and the
principles of the Federal Constitution. But, so long as
neither Congress nor the President direct otherwise, the
government established during the war, and existing on
the restoration of peace, continues with the implied consent
of both. ‘ The right inference,’ says Mr. Justice Wayne,
in delivering the unanimous opinion of the Supreme Court,
‘ from the inaction of both is, that it was meant to be con-
tinued until it had been legislatively changed. No pre-
sumption of a contrary intention can be made. Whatever
. may have been the cause of delay, it must be presumed that
the delay was consistent with the true policy of the govern-
ment.’ California and New Mexico were acquired by
520 INTERNATIONAL LAW
011. xxxrv
Laws of
conquered
territory
and the
constitu-
tion of
the new
State
conquest, confirmed by cession. During the war they were
governed as conquered territory under the law of nations,
and in virtue of the belligerent rights of the United States
as the conqueror, by the direction and authority of the
President, as commander-in-chief. By the ratification
of the treaty of Guadalupe-Hidalgo, on May 20, I848,
they became a part of the United States, as ceded conquered
territory. The civil governments, established in each
during the war, and existing at the date of the treaty of
peace, continued in operation after that treaty had been
ratified. California, with the assent and co-operation
of the existing government, formed a constitution, which
was ratified by its inhabitants, and a State government
was put in full operation in December 1849, with the
implied assent of the President, the officers of the existing
government of California publicly and formally surrendering
all their powers into the hands of the newly-constituted
authorities. The constitution so formed and ratified was
approved by Congress, and California was, on September 9,
1850, admitted into the Union as a State. New Mexico
also formed a constitution, and applied to Congress for
admission as a State; the application was not granted;
but on September 9, 1850, New Mexico and the part of
California not included within the limits of the new State
were organised into Territories, with new Territorial govern-
ments which took the place of those organised during the
war, and existing on the restoration of peace.1
§ 17. It seems to be a well-established rule of the law of
nations, that, on the cession of a conquered territory by a
treaty of peace, the inhabitants of such territory are re-
mitted to the municipal laws and usages which prevailed
among them before the conquest, so far as not changed by the
constitution or political institutions of the new sovereignty,
and the laws of that sovereignty which ;broprio oigore extend
over them. This leads us to inquire, first, whether the
municipal laws in force prior to the conquest, and suspended
or changed during the war, are revived ipso facto by the
1 Campbell 1). Hall, I Cowp. R. 204 ; U. S. Statutes at Large, vol.
' ix. pp. 446, 452, 453; Cross et al. 2). Harrison, 1.6 Howard R. 164 ;
Dunlop, Digest of Laws 0]‘ U. S. pp. 1238-1250 ; Brightly, Digest of
Laws of U. S. pp. 105, 693, 890 ; Dred Scott 11. Sandford, 19 How.
R. 393.
on. XXXIV RIGHTS OF COMPLETE CONQUEST 521
treaty of peace ; and, second, what laws of the new sovereignty
are considered as extending over the acquired territory
immediately on its cession, and without any special pro-
visions to that effect, either in the laws themselves, or as
enacted by the legislative power. It has already been
shown that, according to the decision of the English courts,
the laws of the conquered territory must be subordinate
to the British Constitution, as the king himself cannot
there establish laws, or confer privileges contrary to funda-
mental principles. And there can be little doubt that the
Federal Constitution is extended over conquered terri-
tory which, by confirmation or cession, becomes a part of
' the United States. It is true that the territory acquired
as a conquest is to be preserved and governed as such, until
the sovereignty to which it has passed legislates for it,
or gives it the authority to legislate for itself. In con-
quests made by England, this may be done by the commands
or letters patent of the king, and in those made by the
United States by the law of Congress. In the former
case, the local government, acting under royal authority,
represents the crown, and must act in subordination to
Parliament, and the fundamental principles of the British
Constitution. In the latter case, the local government,
acting under the direction of the President, represents the
sovereignty of the United States, to which the ‘territory
has passed. And, as that sovereignty is the United States,
under the Federal Constitution, no powers can be exercised
in that territory, either by the President, or by Congress,
which are opposed to the Federal Constitution; and it
necessarily follows that the inhabitants of such territory
acquire, immediately on its becoming a part of the United
States, the privileges, rights, and immunities guaranteed
by the constitution. They do not, indeed, thereby acquire
the political rights of citizens, entitling them to vote for
representatives in Congress, or to sue and be sued in the
Federal courts; but they thereby become privileged as
subjects of the United States, and no powers opposed to
the Federal Constitution can be exercised over them;
they owe an allegiance to the government of the United
States, and are. entitled to its protection.
§ I8. We have already remarked, that the relations of
522 INTERNATIONAL LAW 011. XXXIV
How far
laws of
military
occupa-
tion con-
tinue after
complete
conquest
the inhabitants of the conquered territory, inter se, are not,
in general, changed by the act of conquest and military
occupation; nevertheless, that the conqueror, exercising
the powers of a de facto government, may suspend or alter
the municipal laws of the conquered territory, and make
new ones in their stead. Such changes are of two kinds,
viz. those which relate to a suspension of civil rights and
civil remedies, and the substitution of military laws, and
military courts and proceedings; and those which, relate
to the introduction of new municipal laws, and new legal
remedies and civil proceedings. There can be no doubt
that when the war ceases the inhabitants of the ceded
conquered territory cease to be governed by the code of
war. Although the government of military occupation
may continue, the rules of its authority are essentially
changed. It no longer administers the laws of war, but only
those of peace. The governed are no longer subject to
the severity of the military code, but are remitted to their
rights, privileges, and immunities, under the civil code.
Hence, any laws, rules, or regulations introduced by the
government of military occupation during the war, which
infringe upon the civil rights of the inhabitants, necessarily
cease with the war in which they had their origin, and
from which they derived their force. But if this govern-
ment, during military occupation, has granted to the
inhabitants rights which they did not possess under their
former laws, or if it has abolished former, municipal laws
deemed odious and oppressive—as, for example, laws
conferring privileges of rank, or distinguishing between the
civil rights of classes and castes—these will not be revived
as a necessary consequence of peace. They may, however,
be revived as a consequence of the institutions and laws of
the new sovereignty ; and even rights and immunities, not
suspended or infringed during the war, may entirely cease
on the treaty of peace, as a consequence of the cession,
and the introduction of the civil government and civil
jurisprudence of the new sovereign.1
§ 19. What laws of the new sovereign extend over the
ceded conquered territory without legislative action, or any
1 Gardiner o. Fell, 1 jack. and Walk. R. 27 ; Heffter, Droit I nter-
national, § 185.
on. xxxrv
RIGHTS OF COMPLETE ‘CONQUEST 523
special provisions to that effect in the laws themselves?
When a country which has been conquered is ceded to the
conqueror by the treaty of peace, the plenum et ntile doininiitin
of the conqueror will be considered as having existed
from the beginning of the conquest. When it is said
that the law political ceases on the conquest, and that the
law municipal continues till changed by the will of the
conqueror, it is not meant that these latter laws, proprio
vigore, remain in force, but that, it is presumed, the new
political sovereign has adopted and continued them as a
matter of convenience. They do not derive any force
from the will of the conquered, for the person capable of
having and expressing a will—the body politic, or law-
making power of the conquered—is extinguished by the
conquest. When, therefore, we come to pronounce upon the
force of a law of the conquered people after the conquest,
and to determine whether it has been tacitly adopted by
the conqueror, we must look to the character of its pro-
visions, and compare them with the laws and institutions
of the conquering State: that is, with the will of the con-
queror as expressed by himself in similar matters. What-
ever is in conflict with, or directly opposed to, such ex-
pressions of his will, we cannot presume to have been
adopted by his tacit consent. Hence, Lord Coke says if a
Christian king should conquer an infidel country, the laws
of the conquered, ipso facto, cease, because it is not to be
presumed that a Christian king has adopted the laws of an
infidel race. But, where there is no such conflict in the
institutions and laws of the two countries, those of the
conquered which regulate personal relations, commercial
transactions, and property in all its modes of transfer and
acquisition, are presumed to have been adopted as a matter
of convenience. This rule of international law is both
reasonable and just. Each case must rest upon its own
basis, and be judged of by its own circumstances. From
this view of the jurisprudence of the conquered country, we
must determine what laws of the acquired territory remain
in force, and what laws of the conqueror, proprio vigore,
extend over such territory.1
§ 20. The English courts make a distinction between
1 Calvin’s case, Coke R. pt. 7.
What
laws of
the new
sove-
reignty
extend
524
INTERNATIONAL LAW 011. xxxrv
Distinc-
tion in
English
law be-
tween
conquered
and dis-
covered
territory
Laws con-
trary to
funda-
mental
principles
of new
sove-
reignty
ceded or conquered territory, and territory acquired by
discovery or occupancy, and peopled by the discoverer.
British colonists are considered as carrying with them such
laws of their sovereign as are beneficial to the colony and
applicable to the new condition of the colonists ; but penal
laws, inflicting forfeitures and disabilities, laws of tithe,
bankruptcy, mortmain, and police do not extend to colonies
not in esse. And laws passed after the settlement of a
discovered or occupied country do not affect such colony,
without special provisions to that effect, unless they relate
to the exercise of the powers of the sovereign with regard
to foreign relations, navigation, trade, revenue, and shipping.
But the rule is different with respect to territory acquired
by cession or conquest, for the municipal laws of such
territory- at the time of its acquisition remain till changed
by competent authority, and the subjects of the new
sovereignty who enter such newly-acquired territory do not,
in general, carry with them the laws of their sovereign ; but
with respect to their rights and relations inter se, they are
in the same condition as the inhabitants of such territory ;
that is, they are governed by the laws and usages of the
country at the time of the conquest or cession. ‘ Whoever
purchases, lives, or sues there puts himself under the laws
of the place; an Englishman in Ireland, Minorca, the Isle
of Man, or the Plantations, has no privileges distinct from
the natives.’ ’
§ 21. There can be no doubt of this general principle of
English Common Law : that the inhabitants of territory ac-
quired by cession or‘conquest are governed in their relations
inter se by the municipal laws of such territory in force at the
time of the cession or conquest, and that statutes previously
passed do not, in general, extend ;broprio oigore over such
territory. Nevertheless, it is equally true that some of the
laws of the new sovereignty do extend over such newly-
acquired territory, and that the existing municipal laws
of such territory are, in some degree, modified and changed
by the acts of acquisition, and without any special decree,
or statute, of the executive or legislative departments
1 Dwarris on Statutes, pp. 527, 905, 906 ; Atty.-Gen. 1). Stewart,
2 Merio. R. 143 ;Darnes o. Painter, Freem. R. 175 ; Blackstone, Com.
vol. i. p. 102 ; Clarke, Colonial Law, p. 4.
on. XXXIV RIGHTS on COMPLETE CONQUEST
525
of the new sovereignty. Thus, any municipal laws existing
in such territory, which are in violation of treaty stipulations
with foreign nations, or of the general laws of trade, naviga-
tion and shipping, or which give privileges exclusive of
other subjects, are not only void in themselves, but the
king even cannot introduce any which are contrary to
fundamental principles. However absurd the exception
as to pagans, mentioned in Calvin’s case, there can be no
doubt of the correctness of the general rule, that the laws
of the conquered territory which are contrary to the funda-
mental principles of the government of the conqueror,
cease, on the complete acquisition of the conquered territory,
because they are opposed to the already expressed will of
the conqueror. All other municipal laws continue in force
till changed by the same will subsequently expressed ; that
is, the king himself may change these laws, or he may, by
his charters and commands, authorise the conquered country
to do so. Such authority is derived directly from the
crown, and without the interposition of Parliament.1
§ 22. The Supreme Court of the United States, where
questions of this kind have come before that tribunal, have
adopted the decisions of the English courts, so far as applic-
able to its system of government. While recognising the
general principle that the laws of the conquered territory
remain in force after the cession, they distinctly assert that
the ceded territory becomes instantly bound and privileged
by the laws which Congress has previously passed to raise
revenue from duties on imports and tonnage ; and that such
territory is subject to the Acts of Congress, previously made
to regulate foreign commerce with the United States,
without other special legislation declaring them to be so.
And although Congress may not have established collection
districts or custom houses, or authorised the appointment
of officers to collect the revenue accruing upon the importa—
tion of foreign dutiable goods into that territory, neverthe-
less, it may be legally demanded and lawfully received
by the officers of the government, which was organised
in such territory by the right of conquest, and existing at
the date of the cession. California became a part of the
United States as a ceded conquered territory, by the treaty
1 Bowyer, Universal Public Law, ch. xvi.
Decisions
of the
Supreme
Court
of the
United
States
526
INTERNATIONAL LAW 0H. Xxxlv
Revenue
laws in
California
which was ratified on May 30, 1848 ; but the Act of Congress,
including San Francisco within one of the collection dis-
tricts of the United States, was not passed till March 3,
1849, and the collector authorised by law to be appointed
for that port did not enter upon the duties of his office till
November 13, I849. The ratification of the treaty was not
officially announced in California till August 17, I848. The
civil government of California, which had been organised
during the war, by right of conquest and military occupation,
continued to collect duties under the war tariff till officially
notified of the ratification of the treaty of peace; it then
declared that ‘ the tariff of duties for the collection of military
contributions will immediately cease, and the revenue
laws and tariff of the United States will be substituted in
its place,’ and continued to enforce these laws and to collect
the revenue accruing under them upon the importation of
foreign dutiable goods into California, until November 13,
1849, when the collector, duly appointed under the authority
of an Act of Congress, entered upon his duties. The
importers of such dutiable goods denied the legality of these
collections, and protested against the exaction of duties,
and subsequently brought suit against the officers of the
civil government to recover the moneys so collected, with
interest. The legality of the acts of these officers was
sustained by the unanimous opinion of the Supreme Court
of the United States ; and Mr. Justice Wayne, in delivering
the opinion of the court, said that the officers, in coercing
the payment of dutiable goods landed in California,
‘ had acted with most commendable integrity and intelli-
gence.’ 1
§ 23. There is one point in this decision deserving of par-
ticular notice, with respect to the operation of laws which
extend, proprio oigore, over ceded conquered territory.
A statute law of the United States, when no time is fixed
in the law itself, takes effect in every part of the Union
from the very day it is passed. Not so, however, with the
operation of existing revenue laws over newly acquired
territory, which, though a part of the United States, is not
1 Cross et al. 1). Harrison, 16 How. R. 201 ; Dunlop, Digest of
Laws of U. S. pp. 1214, 1215 ; Brightly, Digest 0]‘ Laws of U. S.
p. 115 ; U. S. Statutes at Large, vol. ix. p. 400. ‘
on. xxxrv RIGHTS OF COMPLETE CONQUEST 527
within the Union. Nearly three months elapsed between
the ratification of the treaty of cession and its official an-
nouncement in California. During that interval, tonnage
and impost duties were imposed and collected according to
the war tarifi, instead of the tariff of the United States. If
the revenue laws extended over California, e0 instante, on the
ratification of the treaty by which that territory was ac-
quired, these duties were unlawfully collected. It was so
claimed by those who had paid them, and suit was brought
for their recovery. But Mr. Justice Wayne, in delivering
the opinion of the Supreme Court on this question, re-
marked: ‘ It will certainly not be denied that these
instructions, imposing the war tariff, were binding upon
those who administered the civil government in California,
until they had notice from their own government that a
peace had been finally concluded. Or that those who
were locally within its jurisdiction, or who had property
there, were not bound to comply with those regulations of
the government, which its functionaries were ordered to
execute. Or that anyone would claim a right to introduce
into the territory of that government foreign merchandise,
without the payment of duties which had been originally
imposed under belligerent rights, because the territory had
been ceded by the original possessor and enemy to the con-
queror. Or that the mere fact of a territory having been
ceded by one sovereignty to another, opens it to a free com-
mercial intercourse with all the world, as a matter of course,
until the new possessor has legislated some terms upon which
that maybe done. There is no such commercial liberty
known among nations, and the attempt to introduce it in
this instance is resisted by all of those considerations which
have made foreign commerce between nations conven-
tional. The treaty that gives the right of commerce is the
measure and rule of that right.’ ‘ The plaintiffs in this
case claimed no privilege for the introduction of their goods
into San Francisco, between the ratifications of the treaty
with Mexico‘ and the official announcement of it to the
civil government in California, other than such as that
1 Matthews 1). Zane, 7 Wheat. R. 104 ; the ‘ Ann,’ I Gallis R. 62 ;
Cross et al. 1). Harrison, 16 Howard R. 191 ; Vattel, liv. i. ch.
§93-
528 INTERNATIONAL LAw on. xxxrv
conquest
changes
political
rights ,
but not
rights of
property
Title to
private
property
government permitted under the instructions of the govern-
ment of the United States.
§ 24. In the transfer of territory by conquest or cession,
the political rights of its inhabitants may be essentially
changed. This results from a difference in the powers
and character of governments, as depending upon their
constitutions or fundamental laws. The new government
may not be capable of receiving or exercising all the powers
of the old one, or it may not extend to the governed all the
political rights which they enjoyed under the former
sovereign. But a change of sovereignty is not, in modern
times, permitted to effect any change in the rights of private
property. What was the property of the former sovereign
becomes the property of the new one, and what was the
property of individuals before, remains private property,
notwithstanding the conquest or cession. ‘ The modern
usage of nations,’ says Chief Justice Marshall, speaking of
the transfer of a country from one government to another,
‘ which has become a law, would be violated; that sense
of justice and of right which is acknowledged and felt by
the whole civilised world would be outraged, if private
property should be generally confiscated, and private rights
annulled. The people change their allegiance; their rela-
tion to their ancient sovereign is dissolved; but their
relations to each other, and their rights of property, remain
undisturbed.’ This rule thus clearly enunciated by the
Supreme Court of the United States in 1833, has since been
repeatedly recognised in the decisions of the same tribunal.l
§ 25. As the new State merely displaces the former sove-
reignty, and acquires, by cession or complete conquest, no
claim or title whatever to private property, whether of indi-
viduals, municipalities, or corporations, and as it assumes
1 United States v. Perchman, 7 Peters R. 87 ; Mitchel v. the
United States, 9 Peters R. 734 ; Strother 11. Lucas, 12 Peters R. 38 ;
New Orleans 1). the United States, 10 Peters R. 720; Riquelme,
Derecho Pub. Int. lib. i. tit. ii. 0. 12.
Territory conquered during the progress of a war is considered,
for all commercial and belligerent purposes, as a part of the domain
of the conqueror, so long as he continues in its possession and
government. Whatever, then, may be the general commerical or
political character of a proprietor of land, in such territory, the
possession of the soil impresses upon him its own character, so far
as its produce is concerned, in thetransportation to another country.
(Thirty Hogsheads of Sugar 1). Boyle, 9 Cranch. 191.)
on. xxxiv RIGHTS OF COMPLETE 'CONQUEST
529
the duties and obligations of the former sovereign with
respect to private property within such acquired territory,
it is consequently bound to recognise and protect all private
rights in lands, whether they are held under absolute grants
or ‘inchoate titles, for property in land includes every class
of claim to real estate, from a mere inceptive grant to a
complete, absolute, and perfect title. A mere equity is
protected by the law" of nations as much as a strictly legal
title. In the words of Chief Justice Marshall, ‘ the term
“ property,” as applied to lands, comprehends every
species of title, inchoate or complete. It is supposed to
embrace those rights which lie in contract; those which
are executory ;' as well as those which are executed. In
this respect the relation of the inhabitants to their govern-
ment is not changed. The new government takes the
place of that which has passed away.’ ’
§ 26. It not unfrequently happens, however, that much
injustice and inconvenience will result to the owners of
property in a ceded or conquered territory, by the transfer
of themselves and their property from one system of laws
to another very different from the first, and wholly in-
adequate to afford remedies for a violation of the rights
of property. And as the law of nations and the usage
‘ Soulard et al. v. the United States, 4 Peters R. 512 ; Mitchel et
al. v. the United States, 9 Peters R. 7 33 ; United States v. Perchman,
7 Peters R. 51 ; Chouteau’s heirs v. the United States, 9 Peters
R. 137.
It was decided by the Supreme Court of the United States that,
in cases of conquest, the conqueror does no more than replace the
sovereign and assume dominion over the country. A cession of
territory is never understood to be a cession of the property of the
inhabitants. The king cedes only that which belongs to him ; lands
he had previously granted were not his to cede. The cession of a
territory should necessarily be understood to pass-the sovereignty
only, ‘and not to interfere with private property. No construction
of a treaty which would impair that security to private property,
and which the laws and usages of nations would, without express
stipulation, have conferred, would seem to be admissible, further
than, its positive words require. (Strother 11. Lucas, 12 Pet. 410.)
The Transvaal Concession Commission Report (Part. Papers, South
Africa, v1901,'cod. 623) says: ‘ It is clear that a State which has
annexed another is not legally bound by‘any contracts made by the
State which has ceased to exist,’ but adds, ‘ the modern usage of
nations has tended in the acknowledgment of such contracts.’
See also p. 9 ibid. as to the British View that the conquering State
is not liable for the debts of the subjugated State incurred for the
urpose of resistance. So held in West Rand Central Gold Mining
0. 1). Rex (1905), 2 KB. 391.
VOL. II. M M
Necessity
of reme-
dial laws
530
INTERNATIONAL LAW on. xxxrv
Effect of
conquest
on the
property
of the
State
of the civilised world impose upon the new sovereignty the
duty to maintain and protect the property of the conquered
inhabitants, it is bound to take'the necessary steps to clothe
equities with a legal title, so as to bring them within the
scope of legal remedies under itsown laws. It is with this
view that Congress has usually passed remedial Acts for the
ascertainment and recognition of lands of private owner-
ship in territories acquired by the United States.‘ Although
the maintenance of such property may be fully guaranteed
by the law of nations and the stipulation of treaties, yet, in
order to place it under the careful guardianship of ' the
municipal laws of the United States it is necessary to invest
it with a new attribute of a legal title, without which the
owner may be unable either to maintain his own possession
or eject an intruder. For example, a right or title to
lands which, under Spanish or Mexican law, is abundantly
sufficient for the security and protection of the owner in
his rights, may be utterly useless‘ for 'such purposes under
the laws-of the United States, as it neither secures him in
the possession and enjoyment of his property, nor "enables
him to bring a suit to eject an aggressor.~ A‘ refusal or
neglect to pass the necessary remedial acts in such cases,
so as to invest equities with such legal attributes as. will
place all private property, of whatsoever description, under
the guardianship of the laws of ‘the United'Sta-tes, would
be a violation of the obligations imposed upon them'by the
law of nations and the usage of the civilised world. delay in applying such remedies is often equivalent to a
denial of justice, or a confiscation of private property, and
is, therefore, a breach of public law and a violation 'of
national faith.1 _ . - _ , . > . '
§ 27. It follows,from the principles laid down in :this'and
the preceding chapters, that complete conquest, by what-
ever mode it may be perfected, carries with it all the rights
of the former government; or, in other words, the con-
queror, by the completion of his conquest, becomes, as it
were, the heir and universal‘successor of the defunct or
extinguished State. As his rights are no longer. limited
to mere occupation, or to what he has taken physically into
1 U. S. Statutes at Large, vol. x. p.63 ; United States v. Reading,
8 How. R. 8. . . . .V
on. xxxrv RIGHTS or COMPLETE CONQUEST 531
his. possession, they extend not only to the corporeal pro-
perty of ‘the State, such as real estate and movables, but
also to its incorporeal property, such as debts. And as
his imperinin has become established over the whole State,
he is considered, in law, as in possession of the things (cor-
pora), and the rights (jura) to things which appertain to
such imperinin," and may use and dispose of them as his
own. ~ It was on this ground that the validity of Alexander’s
gift to the Thessalonians was principally sustained, and
those who advocated the claim of Thebes, did‘so, mainly,
on the supposition that the conquest was not complete,
and that {the absolute and entire dominion of succession
to Thebes had not yet accrued to Alexander.1 Jurists have
much more difficulty - in agreeing upon the question of the
completion of the conquest, prior to the restoration of the
former sovereign, than upon the legal consequences to be
1 See ante, ch. xxxiii. § 29; Phillimore, On Int. Law, vol. iii.
§§ 561, i562; Heffter, Droit International, §§ 185, 186; Schwartz,
De jnre Victoris, thes. 27.
It was held, by the Rolls Court'of Great Britain, that if a foreign
power takes prisoner an enemy, and thereby obtains possession of
documents, establishing his right to a debt due from another, to
him, in his private capacity, ‘the prisoner is entitled to relief in‘
equity ; the circumstance that the foreign power is also the debtor
will not alter the right ; but if such documents, are the property of
the prisoner, in his sovereign character, and are taken possession of
by the conqueror in the exercise of his sovereign and political rights,
that Court could not interfere, (‘Wadeer o._the East India Company,
7 jar. .(N.S.), 3 50. See also the Secretary of State for India v.
Kamachee Boye Sahaba, 7 M 00. Ind. App. Gas. 476.) An ordinance '
was made by'the Government of Denmark in 1817, pending hostili-
ties with Great Britain, whereby all ships, goods, money, and
money's worth, of or belonging to the English subjects, were declared
to be sequestrated and detained, and all persons were commanded,
within three days, to transmit an account of debts, due to English
subjects, in default of which they were to be proceeded against in the
Exchequer; in consequence of this a suit then depending in the
Danish Court, for recovering a debt due from a Danish to a British
subject, was not further prosecuted, and the debt was afterwards
pai by the Danish subject, at the rate specified by the ordinance,
to commissioners appointed in virtue of the ordinance to receive
payment, upon production of whose receipt the Danish Court
quashed the suit. This was held, in the British Court of
King's Bench, to be no answer to an action against the Danish
subject, to recover the same debt in the courts of Great Britain, for
the ordinance not being conformable to the usage of nations was held
to be void. (G. Wolff and others 1). Oxholm, 6 M. and S. 92.
The question ‘of Alexander and the 100 talents .. of the Thebans is
discussed in this case. See also Recueil d’Arréts Notables des Cours
Souverainesxde France, by JohanPepon, Paris, 1601, 4to.) . ‘
- ' ‘ r ' ~ M M 2
532 INTERNATIONAL LAw
CH. XXXIV
The alie-
nated do-
mains of
Hesse-
(tassel
deduced from the conquest when complete; and it is only
in case of a restoration that any question arises with respect
to the right of the conqueror to dispose of either the domains
or debts of the conquered State.
§ 28. When the allied powers of Europe overthrew the
dynasty of Napoleon, and restored to the countries, which
he had subdued, their legitimate sovereigns, 'no general
provision was made in the peace of Paris for the protection
of rights acquired under the de jacto rulers. The amnesty
provided for in the 27th Article was limited in its extent ;
nevertheless reason, good sense, and the law of- nations
were generally allowed to prevail, and rights and titles so
acquired were left undisturbed. The only exceptions
were confined to one or two small German States. The
most noted of these was the Prince of Hesse-Cassel, who was
driven from the Electorate in 1806, and not restored till
about the beginning of 1814. His country had remained
about a year under the military government of Napoleon, '-
and was then incorporated into the newly-formed kingdom
of Westphalia, of which Jerome Bonaparte was recognised as
king, by the peaces of Tilsit and SchOnbrunn. On his
return to his hereditary dominions, in 1814, the Prince
refused to recognise the validity of the alienations of the
domains of his country, which had taken place under the
de facto governments, since his expulsion, in October 1806 ;
the purchasers of these lands were deprived of their posses-
sions which they had purchased and paid for in good faith,
and which had been delivered to them with every formality
of law. The supreme court of appeal, in Cassel, was stopped
by an inhibitorium from taking cognisance of the matter,
and the unfortunate proprietors were, in ‘some instances,
driven from their possessions by a troop of the Elector’s
hussars. They appealed in vain for protection to the
Congress of Vienna; Prussia, through the mouth of her
chancellor, Prince von Hardenberg, declared in their
favour ; but the other nations represented _in that Congress
gave no heed to the complaints made against a prince whom
they had just restored to power. Resort was then had to
the German Confederation, but this modern Amphictyonic
assembly either could not, or would not, interfere between
a sovereign prince and his own subjects. Public jurists,
however, have not failed to condemn the conduct of the
OH. XXXIV RIGHTS OF COMPLETE CONQUEST\
533
Elector, as contrary to law and justice. His pretext for
denying the validity of these alienations was mainly founded
upon the ‘ lex de captiois et ;bostliminio ’ of the Roman law ;
but it was readily shown that this law could not be applied
directly, and that the argument deduced from its analogy was
adverse to his position. He virtually acknowledged the
weakness of his case, by refusing to arbitrate the question,
or even to permit his own courts to take cognisance of it.1
§ 29. The same dishonest and discreditable potentate
also denied the validity of the payment or cancellation of
the debts which were owing to his government in 1806,
and which had been paid or alienated prior to his restora-
tion. Being absolute lord over his subjects, who were
exceedingly poor, he had enriched himself by selling their
valour and lives, to fight the battles of other sovereigns,
and the gold thus acquired had been invested in his own
name, as sovereign, in loans and mortgages, to the inhabi-
tants of other States. On the conquest of Hesse-Cassel,
by Napoleon, these debts were confiscated, and made
payable only to the treasury of what was called the ‘ domaine
extraordinaire.’ And when the greater part of this Elec-
torate was incorporated into the kingdom of Westphalia,
a compact was entered into at Berlin, between King Jerome
and Napoleon, for the division and adjustment of the
debts owing to the extinguished Electorate. The Bona-
partes had no difficulty in collecting those due from the
subjects of their newly-acquired dominions, for there force
could be resorted to, in order to compel payment ; but where
the debtors resided in other States the payment was in a
measure voluntary, and even where the debtors were willing
to pay a difficulty occurred in releasing the mortgages, as
the record could be cancelled only by the authority of the
creditor therein named. To remove this difficulty in the
Duchy of Mecklenburg, the Duke issued an order, circular
rescript, on June I5, 1810, which, after reciting the complete
conquest of Hesse—Cassel by Napoleon, and the extinguish-
ment of the former sovereignty, directed the court of
1 Pfeiffer, Das Recht der Kriegseroberung, p. 237; Schweikart,
Napoleon and die Curh. pp. 60 et seq. ; Rotteck und Welcker, Staats-
Lexicon, verb. ‘ Domamenkaufer ; ’ Conversations-Lexicon, verb.
‘ Domainenverkauf ; ' Koch, Hist. de Traite’s de Paix, t. iii. p. 364 ;
Encyclopedia Americana, verb. ‘ Domain,’ Digest xlix. t. xv. 12, 3 ;
Phillimore, On Int. Law, vol. iii. §§ 573, 574
The debts
of Hesse-
Cassel
534 - INTERNATIONAL LAW on. XXXIV
registration to' record, as extinguished, those mortgages in
favour ofHesse-Cassel on estates inthat duchy, for which a
discharge or receipt had been given by Napoleon, or by his
appointee. for that purpose. Among the estates'so mort-
gaged and released were those of a certain Count van Hahn,
whose case acquired much celebrity. After the death of
the Count and the restoration of the Prince of Hesse-Cassel,
the latter instituted proceedings as a creditor against his
estate, denying the validity of the payment and the legality
of the discharge of the mortgage. The first tribunals (the
University of B-reslau in 1824, and that of Kiel in 1831)
decided, in substance, that the Prince might recover that
portion of the debt which had not been actually paid to
Napoleon, and no more. Both parties being dissatisfied
with this judgment, an appeal was taken to another uni-
versity (tribunal), which learned body delivered at great
length the reasons of their final decision, which was, in
substance, that all the debts to Hesse-Cassel, for which
discharges had been given in full by Napoleon, whether the
whole sum had been actually paid or not, were validly and
effectually cancelled, and that the debtors could' not be
called upon to pay a second time. These learned jurists
drew a broad distinction between the acts of a transient
conqueror on mere military occupation, and those of one
whose rights and titles had been ratified by the public
acts of the State, and recognised in- treaties with foreign
powers. The judgments of the tribunals of Breslau and
Kiel were based on the supposition that the conquest was.
only a temporary one; but the learned judges said it was
impossible to consider the return of the Prince of Hesse-
Cassel as a continuation of his former government. They
rejected the consideration of the justice or injustice of the‘
war, in which the Electorate had been conquered, nor‘ did
they attach any ‘importance to the fact that the Prince
had carried away with him, and retained possession of, the
instruments containing the written acknowledgment of the.
debtor. It will be noticed that this decision virtually
confirms the validity of the alienation of domains made
by the de facto government of the conquests of, Napoleon.1
1 Hefiter, Droitilnternational, §§ 186, I88 ;- Zacharias, Ueber‘die.
Verpflichtung. &c., b. iv. p. 104. ‘
CHAPTER XXXV
RIGHTS or POSTLIMINY AND RECAPTURE
1. Right of postliminy defined—2. As to personal status—3. As
to things—4. Belongs to a state of war— 5. Of allies who
are associates in the war—6. Its effect upon things and
persons in neutral territory—7. Upon movables on land—
8. Real property—9. Towns and provinces—10. Release of
a subjugated State—11. Case of Genoa in 1814-12. Applica-
tion of postliminy to” maritime captures—13. Text-writers
and prize courts—~14. Rights of postliminy modified by treaties
and municipal laws—15. Laws of Great Britain—16. Laws
of the United States—I7. Laws of different European States—
18. Quantum of salvage on recaptures—rg. Recapture of
neutral property—20. International law on salvage—21. Mili-
tary and civil salvage—~22. Special rules of military salvage
-—2 3. When original capture was unlawful—24. In case of
ransom—~25. A vessel recaptured by her master and crew-—
26. From pirates—27. By land forces in foreign ports—~28.
By native and allied armies in native ports.
§ I. THE ins postliminii was a fiction of the Roman Right of
law by which persons, and, in some cases, things, taken may
by an enemy, were restored to their original legal status defined.
immediately on coming under the power of the nation to
which they formerly belonged. ‘ Postliniininin fingit earn
qni captns est, in cioitate sernper fnisse.’ With respect to
persons, the right of postliminy had a double effect, passive
and active. Passive, inasmuch as the returned son fell
again under the power of his parent, and the returned slave
under the power of his master; and active, inasmuch as
the returned person claimed to exercise his original rights
over other persons or things. To produce this passive
effect, the only requisite was the simple return of the indi-
vidual; but to produce the active effect, the individual
must have returned legally and for the purpose of regaining
his rights. The ins postliminii was denied to those who
illegally returned to their country during an armistice, to
deserters, to those who had surrendered in battle, to
those who had been abandoned by their country, or
536
INTERNATIONAL LAW 011. xxxv
Post-
liminy
with re-
gard to
personal
status and
rights
who had been the subject of a deditio, either during
the war, or at the time of making peace. With
respect to things taken by the enemy, the Roman law
considered them as withdrawn from the category of
legal relations during the period of the enemy’s possession
of them. If retaken by their former owner, they became
his by the recapture; but, if retaken by the State, they
were considered as booty, or prize of war, the original
right of property being extinguished by the intervening
hostile possession. But certain things were excepted from
this rule, as real property, horses, vessels used for purposes
of war, &c. ; and to these the ins postliminii was accorded.
This general maxim of the Roman law, although not in all
its details, is engrafted into modern international juris-
prudence, and is fully recognised as an incident to the
state of war, and contributes essentially to mitigate its
calamities.1
§ 2. The right of postliminy is founded upon the duty
of every State to protect the persons and property of its
citizens against the operations of the enemy. When, there-
fore, a subject who has fallen into the hands of the enemy
is rescued by the State or its agents, he is restored to his
former rights and condition under his own State, for his
relations to his own country are not changed either by the
capture or the rescue. So, of the property of a subject
recaptured from the enemy by the State or its agents;
it is no more the property of the State than it was before
it fell into the hands of the enemy; it must, therefore, be
restored to its former owner. But if, by the well-established
rules of public law, the title to the captured property has
become vested in the first captor, the former owner cannot
claim its restoration from the recaptor, because his original
title has been extinguished.
The 7'us postliminii of the Roman law applied almost
exclusively to questions of private rights, but the prin-
ciples of natural justice embodied in that law are appli-
cable to States as well as to individuals, in their inter-
course with each other. It has, therefore, been held in
1 Phillimore, On Int. Law, vol. iii. § 403 ; Justinian, Institutes,
lib. i. tit. xii. § 5 ; Wheaton, Elem. Int. Law, pt. iv. ch. ii. § 15 ;
Kluber, Droit des Gens, §§ 2 56et seq.
OH. XXXV
POSTLIMINY AND RECAPTURE 537
modern times to extend not only to individuals of the
same State, but also to individuals of different States, and
to the international relations of States themselves.1
§ 3. Postliminy is considered as taking effect the moment
that the persons, or property taken on land by an enemy,
come within their sovereign’s territory, or within places
under his command, or into the hands of his officers or
agents. But, in cases of prize and maritime recapture, the
question of restoration usually involves that of military
' salvage, which must be determined by a court of com-
petent jurisdiction. Vessels and goods taken by the enemy
as prizes, and recaptured by the principal belligerent, or
his allies, must, therefore, be brought infra prwsidia, and
adjudicated precisely the same as in case of a prize.2
§ 4. The right of postliminy belongs exclusively to a
state of war, and no longer exists after the conclusion of a
treaty of peace. The intervention of peace cures all defects
of title to property of every kind, acquired in war, and
such title cannot be subsequently defeated in favour of the
original owner, not even in the hands of a neutral possessor,
who himself becomes an enemy. Such property may be
liable to capture as booty, or prize of war, the same as any
other property of that neutral, now an enemy, but it is
not affected by the right of postliminy. By the principle
of uti possidetis, which applies to every treaty of peace,
unless otherwise specially stipulated, all captured property
‘ is tacitly conceded to the possessor, and, if recaptured in
a subsequent war, it is subject to the laws of capture, but
not to those of postliminy. Nevertheless, there are many
cases where, the treaty of peace being silent, and the prin-
ciple of uti possidetis not applicable, it is necessary to
resort to the ius postliminii, in order to determine the true
condition of things at the time of the treaty, or the moment
they were freed from the pressure of the captor’s force,
as an enemy; in other words, whether, when the captor
1 Martens, Precis du Droit des Gens, § 283 ; Heffter, Droit I nter-
national, §§ 187 et seq. ; Voet, Ad Pandect. tit. iv. p. 642 ; Pfeiffer,
das Recht der Kriegseroberung, pp. 40 et seq. ; Bello, Derecho Inter-
naoional, pt. 0. iv. § 8.
2 Vattel, Droit des. Gens, liv. iii. ch. xiv. § 206 ; Kent, Com. on
Am.rLazo, vol. i. p. 108 ; Bynkershoek, Quwst. jur. Pub. lib. i. c. v. ;
Pando, Derecho PzZb. Int. p. 409. f E- , _
Post-
liminy in ~
regard to
things
Right of
post-
liminy
belongs
exclu-
sively to
a state
of war
538 INTERNATIONAL LAW 011. xxxv
Post-
liminy in
regard. to
allies
In a
neutral
territory
ceases to be an enemy, the thing capturedlegally becomes
his property, or returns to the former owner. Hence, the
very intimate connection between treaties of peace and the
rights of postliminy.1 . .
§ 5. It is a general rule of international law, that allies
in war make but one party with the principal; the cause
being common, the rights and obligations are the same.
It follows, therefore, that when persons and things be-
longing to‘ one of the allies, which have been taken by the
enemy, fall into the hands of another ally, they are subject
to the rights of postliminy, and must be restoredto their
former condition. The recapture by an ally is regarded
the same as a recapture by the principal, and vice versa.
So, also, with respect to territory, persons and things
brought within the territory of one ally are affected by
the rights of postliminy precisely the same as if brought
within the territory of their own sovereign. But, if the
ally does not become an associate in the war, or a co-
belligerent, and merely furnishes the succours stipulated by
treaty, without coming to a rupture with the enemy, his
dominions are regarded as neutral, and are governed b
the laws of neutrality. ‘
§ 6. The rights of postliminy, with respect to things, do
not take effect in neutral countries, because the neutral is
bound to consider every acquisition made by either party
as a lawful acquisition, unless the capture itself is an in-.-
fringement of his Own neutral jurisdiction or rights. If
one party were allowed in a neutral territory to enjoy the
right of claiming goods taken by the other, it would be a
departure from the duty of neutrality. Neutrals are bound.
to take notice of the military rights which possession gives,
and which is the only evidence of right acquired by military
force, as contradistinguished from civil rights and titles.
The fact must be taken for the law. But with respect to
persons, it takes effect, not only in the territory of the
nation to which such persons belong, and in that of his
allies, but also in a- neutral country ; so that if a belligerent
1 See ante, vol. i. ch. ix.; Phillimore, On Int. Law, vol. § 539 ; Wheaton, Elem. Int. Law, pt. iv. ch. iv. § 4 ; the ‘.Purissima
Concepcion,’ 6 Rob. 45 ; the ‘ Sophia,’ 6 Rob. I38 ;‘Heffter, Droit
International, § 188.} ‘3
on. xxxv POSTLIMIN-Y AND RECAPTURE 539
brings his prisoners into a neutral territory he loses all
control of them. So, ifprisoners escape from their captors,
and reach a- neutral territory, they cannot be pursued and
seized in such territory, and consequently are restored to
their former condition. Prisoners of war who have given
their parole may, or may not, claim the right of postliminy
on reaching a neutral country, or coming again under the
power of their own nation, according to the terms of their
parole. If left entirely free to return to their own country,
subject to certain stipulated conditions, such as not to
serve again for a certain period, or during the war, these
conditions are, not changed by recapture or rescue. But
if they have only promised not to escape, or to remain
within certain limits assigned to them, if they are rescued
by their own party, or the place of their confinement falls
into the hands of their own nation or its allies, they are
released from their parole, and, by the right of postliminy,
are restored to their former state. So if, by the incidents
of the war, prisoners, not free to return to their own country,
are brought into neutral territory, they are entitled to the
benefit of that right. But it must be remembered, that
prisoners brought into neutral ports on board a foreign ship
of war, or any prize of hers, are not entitled to the right
of. postliminy, because such vessels in neutral ports have a
right of extra—territoriality and such prisoners are not re
garded as within neutral jurisdiction.1 ‘
§ 7. Naturally, property of all kinds is recoverable by
the right of postliminy, and there is no intrinsic reason
Why movables should be excepted from the rule. Such,
indeed, was the. ancient practice, and by the ins postliminii
of the Romans, certain articles, on being recovered from
the enemy, were required to be restored to their former
owners. But the difficulty of recognising things of this
nature with any degree of certainty, and the endless dis-
putes which would spring from a revendication of them,
_ 1 Wheaton, Elem. Int. Law, pt. iv. ch. iv. § 4 ; Vattel, Droit des
Gens', liv. iii. ch. vii. § 132; ch. xiv. §§ 208, 210; Bynkershoek,
Quaes't. jur. Pub. lib. i. caps. xvJxvi. ; Duponceau, Translation of
Bynkershoek, note, pp. 116, 117 ; Cushing, Opinions of U.S. Attys.-
Gen. vol. vii. p. 123 ; Bello, Derecho Internacional, pt. ii. c. iv. § 8 ;
Hefiter, Droit International, §§ 189,: 190 ; the ‘ Purissima Concepcion,’
6 Rob. 45 ; the ‘ Amistad de Rues,’ 5 Wheat. R. 390. .
Upon
movables
on land.
540
INTERNATIONAL LAW 011. xxxv
Upon real
property
have introduced a contrary practice in modern times; and
the title of the former owner to all booty is considered as
completely divested by the captor, by a deductio in locum
tutum, or by deductio infra preesidia, or‘by ‘assignment to
a neutral, or by a firm possession of the captor of twenty-
four hours. Some apply the same rule to cases of prize,
while others require the sentence of a competent court.
§ 8. Real property is easily identified, and is not of a
transitory nature; it is, therefore, considered to be com-
pletely within the right of postliminy. The rule, however,
cannot be frequently applied to the case of mere, private
property, which, by the general rule of modern nations, is
exempt from confiscation. There are some exceptions to
this general rule, and wherever private realty has been
confiscated by the enemy, and again comes into the posses-
sion of the nation to which the individual owner belongs,
it is subject to the right of postliminy. The effect of com-
plete conquest and retrocession will be considered in another
paragraph. Grotius proposes the question with respect to
the immovable property belonging to a prisoner of war,
but situate in a neutral country. But Vattel summarily
disposes of it with the just remark, that nothing belonging
to a prisoner can be disposed of by the captor, unless he
can seize it and bring it within his own possession. ‘The
rule becomes of great practical importance, however, when
applied to questions arising out of alienation of realty
belonging to the government, made by the opposite bel‘
ligerent while in the military occupation of the country.
The purchaser of any portion of the national domain in
the occupation of an enemy, prior to the confirmation or .
consummation of the conquest, takes it at the peril of '
being evicted by the original sovereign owner when he is ‘
restored to his dominions. But if the victor be so firmly
established in possession, that opposition to his rule is
overcome or virtually ceases, or if the conquest is accom—
panied by internal revolution and a recognition of the new
government—in other words, if I the conquest is legally
complete—alienations of _the’ public domain will not be
annulled, even though the former ‘sovereign be restored.1
1 Vattel, Droit des Gens, liv. iii. ch. xiv. §212 ; Kent, Com. On
Am. Law, vol. i. pp. _108, 109 ; Lieber, Political Ethics, b. -i‘i.-§ 86 ;
on. xxxv POSTLIMINY AND RECAPTURE
541
§ 9. Towns, provinces, and territories, which'are retaken‘
from the conqueror during the war, or which are restored
to their former sovereign by the treaty of peace, are en-
titled to the right of postliminy, and the original sovereign
owner on recovering his dominion over them, whether by
force of arms or by treaty, is bound to restore them to
Phillimore. On Int. Law, vol. iii. §§ 406, 5 39—574, 583 ; vide ante,
chapters xxxiii. and xxxiv.
- The Courts of the United States have determined, that grants
of territory made by Great Britain, after the Declaration of Inde-
pendence, are invalid. In the case of Harcourt v. Gaillard (7 Curtis
. 332), concerning a piece of land, lying between the Mississippi
and Chatahouchee rivers and granted under the above circum-
stances, it was laid down by the Supreme Court as follows :——‘ Two
questions here occur: first, whether this separation had taken
effect by any valid act ; and, secondly, if it had, whether it made
any difference in the case upon international principles. On both
these points we are of opinion that the law is against the validity of
this grant. It is true that the power of the Crown was at that time
admitted to be very absolute over the limits of the royal provinces ;
but there is no reason to believe that it had ever been exercised by
any means less solemn and notorious than a public proclamation.
And although the instrument by which Georgia claimed an extension
of her limits to the northern boundary of that territory was of no
more authority or solemnity than that by which it was supposed to
have been taken from her, it was otherwise with South Carolina.
Her territory had been extended to that limit by a solemn grant
from the Crown, to the lords proprietors, from whom, in fact, she
had wrested it by a revolution, even before the right of the pro-
prietors had been bought out by the Crown. But this is not the
material fact in the case; it is this: that this limit was claimed
and asserted by both of those States in the Declaration of Independ-
ence, and the right to it was established by the mostsolemn of all
international acts, the treaty of peace. It has never been admitted
by the United States that they acquired anything by way of cession
from Great Britain by that treaty. It has been viewed only as a
recognition of pre-existing rights, and on that principle the soil and
sovereignty within their acknowledged limits were as much theirs
at the Declaration of Independence as at this hour. By reference
to the treaty, it will be found that it amounts to a simple recognition.
of the independence and the limits of the United States, without
any language purporting a cession or relinquishment of right on
the part of Great Britain. In the last article of the Treaty of.
Ghent will be found a provision respecting grants of land made in
the islands then in dispute between the two States, which affords
an illustration of this doctrine. By that article, a stipulation is
made in favour of grants before the war, but none for those which
were made'during the war ; and such is unquestionably the law of
nations. War is a .suit prosecuted by the sword, and where. the
question to be decided is one of original claim to territory, grants
of ‘soil made flagrante bello by the party that fails can only derive
validity from treaty stipulations. It is not necessary here to
consider the rights of the conqueror in the case of actual conquest,
since the views previously presented put the acquisition of such
rights out of this case.’ '
Upon
towns and
provinces
542 INTERNATIONAL LAW‘ - 0H. xxxv
their former state. In other words, he acquires ;no new
rights over themi either by the act of recapture or of re-
storation- The conqueror loses‘ the rights which he-had
acquired .by force of arms ; but those rights are not trans-
ferred to the former sovereign, who resumes his dominion
over themprecisely the same as though the war had never
occurred. _He rules, not by a newly-acquired title, which
relates back to any former period, but by his ancient title,
which, in contemplation of war, has never been divested.
The places which are .reconqu'ered or restored therefore.
return to‘ him with the rights and privileges which they
would have possessed if they had never fallen into- the
power of the enemy. ‘The conqueror,’ says Calvo, ‘ who
only occupies.v a territory, does not thereby become its
sovereign,‘ and in consequence has neither the right of
alienating vits public domain, nor of contracting engage-
ments in its name. His rightsare limited to the exercise
alone of that ‘authority which is required for military
operations. This doctrine appears to have prevailed at
the close of the last war between France and Prussia, I871.‘
The 'Prussians had entered into contracts with certain
persons to permit them to cut wood in the French public’
forests, notably in those ‘near Nancy. Some of these‘
fellings not having been [made ‘when the treaty of peace
was signed, the above persons, who had paid the price of
their wood in advance to the German authorities, claimed
that their contracts were still valid and Obligatory as'
against France, and "that they were at ‘liberty to continue‘
their fellings. The French government refused to allow
the work to be continued; and it was specially declared,
with the assent of Germany, on December 11, 1871, in an
additional article to the treaty of peace, that France did
not recognise the contracts as of legal value or binding
force, and repudiated all responsibility, pecuniary or other-
wise, that the above parties might desire to throw on her.’ 1 ~
But if the conquered provinces and places areconfirmed
to the conqueror by the treaty of peace, or otherwise, they
can claim no right of postliminy." Their condition is esta-
blished by the rights of conquest, and the will. of the con-
queror. The right orstitle of the new sovereign‘ is not that
1 Calvo, Int. Law, t. ii. § I 324.
on. xxxv ‘ POS'I'LIMINY AND RECAPTURE 543
of the original possessor, ‘and therefore is not subject to the
same .limitation or restriction. It had its origin in force,
and'is confirmed by treaty, incorporation, length of posses-
sionr, or otherwise.v It dates back to the actual conquest,
but-not to any period anterior to the conquest. The rela-
tions between the conquered and the conqueror are there-
fore very different from those which existed between the
conquered and their former sovereign. They have, in their
new condition, such rights only as belong to them by the
general :law of nations, and the stipulations of the treaty
of cession, or such others as may be given to them by the
will of the conqueror. If, however, the provinces and
places ‘have riot themselves been considered as having been
in a hostile attitude to the conqueror, he is regarded as
merely-replacing’ the former sovereign in his rights over
them. They are regarded as acquired by conquest, rather
than as actually conquered, and, in such cases, the acquisi-
tion or change of sovereignty ‘is not usually attended by
loss of rights. But in whatsoever way the conquest be
completed, it operates as an entire severance of the relations
between the'coriqueredterritory and the former sovereignty.
A_ subsequent restoration‘ of such territory to its former
sovereign is regarded in law as a retrocession, and vcarries
with it no rights of postliminy. When the inhabitants of
such conquered territory become a part of the new State
they must bear the consequence of the transfer of their
allegiance to a new sovereign; and, should they subse-
quently fall into the power of their former sovereign, he is,
in_ ‘turn, to be regarded: as a conqueror, ‘and they cannot
claim, as against him, any rights of postliminy. The cor-
rectness. of this principle of international law is indis-
putable ; but there is great difficulty in determining ‘ when
the conquest 'is complete, or in drawing the precise line
between absolute conquest and mere military occupation.
- This distinction has been discussed in chapters xxxiii. and
xxxiv.1 .
§ IO. A State is sometimes entirely subjugated- and its
1 Hefiter‘, 'Droit International, § 188 ; Chitty, Law ofNations,
pp. 95, 96 v,; Bynkershoek, Qucest. jar. Pub. lib. i. c. xvi; Bello,
Derecho Internacional, pt. ii. c. iv. § 8 ; Rayneval, Inst. du Droit
Nat. livs iii. ‘c'h. xviii.
544
INTERNATIONAL LAW on. xxxv
If a State
be en-
tirely sub-
jugated
Case of
Genoa in
1814
personality extinguished by a compulsory incorporation
into another sovereignty. As the towns, provinces, and
territories of which it was composed ‘now become sub-
ordinate portions of another society, their relations to each
other and to the new State result from the will of the new
sovereign. If, by a subsequent revolution, the extin-
guished State resumes its independence, and again becomes
a distinct and substantive body, its constituent parts may
resume their former relations, or assume new positions and
rights, according to the character of the society which is
recognised, and the constitution or government which it
adopts. This is a question of local public law, rather than
of international jurisprudence. But if the subjugated State
be delivered by the assistance of another, the question of
postliminy .may arise between the restored State and its
deliverer. 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 ‘postli_
miny. If the deliverance be effected ‘ by an ally, the duty
of restoration is strict and precise, for an ally can claim no
right of war against its co-ally. If the deliverance .be
effected by a State unallied but not hostile, the re-esta-
blishment of the rescued nation in its former rights is
certainly the moral duty of the deliverer. He can claim no
rights of conquest against the friendly. State which he
rescues from the hands of the conqueror. How much
stronger, then, is the duty of restoration where the deliver-
ance is effected with the concurrence and assistance of "the
subjugatedpeople, and under the expectation on their part:
of recovering their ancient rights and privileges. A denial-
of the right of postliminy, in such- a case, would. be con-
trary to the law of nations and a breach of public morality.1
§- II. The history of Genoa furnishes an illustration of
this principle. The ancient republic‘ of Genoa had been
subverted, in consequence of the French invasion and cone
quest of Italy, and was annexed to the French. empire in
I805. In 1814 the city of Genoa surrendered to the British
troops, under the command of Lord Bentin'ck, who issued a
proclamation on April 26, stating ‘ that, considering the
1 Puffendorf, De ]ure Nat. et Gent. lib. viii. 0. vi.- § 26. .
OH.‘ XXXV POSTLIMINY AND RECAPTURE
545
general desire of the Genoese seems to be to return to that
ancient form of government under which it enjoyed liberty,
prosperity, and independence; and considering, likewise,
that this desire seems to be conformable to the principles
recognised by the high allied powers, of restoring to all
their ancient rights and privileges,’ and declaring, ‘ that the
Genoese State, as it existed in 1797, with such modifications
as the general wish, the public good, and the spirit of the
original constitution seem to require, is re-established.’
Nevertheless, by the second article of the treaty of Paris,
of May 30, 1814, the States of Genoa were ceded to the
King of Sardinia. The provisional government of Genoa
remonstrated against this cession, and appealed to the
guarantee of its independence contained in the treaty of
Aix-la-Chapelle, 1745, but in vain.1
§ 12. Having considered the law of postliminy appli-
cable to the retaking of movable and immovable property
captured on land, it remains to examine its application to
the retaking of prizes, or property captured at sea—what
was called in Latin recuperatio, and is known in English
law‘as recapture. There is a manifest difficulty in applying
the right of postliminy to maritime recaptures, on account
of the uncertainty of the time when the title of the original
proprietor is completely divested. If all nations had, by
their municipal laws, adopted the principle, that condemna-
tion, by a competent court of prize, was necessary, in all
cases, ‘to effect a change of ownership, the rules of post-
liminy applicable to prizes would be the same in all coun-
tries ; but, as this principle has not been universally adopted,
there is not, in practice, any well-established rule of mari-
time recapture. Different text-writers have advocated
different principles, and different legislators have enacted
different laws, and, as a consequence, the prize courts of
different countries have adopted different rules of decision.2
1 Wheaton, Hist. Law of Nations, pp. 487, 488 ; Kluber, Acten
des Wiener Congresses, b. vii. § § 420-433 ;-Mackintosh, Miscell.
I/l/"orks,v pp. 508-524 ; Alison, Hist of Europe, vol. iv. pp. 370, 503 ;
Rotteck, Hist. of the World, vol. ‘iv. p. 248 ; Annual Register, 1814,
p. 191 ; Hansard, Parliamentary Debates, vol. xxx. pp. 894 et seq. ~
8. Wheaton, Elem. I nt. Law, pt. iv. ch. ii. § 12 ; Bello, Derecho I nter-
nacional, t. c. v. § 6; Heffter, Droit International, §v 191;
Hautefeu' e, Des ;Nations Neutres, tit. xiii. ch. -; Jouffroy, Droit
Maritime, p. 313 ;Poehls, Seerecht, 4&0. iv. § § 509 et, seq. ; Kalten-
VOL. II. N N
Applica-
tion of
post-
liminy to
maritime
captures
546 INTERNATIONAL LAW on. xxxv
Text-
writers
and prize
courts
§ 13. It is remarkable that of all the ancient codes. of
maritime law—including the Role des Jugemens d’Oleron,
the Rules of Wisbuy, the Statutes of Hamburg, Liibeck,
Bremen, and the Hanse Towns—the Consolato del Mare
alone deals with the case of recaptures. ‘The doctrine of
;berductio infra ;brasidia, as constituting a sufficient con.-
born, Seerecht, &c. b. iii. p. 378 ; Dalloz, Repertoire, verb. ‘ Prises
Maritimes,’ § 3 ; Pistoye et Duverdy, Des Prises, tit. viii.
There is one species of recapture from the enemy which vests
the whole interests in the recaptors—viz. when an enemy's ship,
taken originally by one English vessel, and lost again to an enemy’s
cruiser, is subsequently recaptured by another English vessel.
(Note to the ‘ John and Jane,’ 4 Rob. 217.)
By virtue of 7 Edw. IV. c. 14, a recaptured vessel belonged
neither to the king, the admiral, nor the former owners, but to
the recaptors (Weston’s case, 2 Brownl. ii.), unless the owner claimed
it on the day on which it was retaken, and ante occasum solis (jenk.
201 ; Pl. 22). So also as to recaptured ships, the property of allies
of Great Britain, and retaken by British subjects from a common
enemy. (I bid.) _ '
If a ship be taken by letters of marque, and be not brought
infra jbreesidia of that State by whose subjects it was taken, it is no
lawful prize, and the property is not altered, and therefore a sale
in such a case is void. (Anon. 6 Vin. Abr. 519.)
It was not essential, to constitute a capture, or such a one as to
give occasion to a recapture under the former Prize Acts of Great
Britain, that the enemy should have taken actual possession. (The
‘ Edward and Mary,’ 3 Rob. 305.) r
In questions of restitution of property recaptured, the onus pro-
bandi in the first instance lies on the recaptors, to show the absence
of reciprocity as to restitution, by the laws of the claimant’s country,
but on prima iacie evidence being shown by the recaptors, the onus
of proof of reciprocity shifts to the claimant. (The ‘ Santa Cruz,’
I Rob. 60.)
In a cause of possession, at the suit of the former British owner
of a vessel which had been captured by the French, and carried into
a port of Spain, then an ally of the French, where she was condemned
by the prize tribunal at Paris, but was afterwards seized by Spain
on becoming an enemy of France, and sold, it was held, on proof
of such first sale, that the right of the former British owner was
divested, and that the Spanish seizure was not in the nature of a
recapture enuring to the benefit of the former British owner. (The
‘ Victoria,’ Edw. 97.)
Where a British vessel has been seized in a French port for _an
asserted violation of French municipal laws, condemned, and 'sold
under that sentence to a French merchant, and afterwards recaptured
on the breaking out of war between France and England, it was held
that it could not be restored on salvage to the former British pro-
prietor : the restitution to the former owner mentioned in the Prize
Act being confined to property taken by the enemy as prise. (The
‘ Jeune Voyageur,’ 5 Rob. 1.) ‘ -
' The French Prize Court decided in 1802 that a belligerent is not
bound to accept any notification of the cessation of hostilities,
unless it be communicated to him by his own government. See
the ‘ Swineherd,’ Merlin, Re'pert. de jurisprudence, 'vol. xiii.p. I8 3.
on. xxxv POST'LIMINY AND RECAPTURE 547
version of property, is there expressed, but not in terms
‘very intelligible in themselves. These terms, however, have
been satisfactorily explained by Grotius and Barbeyrac,
and the whole subject has been most ably discussed by
Bynkershoek. Nevertheless, it was left unsettled whether
‘the right of postliminy should apply to all maritime recap-
tures, or only to ships; whether they must be taken infra
prcesidia of the captor, or whether the bringing infra
{ircesidia of a neutral was sufficient to change the property ;
moreover, it was often a matter of dispute what should be
understood by the phrase infra prwsidia. ‘ This led to
various treaty stipulations and municipal laws, by which
the subject of recapture was regulated with respect to the
contracting parties and their own subjects, and with respect
to countries with which the recaptor had no treaty; in
relation to the application of postliminy to the latter cases,
the courts have sometimes adopted the rule of reciprocity.
Sir William Scott considers this the most liberal and rational
rule which can be applied. ‘ To the recaptured,’ he says,
1 it presents his own consent, bound up in the legislative
wisdom of his own country; to the recaptor, it cannot be
considered as injurious, where the rule of the recaptured
would condemn, whilst the rule of the recaptor prevailing
amongst his own countrymen, would restore, it brings an
obvious advantage ; and even in case of immediate restitu-
tion, under the rules of the recaptured, the recapturing
country would rest secure in the reliance of receiving
reciprocal justice in its turn. It may be said, what if this
reliance should be disappointed? Redress must then be
sought by retaliation, which, in the disputes of independent
States, is not to be considered as vindictive retaliation, but
as the just and equal measure of civil retribution. This
will be- their ultimate security, and it is a security sufficient
to warrant the trust. For the transactions of States can.
not be balanced by minute arithmetic; something must,v
on all occasions, be hazarded on just and liberal presump-
tion.’ 1
§ I4. Every power is obliged to conform to the law of
nations, relative to postliminy, where the interests of
1 The ‘ Santa Cruz,’ 1 Rob. 63 ; Goss et al. v. Withers, 2 Bar. R.
693 :Loccenius, De jure M aritimo, lib. ii. 0. iv.
N N 2
548
' INTERNATIONAL LAW 011. xxxv
Regulated
in par t by
treaty
stipula-
tions
Laws of
Great
Britain
neutrals are concerned, unless otherwise regulated by treaty
stipulations. Such stipulations establish a factitious right,
which relates only to the contractingv parties, and cannot
bind others. So, with respect to allies, two allies may
enter into an agreement by which the rights of postliminy
may be restricted or extended, as between themselves, but
such agreement can in no way affect the rights of post-
liminy of the third co-ally, who is not a party to it. His
rights and duties in that respect are governed and regulated
by the rules of postliminy, which are recognised and esta-
blished by the law of nations. In many cases there is no
recognised and well-established rule of international law,
which can be applied. So of municipal laws, they may
modify the right of postliminy in its application to cases
arising between the subjects of the same belligerent State,
but they cannot change it so as to prejudice the absolute
rights of citizens of other States, whether allies or neutrals.
In other words, municipal statutes cannot deprive the
subject of an ally of the benefit of postliminy, in case of
recapture, nor take from the subject of a neutral State
what he holds by a title, which is regarded as valid by the
law of nations. They may, however, give to both certain
benefits of postliminy, which they could not claim under the
well-established principles of the law of nations as absolute
rights. Such have been the modifications of postliminy
which have been made, or attempted, by municipal laws.
§ 15. The established doctrine of English prize law is,
that so long as the captured property continues in the
hands of the enemy the original rights of the British owner
are kept alive, and rendered capable of resumption on
payment of salvage when the event ~ of recapture takes
place. If at the time when a prize ship is retaken it is
clearly in the possession of a citizen of the enemy’s country,
the owner has a right to receive his property again, on
payment of salvage, and this whether there has been a
sentence of condemnation in the enemy’s court or not.
But if a sale to a neutral has taken place, that sale, joined
to the sentence of the enemy’s court, ‘will bar all claim of
the original British owner against the neutral for restitu~
tion on salvage.1 Restitution upon salvage of British
' 1 The ‘ Cornelia,’~Edw. R. 244. ' ‘
on. xxxv POSTLIMINY AND RECAPTURE 549
property retaken from the enemy appears to have been
the constant practice in the Admiralty of England; 1 but
in order to secure this benefit it was formerly necessary that
the property should be recaptured within twenty-four hours,
or within certain limitations. During the English Common-
wealth, when commerce began to expand, this rule was
receded from ; and in 1649 restitution upon salvage without
regard to time was enacted in favour of British subjects
by an Ordinance of the Long Parliament. The ancient
practice, however, continued, and still prevails in those
cases where the enemy has fitted out the prize as a ship
of war. By the Naval Prize Act, 1864 (27 and 28 Vict.
cap. 25), it is enacted (s. 40) that ‘ where any ship or goods
belonging to any of her Majesty’s subjects, after being
taken as prize by the enemy, is or are retaken from the
enemy by any of her Majesty’s ships of war, the same shall
be restored by decree of a prize court to the owner, on his
paying as prize salvage one-eighth part of the value of the
prize, to be decreed and ascertained by the court, or such
sum not exceeding one-eighth part of the estimated value
of the prize as may be agreed on between the owner and
the recaptors, and approved by order of the court; pro-
vided, that where the recapture is made under circum--
stances of special difficulty or danger, the prize court may,
if it thinks fit, award to the recaptors as prize salvage a
larger part than one—eighth part, but not exceeding in any
case one-fourth part of the value of the prize; provided
always, that where a ship being so taken is set forth, or used
by any of her Majesty’s enemies as a ship of war, this pro-
vision for restitution shall not apply, and the ship shall be
adjudicated on as in other cases of prize.’ And (by s. 41)
‘ where a ship belonging to any of her Majesty’s subjects,
after being taken as prize by the enemy, is retaken from
the enemy by any of her Majesty’s ships of war, she may,
with the consent of the recaptors, prosecute her voyage,
and it shall not be necessary for the recaptors to proceed
to adjudication till her return to a port of the United
Kingdom. The master or owner, or his agent, may, with
the consent of the recaptors, unload and dispose of the
R 1 Life of Sir L. ]enkins, vol. ii. p. 770 ; the ‘Ceylon,’ 1 Dods.
. 109.
550 INTERNATIONAL LAW 011. xxx'v
Laws of
the United.
States
goods on board the ship before adjudication. 'In case the
ship does not, Within six months, return to a port of the
United Kingdom, the recaptors may nevertheless institute
proceedings against the ship or goods in the High Court of
Admiralty, and the court may thereupon award prize
salvage as aforesaid to the recaptors, and may enforce
payment thereof, either by Warrant of arrest against the
ship or goods, or by monition and attachment against the
owner.’
It should be observed that a sentence of condemnation
of a prize court is a sufficient title to a vendee who is not a
British subject, and entitles a recaptor to condemnation of
the property so far as the above statute does ‘not apply
and, as to British subjects, revive the ins ;bostliminii of the
original owner, on payment of salvage. This principle
extends to allies and neutrals the benefit of postliminy until
after condemnation if the rule of reciprocity alluded to by
Sir William Scott exists.1 _ ' ‘
§ 16. The United States, by c. 174, s. 29 of the Act of
June 30, 1864, now s. 4652 of the Revised Statutes, 1873-4,
enacted ‘ that when any vessel or other property shall
have been captured by any force hostile to the United
States, and shall be recaptured, and it shall appear to the
court that the same had not been condemned as prize
before its recapture, by any competent authority, the court
shall award a meet and competent sum as salvage, according
1 The ‘ Santa Cruz,’ 1 Rob. 63. Recaptures are emphatically
cases of prize; for the definition of prize goods is, that they are
goods taken on the high seas, jure belli, out of the hands of the
enemy. When so taken, the captors have un undoubted right to-
proceed against them as belligerent property, in a court of prize ;
for in no other way, and in no other court, can the question presented
on a capture jure belli be properly or ‘effectually examined. ‘ The
very circumstance that it is found in the possession of the enemy,
affords prima‘ facie evidence that it is his property. The question
cannot be decided, unless the customary proceedings of prize are-
instituted, and enforced‘. The court, then, has a legitimate juris-
diction over the property of prize ; and, having it, Will_ exert its-
authority over all the incidents. It will decree a restoration of the
whole, or of a part ; it will decree it absolutely, or burthened wIth
salvage, as the circumstances of the case may require ; and whetherv
the salvage be held a portion of the thing itself, or a mere lien upon ,
it, or a condition annexed to its restitution, it is an incident to the
principal question of prize, and Within the scope of the regular prize‘
allegation. (The ‘ Adeline,’ 9 Cranch. 244, 286 ; compare the ‘ Dove,’
I Gall. 585.)
en'. xxxv POSTLIMINY AND RECAPTURE 551
to‘ the circumstances of each case; and if the captured
property belonged to the United States, it shall be restored
to the United States, and there shall be paid from the Trea-
sury of the United States the salvage, costs, and expenses
ordered by the court ; and if the recaptured property
belonged to persons residing within or under the protection
of'the United States, the court shall adjudge the property
to be restored to its owners upon their claim, on the pay-
ment of such sum as the court may award as salvage, costs,
and expenses; and if the recaptured property belonged
to any person permanently resident within the territory,
and under the protection of any foreign prince, government,
or State in amity with the United States, and by the law
or usage of such prince, government, or State the property
of a citizen of the United States would be restored under
like circumstances of recapture, it shall be adjudged to be
restored to such owner upon his claim, upon such terms
as by the law or usage of such prince, government, or State
would be required of a citizen of the United States under
like circumstances of recapture; and when no such law
or usage shall be known, it shall be adjudged to be restored
upon the payment of such salvage, costs, and expenses as
the ‘court shall order: provided, that nothing in this Act
shall be construed to contravene any treaty of the United
States. And the whole amount awarded as salvage shall
be decreed to the captors, and no part to the UnitedStates,
and shall be distributed as in the case of proceeds of pro-
perty condemned as prize.’ 1 t
The same provisions are made in the British and American
statutes, with respect to the setting forth as a vessel of war,
prior to the capture. We know of no American decision
1 This Act repealed the Act of March 3, 1800. The rule of s. 1
of that statute, which provided for the restoration to the former
owners, upon the payment of certain salvage, of vessels recaptured,
before condemnation, by public armed ships of the United States, was
held to apply to a vessel recaptured after a capture by a Confederate
Privateer, and a condemnation and sale by a Confederate prize court.
(The ‘ Lilla,’ 2 Sprague, 177 ; 15 Law Rep. NS. 81.) An American
vessel was captured by the enemy, and, after condemnation and
sale to a subject of the enemy, was recaptured by an American
privateer. Held, that the original owner was not entitled to restitu-
tion on payment of salvage, under that statute, nor under the
Prize Act of June 26, 1812. (The ‘ Star,’ 3 Wheat. 78.)
552
INTERNATIONAL LAW 011. xxxv
Laws of
different
European
States
as to what constitutes such setting ]‘orth,1 but the meaning
of the term has been fully settled by adjudications in the
British prize courts. It has there been decided that a
commission of war is sufficient, if there be guns on board;
that where the vessel has been fitted out as a privateer,
after capture, although when recaptured she was navigating
as a merchant vessel, it is conclusive against her, and the
title of the former owner is for ever extinguished. So
where she has been employed in the military service of the
enemy, by authority of the government, although she be not
regularly commissioned; the order of the commander of a
single ship will be presumed to have been given by com-
petent authority. But ‘the mere fact of employment in the
military service of the enemy is not a sufficient setting forth
as a vessel of war. Where a ship was originally armed for
the slave trade, and, after capture, an additional number
of men were put on board, but where there was no commis-
sion of war and no additional arming, it was held not to be
a setting forth as a vessel of war, under the Act. Lord
Stowell observed, that a Prize Act was drawn with the
intention of expressing the sense and meaning of inter-
national law, with respect to what constitutes a vessel of
war.2
§ 17. Although the letter of the French ordinances,
previous to the Revolution, condemned, as good prize,
French property recaptured after being twenty-four hours
in possession of the enemy, whether the same be retaken
by public or private armed vessels, yet it was the constant
practice to restore such property when recaptured by the
king’s ships. By the ordinance of June 15, 1779, all French
1 By the Act of March 3, 1800, it was provided that if the re-
captured vessel should a pear to have been armed as a vessel of war
before such capture or a terwards she should be restored on payment
of one-half her value (instead of the usual sixth). This probably
accounts for the question of ‘ setting forth ’ having never arisen. The
‘ Adeline,’ 9 Cranch. 244, appears to be the only case under this sec-
tion; prior to the first capture the American vessel was under
letters of marque carrying cargo. Prize and bounty were abolished
by the Act of March 3, 1899, c. 13, s. 13, but this does not affect
the above section 4652. .
1 The ‘ Actif,’ Edw. R. 185 ; the ‘ Santa Brigada,’ 3 Rob. 56;
the ‘ Georgiana,’ I Dod. R. 397 ; the ‘ Nostra Senora de Rosario,’
3 Rob. 10; the ‘Progress,’ Edw. R. 210, 222; the ‘ Horatio,’ 6
Rob. 320.
0H. XXXV POSTLIMINY AND RECAPTURE 553
property recaptured after twenty-four hours’ possession by
the enemy was condemned to the crown, the king in council
regulating the amount of salvage to be allowed to the
recaptors according to circumstances. The Arrété du 2
Prairial, an XI, which was, in part, a reproduction of the
‘ordinances of 1681, provided that if the recapture be made
by a public ship of war (batiment de l’Etat), it should be re-
stored to the original proprietors, on payment, to the
recapturing crew, of the thirtieth part of the value if the
twenty-four hours have not elapsed, and of the tenth part
if they have elapsed; all the expenses incident to the
recapture to be ‘borne by the recaptured vessel. If the
recapture be made by a privateer before the twenty-four
hours had elapsed, she was entitled to one-third of the
value of the recaptured ship and cargo; and if after the
twenty-four hours’ possession, to the whole. The law
applicable to the recapture of a French vessel equally
applied to the recapture of the vessel of an ally. The laws
‘of Spain with respect to recaptures generally agree with
those of France. In 1801 she made a rule with respect to
the property of friendly nations, that where the recaptured
ship was not laden for the enemy’s account, it was to be
restored upon the payment of a salvage of one-eighth if
recaptured by public ships, and one-sixth if by privateers ;
provided, that the nation to which such property belonged
had adopted, or agreed to adopt, a similar conduct towards
‘Spain. The ‘rule with respect to recaptures of Spanish
property was the same as the French rule with respect to
recaptures of French privateers. On February 5, 1814,
Spain concluded a treaty with Great Britain with respect
‘to recaptures, by which restoration was to be made on the
payment of the specified salvage, without reference to the
‘time the ship had remained in the captor’s hands, or whether
it had been brought into the port of the captor or been
‘condemned. Portugal, in her ordinances of 1704 and 1796,
adopted the French and Spanish law of recaptures '; but in
May 1797 she revoked her former rule by which twenty-
fourjhours’ possession by the enemy divested the property
of the former owner, and allowed restitution after that
‘time, on salvage of one-eighth if recaptured by a public
ship, and one-fifth if by a privateer. The ancient law of
554 INTERNATIONAL LAW on. xxxv
Denmark condemned after twenty-four hours’ possession
by the enemy, and restored if the property had been a less
time in the enemy’s possession, upon the payment of a
salvage of one-half the value of the property recaptured;
but the ordinance of I8IO restored Danish, or allied property,
without regard to the time it had been in the enemy’s
possession, on the payment of salvage of one-third the
value. With respect to Sweden, the ordinance of Charles
XI. enacted, ‘ that in case a ship belonging to Swedish
' subjects, after having been taken by the enemy, should
be retaken, the recaptor should have two-thirds of its
value, and a third should be restored to the proprietor,
without respect to the time during which it might have
been in the enemy’s hands.’ The ordinance of 1:788 made
the same provisions, only changing the rate of salvage
to one-half of the value of the property recaptured. There
were many and great variations in the laws promulgated,
at different times, by the States-General of the United
Provinces. The ordinance of I659, ‘ without ‘making any
distinction between the times of recapture and the quality of
the recaptors, allowed a salvage of only one-ninth of the
vessel and cargo. But the ordinance of I677 directed,
with respect to privateers, that a salvage of one-fifth should
be allowed in case of recapture before the property had
been forty-eight hours in the enemy’s possession, of one-
third if more than forty-eight and less than ninety-six
hours, and one-half it beyond that time. It was under-
stood that the ordinance of 1659 was continued in force
with respect to recaptures made by ships of war. It is
thus seen that the States—General allowed restoration in
all cases, the rates of salvage being different according
to the character of the recaptor and the length of time the
captured property had remained in the possession of the
enemy.1
1 The ‘ Santa Cruz," I Rob. 58; Hautefeuille, Des Nations
Newt's/es, tit. xiii. ch. iii. ; Emerigon, Tmz'te' des Assurances, ch. xii.
§ 23 ; AzunLDeoz't de la M e1’, pt. ii. ch. iv. § I I ; Pi-stoye et Duverdy,
Des Pm'ses, tit. vii. ; Abreu y Bertodano, Colecez'on, &c. pt. ii. p. 371 ;
Martens, Essaz' sm' Ae'matews, pp. 49, 200; Bynkershoek, Queest. fur.
Pub. lib. i. c. 5. An American ship was taken by a privateer, A.,
who kept possession ten days, when the prize was retaken by an
American cruiser, B., who kept possession thirteen days. It was
then again recaptured by a British cruiser, C., at ‘the’ time of whose
on. xxxv POSTLIMINY AND RECAPTURE
555
' §'18. It appears from the foregoing synopsis of the laws
of recapture, that there has been no uniform or fixed rule as
to the quantum of salvage to be allowed in cases of recap-
ture of a foreign vessel or foreign goods. This is still the
case, the rates being different in different countries, and even
in the same country. In the United States the amount of
salvage is regulated by the law and usage which the govern-
ment to which the person claiming the vessel or goods
belongs applies, under like circumstances, to the vessels and
goods of the United States; and where no such law or
usage is known, the same salvage is allowed as in the case
of recapture of the property of its own citizens. In France,
and other States on the Continent, the rate of salvage
varies with the length of time the property recaptured
has been in the enemy’s possession. A distinction ‘is also
made in the rate of salvage allowed to a privateer and to a
government vessel, the allowance to the former being
usually much larger than to the latter. It being the duty
of every citizen to assist his fellow citizens in war, and to
retake their property out of the enemy’s possession, no
commission isgnecessary, and non-commissioned vessels are
usually allowed the same amount of salvage on a recapture
as commissioned vessels.1 '
§ 19. Neutral property recaptured from the enemy, if
not subject to condemnation by the rules of international
law, is not subject to pay salvage to the recaptor. This
rule is founded upon the supposition that justice would
have been done if the vessel had been carried into the
enemy’s port, and that if injury had been sustained by the
act of capture, it would have been redressed by the tribunal
of the country to whose cognisance the case would have
been regularly submitted. This is a presumption which
is to be entertained in favour of every State which has
recapture of her the prize master and crew of A., the first captor,
were on board the prize. Held that A. was to be considered as the
actual captor, and C. as the recaptor. Sentence accordingly;
salvage awarded to the recaptor equivalent to the share of a joint
captor. (The ‘ Lucretia,’ Hay and M arriott, 227.) _
1 The ‘ Robert,’ 3 Rob. 194 ;the ‘ Helen,’ 3 Rob. 224 ;the ‘ Urania,’
5 Rob. 148; the ‘ Progress,’ Edw. R. 215 ; the ‘Hope,’ Hay and
Marriott, R. 216; the ‘Two Friends,’ 1 Rob. 271 ; the ‘Mary,’ 5
Rob. 200 ; Talbot 1). Seaman, 1 Cranch. R. 1 ; the ‘ Adeline,’ 9
Cranch. R. 244, 287.
Quantum
of salvage
on recap-
tures
Recapture
of neutral
property
556 INTERNATIONAL LAw
CH. XXXV
Inter-
national
law on
salvage
not sullied its character by gross violations of the law of
nations.
Video to London, was recaptured from a French privateer,
after recapture from a British privateer. No edict was
produced from the French code to show that the vessel,
would have been subject to condemnation in a prize court
of France, and salvage was pronounced not to be due.
But if it be shown that the recaptured vessel of the neutral
would, in all probability, have been condemned if she had
been carried into the enemy’s ports and subjected to the
decisions of the enemy’s tribunals, a real benefit has been
conferred upon the neutral by the recapture, and a reason-
able salvage will be allowed. Thus, where a neutral vessel,
retaken from a French captor, was bound to a neutral-
port without certificates of origin on board, salvage was
allowed on the ground that she would have been condemned
by a French prize court. So where the recaptured vessel
would have been liable to condemnation under the French
decrees prohibiting neutral trade with Great Britain.1
§ 20. The allotment of salvage, where the recaptured
property is claimed by subjects of the same State, is pro-
perly regulated by municipal law ; but where it is claimed
by subjects of allies or alien friends, the allotment of military
1 Kent, Com. on Am. Law, vol. i. p. 112 ; Phillimore, On Int.
Law, vol. iii. § 422 ; Pistoye et Duverdy, Des Prises, tit. vii. ch. ii.
A vessel which had been used by the enemy, without the know-
ledge of her owners, and had been recaptured from the enemy, was
restored by consent, with costs to the libellants, in the case of the
‘ Henry C. Brooks ’ (Blatchf. Pr. Cas. 99). A neutral vessel
recaptured from the enemy may, ‘if necessary for mutual safety
and interest of herself and the recaptors, be equipped, armed, and
employed at her own risk in protecting herself and the recaptors
from the attack of the enemy’s cruisers. The claim of the neutral
owners for restitution in value, in consequence of their ship having
become a wreck whilst and in consequence of being so employed,
was pronounced against, affirming the sentence of the Vice-Admiralty
Court of Jamaica. (The ‘ Swift,’ Acton, 1.) Recaptors are under
a responsibility to restore the property of allies and neutrals, and
this responsibility will exonerate the original captors, unless it can
be shown that the original captors so dealt with the property and
accompanying documents, that it could not be ascertained to be
neutral, on the just and uniform principles of the Law of NatIOns,
when it came into the prize court of the recaptors. (The ‘ Betsey,’
1 Rob. 96.) It may now be considered law in Great Britain and
the United States that if a neutral vessel be captured by a belligerent
and recaptured by the crew of the vessel, the neutral government
will not interfere and cannot be called upon to deliver the shipup.
The ‘ Emily St. Pierre ’ ; Earl Russell to Mr. Adams, May 7 , I862. ,
Thus, a Spanish vessel, bound from Monte
0H. XXXV POSTLIMINY AND RECAPTURE
557
salvage is properly a question of international law; so,
also, of civil salvage, where the quantum meruit is the only
rule for apportioning the remuneration. But, as already
remarked, there being no “well-established rule of inter-
national law universally acknowledged, with respect to the
legal status of captured property, between the time of
pernoctation, or twenty-four hours’ possession, and the
condemnation by a competent court of prize, restitution,
in case of recapture between these periods, is not regarded
as’a matter of strict right, but, in a measure, one of favour
and relaxation; and the belligerent recaptor certainly is
justifiable in annexing conditions to his liberality. But
where the restitution is regarded as a positive obligation
on the part of the recaptor, and as a right which may be
demanded by the owner of the recaptured property, it
seems unreasonable and contrary to the principles of
postliminy, that any heavy salvage should be allowed.
Where, however, a positive benefit has been conferred, it is
proper that the recaptor should be rewarded for his risk
and trouble. Moreover, this remuneration should be
sufficient to serve as an incentive to vessels of the belli-
gerent to use their best endeavours to rescue from an
enemy the property which he has captured from their own
citizens and allies, as well as from alien friends. Such
views seem to have influenced the drafting of the Statutes
of the United States, on the allotment and quantum of
salvage in cases of recapture by American vessels.1
§ 21.. There is an obvious distinction between military
and civil salvage, the former being allowed for rescuing
vessels or goods from an enemy, and the latter for assist—
ance rendered to a vessel or its cargo derelict at sea. Thus
if a vessel be captured going in distress into an enemy’s
port, and is thereby saved, it is merely a case of civil and
not of- military salvage. The same salvors, however,
may, in some cases, be entitled to both these kinds of sal-
vage ;‘ thus, where, upon a recapture, the parties" have
entitled themselves to a military salvage under the prize
law, the court may also award them, in‘ addition, a civil
salvage, if they have subsequently rendered extraordinary
1 ‘Chitty, Law of Nations,pp. “105-107.; the ‘ Two Friends," 1 Rob.
271 ;the ‘ Johann,’ 1 Rob. 38 ; U. S. Statutes at Large, vol. ii. p. 16‘.
Military
and civil
salvage
558
INTERNATIONAL Law
on. xxxy
Special
rules of
military
salvage
services in rescuing the vessel in. distress from the perils of
the sea._1 ' < . . v I
§ 22. The following special rules respecting military
salvage are collected by Wheaton from the decisions of
English and American courts of prize. It a convoying
ship recaptures one of the. convoy, which has been pre—
viously captured by the enemy, the recaptors are entitled
to salvage; but a mere rescue of a ship engaged; in the
same common enterprise gives no right to salvage. Military
salvage will not be allowed in any case where the, property
has not been actually rescued from the enemy. It is not
necessary that the ‘enemy should have actual possession;
it is sufficient if the ‘property is completely under his do-
minion : nor is it necessary that the recaptors should have
actual possession; it is sufficient if the prize be actually
rescued from the grasp of the hostile captor. Where a
hostile ship is captured, and afterwards recaptured by the
enemy, and again recaptured from the enemy, the original
captors are not entitled to restitution on paying salvage,
but the last captors are entitled to the whole rights of prize,
for by the first recapture the right of the original captors
is entirely divested. Where the original captors have
abandoned their prize, and it is subsequently’ captured
by other parties, the latter are solely entitled to the pro-.
perty. But if the abandonment be involuntary, and
produced by the terror of superior force, and’, especially it
produced by the act of the second captors, the rights of
the original captors are completely revived. Where the
original captor abandons his prize, whether voluntarily
or through terror, and it is then recaptured, it is restored
on payment of salvage, for the original owner, never had the
animus delzlnquende'. As to recaptors, although their right
of salvage is extinguished by a subsequent hostile recapture,
and regular sentence of; condemnation, divesting the original
owners of their property, yet if the vessel be restored upon
such recapture, and resume her voyage, either in conse-
quence of judicial acquittal, or a release by the sovereign
power, the recaptors are reintegrated in their right of salvage.
I' 1 The ‘ Louisa,’ I Dod. R. 317 ; the ‘ Franklin,’ 4 Rob. I47 ; the
‘ Sir Francis,’ 2 Hagg. R. I 56 ; the ‘ Sir Peter,’ 2 D0d..R. 73 ; the
‘ Beaver,’ 3 Rob. 292,. i .
GB. XXXV
POSTLIMINY AND. RECAPTURE 559
And recaptors and salvors have a legal interest in the
property, which cannot be divested by other subjects,
without an adjudication in a competent court ; and it is not
for the government’s ships or officers, or for other persons,
on the ground of superior authority, to dispossess them
without cause. In all cases of salvage where the rate is not
ascertained by positive law, it is in the discretion of the
court, as well upon recaptures as in other cases.1
§ 23. If the original capture was unlawful, the recaptor,
says Emerigon, acquires no property in the recapture.
Thus, the French bark ‘ Victoire,’ chased by an English
privateer, took refuge under the castle of the island of
Majorca, and was taken by the privateer While at anchor
Within pistol shot of the castle. Some days after the bark
was recaptured by another French vessel. The original
capture was held to have been unlawful and void, for
having been made in neutral territory, and, consequently,
in violation of the law of nations. The recaptor, however,
received a large salvage for the recapture, probably as a
fair compensation for his trouble, time, danger, and ex-.
pense in the rescue. This principle isv applied to the recap.-
ture of neutral property—that is, of property neutral to
both of- thev belligerents. If the original capture was a
violation of the law of nations, the recaptors from the
possession of the enemy acquire no right of property What-
soever. This is the universally received doctrine of the
law of nations. ‘A belligerent,’ says Story, ‘ by recaps
1 Wheaton, Elem. Int. Law, pt. iv. ch. § 12 ; the ‘ Wight,’ 6
Rob. 315 ;the ‘ Belle,’ 1 Edwards R. 66 ; the ‘ Franklin,’ 4 Rob. 147 ;
the ‘ Edward and Mary,’ 3 Rob. 305 ; the ‘ Pensamiento Feliz,”
1 Edw. R. 116 ; the‘ ‘Astrea,’ 1 Wheat. R. 125 ; the ‘ Lord Nelson,’
1 Edw. R. 79 - the ‘ Diligentia,’ 1 Dod. R. 404 ; the ‘ Mary,’ 2 Wheat.
R. 123 ; the John and Jane,’ *4 Rob. 216 ; the ‘ Gage,’ 6 Rob. 273 ;
the ‘ Charlotte Caroline,’- 1 Dod. R. 192 ; the ‘ Blendenhall,’ 1 Dad.
R. 414 ;the ‘ Apollo,’ 3 Rob. R. 308 ;Talbot 1). Seaman, 1 Cranch. R.
1 ; the ‘ Barbara,’ 3 Rob. 171 ; the ‘ Helen,’ 3 Rob. 224 ; the ‘ Polly,’
4 Rob. 227, note ; the ‘ Mary Ford,’ 3 Dallas R. 188 ;the ‘ Adventurer,’
8 Cmneh. R. 327; 1 Wheat. R. 128, note; Hudson 22. Guestier, 4
Craneh. R. 29.3 ;6 Craneh. R. 281 ; the ‘ Louisa,’ 1 Dod. R. 317 ; the
‘-Sedulous,’ 1 ‘Dad. R. 253. Although the mere capture of a. ship
at sea. during hostilities by a ship of war does not divest the property
in the ship, yet when the ship is condemned in a. Prize Court the
property passes to the captors as from the time of capture. But
after condemnation, the condemnation relates back to the capture.
(Andersen v. Marten (1907 ), 23 Times Law R. 5 34.)
If original
capture be
unlawful
560 INTERNATIONAL LAW 011. xxxv
In case of
ransom
turing neutral property (neutral to all the belligerents)
has done no meritorious service, and is not entitled even to
any salvage. Nay, the recaptors may be held responsible
in damages for the act, unless there was a real danger of
condemnation to the neutral by the original captors, from
their lawless disregard of the law of nations; and if there
was such danger, then the recaptors are entitled to salvage
only.’ 1
§ 24. Emerigon discusses at considerable length the
effect of a recapture of the ransom bill and hostage. Is the
recaptor entitled to retain the hostage, and to demand the
price of the ransom P A privateer out of Guernsey, which
had ransomed a French bark coming from Bayonne, was
afterwards taken, with the hostage and ransom bill on
board, by the French corvette ‘ Amaranthe.’ The admiral
declared the prize good, and decreed the ransom to the
king, who, by his ordinance, annulled the bill and dis—
charged the owners of the bark from the payment of the
ransom. Valin maintains that the ransom bill and hostage
represent, each separately and in solido, the ransomed
vessel; so that the recapture of the privateer with one or
the other on board suffices to deprive her of all claim and
title under the ransom bill, and transfers her rights to a new
owner. But, if the privateer has remitted the bill to her
owner, and at the same time sent the hostage on shore, the ,
owner will then be entitled to payment of the ransom
money, although the privateer should be afterwards taken.
Emerigon quotes Olea to prove, that the ransomed bill is
neither the vessel ransomed nor the ransom itself—that,
although proof of the obligation, it is not the obligation
itself. With respect to the hostage, he cannot become a
prisoner of war to his own countrymen. He, therefore,
is of opinion that the ransom bill captured in this case is
valueless, and that the hostage recovers his liberty. The
rights of the enemies’ privateer have, vanished with his
defeat; and the French privateer has no claim beyond
1 Emerigon, Traite’ des Assurances, ch. xii. § 23 ; Story, Miscell.
Writings, p. 580 et seq. ; Valin, Com.‘ sur l’Ordonn'ance, art. viii. tit.
‘ Des Prises ; ’ Merlin, Repertoire, verb. ‘ Prise Maritime,’ § 3, art. iv. ;
Miller v. the ‘ Resolution,’ 2 Dallas R. I ; Talbot 1). Seaman, I
Cranch. R. 1 ; the ‘ War Ouskan,’ 2 Rob. 299 ; Bello, Derecho Inter-
nacional, pt. ii. 0. v. § 7. - ' y
OH. XXXV
POSTLIMINY AND RECAPTURE 561
the actual booty he has made. But if the ransom bill
was accompanied by a bill of exchange drawn by the cap-
tain of the ransomed vessel, and this bill has been negotiated
in good faith to the order of a third party for value received,
it is to be paid by the owners of the ransomed vessel, not-
withstanding the liberation of the hostage found on board
of the captured privateer.1
§ 25. The same author discusses the question of recap-
ture of a vessel by her own crew. He says that those who
throw off the yoke of an enemy, simply re-enter into all
their rights, and recover their first condition. That, it
being the duty of the captain and crew of a captured vessel
to retake her, when possible, they cannot claim her by the
right of recovery when so retaken. By throwing off the
yoke of the captor, they have merely rendered themselves
masters of their own vessel, and re-entered upon their
former rights, but have acquired no new rights of property
in the recovered vessel or cargo. But, in a case decided
in the British Court of Admiralty, large salvage was decreed
for such recapture. The circumstances, however, were
somewhat peculiar, and perhaps formed an exception to
the general rule. The vessel was American, a portion of the
crew were British seamen, working their passage home.
They assisted in recapturing the vessel from the enemy, and
were allowed salvage on the property brought into a British
port, it being held that, under the circumstances, it was
no part of their duty as seamen to attempt the recapture,
and. that they would not have been guilty of desertion if
they had declined it. The act of recapture was, therefore,
on their part, a voluntary act.’ '
§ 26. Captures by pirates being unlawful, no title can
properly rest either in the captors or their vendees, and,
in case of recapture, the original owner is, on principle, en-
titled to complete restitution. The same rule applied to
the Barbary States, when they were piratical.3 On account
1 Emerigon, Traite' des Assurances, ch. xii. §2 3 ; Valin, Traite' des
Prises, ch. xi. §§ 2, 3 ; Dalloz, Repertoire, verb. ‘ Prises Maritimes,’
§ 3 ; De Cussy, Droit Maritime, liv. tit. iii. §§ 29, 30.
‘1 Emerigon, Traite des Assurances, ch. xii. § 25 ; Sirey, Recueil,
&c., an. xii. pt. ii. p. 5 ; the ‘ Two Friends,’ 1 Rob. 271 ; the Florence,’
16 fur. 572.
3 The ‘ Helena,’ 4 Rob. 3.
VOL. II. 0 O
A vessel
recap-
tured by
her master
and crew
Recapture
from
pirates
562 INTERNATIONAL LAW 0H. xxxv
of the risk incurred and benefit conferred, the courts have
usually allowed a pretty large salvage to recaptors from
pirates where such salvage is not regulated by municipal
law. Some States have left this matter of salvage for
rescue from pirates discretionary with the courts, while
others have regulated it by law or ordinance. The French
law of 2 Prairial, an XI, allowed to the recaptor a salvage
of one—third the value of the ship and cargo. The Spanish
ordinance put the possession by a pirate upon the same
footing as by a privateer, the title to property being changed
by twenty-four hours’ possession ; and, consequently, if
recaptured after that period, no restitution could be claimed,
but if before, restitution on payment of a salvage of one-
third the value. Such was also the former usage of Holland
and Venice, which was justified on the ground of public
utility, as an inducement to attack pirates. The salvage
for recapture from pirates in Great Britain is one-eighth
the value of the captured property. In the United States 1
salvage is demandable upon the recapture of property
which has been seized by pirates. With respect to restitu-
tion and salvage in case of the recapture from pirates of the
property of alien friends, the rule of reciprocity is usually
followed. Hautefeuille objects to the allowance of salvage
in such cases, or at least to so large a salvage as one-third
of the value, and refers with approbation to the treaty of 1783,
between the United States and Sweden, by which it was agreed
that property retaken from pirates, by a ship of war or
privateer, should be restored entire to the true proprietor.2
1 By the General Maritime Law American vessels are entitled
to salvage. Moore, Digest 0]‘ International Law, vol. ii., deems that
national ships of the United States are entitled to salvage for rescu-
ing ships of friendly powers, and that by analogy to the Act of
March 3, 1800, the rate of salvage for recapture of American vessels
is one-sixth of vessel and cargo, or if armed after capture, one-half of
vessel and one-sixth of cargo. If vessels were a long time in the
hands of pirates, a higher rate should be accorded. The Act of
March 3, 1800, however, does not refer specifically to pirates, and
it seems that the whole Act has been repealed ; it is not to be found
in the Revised Statutes of the United States. '
2 13 and I4 Vict. c. 26 (repealing 6 Geo. IV. 0. 49) ;Talbot 1).
Seaman, I Ceaneh. 28 ; Dawson 11. Sealskins, 2 Paine, 324 ; Brown,
Civil and Admiralty Law, vol. ii. ch. iii. p. 461 ; the ‘Calypso,’
2 H agg. R. 213 ; Pothier, Teaz'te’, de Propa/z'ete’, No. 101 ; I-Iautefeuille,
Des N atz'ons N eata/es, tit. xiii. ch. 3 ; Dalloz, Repertoire, verb. ‘ Prises
Maritimes,’ § 3 ;De Cussy, Droz't M aa/z'zfz'me, lib. i. tit. iii. § 30.
01!. XXXV POSTLIMINY AND RECAPTURE
563
. varmy alone, or with the co-operation of allied forces.
, in the case of Oporto, it was held that although salvage
§ 27. The rules of joint capture, given in chapter XXXl.,
are equally applicable to joint‘ recapture. It was held in
England, that although the Prize Act only mentioned
recaptures by ships and boats, it did not intend to exclude
those made by the assistance of land forces. Where an
island was taken by a joint naval and military force, the
ships recaptured were held liable to be adjudged under that
Act, and to be condemned to the captors, or to be restored
on payment of salvage, as the case might be. Moreover, a
land force may be entitled to sustain a claim of salvage for
recapture of vessels in a maritime port, without the co-
operation of a naval force, where the recapture is a necessary
and immediate result of a military operation directed to the
capture of the place within whose port the property is lying.
Thus, where the delivery of captured English vessels resulted
from the reoccupation of Oporto by the allied army under
the Duke of Wellington, which was effected by military
operations and a battle fought in the neighbourhood for
that object, the army was held to be entitled to salvage.
It was also held that this claim of salvage would attach
upon property landed and warehoused by the enemy,
where it remained to be reclaimed by the owners on the
recapture of the place, and was resumed and returned on
board as parts of the cargoes of the vessels so recaptured.l
§28. But a distinction is made where vessels of the
same country are recaptured in native ports by a native
Thus,
was due for the recapture of English vessels in that port,
none could be allowed for the Portuguese vessels recap-
tured at the same time. By the reoccupation of the port
by the forces of the State, the rights of the former sovereign
were restored, and his subjects were entitled to receive
their property back as it stood before the irruption of the
enemy. The whole would revert instantly to the former
owners, on the well-established principle of postliminy.
The history of the world has produced no instance in which
a claim of salvage for the rescue of a capital city, by the
1 The ‘ Ceylon,’ 1 Dad. R. 116 ; the ‘ Progress,’ Edw. R. 210 ; the
‘ Wanstead,’ Edw. R. 268 ; the ‘ Spankler,’ 1 DodiR 36o ; the
‘ Dorothy Foster,’ 6 Rob. 88.
Reeapture
by land
and sea
forces
By native
and allied
armies in
native
ports
o o 2
564 INTERNATIONAL LAW on. xxxv
native army, has been made and allowed, and, therefore,
on principle and in practice, the claim is not sustainable.
That is the state of the transaction in its simplest form.
But, suppose allies to be co-operating with the native army
in the recapture; in that case the army coming as allies,
and associated with the native army, compose part of the
same body ; they are pursuing the same objects, and stand
in every respect on the same footing ; they would have the
same rights and no more, and the proportion of force can
make no difference. The whole together must be considered
as one army in every respect, where native property is
concerned ; and if the native army would not be entitled to
salvage, the armies of the allies can claim none.1
1 Heffter, Droit International, § 187 et seq. ; Wildman, Int. Law,
vol. ii. p. 288 ;the ‘ Progress,’ Edw. R. 219.
‘APPENDIX
GENERAL ACT OF THE BRUSSELS CONFERENCE
RELATIVE TO THE AFRICAN SLAVE TRADE
Signed at Brussels, fuly 2, 1890, on behalf of Great Britain,
Germany, Austria-Hungary, Belgium, Denmark, Spain, the
Congo, United States of America, France, Italy, Netherlands,
Persia, Portugal, Russia, Sweden and Norway, Turkey, and
Zanzibar, and came into force April 2, 1892.

CHAPTER I
SLAVE TRADE COUNTRIES—MEASURES TO BE TAKEN IN
PLACES OF ORIGIN
Article I
The Powers declare that the most effective means for counter-
acting the Slave Trade in the interior of Africa are the
following :—
1. Progressive organisation of the administrative, judicial,
religious, and military services in the African territories placed
under the sovereignty or protectorate of civilised nations.
2. The gradual establishment in the interior, by the respon
sible Power in each territory, of strongly occupied stations, in
such a Way as to make their protective or repressive action
effectively felt in the territories devastated by man-hunts.
3. The construction of roads, and in particular of railways,
connecting the advanced stations with the coast, and permitting
easy access to the inland waters, and to the upper reaches of
streams and rivers which are broken by rapids and cataracts, so
as to substitute economical and speedy means of transport for the
present means of portage by men.
4. Establishment of steam-boats on the inland navigable
waters and on the lakes, supported by fortified posts established
on the banks.
566 INTERNATIONAL LAW
5. Establishment of telegraphic lines assuring the communi-
cation of the posts and stations with the coast and with the
administrative centres.
6. Organisation of expeditions and flying columns to keep up
the communication of the stations with each other and with the
coast, to support repressive action, and to assure the security of
roadways.
7. Restriction of the importation of fire-arms, at least ‘of
modern pattern, and of ammunition, throughout the entire extent
of the territories infected by the Slave Trade.
Article II
The stations, the cruisers organised by each Power in its
inland waters, and the posts which serve as ports for them shall,
independently of their principal task, which is to prevent the
capture of slaves and intercept the routes of the Slave Trade,
have the following subsidiary duties :—
I. To serve as a base and, if necessary, as a place of refuge for
the native populations placed under the sovereignty or the pro-
tectorate of the State to'which the station belongs, for the inde-
pendent populations, and temporarily for all others in case of
imminent danger ; to place the populations of the first of these
categories in a position to co-operate for their own defence; to
diminish intestine wars between tribes by means of arbitration ;
to initiate them in agricultural works and in the industrial arts,
so as to increase their welfare ; to raise them to civilisation and
bring about the extinction of barbarous customs, such as canni-v
balism and human sacrifices.
2. To give aid and protection to commercial undertakings ; to
watch over their legality, especially by controlling contracts of
service with natives ; and to lead up to the foundation of per-
manent centres of cultivation and of commercial establishments.
3. To protect, without distinction of creed, the Missions which
are already or may hereafter be established.
4. To provide for the sanitary service, and to grant hospitality
and help to explorers and to all who take part in Africa in the
work of repressing the Slave Trade.
Article III
The Powers exercising sovereignty or protectorate in Africa,
in order to confirm and give greater precision to their former
declarations, undertake to proceed gradually, as circumstances
permit, either by the means above indicated, or by any other
means which they may consider suitable, with the repression of
the Slave Trade ; each State in its respective possessions and under.
APPENDIX 567
its own'direction. Whenever they consider it possible they will
lend their good offices to the Powers which, with a purely humani-
tarian object, may be engaged in Africa upon a similar mission.
Article IV
The Powers exercising sovereignty or protectorate in Africa
may, however, delegate to Chartered Companies all or a portion
of the engagements which they assume in virtue of Article III.
They remain, nevertheless, directly responsible for the engage-
ments which they contract by the present General Act, and
guarantee the execution thereof. The Powers promise to receive,
aid, and protect national Associations and enterprises due to
private initiative which may wish to co-operate in their posses-
sions in the repression of the Slave Trade, subject to their receiv-
ing previous authorisation, which is revocable at any time ; sub-
ject also to their being directed and controlled, and to the
exclusion of any exercise of rights of sovereignty.
» Article V
The contracting Powers undertake, unless this has already
' been provided for by laws in accordance with the spirit of the
present Article, to enact or propose to their respective Legisla-
tures, in the course of one year at latest from the date of the
signature of the present General Act, a Law applying, on the one
hand, the provisions of-their penal laws concerning grave offences
against the person, to the organisers and abettors of man-hunts,
to perpetrators of the mutilation of adults and male infants, and
to all persons who may take part in the capture of slaves by
violence; and, ‘ on the other hand, the provisions relating to
offences against individual liberty, to carriers, transporters, and
dealers in slaves. Accomplices and accessories of the different
categories of slave captors and dealers above specified, shall be
punished with penalties proportionate to those incurred by the
principals. Guilty persons who may have escaped from the
jurisdiction of the authorities of the country where the crimes or
offences have been committed, shall be arrested either on com~
munication of the incriminatory evidence by the authorities who
have ascertained the violation of the law, or on production of any
other proof of guilt by the Power on whose territory they may
have been discovered, and shall, without other formality, be held
at the disposal of the Tribunals competent to try them.
The Powers will communicate to each other with the least
possible delay the Laws or Decrees already in existence or pro-
mulgated in execution of the present Article.
568 INTERNATIONAL LAW
Article VI
Slaves liberated in consequence of the stoppage or dispersal of
a convoy in the interior of the continent, shall be sent back, if
circumstances permit, to their country of origin ; if not, the local
authorities shall help them as much as possible to obtain means of
subsistence, and, if they desire it, to settle on the spot.
Article VII
Any fugitive slave ‘claiming on the continent the protection of
the signatory Powers shall obtain it, and shall be received in the
camps and stations officially established by them, or on board
Government vessels plying on the lakes and rivers. Private
stations and vessels are only permitted to exercise the right 0
asylum subject to the previous sanction of the State. '
Article VIII
The experience of all nations who have intercourse with
Africa having shown the pernicious and preponderating part
played by fire-arms in slave-trade operations, as well as in
intestine wars between native tribes ; and this same experience
having clearly proved that the preservation of the African popu-
lations, whose existence it is the express wish of the Powers to
safeguard, is a radical impossibility if restrictive measures
against the trade in fire-arms and ammunition are not estab-
lished ; the Powers decide, in so far as the present state of their
frontiers permits, that the importation of fire-arms, and especially
of rifles and improved weapons, as well as of powder, balls, and
cartridges, is, except in the cases and under the conditions pro-
vided for in the following Article, prohibited in the territories
comprised between the 20th parallel of north latitude and the
22nd parallel of south latitude, and extending westward to the
Atlantic Ocean, and eastward to the Indian Ocean and its depend-
encies, comprising the islands adjacent to the coast as far as
IOO nautical miles from the shore.
Article IX
The introduction of fire-arms and ammunition, when there
shall be occasion to authorise it in the possessions of the signatory
Powers which exercise rights of sovereignty or of protectorate in
Africa, shall be regulated in the following manner in the zone
laid down in Article VIII., unless identical or more rigorous
regulations have been already applied :—
All imported fire-arms shall be deposited, at the cost, risk, and
peril of the importers, in a public warehouse placed under the
APPENDIX 569
control of the Administration of the State. No withdrawal of
fire-arms or imported ammunition shall take place from such
warehouses without the previous authorisation of the Administra-
tion. This authorisation shall, except in cases hereinafter
specified, be refused for the withdrawal of all arms of precision,
such as rifles, magazine guns, or breech-loaders, whether whole or
in detached pieces, their cartridges, caps, or other ammunition
intended for them.
At the sea ports the respective Governments may permit the
establishment of private warehouses, under conditions affording
the needful guarantees ; but only for ordinary powder and flint-
lock guns‘, and to the exclusion of improved arms and their
ammunition.
Besides the measures directly taken by Governments for the
arming of the public force and the organisation of their defence,
individual exceptions shall be admitted for persons affording
sufficient guarantees that the arm and ammunition delivered to
them will not be given, assigned, or sold to third persons, and for
travellers provided with a declaration of their Government
stating that the weapon and ammunition are destined exclusively
for their personal defence. In the cases provided for in the
preceding paragraph, all arms shall be registered and marked
by the authorities appointed for the control, who shall deliver
to the persons in question licenses to bear arms, indicating the
name of the bearer and showing the stamp with which the arm is
marked. These licenses are revocable in case of proved abuse,
and. will be issued for five years only, but may be renewed.
The rule above set forth as to warehousing shall also apply to gun-
powder. Only fiint-lock, unrified guns and common gunpowder,
called trade powder (‘ poudres de traite ’), can be withdrawn
from the warehouses for purposes of sale. At each withdrawal
of arms and ammunition of this kind for sale, the local authorities
shall determine the regions in which these arms andammunition
may be sold. The regions infected by the Slave Trade shall
always be excluded. Persons authorised to take arms or
powder out of the warehouses shall present to the Administration
every six months detailed lists indicating the destinations of the
said fire-arms and powder sold, as well as the quantities still
remaining in store.
Article X _
The Governments shall take all measures they may deem
necessary to ensure as complete a fulfilment as possible of the pro-
visions respecting the importation, sale, and transport of fire-
arms and ammunition, as well as to prevent either the entry or
570 INTERNATIONAL LAW
exit thereof by their inland frontiers, or the conveyance thereof to
regions where the Slave Trade exists.
The authorisation of transit within the limits of the zone
specified by Article VIII. cannot be withheld when the arms and
ammunition are to pass across the territory of a signatory or
adherent Power in the occupation of the coast, towards inland
territories placed under the sovereignty or protectorate of another
signatory or adherent Power, unless this latter Power have
direct access to the sea through its own territory. Nor, if this
access be completely interrupted, can the authorisation of transit
be withheld. Any demand for transit must be accompanied by
a declaration emanating from the Government of the Power
having the inland possessions, and certifying that the said arms
and ammunition are not destined for sale, but are for the use of
the authorities of such Power, or of the military forces necessary
for the protection of the missionary or commercial stations, or
of persons mentioned by name in the declaration. Neverthe-
less, the territorial Power of the coast retains the right to stop,
exceptionally and provisionally, the transit of arms of precision
and ammunition across its territory, if, in consequence of inland
disturbances or other serious danger, there is ground for fearing
that the despatch of arms and ammunition might compromise its
own safety.
Article XI
The Powers shall communicate to each other information
relating to traffic in fire-arms and ammunition, the licenses
granted, and the measures of repression in force in their respective
territories.
Article XII
The Powers undertake to adopt or to propose to their respec-
tive Legislatures the measures necessary to ensure that those
who infringe the prohibitions laid down in Articles VIII. and IX.,
and their accomplices, shall, besides the seizure and confiscation
of the prohibited arms and ammunition, be punished either by
fine or by imprisonment, or by both penalties together, in pro-
portion to the importance of the offence, and in accordance with
the gravity of each case.
Article XIII
The signatory Powers who have possessions in Africa in con-
tact with the zone specified in Article VIII. bind themselves to
take the necessary measures for preventing the introduction of
fire-arms and ammunition across their inland frontiers into the
regions of the said zone, at least that of improved arms and
cartridges.
APPENDIX 571
Article XIV
The system established under Articles VIII. to XIII. inclusive
shall remain in force for twelve years. In case none of the con-
tracting parties shall have notified, twelve months before the
expiration of this period, their intention of putting an end to it,
nor shall have demanded its revision, it shall continue to remain
obligatory for two more years, and shall thus continue in force
from 'two years to two years.
CHAPTER II
CARAVAN ROUTES AND LAND TRANSPORT OF SLAVES
Article XV
Independently of the repressive or protective action which
they exercise in the centres of the Slave Trade, the stations,
cruisers, and posts the establishment of which is provided for in
Article II., and all other stations established or recognised accord-
ing to the terms of Article IV. by each Government in its posses-
sions, will furthermore have the mission of watching, so far as
circumstances permit, and in proportion to the progress of their
administrative organisation, the routes on their territory followed
by the slave-dealers, of stopping the convoys on the march, and
of pursuing them wherever they can legally take action.
Article XVI
In the regions of the coast known to serve habitually as places
of passage or terminal points for Slave Traffic coming from the
interior, as well as at the points of intersection of the principal
caravan routes crossing the zone contiguous to the coast already
subject to the influence of the Sovereign or Protecting~ Powers,
posts shall be established, under the conditions and with the
reservations mentioned in Article III., by the authorities re-
sponsible for such territories, with the purpose of intercepting
the convoys and liberating the slaves.
Article X VII
A strict supervision shall be organised by the local authorities
at the ports and in the countries adjacent to the coast, with the
view of preventing the sale and shipment of slaves brought from
the interior, as well as the formation and departure for the
interior of bands of man-hunters and slave-dealers.
Caravans arriving at the coast or its vicinity, as well as those
572 INTERNATIONAL LAW
arriving in the interior at a locality occupied by the authorities
of the territorial Power, shall, on arrival, be submitted to a
minute inspection as to the persons composing them. Any
individual‘ ascertained to have been captured or carried off by
force or mutilated, either in his native country or on the way,
shall be liberated.
- Article XVIII
In the possessions of each of the contracting Powers the
Administration shall have the duty of protecting liberated slaves,
of repatriating them if possible, of procuring for them means of
subsistence, and in particular of providing for the education and
support of abandoned children.
Article XIX
The penal arrangements provided for in Article V. shall be
made applicable to all crimes or offences committed in the course
of operations for the transport of and Traffic in Slaves on land,
whenever proved. Any person having incurred a penalty in con-
sequence of an offence provided for by the present General Act,
shall be under the obligation of providing security before he is
allowed to undertake any commercial operation in countries
where the Slave Trade is carried on.

CHAPTER III
REPRESSION OF THE SLAVE TRADE BY SEA
§ 1. GENERAL PROVISIONS
Article XX
The signatory Powers acknowledge the opportuneness of
taking steps in common for the more effective repression of the
Slave Trade in the maritime zone in which it still exists.
Article XXI
This zone extends, on the one hand, between the coasts of the
Indian Ocean (those of the Persian Gulf and of the Red Sea in-
cluded) from Beloochistan to Point Tangalane (Quilimane), and,
on the other hand, a conventional line which first follows the
meridian of Tangalane till it meets the 26th degree of south lati-
tude; is then merged in this parallel, then passesv round the
Island of Madagascar by the east, keeping 20 miles off the east
and north shore, till it crosses the meridian of Cape Amber.
From this point the limit of the zone is determined by an oblique
APPENDIX 573
line which extends to the coast of Beloochistan, passing 20 miles
off Cape Ras-el-Had.
' ' Article XXII
The signatory Powers of the present General Act, between
whom there are special Conventions for the suppression of the
Slave Trade, have agreed to restrict to the above-mentioned zone
the clauses of these Conventions concerning the reciprocal right
of visit, search, and detention (‘ droit de visite, de recherche, et
de saisie ’) of vessels at sea.
Article XXIII
The same Powers have also agreed to limit the above-men-
tioned right to vessels of less than. 500 tons burthen. This
stipulation shall be revised as soon as experience shall have shown
the necessity of such revision.
Article XXIV
All other provisions of the conventions concluded between the
aforesaid Powers, for the suppression of the Slave Trade, remain
in force in so far as they are not modified by the present General
Act.
Article XXV
The signatory Powers undertake to adopt effective measures
‘for preventing the usurpation of their flag, and putting a stop to
the transport of slaves on vessels authorised to fly their colours.
Article XX VI
The signatory Powers undertake to adopt all measures neces_
sary for facilitating the rapid exchange of information calculated
to bring about the discovery of persons taking part in Slave
Trade operations.
. Article XX VII
At least one International Bureau shall be created ; it shall be
established at Zanzibar. The High Contracting Parties under-
take to forward to it all the documents specified in Article XLL,
as well as information of all kinds likely to assist in the suppres-
sion of the Slave Trade.
Article XX VI I I
Any slave who may have taken refuge on board a ship of war
flying the flag of one of the signatory Powers, shall be immedi-
ately and definitely freed ; such freedom, however, shall not
withdraw him from the competent jurisdiction, if he has com-
mitted a crime or offence at common law.
574 _ INTERNATIONAL LAw
Article XXIX
Every slave detained against his wish on board a native
vessel, shall have the right to claim his liberty. _
His freedom may be declared by any Agent of one of the
signatory Powers on whom the General Act confers the right of
ascertaining the status of persons on board such vessels ; such
freedom, however, shall not withdraw him from the competent
jurisdiction if he has committed a crime or offence at common
law.
§ II. REGULATION CONCERNING THE UsE OF THE FLAG
AND SUPERvIsIoN BY CRUIsERs
I. RULES RESPECTING THE GRANT OF THE FLAG TO NATIVE
VESSELS, AND RESPECTING CREW LISTS AND MANIFESTS OF
BLACK PASSENGERS '
Article XXX 1
The signatory Powers undertake to exercise a strict super-
vision over the native vessels authorised to fly their flag in the
zone indicated in Article XXL, and over the commercial opera-
tions carried on by such vessels.
Article XXXI
The term ‘native vessel’ applies to vessels fulfilling one of
the two following conditions :—
I. It must present the outward appearance of native build
or rig. ,.
2. It must be manned by a crew of whom the captain and the
majority of the seamen belong by origin to a country having a
sea—coast on the Indian Ocean, the Red Sea, or the Persian Gulf.
Article XXXII
Authority to fly the flag of one of the said Powers shall in
future only be granted to such native vessels as shall satisfy all
the three following conditions :—
I. Their fitters-out or owners must be either subjects of or
persons protected by the Power whose flag they claim to fly.
2. They must furnish proof ‘that they possess real estate
situated in the district of the authority to Whom their applica-
tion is addressed, or to‘ supply a solvent security as a guarantee
for any fines to which they may eventually become liable.
3. Such fitters-out or owners, as well as the captain of the
1 By letter of December 31, I891, France promises to apply Articles XXX. to
XLI. to Obock, and according to necessity to the island of Madagascar and the
Comoros.
APPENDIX’ 575
vessel, must furnish proof that they enjoy a good reputation, and
especially that they have never been condemned for acts of Slave
Trade.
Article XXXIII'
The authorisation, when granted, shall be renewed every year.
It can at any time be suspended or withdrawn by the authorities
of the Power whose colours the vessel flies.
Article XXXIV
The deed of authorisation shall bear the indications necessary
to establish the identity of the vessel. The captain shall have
the custody of it. The name of the native vessel and the indica-
tion of its tonnage shall be inlaid and painted in Latin characters
on the stern ; and the initial or initials of the name of the port
of registry, as well as the registration number in the series of
numbers of that port, shall be printed in black on the sails.
Article XXX V
A crew list shall be issued to the captain of the vessel at
the port of departure by the authorities of the Power, whose
colours it flies. It shall be renewed each time the vessel is fitted
out, or, at latest, at the end of a year, and in conformity with
the following provisions :— A
I. The list shall be vise’ at the moment of departure by the
authority who has issued it.
2. No negro can be engaged as a seaman on a vessel, without
v having been previously questioned by the authority of the
Power whose colours it flies, or, failing such authority, by the
territorial authority, with a view to establish that he has con-
tracted a free engagement.
3.’Such authority shall see that the proportion of seamen
and boys is not out of proportion to the tonnage or rig of the
vessels. .
4. The authority who shall have interrogated the men before
their departure, shall inscribe them on the crew list, in which
they shall be mentioned with a short description of each of them
against his name.
5. In order the more effectively to prevent any substitution,
thee seamen ' may, moreover, be provided with a distinctive
mark.
Article XXXVI
If the captain of a vessel should desire to embark negro
passengers, he shall make declaration thereof to the authority of
the Power whose colours, he flies, or, failing such authority, to
576 INTERNATIONAL LAW
the territorial authority. The passengers shall be interrogated,
and after it has been ascertained that they embark of their own
free will, they shall be inscribed in a special manifest, bearing
the description of each of them against the name, and indicating
especially sex and height. Negro children shall not be admitted
as passengers unless they are accompanied by their relations, or
by persons whose respectability is well known. On departure the
passenger manifest shall be rise’ by the aforesaid authority after
it has been called over. If there are no passengers on board, this
shall be specially mentioned on the crew list. '
I Article XXX VII
On arrival at any port of call or destination, the captain of
the vessel shall show to the authority of the Power whose flag
he flies, or, failing such authority, to the territorial authority,
the crew list, and, if need be, the passenger manifests previously
delivered. Such authority shall check the passengers arrived at
their destination or stopping at a port of call, and shall mention
their landing in the manifest. On departure the said authority
shall afix a fresh visa to the list and to the manifest, and shall
call over the passengers. .
Article XXXVIII
On the African coast and on the adjacent islands no negro’
passenger shall be shipped on board a native vessel, except
in localities where there is a resident authority belonging to one
of the signatory Powers. ,
Throughout the zone mentioned in Article XXI. no negro
passenger shall be landed from a native vessel, except at a
place in which there is a resident authority belonging to one of
the High Contracting Powers, and unless such authority is
present at the landing.
Cases of force majeure which may have caused an infraction
of these provisions shall be examined by the authority of the
Power whose colours the vessel flies, or, failing such authority,
by the territorial authority of the port at which the inculpated
vessel puts in.
Article XXXIX
The provisions of Articles XXXV., XXXVL, XXXVIL,
and XXXVIII. are not applicable to vessels only partially decked,
having a maximum crew of ten men, and satisfying one of the
two following conditions :—
1. That it is exclusively employed in fishing within territorial
waters. 1 .
APPENDIX 577
2. That it ,is occupied in the small coasting trade between
different ports of the same territorial Power, and never goes
further than five miles from the coast.
These different boats shall receive, according to circum-
stances, from the territorial or consular authority, a special
license, renewable every year, and revocable under the condi-
tions provided for in Article XL., and the uniform model of
which, annexed to the present General Act, shall be communicated
to the International Information Office.
Article XL
All acts or attempted acts of Slave 'Trade legally brought
home to the captain, fitter-out, or owner of a vessel authorised
to fly the flag of one of the signatory Powers, or holding the
license provided for in Article XXXIX., shall entail the immediate
withdrawal of the said authorisation or license. All offences
against the provisions of'section 2 of Chapter III. shall in addi_
tion be punished by the penalties enacted by special laws and
ordinances of each of the contracting Powers.
Article X LI
The signatory Powers undertake to deposit at the Inter-
national Information Office specimen forms of the following
documents :—
1. License to fly the flag.
2. Crew list.
3. Manifest of negro passengers. 5
These documents, the tenor of which may vary according
to the different regulations of each country, shall compulsorily
contain the following particulars, drawn up in a European
language :— '
I. As regards the authorisation to fly the flag.
(a) The name, tonnage, rig, and principal dimensions of the
vessel.
(b) The register number and the signal letter of the port of
registry.
(c) The date of obtaining the license, and the oflice held by
' the person who has issued it.
2. As regards the crew list—
(a) The name of the vessel, of the captain, and of the fitter—
out or owner.
(b) The tonnage of the vessel.
(0) The register number and the port of registry of the
vessel, its destination, and the particulars specified in Article
XXV.
VOL. 11. P P
578 INTERNATIONAL LAW
3. As regards the manifest of negro passengers——
The name of the vessel which conveys them, and the par- ’
ticulars indicated in Article XXXVI. for the proper identifica-
tion of the passengers. The signatory Powers shall take the
necessary measures in order that the territorial authorities or
their consuls may send to the said Oflice certified copies of all
authorisations to fly their flag, as soon as such authorisations
shall have been granted, as well as notice of the Withdrawal of
any such authorisation.
The provisions of the present Article only concern the papers
intended for native vessels.
2. DETENTION or SUSPECTED vEssELs
Article XLII
When the officers in command of vessels of war of any of the
signatory Powers have reason to believe that a vessel of less than
500 tons burthen, found in the above-mentioned zone, is engaged
in the Slave Trade, or is guilty of the fraudulent use of a flag,
they may proceed to the verification of the ship’s papers. The
present Article does not imply any change in the present state
of things as regards jurisdiction in territorial waters.
Article X LI I I
With this object, a boat, commanded by a naval officer in uni-
form, may be sent on board the suspected vessel after it has been
hailed to give notice of such intention. The officer sent on
board the vessel detained shall act with all possible consideration
and moderation.
Article X LI V
The verification of the ship’s papers shall consist in the
examination of the following documents :
I. As regards native vessels, the papers mentioned in Article
XLI.
2. As regards other vessels, the documents required by the
different Treaties or Conventions remaining in force.
The verification of the ship’s papers only authorises the
muster of the crew and passengers in the cases and under the
conditions provided for in the following Article.
Article X LV
Investigation of the cargo or search can only take place with
respect to a vessel navigating under the flag of oneof the Powers
which have concluded, or may conclude, special conventions, as
mentioned in Article XXIL, and in accordance with the provisions
of such conventions,
APPENDIX 579
Article XL VI
Before quitting the detained vessel, the officer shall draw up
a minute according to the forms and in the language of the
country to which he belongs. This minute shall be dated and
signed by the officer, and shall relate the facts. The captain of
the detained vessel, as well as the witnesses, shall have the right
to cause to be added to the minute any explanations they may
think expedient.
Article XL VII
The commander of a man-of-war who may have detained a
vessel under a foreign flag shall in all cases make a report thereon
to his own Government, and state the grounds upon which he
acted.
Article XL VIII
A summary of this report, as well as a copy of the minute
drawn up by the officer sent on board the detained vessel, shall
be sent as soon as possible to the International Information
Office, which shall communicate the same to the nearest consular
or territorial authority of the Power whose flag was used by the
vessel in question. Duplicates of these documents shall be kept
in the archives of the oflice.
Article X LI X
If, in carrying out the supervision provided for in the preced-
ing Articles, the ofiicer in command of the cruiser is convinced
that an act of Slave Trade has been committed on board during
the passage, or that irrefutable proofs exist against the captain,
or fitter-out, to justify a charge of fraudulent use of the flag, of
fraud, or of participation in the Slave Trade, he shall take the
detained vessel to the nearest port of the zone where there is a
competent authority of the Power whose flag has been used.
Each signatory Power undertakes to appoint in the zone territorial
or consular authorities, or special delegates competent to act in
the above-mentioned cases; and to notify such appointments
to the International Information Office. The suspected vessel
can also be handed over to a cruiser of its own nation, if the
latter consents to take charge of it.
3. EXAMINATION AND TRIAL OF VESSELS SEIZED
Article L
The authority referred to in the preceding Article, to whom
the detained vessel has been handed over, shall proceed to
make a full investigation, according to the laws and rules of his
P P 2
580 INTERNATIONAL LAW
country, in the presence of an officer belonging to the foreign
cruiser.
Article LI
If it is proved by the enquiry that the flag has been fraudu-
lently used, the detained vessel shall remain at the disposal
of its captor.
Article LII
If the examination shows an act of Slave Trade, made clear by
the presence on board of slaves destined for sale, or by any
other Slave Trade offence provided for by special convention,
the vessel and cargo shall remain sequestrated in charge of
the authority who has directed the enquiry. The captain and
crew shall be handed over to the tribunals fixed by Articles LIV.
and LVI. The slaves shall be set at liberty as soon as judgment
has, been delivered. In the cases provided for by this Article,
liberated slaves shall be disposed of in accordance with the
special conventions concluded or which may be concluded
between the signatory Powers. In default of such conventions,
the said slaves may be handed over to the local authority,
to be sent back, if possible, to their country of origin ; if not, such
authority shall help them so far as possible to obtain means
of subsistence, and, if they desire it, to settle on the spot.
Article LI I I
If it should be proved by the enquiry that the vessel has been
illegally detained, a right will accrue to an indemnity in propor-
tion to the damages suffered by the vessel being taken out of its
course. The amount of this indemnity shall be fixed by the
authority which has directed the enquiry.
Article LI V
In case the officer of the capturing vessel should not accept
the conclusions of the enquiry carried on in his presence, the
matter shall, as a matter of course, be handed over to the tribunal
of the nation under whose flag the captured vessel sailed. No
exception shall be made to this rule, unless the disagreement
arises in respect of the amount of the indemnity provided for in
Article LIIL, when it shall be fixed by arbitration, as specified
in the following Article.
Article LV
The capturing officer, and the authority which has directed
the enquiry, shall each appoint an Arbitrator Within forty-
eight hours; and the two Arbitrators shall have twenty-four hours
to choose an Umpire. The Arbitrators shall, as far as possible,
APPENDIX 581
be chosen from among the Diplomatic, Consular, or Judicial
officers of the signatory Powers. Natives in the pay of the con-
tracting Governments are formally excluded. The decision shall
be taken by majority of votes, and shall be considered final. If
the Court of Arbitration is not constituted within the time
indicated, the procedure in respect of indemnity and damages
shall be in accordance with the provisions of Article LVIIL,
paragraph 2. _
- Article LVI
Cases shall be referred with the least possible delay to the
' tribunal of the nation whose colours have been used by the
Powers.
accused. Nevertheless, Consuls or any other authority of the
same nation as the accused, specially commissioned to that
effect, may be authorised by their Government to deliver judg-
ment instead and in the place of the tribunals.
Article LVI I
The procedure and judgment in regard to offences against
the provisions of Chapter III. shall always take place in as
summary a manner as is permitted by the laws and regulations in
force in the territories subject to the authority of the signatory
Article L VIII
Any judgment of the national tribunal, or of the authorities
referred to in Article LVI., declaring that the detained vessel
did not carry on Slave Trade, shall be immediately executed,
and the vessel shall be entirely free to continue its course. In
such case the captain or fitter-out of a vessel detained without
legitimate ground of suspicion, or which has been subjected
to annoyance, shall have the right of claiming damages, the
amount of which shall be fixed by agreement between the
Governments directly interested, or by arbitration, and shall
be paid within a period of six months from the date of the
judgment acquitting the captured vessel.
Article LIX
In case of condemnation, the sequestered vessel shall be
declared a lawful prize for the benefit of the captor. The captain,
crew, and all other persons found guilty shall be punished
according to the gravity of the crimes or offences committed by
them, and in accordance with Article V.
Article LX
The provisions of Articles L. to LIX. do not affect in any
way the jurisdiction or procedure of existing special tribunals, or
582 INTERNATIONAL LAw
of those which may hereafter be formed to take cognisance of
Slave Trade offences.
Article LXI
The High Contracting Parties undertake to make known to
each other reciprocally the instructions which they may give to
the commanders of their men-of-war navigating the seas of the
zone referred to for carrying out the provisions of Chapter III.
CHAPTER IV
COUNTRIES TO WHICH SLAVES ARE SENT, THE INSTITUTIONS
OF WHICH RECOGNISE THE EXISTENCE OF DOMESTIC SLAVERY
Article LXI I
The Contracting Powers whose institutions recognise the
existence of domestic slavery, and whose possessions, whether
in or out of Africa, consequently serve, in spite of the vigilance of
the authorities, as places of destination for African slaves, engage
to prohibit the importation, transit, and exit, as well as traffic
in Slaves. They shall organise the most active and the strictest
supervision at all places where the arrival, transit, or exit of
African slaves takes place.
Article LXI II
Slaves liberated under the provisions of the preceding Article
shall, if circumstances permit, be sent back to the country from
whence they came. In all cases they shall receive letters of
freedom from the competent authorities, and shall be entitled
to their protection and assistance for the purpose of obtaining
means of subsistence.
Article LXI V
Every fugitive slave arriving at the frontier of any of the
Powers mentioned in Article LXII. shall be considered ~- free,
and shall have the right to claim letters of freedom from the
competent authorities. '
Article LX V
Any sale or transaction to which the slaves referred to in
Articles LXIII. and LXIV. may have been subjected through
circumstances of any kind whatsoever shall be considered as
null and void.
APPENDIX 583
Article LX VI I
Native vessels flying the flag of one of the countries mentioned
in Article LXIL, if there is any indication that they are employed
in Slave Trade operations, shall be subjected by the local
authorities in the ports they frequent to a strict verification of
' their crew and passengers, both on arrival and departure.
Should African slaves be on board, judicial proceedings shall be
taken against the vessel and against all persons who may be
implicated. Slaves found on board shall receive letters of
freedom through the authorities who effected the seizure of the
vessels.
Article LX VII
Penal provisions in harmony with those provided for by
Article V. shall be issued against persons importing, trans-
porting, and trading in African slaves, against the mutilators
of children or of male adults, and those who traffic in them, as
well as against their associates and accomplices.
A rticle LX VIII
The signatory Powers recognise the great importance of the
law respecting the prohibition of the Negro Slave Trade sanc-
tioned by his Majesty the Emperor of the Ottomans on the 4th
(16th) of December, 1889 (22 Rebi-ul—Akhir, 1307), and they are
assured that an active supervision will be organised by the Otto-
man authorities, especially on the west coast of Arabia and on the
routes which place this coast in communication with the other
possessions of his Imperial Majesty in Asia.
Article LXI X
His Majesty the Shah of Persia consents to o'ganise an
active supervision in the territorial waters, and on those portions
of the coast of the Persian Gulf and Gulf of Oman which are
under his sovereignty, and over the inland routes which serve for
the transport of slaves. The magistrates and other authorities
shall receive the necessary powers for this purpose.
Article LX X
His Highness the Sultan of Zanzibar consents to give his
most effective support for the repression of crimes and offences
committed by traders in African slaves on land as well as at sea,
The tribunals created for this purpose in the sultanate of Zanzibar
_ shall strictly apply the penal provisions mentioned in Article V.
In order the better to ensure the freedom of liberated slaves,
both in virtue of the provisions of the present General Act
584 INTERNATIONAL MW
and of the decrees issued in this matter by his Highness and his
predecessors, a Liberation Office shall be established at Zanzibar.
Article LXXI
Diplomatic and Consular Agents and naval officers of the
contracting Powers shall, within the limits of existing conven-
tions, give their assistance to the local authorities in order to
assist in repressing the Slave Trade where it still exists. They
shall be entitled to be present at trials for slave-trading brought
about at their instance, without, however, being entitled to take
part in the deliberations.
Anita LXXII
Liberation Offices, or institutions in lieu thereof, shall be
organised by the Administrations of the countries to which
African slaves are sent, for the purpose specified in Article
XVIII.
Article LXXIII
The signatory Powers having undertaken to communicate to
each other all information useful for the repression of the Slave
Trade, the Governments whom the present chapter concerns
shall periodically exchange with the other Governments statistical
data relating to slaves detained and liberated, as well as the
legislative and administrative measures taken for suppressing
the Slave Trade.
___.._ -_ _._I__-_ ._..__-.-_ __-. - -_ _ M...-
CHAPTER V
INSTITUTIONS INTENDED TO ENSURE THE EXECUTION OF THE
GENERAL ACT
§I. THE INTERNATIONAL MARITIME OFFIcE
Article LXXI V
In accordance with the provisions of Article XXVIL, an
International Office is instituted at Zanzibar, in which each
of the signatory Powers may be represented by a Delegate.
Article LXX V
The Office shall be constituted as soon as three Powers have
appointed their representatives.
It shall draw up regulations fixing the mode of exercising its
functions. These regulations shall immediately be submitted
for the approval of those signatory Powers who shall have
APPENDIX 585
notified their intention of being represented in the Office, and
who shall come to a decision with regard to them with the least
possible delay.
Article LX X VI
The expenses of this institution shall be divided in equal
parts among the signatory Powers mentioned in the preceding
Article.
Article LXX VI I
The object of the Office at Zanzibar shall be to centralise all
documents and information of a nature to facilitate the repres-
sion of the Slave Trade in the maritime zone. For this purpose
the signatory Powers undertake to forward to it within the
shortest possible time—-
I. The documents specified in Article XLI.
2. Summaries of the reports and copies of the minutes
referred to in Article XLVIII.
3. The list of territorial or Consular authorities and Special
Delegates competent to take action as regards detained vessels,
according to the terms of Article XLIX.
4. Copies of judgments and decrees of condemnation delivered
in accordance with Article LVIII.
5.- All information likely to lead to the discovery of persons
engaged in the Slave Trade in the above-mentioned zone.
Article LX X VI I I
The archives of the Office shall always be open to naval
officers of the signatory Powers authorised to act within the
limits of the zone defined in Article XXL, as well as to the
territorial or judicial authorities, and to Consuls specially
appointed by their Governments.
The Office shall supply to foreign officers and agents authorised
to consult its archives translations in a European language of
documents written in an Oriental language. It shall make the
communications provided for in Article XLVIII.
Article LXXI X
Auxiliary Offices in communication with the Office at
Zanzibar may be established in certain parts of the zone, on
agreement beforehand between the interested Powers. They
shall be composed of Delegates of such Powers, and established
in conformity with Articles LXXV., LXXVL, and LXXVIII.
The documents and information specified in Article LXXVIL,
so far as they relate to the part of the zone specially concerned,
shall be sent to them direct by the territorial and consular
586 INTERNATIONAL LAW
authorities of the region in question, without prejudice to the
communication to the Zanzibar Office provided for by the same
Article.
Article LX X X
The Office at Zanzibar shall draw up, within the first two
months of every year, a Report upon its own operations, and
those of the auxiliary offices, during the past year.
§ II. EXCHANGE BETWEEN THE REsPEcTIvE GOVERNMENTS
OF DocUMENTs AND INFORMATION RELATING To ‘THE SLAVE
TRADE. ' ‘
Article LXXXI
The Powers shall communicate to each other to the fullest
extent, and with the least delay which they shall consider
possible—
I. The texts of the laws and administrative regulations,
whether already existing or enacted in application of the clauses
of the present General Act.
2. Statistical information concerning the Slave Trade, slaves
detained and liberated, and the traffic in arms, ammunition, and
spirituous liquors.
Article LXXXII
The exchange of these documents and information shall be
centralised in a special office attached to the Foreign Oflice in
Brussels.
Article LXXXIII
The Office at Zanzibar shall forward ,to it every year the
Report mentioned in Article LXXX. upon its operations during
the past year, and upon'those of the auxiliary offices which may
have been established in accordance with Article LXXIX.
Article LXXXI V
The documents and information shall be collected and pub-
lished periodically, and addressed to all the signatory Powers.
This publication shall be accompanied every year by an analytical
Table of the legislative, administrative, and statistical docu-
ments mentioned in Articles LXXXI. and LXXXIII.
Article LXXX V
The office expenses and the expenditure incurred for corre-
spondence, translation, and printing shall be shared by all the
signatory Powers, and shall be recovered through the Foreign
Office at Brussels.
APPENDIX , 587
§ III. PROTECTION or LIBERATED SLAvEs
Article LXXX VI
The signatory Powers, having recognised the duty of protecting
liberated slaves in their respective possessions, undertake to
establish, if they should not already exist, in the ports of the
zone determined by Article XXL, and in such parts of their said
possessions as may be places for the capture, passage, and arrival
of. African slaves, as many offlces or institutions as they may
deem sufficient, the business of which will specially consist in
freeing and protecting the slaves in accordance with the pro-
visions of Articles VI., XVIII., LII., LXIIL, and LXVI.
Article LX X X VI I
Such offices, or the authorities charged with this service,
shall deliver letters of freedom, and keep a register thereof. On
receiving notice of an act of Slave Trade or of illegal detention,
or at the instance of the slaves themselves, the said offices or
authorities shall exercise all necessary diligence to ensure the
liberation of the slaves and the punishment of the offenders.
The delivery of letters of freedom should in no case be delayed
if the slave be accused of a crime or offence against common
law. But after the delivery of the said letters the ordinary
legal procedure shall take its course.
Article LXXX VI I I
The signatory Powers shall encourage the foundation in their
possessions of establishments of refuge for women and of educa-
tion for liberated children.
Article LXXXI X
Freed slaves shall always be able to resort to the offices to be
protected in the enjoyment of their liberty. Whoever shall
have used fraud or violence to deprive a liberated slave of his
letters of freedom or of his liberty shall be considered as a slave-
dealer.

CHAPTER VI
RESTRICTIVE MEASURES CONCERNING THE TRAFFIC 1N
SPIRITUOUS LIQUORS
Article X C
Justly anxious respecting the moral and material conse-
quences which the abuse of spirituous liquors entails on the
588 INTERNATIONAL LAW
native populations, the signatory Powers have agreed to apply
the provisions of Articles XCL, XCIL, and XCIII. within a zone
extending from the 20th degree north latitude to the 22nd degree
south latitude, and bounded by the Atlantic Ocean on the west,
and on the east by the Indian Ocean and its dependencies,
comprising the islands adjacent to the shore up to 100 marine
miles from the coast.
Article X CI
In the regions of this zone where it shall be ascertained that,
either on account of religious belief or from other motives, the
use of distilled liquors does not exist or has not been developed,
the Powers shall prohibit their importation. The manufacture
therein of distilled liquors shall equally be prohibited. Each
Power shall determine the limits of the zone of prohibition of
alcoholic liquors in its possessions or protectorates, and shall be
bound to notify the limits thereof to the other Powers within
the space of six months. The above prohibition can only be
suspended in the case of limited quantities destined for the
consumption of the non-native population, and imported under
the system and conditions determined by each Government.
Article X CI I
The Powers having possessions or exercising protectorates in
the regions of the zone which are not placed under the system
of prohibition, and into which spirituous liquors are at present
either freely imported or pay an import duty of less than 15 fr.
per hectolitre up to 50 degrees centigrade, undertake to levy on
these spirituous liquors an import duty of I 5 fr. per hectolitre up
to 50 degrees centigrade for the three years next after the present
General Act comes into force. At the expiration of this period
the duty may be increased to 25 fr. for a fresh period of three
years. At the end of the sixth year it shall be submitted to
revision, taking as a basis the average results produced by these
tariffs, for the purpose of then fixing, if possible, a minimum
duty throughout the Whole extent of the zone where the system
of prohibition referred to in Article XCI. should not be in force.
The Powers retain the right of maintaining and increasing the
duties beyond the minimum fixed by the present Article in those
regions Where they already possess that right.
Article XCIII
Distilled liquors manufactured in the regions referred to in
Article XCIL, and intended for inland consumption, shall be
subject to an excise duty.
APPENDIX 589
This excise duty, the collection of which the Powers under-
take to ensure as far as possible, shall not be lower than the
minimum import duty fixed by Article XCII.
Article X CI V
The signatory Powers which have possessions in Africa con-
tiguous to the zone specified in Article XC. undertake to adopt
the necessary measures for preventing the introduction of
spirituous liquors into the territories of the said zone across their
inland frontiers.
Article X C V
The Powers shall communicate to each other, through the
office at Brussels, and acording to the terms of Chapter V.,
information relating to the traffic in spirituous liquors within
their respective territories. '

CHAPTER VII
FINAL PROVISIONS
Article X C VI
The present General Act repeals all contrary stipulations
of conventions previously concluded between the signatory
Powers. _
Article X C VI I
The signatory Powers, without prejudice to the stipulations
contained in Articles XIV., XXIIL, and XCIL, reserve the right
of introducing into the present General Act later on, and by
common agreement, such modifications or improvements as
experience may prove to be useful. '
Article XCVIII '
Powers who have not signed the present General Act shall be
allowed to adhere to it. The signatory Powers reserve the right
to impose the conditions which they may deem necessary on
such adhesion. If no conditions should be stipulated, adhesion
implies full acceptance of all the obligations and full admission
to all the advantages stipulated by the present General Act-
The Powers shall concert among themselves as to the steps to be
taken to procure the adhesion of States whose co-operation may
be necessary or useful in order to ensure the complete execution
of the General Act. Adhesion shall be effected by a separate
590 INTERNATIoNAL LAw
Act. It shall be notified through the Diplomatic channel to
the Government of his Majesty the King of the Belgians, and by
that Government to all the signatory and adherent States.
Article X C I X
[The Act has been ratified by the signatory Powers, April 2,
1892.]
A certified copy of this Protocol shall be forwarded to all the
Powers interested.
Article C
The present General Act shall come into force in all the posses-
sions of the contracting Powers on the sixtieth day after the date
of the Protocol of Deposit provided for in the preceding Article.
Done at Brussels, the 2nd day of the month of July, 1890.

ANNEX To ARTIGLE XXXIX
License to Ply the Coasting Trade on the East Coast 0]‘ A frica
in conformity with Article XXX I X

I . Limits
Name ofVessel, ‘ Mam‘ j within
with Description Nation- Ton- Port.“ Name ofNumber, mum ' which General '
of Form of Build ahty nage Regls' CaP' of Crew Number Vessel is Remarks
and Rig ‘er ‘am of "18' entitled
sengers to ply



The present license must be renewed on the . . . . . . . . . . . .
Rank 0/ Ofiicial who has issued the Permit -
DECLARATION or JULY 2, I890.
The Powers assembled in Conference at Brussels, who have
ratified the General Act of Berlin of February 26, 1885, or who
have acceded thereto,
After having drawn up and signed in concert, in the General
Act of this day, a collection of measures intended to put an end
APPENDIX ~ 591
to the Negro Slave Trade by land as well as by sea, and to
improve the moral and material conditions of existence of the
native races ;
Taking into consideration that the execution of the provisions
which they have adopted with this object imposes on some of
them who have possessions or protectorates in the conventional
basin of the Congo obligations which absolutely demand new
resources to meet them, ’
Have agreed to make the following Declaration :—
The signatory or adhering Powers who have possessions or
protectorates in the said conventional basin of the Congo are
authorised, so far as they require any authority for the purpose,
to establish therein duties upon imported goods, the scale of
which shall not exceed a rate equivalent to IO per cent. ad
valorem at the port of entry, always excepting spirituous liquors,
which are regulated by the provisions of Chapter VI. of the
General Act of this day.
After the signature of the said General Act, negotiations
shall be opened between the Powers who have ratified the
General Act of Berlin or who have adhered to it, in order to draw
up, within the maximum limit of IO per cent. ad valorem, the
conditions of the Customs system to be established in the con-
ventional basin of the Congo.
Nevertheless it is understood :-
I. That no differential treatment or transit duty shall be
established : '
2. That in applying the Customs system which may be
agreed upon, each Power will undertake to simplify formalities
as much as possible, and to facilitate trade operations ;
3. That the arrangement resulting from the proposed
negotiations shall remain in force for fifteen years from the signa-
ture of the present Declaration.
At the expiration of this period, and failing a fresh agreement,
the contracting Powers shall return to the conditions provided
for by Article IV. of the General Act of Berlin, retaining the
power of imposing duties up to a maximum of 10 per cent. upon
goods imported into the conventional basin of the Congo.
The ratifications of the present Declaration shall be exchanged
at the same time as those of the General Act of this day.
By Act of December 22, 1890, made at Brussels, Great
Britain, Germany, and Italy, in accordance with the above
Declaration, agreed to modify in the following manner, within
the limits of the eastern zone of the conventional basin of the
592 INTERNATIONAL LAW
Congo, Article IV. of the General Act of the Berlin Conference
of 188 5 :—-
‘ I. Great Britain, Germany, and Italy, in the territories under
their influence situated in the eastern zone of the conventional
basin of the Congo, and which are subject to Article IV. of the
General Act of Berlin, shall have the right to levy duties on goods
imported into such territories either by land or by water, in
accordance with the Customs regulations actually in force under
the Treaties with Zanzibar, which provide for an import duty
of 5 per cent. ad valorem.
‘ 2. Arms and ammunition introduced in accordance with the
special provisions of the General Act of Brussels may, however,
be charged with an import duty not exceeding the rate of IO per
cent. ad valorem, provided that the Treaties containing contrary
stipulations are modified, and that circumstances permit of it.
‘ 3. The import duty to be levied on alcohols shall be regu-
rated in accordance with the provisions of Chapter VI. of the
General Act of Brussels. .
‘ 4. The following goods shall be admitted free of duty, viz. :
agricultural machines and instruments, as Well as all materials
intended for the construction and maintenance of roads, tram-
ways, and railways, and, generally speaking, all means of
transport.
‘ 5. The present Agreement shall come into force at the
same time as the Acts signed at Brussels on July 2, 1890. It
shall remain in force for a period of five years, and continue in
operation for five more years, and so on for periods of five years,
unless one or other of the three Powers demands its revision
six months before the expiration of the quinquennial period.’
By Order in Council of Great Britain of May 9, 1892, the
General Act is declared to be from April 2, 1892, an existing
Slave Trade treaty Within 36 and 37 Vict. c. 88.
It was resolved by the United'States of America, as a part
of the ratification, ‘ that the United States of America, having
neither possessions nor protectorates in Africa, hereby disclaims
any intention, in ratifying this Treaty, to indicate any interest
whatsoever in the possessions or protectorates established or-
claimed on that continent by the other Powers, or any approval
of the wisdom, expediency, or lawfulness thereof, and does not
join in any expressions in the said General Act which might be
construed as such a declaration or acknowledgment.’
Turkey interprets Article XXXIV. of the General Act in the
sense that the inscriptions prescribed by that Article shall be
APPENDIX 593
made, in the case of Ottoman vessels, in Turkish characters and
figures. Nevertheless it does not object to a translation in
Latin characters being added to inscriptions in Turkish characters.
The President of the Republic of France, in his ratification of
the General Act, has provisionally reserved, for an ulterior
understanding, Articles XXL, XXIL, and XXIIL, and Articles
XLII. to LXI.
It is understood that the Powers who have ratified the
. General Act in its entirety recognise that they are reciprocally
bound to each other in regard to all of its Articles.
It is likewise understood that such Powers are only bound
to the Power who has ratified partially, in the measure of the
obligations undertaken by the latter Power.
Finally, it is well understood that, in regard to the Power
who has ratified partially the matters to which Articles XLII.
to LXI. relate shall continue, until an ulterior understanding
be arrived at, to be governed by the stipulations and arrange.
ments now in force.

RETURN SHOWING THE EARLIEST AGE AT WHICH
MARRIAGE CAN BE LEGALLY SOLEMNISED IN
EACH OF THE STATES OF EUROPE
[The following is abstracted from the information afforded by Her
Majesty’s representatives abroad to the House of Commons in 1874 and
1903. It is not improbable, however, that some changes may have
occurred in the respective laws since the last date]
AUSTRIA
Persons who have not arrived at the age of puberty, viz.
who have not completed their fourteenth year, are incapable of
contracting a valid marriage. (Articles XXI. and XLVIII.
of the Civil Code.) Minors who have not completed their
twenty-fourth year, and majors who, for whatever reason,
cannot contract of their own accord a valid obligation (as, for
example, persons declared to be prodigals, &c.), cannot contract
a marriage without the consent of their legitimate father, or of
their guardian, or trustee—in short, of the person called upon
to exercise paternal authority over them. In default of a father,
if he is dead or incapable of exercising parental authority, the law
requires, besides the declaration of the guardian or trustee, the
consent of the judicial authority whose province it is. to watch
over the interests of minors. Minors, being illegitimate, require,
to establish the validity of a marriage, besides the consent of
VOL. 11. Q q
594 INTERNATIONAL LAW
their guardian, the approval of the judicial authority. When a
minor, who is a foreigner, wishes to marry in Austria, andis unable
to produce the necessary consent of his father, guardian, or
competent authority of his own country, the judicial authority
of his domicile names a special trustee to examine into the
circumstances of the minor, and to give or refuse accordingly
his consent to the marriage. (Articles XXL, XLIX., L.,' and
LI. of the Civil Code.) When the legitimate father, guardian,
or trustee refuses his consent to the marriage of a minor, or of
a female placed under guardianship, these latter can appeal to
the decision of the competent judge. The judge examines the
motives of the refusal, and subsequently confirms the refusal, or
authorises the marriage, according as he considers the motives
legitimate or not. The law defines as legitimate motives for
refusal the want of adequate means, bad moral character,
proved or notorious, contagious diseases, and infirmities incon-
sistent with the objects of marriage. (Articles LII., LIII. of the
Civil Code.) The military law comprises some restrictions on
the power of contracting marriage in the case of persons forming
part of the active army. The transgression of these involves
the nullity of the marriage. In some provinces the marriage
of certain classes of persons depends furthermore upon the
consent of the commune to which such persons belong. But
this purely administrative restriction does not derogate from
the personal power, and does not involve the nullity of the
marriage in case of transgression. It only entails a disciplinary
fine upon the public functionary who may have celebrated the
marriage without the proper authorisation.
BELGIUM
A man before the age of eighteen years complete, and a
woman before the age of fifteen years complete, cannot contract
marriage in Belgium. (Article CXLIV. of the Civil Code.)
Nevertheless it is lawful for the King to grant dispensations in
the matter of age for grave reasons. (Article XIV. of the same
Code.) The law of the 20th Prairial, year II (June 9, I803),
prescribes the formalities necessary for parties to obtain such
dispensations.
Decree respecting the Grant of Disgbensations relative to Marriage
of the 20th Prairial, Year II (fune 9, I803)
See Articles CXLIV., CLVIL, and CLXIII. of the First Book
of the Civil Code, as amended by the law of April 30, I896.
ARTICLE I.-—Dispensations to marry before the age of eighteen
years complete for men, and fifteen years complete for women,
APPENDIX 595
and dispensations to marry within the prohibited degrees, by
Article CLXIII. of the First Book of the Civil Code, shall be
granted by the Government on the report of the Grand Judge.
ARTICLE II.--The commissary of the Government attached
to the Tribunal of First Instance of the arrondissement in which
the petitioners propose to celebrate the marriage, when the
question is one of a dispensation for the prohibited degrees,
or the arrondissement in which the petitioner is domiciled, when
the question is one of a dispensation in the matter of age, shall
affix his opinion at the foot of the petition praying for such
dispensation, and it shall then be brought before the Grand
Judge.
ARTICLE IIL—Dispensations for the second publication of
banns, as mentioned in Article CLXIX. of the same Book of the
Civil Code, shall be granted, for good reason, in the name of the
Government, by the commissary attached to the Tribunal of
First Instance in the arrondissement in which the petitioners
propose to celebrate their marriage ; and notice shall be given by
such commissary to the Grand Judge, Minister of Justice, of
the grave reasons which may have justified each of these dis-
pensations.
ARTICLE IV.-——The dispensation for a second publication of
the banns shall be deposited in the secretary’s office of the com-
mune where the marriage is to be celebrated. The secretary
shall make a copy of it, in which shall be notified its deposition,
and which shall remain annexed to the certificate of celebration
of the marriage.
ARTICLE V.-—The decree of the Government granting a
dispensation for age, or within the prohibited degrees, shall be
prepared by the commissary of the Government, and, by an
ordinance of the president, shall be registered in the records
of the civil tribunal of the arrondissement in which the marriage
is to be celebrated. A copy of this decree, in which mention
shall be made of the registration, shall remain annexed to the
certificate of celebration of the marriage.
ARTICLE VI.-—The Chief Judge, the Minister of Justice, is
charged with the execution of the present decree, which shall
be inserted in the Bulletin des Lois.
DENMARK
In Denmark marriage can be legally contracted by a man at
the age of twenty years, and by a woman at the age of sixteen
years. The Minister of Justice, however, is authorised to grant
dispensations from this law, but such dispensations are only
granted in cases where the parties in question have attained an
Q Q 2
596 INTERNATIONAL LAw
age approximate to that prescribed by the law, and on the
declaration of a competent medical authority that they have
attained sufficient maturity to qualify them for marriage. . It is
further necessary that exceptional circumstances shall be proved,
which render it important and desirable for them to contract
their marriage before the usual age.
FRANCE
Article CXLIV. of the Civil Code runs thus : ‘ A man‘ may not
marry until he has completed his eighteenth year ; a woman may
not marry until she has completed her fifteenth year.’
Under the old monarchy boys could marry at the age of four?
teen, and girls at twelve ; but when a marriage took place under
such circumstances the husband and wife were usually separated
until they had attained a more mature age. The fixing of the
ages of fourteen and twelve was of Roman and even Athenian
origin, but experience has taught that in the north both physical
and intellectual qualities are less precocious than in the south,
and so the law deferred the marriageable ages to eighteen and
fifteen in the cases of males and females respectively. Had this
been an absolute rule, objections might have arisen; the law,
therefore, adds the following Article : Article CXLV. ‘The
Emperor may nevertheless, for sufficient reasons, grant a dis-
pensation.’
The law has not defined these reasons ; they are left to the
absolute discretion of the Government, which decrees upon
a report drawn up by the Minister of Justice, and this report is
only drawn up after due enquiries have been made by the magis-
trates of the places inhabited by the future husband and wife.
Among the reasons usually alleged are pregnancy of the woman,
necessity of giving satisfaction to the honour of a family, advan-
tage of protecting young men from undesirable connections, &c.
Petitions for these dispensations are, however, practically but
of rare occurrence. Concerning marriage itself, as regards
conditions, formalities, the consent of the couple to be married
and of the relatives, protestations, prohibitions, petitions for
the declaration of the invalidity of marriages, rights, duties, and
obligations, &c., Articles CXLIV. and CCXX. of the Civil Code
as modified by the law of June 24, 1896, should be consulted;
every case is distinctly provided for and explained.
[In 1880 the Registrar-General at Somerset House, London,
instructed registrars of marriages that a notice of marriage
between a British subject and a foreigner should not be given
until it was understood that a marriage celebrated according to
English law would be valid in the country of the foreigner, and
APPENDIX 597
that such foreigner had complied with the requirements of the
marriage law of his country. It has frequently occurred that
marriages duly solemnised in England have been declared
invalid in France, and the English wife and family have been
abandoned by the supposed husband. The Registrar‘General
has desired to impress on every British subject that an English-
woman about to marry a foreigner does so at the great risk of
such marriage being declared invalid. The French Embassy
in London have prepared the following note on the subject :—
‘ A marriage contracted in England between a British subject
and a French subject should be celebrated in the manner pre-
scribed by the law of England. When it has been thus celebrated,
the marriage is perfectly valid in France, provided that the
French subject, at the time of celebration, has complied with
the conditions prescribed by the law of France, and has fulfilled
the obligations imposed by that law on a French subject who is
about to marry.
‘ Epitomised as succinctly as possible, these conditions are as
follows :-- .
‘ Firstly, the man must have completed his eighteenth year
and the woman her fifteenth year, unless a special dispensation
has been granted by the President of the Republic. Secondly,
a man who has not completed his twenty-fifth year, and a
woman who has not completed her twenty-first year, cannot
contract marriage without the consent of their father and
mother; but in case of disagreement, the consent of the father
. suffices. If either of these two (the father or mother) is dead,
or is prevented either by absence or legal incapacity from
making known his or her will in the matter, the consent of the
other suffices. If both the father and the mother are dead, or are
prevented either by absence or legal incapacity from making
known their will in the matter, the grandfathers and the grand-
mothers stand in their stead. If there is disagreement between
the grandfather and the grandmother of the same line, the
consent of the grandfather suffices. If there is disagreement
between the two lines, such disagreement will carry consent.
Persons who have attained their majority as before mentioned—-
namely, twenty-five years in the case of a man and twenty-one
years in the case of a woman—are bound, before contracting
marriage, to make formal and respectful application (“ somma-
tion respectueuse ”) for the consent of their father and mother,
or that of their grandfathers and grandmothers when the father
and mother are dead, or are prevented either by absence or
legal incapacity from making known their will in the matter.
When men are under thirty years of age and women are under
598 INTERNATIONAL LAW
twenty-five, this respectful application must be renewed on
two other occasions, at intervals of a month; ‘ and one month
after the third application the celebration of the marriage may
take place. After the age of thirty years, the celebration may
take place without consent, after a single respectful application
and the lapse of one month. This respectful application must
be made to the persons concerned by two notaries, or by one
notary and two witnesses ; and the reply must be stated in the
proces-verbal relating to the matter. Thirdly, a marriage
contracted in a foreign country (i.e. in a country other than
France) between a French subject and a foreigner (is. one who
is not a French subject) must be preceded by the “ publications ”
(public notices) prescribed by Article LXIII. of the Civil Code.
These “publications ” (public notices) must be made at the
last domicile of the French subject about to marry in England,
and at the municipality of the domicile of his or her father and
mother, or ancestors, under whose control he or she may be.
The omission of these “publications ” (public notices) is not
now, in practice, regarded as a cause of nullity (of marriage) ;
but it is, nevertheless, more prudent to conform to the law in
this respect. ' _
‘ A registrar or clergyman, celebrating in England a marriage
between an English and a French subject, should, therefore, if he
wishes to ensure that the marriage shall be unimpugnable in
France, require from the French subject the production of docu-
ments proving that he has complied with the before-mentioned
conditions and has fulfilled the obligations specified above. These
documents are the following :—-(I) A certificate of birth (“ acte
de naissance ”), to prove that the French subject is of the age
required by the law of his country; (2) an authentic document
notifying the consent of the father and mother or the grand-
fathers and grandmothers, as the case may be, and in the absence
of this document, when respectful applications (“ sommations
respectueuses ”) have been made, a copy of the “ proces-verbaux ”
prepared by the notary when he made these applications, or,
lastly, when the father and mother and the grandfather and
grandmother are dead, certificates of their deaths (“ actes de
déces ”) ; (3) a certificate proving that the “publications”
(public notices) above mentioned have been made. All these
documents should be duly legalised (i.e. certified—verified) in
such manner that there may be no doubt of their authenticity.
In some cases it may be necessary that certificates of the deaths
‘ Amended by law of june 20, 1896; only one application need now be
made, and in default of consent the marriage may be legally solemnised one
month afterwards.
APPENDIX 599
of several of the persons mentioned in the paragraph numbered 2
in the memorandum should be produced, as well as the consent
of one or more of the survivors.’
The following memorandum was issued by the Home Office
in I881 :—
‘ Memorandum as to French Marriage Law
‘ This memorandum does not purport to give a full or exact
account of the requirements of the French law on the subject,
but has been prepared for the information of clergymen and
others, in order to put them on their guard against difficulties
which might not otherwise have been foreseen. Any person
marrying a French subject, though with all the solemnities
necessary for the validity of the marriage by the law of England,
is liable to have the marriage set aside and treated as a nullity
in the French courts, unless the conditions of the French law
as to age, consent of parents or relatives, and public announce-
ments before the solemnisation of the marriage have been
complied with. It is therefore recommended to all British
subjects proposing to intermarry with French subjects, that they
should, before marrying, obtain the assistance of the nearest
French consul (all French consuls being entitled to act as public
notaries, &c.), to see that the conditions of the French law have
' been duly complied with, and to authenticate the evidence of
such compliance by a public notarial act.1
‘ N o Frenchman can marry (without a dispensation) under
. eighteen, and no Frenchwoman under fifteen. -
‘ No Frenchman under twenty-five, or Frenchwoman under
twenty-one, can lawfully marry without the consent of his or
her parents, or parent if only one. In case of difference between
father and mother, the consent of the father is suflicient. If
both parents are dead or incapable, the law requires the consent
of the more remote ancestors (provision being made for the case
of their disagreement), and if there are none such living and
capable, of a family council.
‘ After the ages above mentioned have been attained, the
French law still requires a respectful communication of the inten-
tion to marry to be made to the relatives whose consent (under
those ages) would be necessary; and it does not authorise a
marriage to take place, if objected to by those relatives, until
after a certain delay. The public announcement of the intended
marriage of a Frenchman or Frenchwoman, required by the
1 It should be remembered, however, that a notarial act is of no effect towards
rendering an English or other marriage valid in France, in case the French law
has not been complied with. The authentication of the consul does no more
than certify that the document is authentic, not that the marriage is.
600 INTERNATIoNAL LAw
French law, must be twice made, with an interval of eight days
between each publication, by the clerk of the registry of the
place which is deemed by the French law to be the place of
residence of such Frenchman or Frenchwoman, in his or her
own country. The publication is to be made by a bill or placard,
containing the necessary particulars, posted at the door of the
town hall ; and the marriage cannot lawfully take place until the
third day after the second publication. The requirements as to
age and consent (as well as those as to the degrees of con-
sanguinity and affinity which bar marriage and which are
substantially the same as in England) are enforced by the French
courts with greater strictness than the rest ; but even those as
to respectful communications and publications before marriage
in France (though the want of them may under some circum-
stances be excused) cannot safely be disregarded.’] 1
GERMANY
A man may not marry before the completion of his twenty-
first year, a woman before the completion of her sixteenth year.
The woman can obtain a dispensation from this law from the
competent authorities, in Prussia from the Minister of Justice.
The man can only contract marriage before his twenty-first
year when he is specially declared of age, and this can only be
done when he has completed his eighteenth year.
The consent for marriage is required up to the twenty-first
year (also in the case of the declaration of earlier majority)
and is regulated by §§ 1305-1308 of the Civil Code. The
Marriage Law of Bavaria and Wiirtemberg now conforms with
the German Imperial Law of August 18, 1896, which came
into force on January I, 1900. For the laws prior to that date
see the former edition of this book, vol. ii. p. 562.
GREECE
I. According to Byzantine law, which on this head is still
in force in the whole of Greece, with the exception of the Ionian
Islands, men are forbidden to marry before they have accom-
plished their fourteenth year, and women before they have
accomplished their twelfth year. (‘ Instit. Justin.’ I, X. pr.;
‘ By 6 Edw. VII. c. 40, where arrangements have been made to the satis-
faction of His Majesty with any foreign country for the issue by the proper
officers of that country in the case of persons subject to the marriage law of that
country proposing to marry British subjects in the United Kingdom, of certificates
that after proper notices have been given no impediment acconding to the law
of that country has been shown to exist to the marriage, His Majesty may by
Order in Council make regulations accordingly. No Order in Council has yet
been made. The Act does not refer to marriage of Jews in a synagogue.
APPENDIX 601
I, XXII. pr. bas. XXXIII. 4, 3, &c.) The Canonical law of
Greece coincides with this prohibition. (Zhishman, p. 263;
Rhalles et Potles V. p. 35, 109.) 2. In the Ionian Islands,
according to Article CXLI. of the Ionian Civil Code, men are
forbidden to marry before they have accomplished their sixteenth
year, and women before they have accomplished their four-
teenth year.
HUNGARY
The Hungarian legislation makes a distinction between the
matrimonial laws of different religions. The marriages of
persons belonging to the Catholic or Oriental Churches (sacra-
mental marriages) are regulated by Canonical law. Marriage
contracts of other Christian or non-Christian persuasions are
regulated by civil law. According to Canonical law the legal
age for contracting marriage commences on the completion of the
twelfth year for females, and on the completion of the four-
teenth year for males. Marriages contracted even by minors
having attained this legal age are valid. The consent of the
legitimate father or his substitute (guardian, &c.) is a condition
without which minors must not marry, and the priest who
celebrates a marriage between minors without such consent is
liable to a fine. But the marriage, once contracted, is not the
less valid. The absence of paternal consent is not an invalidating
obstacle. Marriages of Christians who do not belong to the
Catholic or Oriental Churches, particularly those of Protestants
of different persuasions, and marriages of persons who do not
profess the Christian faith, are regulated by civil law. The
civil law defines the age of infancy, that of adolescence (or of
puberty), and that of majority. Infants, without distinction of
sex, who have not completed their twelfth year are incapable of
marrying. The ‘legal age,’ viz. that of puberty, commences in
both sexes at the age of twelve years complete. Adolescents who
have attained that age may contract marriage with the consent
' of the legitimate father, or in his absence of the paternal grand-
father, or of the guardian, or of the pupillary authority ; in short,
with the consent of the person or authority who exercises paternal
authority over them. The marriage of a minor contracted
without such consent is null and void. This restriction ceases
on attaining majority. Females attain majority on completing
their sixteenth year, males on completing their twenty-fourth
year. After this period persons of either sex can contract valid
marriages without the consent of their fathers or guardians.
Females who have attained the age of majority of sixteen years
especially are entirely free in this respect, although they may
602 INTERNATIONAL LAw
remain under the paternal authority in regard to other matters ;
for according to Hungarian law females, even those who have
attained the age of majority, remain under the direction of their
father or legal guardian until their marriage. An unmarried
female remains always a ward.
ITALY
The earliest age at which marriage can be legally solemnised
in the kingdom of Italy is (I) in the case of males eighteen
years ; and (2) in the'case of females fifteen years, as determined
by the fifty-fifth Article of the Civil Code.
THE NETHERLANDs
Article LXXXVI. of the Civil Code of the Netherlands
prohibits the solemnisation of marriage below the age of eighteen
in the case of males, and below the age of sixteen in the case of
females ; but his Majesty the King has power in urgent cases
to license the solemnisation of marriage below the ages above "
specified.
PoRTUGAL
By Article MLXXIIL, No. 4, of the Portuguese Civil Code,
which was promulgated by the Law of july I, I867, and is now
(1903) in force in Portugal and the adjacent islands, it is enacted
that no males, if less than fourteen years of age, and no females,
if less than twelve years of age, can legally contract marriage.
Minors under twenty-one years of age cannot legally contract
marriage without the consent of their parents or guardians.
ROUMANIA
By the Roumanian Civil Code the earliest age. at which
marriage can be legally contracted in the United Principalities
is in the case of males at eighteen years, in that of females at
fifteen years. The sovereign alone has the power of granting
exemption from the legal restrictions as to age in cases where
serious cause is shown. Marriage emancipates a minor from
control, but a curator is appointed for his affairs until he has
attained the age of twenty-one.
RUssIA
According to the laws and regulations in force in the Russian
Empire and the kingdom of Poland, men are forbidden to marry
before the age of eighteen, and women before the age of sixteen.
An exception to this regulation is made (I) in favour of the natives
of the Caucasus, for whom the age at which marriage may be
contracted is fixed for males at fifteen and for females at thirteen.
APPENDIX 603
(2) In special cases the bishop of the diocese may, on personal
considerations, authorise the marriage if only six months are
wanting for the man or the woman to attain the age prescribed
by the law. According to the regulations of the Grand Duchy
of Finland, no marriage can be contracted without supreme
authority before the age of twenty-one for males and fifteen for
. females, with the exception of peasants serving in the army,
or those having any fixed trade or occupation, who are allowed
to marry at the age of eighteen.
SPAIN
By the marriage law of June 1870 the earliest age at which
marriage can legally be solemnised in Spain is at fourteen years
for males and at twelve years for females.
SWEDEN AND NORWAY 1
According to Swedish law neither male nor female has the
right to enter into a marriage contract before he shall have
attained twenty-one years (age of maturity) and she seventeen
years. The King, however, can grant an exception thereto.
In Lapland, the most northern part of Sweden, it is permitted
for men to marry so soon as they have obtained a requisite
knowledge of the principles of the Christian religion and attained
seventeen years of age. In Norway the law is now the same as
the Danish law. According to the Danish law, the earliest
age prescribed for marriage is, for men twenty years, and for
females sixteen years.
SWITZERLAND. (See next page.)
TURKEY
There is no general law in Turkey regulating the age at which
marriage may be contracted, but any marriage between parties
who have attained maturity is considered lawful.
ANGLO-INDIAN MARRIAGES
In addition to the dangers to be incurred through want of
legality of marriage in Europe, a new danger has arisen by the
fact of European women marrying natives of India in England,
or other European States. Every year natives of India come to
Europe in large numbers to study medicine, law, 810., and many
become engaged to be married to European girls, generally of
the middle or lower classes. Were it possible for such couples
to live in Europe after marriage, instead of in India, the girl’s
1 Now the separate kingdoms of Sweden and Norway.
1709
MV'I 'IVNOIIVNHHINI
SWITZERLAND
. . Can a Dis-
Mmxageable Age accotdmg to Law pensation Consent of Relatives in the Direct Ascending Consent which is
Cantons as regards Line is necessary until the Age of otherwise considered
8? be legally valid
Men Women obtained ?
Years Years Years
Zurich . . 20 .. 16 Yes 24 Berne . . 18 16 23 [18 years
Lucerne . . . 14 cantons in which 12 . . For men until 20 years, for women until Council of State
gm . . . . . 14 the Canon Law 12 .. For women until 25 years
chwyz . . . 14 btains as re ards 12 .. Unterwalden-le-I-Iaut . 14 o - g 1 2 .. . . . . . . . .
Unterwalden-le-Bas . 14 marriage 12 24 Glaris . I6 .. I6 Zoug . . 19 . 16 Yes 19 . . . ... . . . Guardians
Fribourg . . . 18 . 16 20 Soleure . . . 18 . 16 Yes 21 Bale—ville . 18 . . . . . 16 Until the death of the relatives; other- Tribunal of Morality
wise the consent of the guardian is
necessary until 24 years of age
Bale—campagne . 20 18 Yes . . Schafihouse . . 20 18 25 Law
Appenzell, Rh. Ext. . After confirmation, 16% to 17 years ..
Appenzell, Rh. Int. . . 20 16 Yes, on payment
of a fee
St. Gall . . . For Protestants, after confirmation ; for .. . .
Catholics, unknown
Grisons . . 18 I6 I9 . . Law
Aargovie . . 20 . 17 Yes 24 Thurgovie 20 17 Yes 20 . .. Guardians
Tessin . . 20 I6 25 Family council
Vaud . . . I8 . . I5 23 Valais . . . . 14 Canon Law 12 23 Neuchatel . . . I8 15 22 [years
Geneva . . . . 18 Code Napoléon 15 .. For men until 25, for women until 21 Family council






APPENDIX 605
lot would be more bearable ; but in India after contracting such
a marriage she is in all cases absolutely cut off from everyone of
her own race, who detest and despise her as a social outcast.
Her husband, if a Mohammedan, is permitted by his law to have
four wives, and from the first she may find herself only one of
two or three other wives. Nor is the fact of his becoming
a Christian before marrying any safeguard, for he may change
back again to suit his convenience. Hindoos are married at a
very early age. It is a religious ceremony they must go through.
A European wife, when she arrives in India, may therefore find
that she is not in reality occupying the position of a wife in the
European sense of that word.
THE FOREIGN MARRIAGE ACT, 1892
(55 & 56 Vict. Cap. 23)
AN ACT To CONSOLIDATE ENACTMENTS RELATING To THE MARRIAGE
OF BRITISH SUBJECTS OUTSIDE THE UNITED KINGDOM. [JUNE
27,1892]
Be it enacted by the Queen’s most Excellent Majesty, by and
with the advice and consent of the Lords Spiritual and Temporal,
and Commons, in this present Parliament assembled, and by the
authority of the same, as follows :—
1. All marriages between parties of whom one at least is a
British subject solemnised in the manner in this Act provided
in any foreign country or place by or before a marriage officer
within the meaning of this Act shall be as valid in law as if the
same had been solemnised in the United Kingdom with a due
observance of all forms required by law.
2. In every case of a marriage intended to be solemnised under
this Act, one of the parties intending marriage shall sign a notice,
stating the name, surname, profession, condition, and residence
of each of the'parties, and whether each of the parties is or is not
a minor, and give the notice to the marriage ofiicer within whose
district both of the parties have had their residence not less
than one week then next preceding, and the notice shall state
i that they have so resided.
3. (I) The marriage oflicer shall file every such notice, and
keep it with the archives of his oflice, and shall also, on payment
of the proper fee, forthwith enter in a book of notices to be kept
by him for the purpose, and post up in some conspicuous place
in his office, a true copy of every such notice, and shall keep the
same so posted up during fourteen consecutive days before the
marriage is solemnised under the notice.
606 INTERNATIONAL LAW
(2) The said book and copy posted up shall be open at all
reasonable times, without fee, to the inspection of any person.
4. (I) The like consent shall be required to a marriage under
this Act as is required by law to marriages solemnised in England.
(2) Every person whose consent to, a marriage is so required
may, at any time before the solemnisation thereof under this Act,
forbid it by writing the word ‘ Forbidden ’ opposite to the entry
of the intended marriage in the book of notices, and by sub-
scribing thereto his name and residence, and the character by
reason of Which he is authorised to forbid the marriage ; and if
a marriage is so forbidden the notice shall be void, and the
intended marriage shall not be solemnised under that notice.
5. (1) Any person may on payment of the proper fee enter
with the marriage officer a caveat, signed by him or on his behalf,
and stating his residence and the ground of his objection against
the solemnisation of the marriage of any person named therein,
and thereupon the marriage of that person shall not be solemnised
until either the marriage officer has examined into the matter
of the caveat and is satisfied that it ought not to obstruct the
solemnisation of the marriage, or the caveat is withdrawn by the
person entering it.
(2) In a case of doubt the marriage officer may transmit a
copy of the caveat, with such statement respecting it as he thinks
fit, to a Secretary of State, who shall refer the same to the
Registrar-General, and the Registrar-General shall give his
decision thereon in writing to the Secretary of State, who shall
communicate it to the marriage officer.
(3) If the marriage officer refuses to solemnise or to allow to
be solemnised in his presence the marriage of any person requiring
it to be solemnised, that person may appeal to a Secretary of
State, who shall give the marriage officer his decision thereon.
(4) The marriage officer shall forthwith inform the parties of
and shall conform to any decision given by the Registrar-General
or Secretary of State.
' 6. Where a marriage is not solemnised within three months
next after the latest of the following dates :—
(a) the date on which the notice for it has been given to and
entered by the marriage oificer under this Act, or
(b) if on a caveat being entered a statement has been trans-
' mitted to a Secretary of State, or if an appeal has been made
to a Secretary of State, thenthe date of the receipt from
the Secretary of State of a decision directing the marriage
to be solemnised,
the notice shall be void, and the intended marriage shall not be
solemnised under that notice.
APPENDIX 607
7. Before a marriage is solemnised under this Act, each of the
parties intending marriage shall appear before the marriage
officer, and make, and subscribe in a book kept by the officer
for the purpose, an oath—
' (a) that he or she believes that there is not any impediment
to the marriage by reason of kindred or alliance, or other-
wise ; and
(b) that both of the parties have for three weeks immediately
preceding had their usual residence within the district of
,the marriage officer ; and
(c) where either of the parties, not being a widower or widow,
is under the age of twenty-one years, that the consent of
the persons whose consent to the marriage is required by
law has been obtained thereto, or, as the case may be,
that there is no person having authority to give such
consent.
8. (1) After the expiration of fourteen days after the notice
of an intended marriage has been entered under this Act, then, if
no lawful impediment to the marriage is shown to the satis-
faction of the marriage officer, and the marriage has not been
forbidden in manner provided by this Act, the marriage may be
solemnised under this Act.
(2) Every such marriage shall be solemnised at the oflicial
house of the marriage officer, with open doors, between the hours
of eight in the forenoon and three in the afternoon, in the presence
of two or more witnesses, and may be solemnised by another
person in the presence of the marriage officer, according to the
rites of the Church of England, or such other form and ceremony
as the parties thereto see fit to adopt, or may, where the parties
so ’desire, be solemnised by the marriage officer.
(3) Where such marriage is not solemnised according to the
rites of the Church of England, then in some part of the ceremony,
and in the presence of the marriage officer and Witnesses, each .
of the parties shall declare——
‘ I solemnly declare, that I know not of any lawful impedi-
ment why I, A. B. (or C. D.), may not be joined in matri-
mony to C. D. (or A. B.)’
And each of the parties shall say to the other——
‘ I call upon these persons here present to witness, that I,
A. B. (or C. D.), take thee, C. D. (or A. B.), to be my
lawful wedded wife (or husband).’
9. (I) The marriage officer shall be entitled, for every marriage
solemnised under this Act by him, or in his presence, to have
from the parties married the proper fee.
(2) He shall forthwith register in duplicate every such
608 INTERNATIONAL LAW
marriage in two marriage register books, which shall be furnished
to him from time to time for that purpose by the Registrar-
General (through a Secretary of State), according to the form
provided by law for the registration of marriages in England, or
as near to that form as the difference of the circumstances admits.
(3) The entry in each book of every such marriage shall be
signed by the marriage officer, by the person solemnising the
marriage, if other than the marriage officer, by both the parties
married, and by two witnesses of the marriage.
(4) All such entries shall be made in regular order from the
beginning to the end of each book, and the number of the entry
in each duplicate shall be the same.
(5) The marriage officer by whom or in whose presence a
marriage is solemnised under this Act may ask of the parties to be
married the several particulars required to be registered touching
the marriage.
10. (1) In January in every year every marriage officer shall
make and send to a Secretary of State, to be transmitted by him
to the Registrar-General, a copy, certified by him to be a true
copy, of all the entries of marriages during the preceding year in
the register book kept by him, and if there has been no such entry,
a certificate of that fact ; and every such copy shall be certified,
and certificate given, under his hand and official seal.
(2) The marriage officer shall keep the duplicate marriage
register books safely until they are filled, and then send one of
them to a Secretary of State, to be transmitted by him to the
Registrar-General.
11. (1) For the purposes of this Act the following officers
shall be marriage officers, that is to say :
(a) Any officer authorised in that behalf by a Secretary of
State by authority in writing under his hand (in this Act
referred to as a marriage warrant) ; and
(b) Any officer who, under the marriage regulations herein-
after mentioned, is authorised to act as a marriage officer
without any marriage warrant ;
and the district of a marriage officer shall be the area within
which the duties of his office are exercisable, or any such less
area as is assigned by the marriage warrant or any other warrant
of a Secretary of State, or is fixed by the marriage regulations.
(2) Any marriage warrant of a Secretary of State may autho-
rise to be a marriage officer-—
(a) a British ambassador residing in a foreign country to the
government of which he is accredited, and also any officer
prescribed as an officer for solemnising marriages in the
official house of such ambassador ;
APPENDIX 7 609
(b) the. holder of the office of British consul in any foreign
country or place specified in the warrant ; and ‘
(c) a governor, high commissioner, resident, consular or other
‘ officer, or any person appointed in pursuance of the marriage
regulations to act in the place of a high conunissioner or
' resident; and this ‘Act shallv apply with the prescribed
modifications to a marriage by or before a governor, high
commissioner, resident, or officer so authorised by the
warrant, and in such application shall not be limited to
places outside her Maj esty’s dominions. '
('3) ‘If a marriage warrant refers to the office without desig-
nating the name of any particular person holding the oflice,.then,
while the warrant is in force, the person for the time being holding
or acting in such office shall be a marriage officer. ‘
(4) A Secretary of State may, by warrant under his hand,
vary or revoke any marriage warrant previously issued under this
Act.
(5) Where a marriage officer has no seal of his ofiice, any
reference in this Act to the official seal shall be construed to refer
to any seal ordinarily used by him, if authenticated by his
signature with his official name and description.
' 12. A marriage under this Act may be solemnised on board
one of her Majesty’s ships on a foreign station, and with respect
to such marriage—-
(a) subject to the marriage regulations a marriage warrant
'of a Secretary of State may authorise the commanding
ofiicer of the ship to be a marriage officer ; ‘
(b) the provisions of this Act shall apply with the prescribed
modifications.
13. (1) After a marriage has been solemnised under this Act
itrshall not be necessary, in support of the marriage, to give any
proof of the residence for the time required by or in pursuance
of this Act of either of the parties previous to the marriage, or of
the consent of any person whose consent thereto is required by
law, nor shall any evidence to prove the contrary be given in any
legal proceeding touching the validitiy'of the marriage. .
“ (2) Where a marriage purports to have been solemnised and
registered under this Act in the official house of a British am.-
bassador or consul, or ‘on board one of her Maj esty’s ships, it
‘shall not be necessary, in support of the marriage, to give any
proof of the authority of the marriage ofiicer by or before whom
the marriage was solemnised and registered, nor shall any
evidence to prove his want of authority, whether by reason of
his not being a duly authorised marriage ofi’icer or of any pro-
VOL. II. - > R R
i 610 . INTERNATIONAL LAW
hibitions or restrictions under the marriage regulations or other-
wise, be given in any legal proceeding touching the‘ validity of
the marriage. ' "
14. If a marriage is solemnised under this Act by means of
any wilfully false notice signed, or oath made by either party to
the marriage, as to any matter for which a notice, or oath, is by
this Act required, the Attorney-General may sue fortthe forfei-
ture of all estate and interest in any property in-England accruing
to the offending-party by the marriage; .and. the proceedings
thereupon, and the consequences thereof, shall be the same as
are provided by law in the like case with regard to marriages
solemnised in England according to the rites- of the Church of
England. - ' >
15. If a person— i - .
(a) knowingly and wilfully makes a false oath or signs a false
notice, under this Act, for the purpose of procuring a
marriage, or
(b) forbids a marriage under this Act by falsely representing
himself to be a person whose consent to‘ the marriage. is
required by law, knowing such representation to be false,
such person shall suffer the penalties of perjury, and may be tried
in any county in England and dealt with in the same manner in
all respects as if the offence had been committed in that county.
16. (1) Any book, notice, or document directed by this Act
to be kept by the marriage officer or'in the archives of his ofiice,
shall be of such a public nature as to be admissible in evidence
on its mere production from the custody of the officer.
(2) A certificate of a Secretary of State as to any house, 'o‘flice,
chapel, or other place being, or being part of, ‘the official house of
a British ambassador or consul shall be conclusive. '
17. All the provisions and penalties of the Marriage Registra-
tion Acts, relating to any registrar, or register of marriages or
certified copies thereof, shall extend to every marriage officer,
and to the registers of marriages under this’ Act, and to the
certified copies thereof (so 'far as the'same are applicable thereto),
as if herein re-‘enacted and in terms made applicable toiithis Act,
and as if every marriage officer were a registrar under the v‘said
Acts.‘ A ' " ~,
18'. Subject to the marriage regulations, a British consul, or
person authorised to act as British consuLion being. satisfied by
personal attendance that a marriage between parties, of whom
one at least is a British subject, has been duly solemnised in a
foreign country, in accordance with the local law of the country,
and on payment of the proper fee, may: register the marriage in
accordance with the marriage regulations as having been so _
APPENDIX 611
solemnised, and thereupon this Act shall apply as if the marriage
had been registered in pursuance of this Act, except that nothing
in this Act shall affect the validity of the marriage so solemnised.
19. A marriage officer shall not be required to solemnise a
.marriage, or to allow a marriage to be solemnised in his pre-
sence, if in his opinion the solemnisation thereof would be incon-
sistent with international law or the comity of nations ;
Provided that any person requiring his marriage to be
solemnised shall, if the officer refuses to solemnise it or allow it to
be solemnised in his presence, have the right of appeal to the
Secretary of State given by this Act. . ~ .
20. The proper fee under this Act shall be such fee as may for
the time being be fixed under the Consular Salaries and Fees
Act, 1891 ,; and the fee so fixed as respects a consul shall be the
fee which may be taken by any marriage oflicer ; and the pro-
visions relating to the levying, application, and remission of and
accounting for fees under that Actv shall apply to the same when
taken‘ by any marriage officer who is not a consul.
21. (1) Her Majesty the Queen in Council may make regu-
lations .(in this Act referred to as the marriage regulations)—
' (a) prohibiting or restricting the exercise by marriage officers
of their powers under this Act in cases where the exercise
.of those powers appears to her Majesty to be inconsistent
_ ~with international law or the comity of nations, or in places
where sufficient facilities appear to her Majesty to exist
without the exercise of those powers, for the solemnisation
of marriages to which a British subject is a party ; and
(b) determining what offices, chapels, or other places are, for
the purposes of marriages under this Act, to be deemed to
be part of the oflicial house or the oflice of a marriage
officer; and - -
(c) modifying in special cases or classes of cases the require-
ments of this Act as to residence and notice, so far as such
modification appears to her Majesty to be consistent with
the observance of due precautions against clandestine
marriages ; and
(d) prescribing the forms to be used under this Act ; and
' (e) adapting this Act to marriages on board one of her
Maj esty’s ships ; and to~ marriages by or before a governor,
high commissioner, resident, or other officer, and autho-
rising the appointment of a person to act under this Act in
the place of a high commissioner or resident ; and j
_ .(f) determining who is to be the marriage oflicer for the ‘pur-
. pose of a ‘marriage in the official house of a British am-
bassador, or on board one of her Majesty’s ships, whether
R R 2
612 _ INTERNATIoNAL LAW
such officer is described in the regulations _or named'in
pursuance thereof, and authorising such officer to act
without any marriage warrant ; and 1'
(g) determining the conditions under which and the'mode in
which marriages solemnised in accordance with the local
law of a foreign country may be registered under this Act ;
and -
(h) making such provisions as seem necessary or proper for
carrying into effect this Act ‘or any marriage regulations‘;
and ‘ 1' ' -
(i) varying or revoking any marriage regulations previously
made
(2) All regulations purporting to be made in pursuance of
this section may be made either generally or with reference to
any particular case or class of cases, and shall be published under
the authority of her Majesty’s Stationery Office, and laid before
both Houses of Parliament, and deemed to be within the powers
of this Act, and shall while in force have effect as if enacted by
this Act. ' '
(3) Any marriage regulations which dispense for any reason,
whether residence out of the district or otherwise, with the
requirements of this Act as to residence and notice, may require,
as a condition or consequence of the dispensation, the produc-
tion of such notice, certificate, or document, and the taking of
such oath, and may authorise the publication or grant of such
notice, certificate, or document, and the charge of such fees as
may be prescribed by the regulations ; and the provisions of this
Act, including those enacting punishments with reference to any
false notice or oath, shall apply as if the said notice, certificate,
or document were a notice, and such oath were an oath, within
the meaning of those provisions. ‘ j
22. It is hereby declared that all marriages solemnised within
the‘ British lines by any chaplain or officer or other person
officiating under the orders of the commanding officer of a
British army serving abroad, shall be as valid in law as if the
same had been solemnised within the United Kingdom, with a
- due observance of all forms required by law. ‘
23. Nothing in this Act shall confirm or impair or in any wise
affect the validity in law of any marriage solemnised beyond the
seas, otherwise than as herein provided, and this Act shall not
'- extend to the marriage of any of the Royal Family.
24. Inthis Act, unless the context otherwise requires—-
The expression ‘ Registrar-General ’ means the Registrar-
General of Births, Deaths, and Marriages in England ;
The expression ‘ Attorney-General ’ means her Majesty’s
APPENDIX 613
'. Attorney-General, or if there is no such Attorney-General,
or the Attorney-General is unable or incompetent to act,
her Majesty’s Solicitor-General, for England ; .
The expression ‘ the Marriage Registration Acts ’ means the
Act of the session of the sixth and seventh years of the
reign of King William the Fourth, chapter eighty-six,
entituled ‘ An Act for Registering Births, Deaths, and
‘Marriages in England,’ and the enactments amending the
same ;
The expression ‘ ofiicial house of a marriage ofi‘icer ’ means,
. -- subject to the provisions of any marriage regulations, the
oficice at which the business of such officer is transacted, and
the official house of residence of such officer, and, in the
case of any officer, who is an officer for solemnising marriages
in the oflicial house of an ambassador, means the official
house of the ambassador ;
The expression ‘ consul ’ means a consul—general, consul, vice.
consul, proconsul, or consular agent ;
The expression ‘ ambassador ’ includes a minister and a
chargé d’affaires ;
The expression ‘ prescribed ’ means prescribed by marriage
regulations under this Act.
25. This Act shall come into operation on the first day of
January next after the passing thereof.
26. (I) The Acts specified in the schedule to this Act are
hereby repealed to the extent in the third column of that schedule
mentioned :
Provided that—
(a) any Order in Council in force under any Act so repealed
shall continue in force as if made in pursuance of this Act ;
and
(b) any proceedings taken with reference to a marriage, any
register book kept, and any warrant issued in pursuance of
the Acts hereby repealed, shall have effect as‘ if taken, kept,
and issued in pursuance of this Act ; and
' ' (c) the fees which can be taken in pursuance of the Acts
hereby repealed may continue to be taken in like manner
as if fixed in pursuance of the Consular Salaries and Fees
Act, 1891, and may be altered accordingly; and‘
(d) the forms prescribed by or in pursuance of the Acts hereby
repealed may continue to be used as if prescribed by an
Order in Council under this Act.
(2), Every. marriage in fact solemnised and registered‘by or
before ‘a British consul or' other marriage officer in intended
pursuance of any Act hereby repealed. ‘shall, notwithstanding
614 INTERNATIONAL LAW
such repeal or any defect in the authority vof the consul or the
solemnisation of the marriage elsewhere than at the consulate,
be as valid as if the said Act had not been repealed, and the
marriage had been solemnised at the consulate by or before a
duly authorised consul :
Provided that this enactment shall not render valid any i
marriage declared invalid before the passing ‘of this Act by any
competent court, or render valid any marriage either of the
parties to which has, before the passing of this Act, lawfully
intermarried with any other person.
27. This Act may be cited as the Foreign Marriage Act, 1892.
Enacz‘merzts Repealed

Session and Chapter Title Extent of Repeal

4 Geo. IV. 0. 91 . An Act to Relieve His Ma- The whole Act, so far as un-
jesty’s Subjects from all repealed
doubt concerning the Vali-
dity of Certain Marriages
Solemnised Abroad .
1'2 & I3 Vict. c. 68 The Consular Marriage Act, The whole Act
1849
31 8c 32 Vict. c. 61v The Consular Marriage Act, The whole Act
1868
33 & 34 Vict. c. 14 The Naturalisation Act, 1870 In section II the words ‘ and
of the marriages of persons
married at any of her
Majesty’s embassies or le-
gations.’
53 & 54 Vict. c. 47 The Marriage Act, 1890 The whole Act _
54 & 55 Vict. c. 74 The Foreign Marriage Act, The whole Act ‘
1891


INTERNATIONAL AGREEMENT FOR THE
SUPPRESSION OF THE WHITE SLAVE TRAFFIC
Signed at Paris, May I8, I904, on behalf of Great Britain, Germany,
Belgium, Denmark, Spain, France, Italy, Netherlands, Porta-
gal, Russia, Sweden and Norway, and Switzerland, with the
. desire of securing to women of fall age who have snfiered abuse
or compulsion, as also to women and girls under age, eflecti've
protection against the criminal trafifc known as the ‘ White
Slave Trafiic.’ - . '
7 Article I , .
Each of the Contracting Governments undertakes to estab-
lish or name some authority charged with the co-ordination of all
information relative to the procuring of women or girls for
immoral purposes abroad ; this authority shall be empowered to
APPENDIX 615
correspond direct with the similar department established in
eachof the other Contracting States.
Article II
Each of the Governments undertakes to‘ have a watch kept,
especially in railway stations, ports of embarkation, and en route,
for persons in charge of women and girls destined for an immoral
life. ‘With this object instructions shall be given to the officials
and all other qualified persons to obtain, within legal limits, all
information likely to lead to the detection of criminal traffic.
.The arrival of persons who clearly appear to be the principals,
accomplices in, or victims of, such traffic shall be notified, when
it‘occurs, either to the authorities of the place of destination, or
to the Diplomatic or Consular Agents interested, or to any other
competent authorities.
Article III
The Government undertake, when the case arises, and within
legal limits, to have the declarations taken of women or girls of
foreign nationality who are prostitutes, in order to establish their
identity and civil status, and to discover who has caused them to
leave their country. The information obtained shall be com-
municated to the authorities of the country of origin of the said
women or girls, with a view to their eventual repatriation.
' The Governments undertake, within legal limits, and as far as
can be done, to intrust temporarily, and with a view to their
eventual repatriation, the victims of a criminal traflic when
destitute to public or private charitable institutions, or to private
individuals offering the necessary security.
- The Governments also undertake, within legal limits, and as
far as possible, to send back to their country of origin those
women and girls who desire it, or who may be claimed by persons
exercising authority over them. Repatriation shall only take
place after agreement as to identity and nationality, as well as
place and date of arrival at the frontiers. Each of the Con-
tracting Countries shall facilitate transit through its territory.
Correspondence relative to repatriation shall be direct as far
as possible.
‘ Article IV
Where the woman or girl to be repatriated cannot herself
repay the cost of transfer, and has neither husband, relations, nor
guardian to pay for her, the cost of repatriation shall be borne
by the " country where she is in residence as far as the nearest
frontier or port of embarkation in the direction of the country of
origin, and by the country of origin as regards the rest.
616 INTERNATIoNAL LAw
Article V I I _ A
The provisions of the foregoing Articles III. and IV. shall not
affect any private Conventions existing between the Contracting
Governments.
Article VI
. “ The Contracting Governments undertake, within legal limits,
to exercise supervision, as far as possible, over the oflices or.
agencies engaged in finding employment for women or- girls
abroad. ‘ ' , ' _ .
Article VII
Non-Signatory States can adhere to the present Agreement.
For this purpose they shall notify their intention, through the
diplomatic channel, to the _. French Government, who shall
acquaint all the Contracting States.
‘Article VIII
The present Agreement shall come into force six months after
the exchange of ratifications. If one of the Contracting Parties
denounces it, this denunciation shall only have effect as regards
that party, and that only twelve months after the date of ,denun-
ciation. A
Article I X
The present Agreement‘shall be ratified, and the ratifications
shall be exchanged, at Paris with the least possible delay.

The above States on the same day exchanged the following
Declaration respecting the application of the above Agreement
to the respective Colonies of the Contracting States :—
Article I
The countries signatories of the Agreement have the right
to accede thereto at any time for their Colonies or foreign
possessions. _
They may do this either by a general Declaration compre-
hending all their Colonies or possessions within the accession, or
by specially naming those comprised therein, or by simply
indicating those which are excluded. '
_ Article II .
I. l The Government of his Britannic Majesty declare that‘ they
reserve the right to accede to the Agreement, and to denounce it
for each of the British Colonies or possessions.
APPENDIX . 617
The German Government declare that they reserve their
decisions on the subject of their Colonies.
The Danish Government declare that they reserve the right
to accede to the Agreement for the Danish Colonies.
The Spanish Government declare that they reserve their
decisions on the subject of their Colonies.
The French Government declare that the Agreement shall
apply to all French Colonies.
The Italian Government declare that the Agreement shall
apply to the Colony of Erythraea.
The Netherland Government declare that the Agreement
shall apply to all the Netherland Colonies.
The Portuguese Government declare that they reserve the
right to decide subsequently whether the Agreement shall be put
in force in any of the Portuguese Colonies.
The Russian Government declare that the Agreement shall
be applicable in its integrity to all the territory of the Empire
in Europe and in Asia.
Article III
Any Governments who may subsequently have declarations
to make on the subject of their Colonies shall make them in the
form provided in Article 7 of the Agreement.

On the same day Germany made the following declaration :—
In the view of the German Government, the Rules which
may exist between the German Empire and the country of origin
respecting the mutual assistance of paupers are not applicable to
persons who are repatriated in virtue of the present Agreement
on their way through Germany.
On January 18, 1905, Austria-Hungary acceded to the above
Agreement as well as to the Declaration.
The above Agreement was ratified on January I8, 1905, by
Great Britain, Germany, Denmark, Spain, France, Italy, Russia,
Sweden and Norway, and Switzerland. Belgium ratified it on
July 3, 1905 ; and Portugal on July 12, 1905. The Netherlands
have not yet ratified it.
INDEX
w
ACTIONS
and the lax forz‘, i. 204
against foreign sovereigns, i. 23 5
between enemies, 369
ACTOR SEQUITUR FORUM REI, i. 424
ADJUDICAT ION S
of mixed tribunals, i. 63
ADMIRAL, LORD HIGH,
commission of, i. 138
ADMIRALTY (BRITISH),
circular (1876) as to salutes, i. 143, I46
slave circular ,(1892), i. 269
jurisdiction of, as to foreign ships of war with illegal prize, i.
23 I
as to_ claims of salvage against ships of war,
1. 231
‘ discretion ’ as applied to, i. 413
power of foreign consul to veto, i. 413
as to booty, i. 601, 94
as to contraband, ii. 258, 262
criminal jurisdiction, i. 171, 247
how far a prize court, 428, 453
sentence of a foreign admiralty court, how far evidence in
ii- 437
court of, i. 138, ii. 92
ADRIATIC SEA,
claim of Venice to, i. I 34
AFFIDAVIT, i. 256, 457
AFFIRMING GUN, i. 626, 424
AFRICA,
general Act of Berlin Conference as to, i. I 7 5, 272, 283, 565
AIX-LA-CHAPELLE,
Congress of, i. 105, 129
‘ ALA BA MA,’
case of the, r 74
ALEXANDER THE GREAT
and the Thessalians, 78, 497
ALIEN. See FOREIGNER.
right to expel, i. 494
Aliens Act, 1905 (5 Edw. VII. 0. I 3), i. 494
ALLANTON,
case of. 264
620 INTERNATIoNAL LAW
ALLEGIANCE,
local, i. 430
natural, i. 430
in the United States, i. 437
transfer of, during hostilities, i. 461
of inhabitants of territory in military occupation, i. 462, ii.
.484
conquered territory, i. 465, 506
rule of international law with respect to transfer of, i. 431
evidence as to transfer of, 509
ALLIANCE, TREATIES OF, i. 306
how affected by declaration of war, i. 597
legal effects of, 3
casus faealeris, 5
offensive and defensive, ii. 5
conflicts in, ii. IO
distinction between qualified neutrality and, I 3
example of Switzerland in supplying mercenaries, 8
ALLIES,
recapture of goods of, from enemy, 538
ALTERNA T, i. 132
AMBASSADOR. See DIPLOMATIC AGENT
AMICABLE ACCOMMODATION
in international disputes, i. 497
ANCIPITIS Us Z75,
articles, 261
ANGARIE ]US, i. 519
ANTICHRESIS, i. 313
ARABI PASHA,
case of, 35o
ARBITRATION, INTERNATIONAL,
rules governing, i. 110, 500, 520
recent instances of, i. 501
Hague Convention as to, i. 66, 501, 523
text of, i. 525
treaties thereon, i. 525
ARGUELLES,
case of, i. 254
ARISTOCRACY, i. 157
ARMING AND EQUIPPING
ship in neutral port, I69, 176
case of the‘ Alabama,’ I74
‘ Meteor,’ 192
‘ International,’ ii, 190
Reg. 11. Sandoval, 191
Arbuthnot and Ambrister, 200
provisions of British ‘ Foreign Enlistment Act ’ as to, ii. 192
ARMISTICE (TRUCE), .
Truce of God, i. 7
nature of, 346
upon whom binding, 349
what may be done during, ii. 349
now to be interpreted, 352
INDEX '621
ARMISTICE (T RUCE)-—contz'nued
when broken by acts of private persons, 3 57
United States army regulations, as to, 62
See FLAG
ARMS,
concealing, for the enemy, i. 614
suspension of, 346
United States navy regulations as to preventing supplies of,
11. 39 ~
‘ ARREST OF PRINCES,’
what is, 389
ARREST 0N SHORE, i. 24 5
ART, WORKS OF, &c.,
right of belligerent to appropriate or destroy, 8o
conduct of the French armies in I 789 as to, ii. 80
‘ allies in 1815 as to, 81
modern usage of war as to, 81
books for a public library, whether a lawful prize, 435
United States army regulations as to, 57
See BUILDINGS
ASSASSINATION IN WAR,
if allowable, i. 621
distinction between a surprise and, i. 622
United States army regulations as to, 63
ASSIGNMENT, i. 227
ASSIZES OF JERUSALEM, i. 10
ASYLUM,
rights of, I 71
among the ancients, i. 3
to belligerent ships, I72
forces on land, I 73
use of, by belligerent ships, I87
violation of, ii. 196
course pursued in Russo-Japanese War (1904) as to, 273
AUBAINE, DROIT D’, i. 206
AUTHORS,
convention to protect rights of, i. 307
BALANCE OF POWER IN EUROPE, i. 559
BALLOONS,
use of, in war, whether legitimate, i. 629
BALTIC SEA, i. 180
BANKRUPTCY, i. 218
BAYS,
part of maritime territory, i. I 76
BEHRING_ SEA, i. 178
Arbitration Award, 1893, i. 178
BELGIUM, .
neutralised, ii. 30
622 INTERNATIONAL LAW
BELLIGERENTS,
recognition of, when justifiable, i. 90
rights of, when they commence, i. 579
armed forces of, how composed, i. 611
population of non-occupied territory, when to be considered,
i. 615
United States army regulations as to, 54
right of, to enemy’s property, ii. 74
rights and duties of, within neutral State, ii. 165
friendly intercourse between, 34 5
compacts and conventions between, ii. 346
See CONVENTION ‘
BERLIN,
Treaty of, i. 175, I81, 272
BIDWELL,
extradition of, i. 254
BILL '
of exchange, effect of war as to, i. 583
of health, ii. I 16
of lading, I 15
of sale, ii. 116
BIRTH,
effect of, in a State, i. 430
BLACK SEA, the, i. 180
BLOCKADE,
rights of, recognised by England in 1861, i. 90
trading of neutral with besieged or blockaded place, ii. 210,
221
who may institute a siege or blockade, ii. 21 I
French military law as to duty of commandant of a besieged
place, 213
definition of a siege and blockade, ii. 212
a legal blockade, how constituted, 214, 220
of Cuba (1898), 214
legal operation of blockade, when suspended, ii. 293
paper blockade, 215
blockades, how affected by the introduction of steam power,
ii. 216
declaration of Paris Conference (18 56) as to blockades, ii. 217
a blockade, how dissolved, 219
breach of blockade, a criminal act, 222
cases of condemnation for breach of blockade, 227, 230
effect of notification of a blockade, 22
right of neutral vessel to withdraw from blockaded port, ii. 2 36
proof necessary for condemnation on account of breach of
blockade, ii. 228, 230 -
ship sailing from neutral port with intent to violate blockade,
228
communication of neutral ships of war with blockaded port,
11. 2 32 '
license to enter blockaded port, 234 \
entrance of a neutral ship into a blockaded port, when ex-
cusable, ii. 228, 230, 445
egress of a neutral ship from a blockaded port, when ex-
cusable, ii. 225, 231, 235
mmsx 623
BLOCKADE—conn'nued.
violation of blockade, how punishable, 2 3 7
capture for violation of blockade, how justified, 239
H aute/em'lle’s theory of blockades, 241
breach of, whether permitted by a license to trade, ii, 388
pacific blockade, i. 508
BLUNTSCHLI,
correspondence with Count von Moltke on laws of war, ii. 18
BOMBARDMENTS, ii. 74, 82, 213
BONDS,
foreign, i. 1 I 5
BOOTY,
right of, acquired in battle, 90 _
rules among the Romans as to, 90, 5 36
modern practice as to, 90
jurisdiction of English Court of Admiralty as to, 95
. American Court as to, 93
Court of Chivalry as to, i. 600
Earl Marshal as to, i. 601
title to, when it vests, 389, 5 30
when completed, 390
jurisdiction of prize court as to, 95, 435
United States army regulations as to, 59
BOSPHORUS, the, i. 181
BOUNTY,
or head money, 411
BRITISH,
seamen, impressment of, from neutral vessels, 302
desertion by, abroad, i. 286
seas, dominion claimed by Great Britain over the, i. I 36
BROWN, JOHN,
case of, i. 242
BRUNEI,
Sultanate of, i. 221
BRUSSELS CONFERENCE, 1874, i. 609, 370
BRUSSELS CONFERENCE, 1890, 283, 565
BUILDINGS, CIVIL PUBLIC,
exemption from operations of war, 8 I
in 1815, ii. 81
in 1870, 82
BUNDESRATH,
case of, 343
CAPACITY OF PERSONS,
laws regulating the, i. 205
CAPITULATIONS,
definition of, 354
‘ with all the honours of war,’ 35 5
who may make, ii. 35 5
terms of surrender of the Confederate armies in 1865, 356
United States army regulations as to, 67
CAPTURE ON LAND. See BOOTY and CONQUEST
of works of art in the Louvre, 79 ,,
CAPTURE ON THE HIGH SEAS. See PRIZE
624 INTERNATIoNAL LAw
CARGO, *
consequencesto, for breach of blockade by ship, 237
effect of contraband, on ship, 24 5
on cargo not contraband, 247
contraband character of, how determined, ii. 2 36
when confiscated for resistance of vessel to visitation and
search, ii. 298 .
how affected by ship using enemy’s flag and pass, 320
consequence to, in vessel in enemy’s service, ii. 320
cases of condemnation of, seized in coasting and colonial
trade with the enemy, ii. 337 ‘ \
case of the ‘ Springbok,’ 247, 341
‘ CAROLINE,’
case of the, i. 51 I
CAROLINE ISLANDS, ,
arbitration of the Pope concerning, i. 500
CARRIAGE OF HOSTILE PERSONS
in neutral ships, 32 5
CARTEL,
instances of, 26
captor refusing to enter into, ii. 33
definition of, 361
how carried into effect, 362
United States army regulations as to, ii. 65
CARTEL SHIP, 362
character of, ii. 362
rights and duties of, 362
CASES,
American, on interpretation of treaties, l. 326
English, on interpretation of treaties, “i. 326
CASE OF
the ‘ Alabama,’ ii. 174
the ‘ Allanton,’ ii. 264
the ‘ Bundesrath,’ ii. 343
the ‘ Calchos,’ ii. 264 "
the ‘ Caroline,’ 1. 5 I I
the ‘ Commercen,’ 249
the ‘ Franconia,’ i. 191
the ‘ Gerasimo,’ i. 466
the ‘ Huascar,’ i. 479
the ‘ International,’ 190
R. v. Jameson, i. 477, 194
the ‘ Knight Commander,’ ii. 310
the ‘ Kow-shing,’ i. 520
the ‘ Malaca,’ 137
the ‘ Nigretia,’ ii. 322
the ‘ Ostee,’ ii. 388 _
the ‘ Peterhoff,’ 214
the ‘ Petersburg,’ i. 121
the ‘ Sally,’ ii. 100
the ‘ Smolensk,’ i. 121
the ‘ Soglasie,’ ii. 112
the ‘ Springbok,’ 247, 341
the ‘ Trent,’ ii. 325
the ‘ Virginius,’ i. 481
Wiborg v. United States, ii. 19 .
INDEX 625
CASUS FCEDERIS,
definition of, ii. 5
in offensive alliances, ii, 5
in defensive alliances, n. 5 _
when it arises and when It does not, 11. IO
CEREMONIAL,
upon what founded, i. 126
precedency, i. 126
royal honours,’ i. I 30
ranks of representatives of States in matters of, i. I 3 1, I42
rules of, applicable to republics, i. I 3 I
aZtemat, i. 132
language of diplomatic intercourse, i. I 3 3
omission of, i. 484
on the reception of foreign ministers, i. 387
in the consular service, i. 398
military and maritime, i. 1 3 3, I40
maritime, in the narrow seas, i. I 3 3, 140, 146
on the high seas, i. 137, 146
in harbours, i. 137, I43
dressing and decorating ships, i. 145
French naval regulations as to, i. 146
Spanish legislation as to maritime, i. 148
United States military regulations as to, i. I 50
navy i. I 50
remarks on the rules of, i. I 5 I
CERTIFICATE .
of naturalisation, effect of, in United Kingdom, i. 434
CESSION,
effect of, on debts of displaced government, 495
CHARGES D’AFFAIRES, i. 353. See DIPLOMATIC AGENTS
CHARTER PARTY, I I 5
CHINA,
territorial independence guaranteed (1902), i. 305
powers of consuls in, i. 416
treaty between Great Britain and, i. 415
France and, i. 416
United States and, i. 415
other treaties with, i. 419
laws applicable to United States citizens in, i. 421
United States consular courts in, i. 421
extraterritoriality of foreigners in, i. 419
remedies of foreigners inter se in, i. 422
and Japan, i. 418
British supreme court of justice for China and Japan, i. 418
refusal of, to commercial intercourse, i. 486
looting by European armies (1900), 37
CITIZENS
resident in a foreign country, how affected by the municipal
laws of the State to which they belong, i. 205
jurisdiction of State over its, i. 222
duty of State as to its, i. 226
right of, to make a testament, i. 227
expatriation of, i. 432
in the United States, i. 438
VOL. II. S S
626 INTERNATIoNAL LAW
CITIZENS—continued.
responsibility of State for acts of its, i. 475
effect of war on, i. 580
liability of, to be made prisoners of war, i. 583
duties of, in time of war, i. 608
what class of, exempted from such duties, i. 609
non—combatants, i. 609
right of, of one State to serve another, i. 612
how may acquire title to hostile property, i. 617, ii. 160
distinction between property of resident and domiciled, ii.
148,156
rights of, in enemy’s country, i. 44 5, ii. 149
withdrawal of, from enemy’s country, ii. 148
when to procure licenses to trade, ii. 149
distinction between trade of, and neutrals, ii. I 52
who may become, of a new State, ii. 514
meaning of the word ‘ citizen ’ in the law of nations, ii. 515
who may become, of the United States, ii. 515
United States army regulations as to, ii, 57
CIVIL WAR,
captures of property in, how condemned, i. 5 57, 587
United States army regulations as to, ii. 57
CLAYTON-BULWER TREATY, i. 321
superseded by Hay-Pauncefote Treaty (1901), i. 322
CLOSTER SEVEN,
convention of, i. 297
COAL,
when contraband of war, ii. 256
attitude of Russia in 1904, ii. 264
COASTING AND COLONIAL TRADE,
‘ rule of 1756 ’ as to, 333
‘rule of 1793 ’ as to, ii. 335
provisions of 39 and 40 Vict. c. 36, as to, ii. 341
COASTS,
definition of, i. 174
COCKBURN, SIR ALEXANDER,
judgment of, in the ‘ Franconia ’ case, i. 171
reasons of, for not signing the award given at the Conference
of Geneva, 1871, 179
CODE,
Prussian military, ii. 60
American military, 54. See UNITED STATES (INsTRUc-
TIoNs)
COLLISIONS,
prevention of, on the high seas, i. 307
COLONIAL TRADE. See COASTING AND CoLoNIAL TRADE
COLONY,
how far part of a State, i. 70
the East India Company, i. 71
the Royal Niger Company, i. 71
the British East Africa Company, i. 71
the North Borneo Company, i. 71
laws applicable to a, 524
COMBATANTS,
who are recognised as, i. 614
INDEX 627
COMITAS GENTIUM, i. 57
COMITAS INTER COMMUNITATES, i. 202
COMITY
as to foreign laws, i. 258
COMMERCE, TREAT IES OF, i. 306
how affected by declaration of war, i. 597
COMMERCI A BELLI,
during the reigns of Constantine, &c., i. 4
military conventions a part of the, i. 296
object and nature of, ii. 345
ransoms a part of the, 365
licenses to trade a part of the, 371
COMMERCIAL TRAVELLER, i. 444
COMPOSITE STATE, ,
'definition of, i. 79
COMPROMISE
in international disputes, i. 498
CON CORDA T, i. 302
CON FEDERATION
of States, definition of, i. 77
the Swiss, i. 78
the Germanic, i. 78
the United Statw, i. 79
CONFERENCES AND CONGRESSES
in international disputes, i. 502
Plenipotentiaries at, i. 503
CON FISCATION
of enemy’s property, ii. 77
on the outbreak of war, i. 584
as droits 0f Admiralty, 392
of private property on land during war, 82, 408
CONFLICT OF LAWS, i. 57
CON QUEST,
I. GENERALLY,
definition of, 90
rights of, how derived, ii. 491
2. MILITARY OCCUPATION,
distinction between military occupation and complete con-
quest, 465
rights of military occupation, when they begin, ii. 467
to what they extend, 469
course pursued by the Prussians in 1870 as to occupied terri-
tory, ii. 470, 486
what laws are suspended during a military occupation, 470
continue in force during a military occupation,
47 I
punishment of crimes in occupied territory, 473
rule of Great Britain as to occupied territory, ii. 477
the United States as to occupied territory, ii. 47 7
efiect of military occupation as respects revenue laws, ii. 481
alienation of corporeal property during military occupation,
ii. 482, 490
laws of occupied territory, how changed, 483
s s 2
628 INTERNATIoNAL LAW
CONQUEST——continuecl.
allegiance of inhabitants of territory in military occupation,
ii. 484
ancient practice as to inhabitants of conquered territory, ii.
485
modern practice as to inhabitants of conquered territory,
ii. 485
effect of military occupation on incorporeal rights, ii. 494
on State debts, ii. 495
historical instances of cancelment and confiscation of State
debts by military occupation, ii. 498
3. CoMPLETE CONQUEST,
title to conquered territory, how completed, ii. 501
rights acquired by a conqueror, ii. 503
allegiance of inhabitants of conquered territory, ii. 506
rules of English Law as to inhabitants of conquered territory,
ii- 5 I4, 524
rules of the United States as to inhabitants of conquered
territory, ii. 514, 525
how long laws of a conquered country continue in force,
ii. 5 16
when Sovereign of England may alter laws of a country, ii.
5 I 7
power of President of United States over conquered territory,
ii. 5 18
laws which extend over a conquered territory, ii. 520
a territory acquired by discovery, ii.
524
rights of property, how affected by change of sovereignty,
ii 528
duty of conquering State as to private rights in land, ii. 528
nature of the rights of complete conquest, ii. 5 30
course pursued by the Elector of Hesse-Cassel in 1814 as to
his alienated domains and confiscated debts, ii. 532
4. WARs OF, i. 556
CONSOLATO DEL MARE, i. 9
CONSTABLE AND MARSHAL,
court of, i. 600
CON SULS,
origin of institution of, i. 396
office of, in modern times, i. 397
classification of consular officers, i. 398
how appointed, i. 398
rights and privileges of, i. 399-407
in matters of ceremony, how ranked, i. 400
United States consular regulations, i. 421
exemptions of, i. 403
citizens as foreign, i. 404
privileges of, in the United States, i. 406
convention between France and the United States with
respect to, i. 407, 413
duties of, how regulated, i. 408
duties of British, i. 408
marriages and divorces by, i. 409
powers of, in prize cases, i. 413
passports of, i. 410
nature of protection given by, i. 41 1
INDEX 629
CON SULS—contz'nued.
engaged in trade, i. 412, 45 3
treaties affecting, i. 413
powers of, in Turkey, i. 415, 417
in China, i. 415, 417
in Oriental countries, i. 415, 417, 421
in Egypt, i. 424
in Japan, i. 418
in Corea, i. 417
in Zanzibar, i. 417
circular despatch to British, in 1862, i. 446
national character of, i. 45 3
carriage of despatches of enemy, 322
power of, to protect property of enemies, 37 5
to condemn a prize, ii. 425
to interpose a claim in case of prize, 451
CONTINUOUS VOYAGES, ii. 248, 339
CONTRABAND,
remarks on the words ‘ contraband of war,’ i. 67
military telegraphic cable, I89
supplies to a besieged port, 221
definition of, 243, 326
Peterhof, as defined in case of, ii. 214
consequences to articles deemed, 244
carriage of, how far excused by allegation of compulsion, ii.
247
ofience of carrying, when completed, 247
how long it continues, ii. 247
how constituted, 249
what articles are, 250
treaties relating to, 25 3
provisions of 42 and 43 Vict. c. 21, as to, ii. 257
articles ancip'itz's usfis to be considered as, 2 5 7
decision of prize courts as to, ii. 258
doctrine of the English Admiralty as to what is, ii. 259, 263
course adopted by England in 1870 as to, 256
by Belgium in 1870 as to, 2 57
character of, how determined, ii. 25 1
American views as to trade in, ii. 252
articles declared by treaty (1674) between England and
Holland, 254
by Spain in 1898, ii. 255
by Russia in 1904, ii. 2 58, 262
list of goods absolutely, 251
conditionally, 2 52
provisions, when, ii. 262
attitude of Russia in 1904 as to, ii. 263
the ‘ Allanton,’ case of, 264
the ‘ Calchos,’ case of, ii. 264
pre-emption of, ii. 266
insurances of, 268
declaration of Great Britain in 1854 as to, 317
declaration at the Conference of Paris, 1856, as to, ii. 318
persons, when, ii. 321, 329
license to trade, whether a protection for carrying, ii. 388
United States navy regulations as to, 395
case of the ‘ Springbok,’ ii. 247, 341
630 INTERNATIONAL LAW
CONTRACTS,
rule of international comity with respect to, i. 201, 29 3
for the sale, &c., of slaves, i. 203, 263
of marriage, i. 203, 208
how discharged, i. 218
inter vivos and dispositions cans/9 mortis, i. 227
effect of declaration of war on, i. 581
of necessity, i. 582
CONTRIBUTIONS (REQUISITIONS),
how affected by treaty of peace, i. 344
for expenses of war, ii. 84
instructions of General Halleck as to, 71
course pursued in 1870, 1806, and 1812 as to, 84, 86, 88
how to be collected, ii. 87
CONVENTION BETWEEN BELLIGERENTS,
power to make a military convention, i. 296
‘ sponsions,’ i. 297
definition of, ii. 346
distinctions between, and treaties of peace, ii. 346
convention between the French and Prussians in 1870 as to
the occupation of Versailles, ii. 354
suspension of arms, 346
truce, ii. 346
armistice, ii. 346
capitulations, ii. 3 54
paroling, ii. 357
safe-conducts, ii. 358
safeguards, ii. 361
cartel, ii. 361
ransoms, ii. 26, 364
flags of truce, ii. 369
of Closter-Seven, i. 297
of El Arish, i. 298
of Geneva, 1864, ii. 41
of the Hague, 1899
(i.) as to laws and customs of war by land, i. 66, 609, ii. I 8
text of, ii. 42
(ii.) as to adapting to maritime warfare the principles of
the Geneva Convention, 1864, i. 66, 609, 18
text of, ii. 51
(iii.) as to Pacific Settlements of International Disputes,
i. 66
text of, i. 525
of the Hague, I907, 53A
White Slave Traffic, 1904, as to, ii. 614
CON VOY,
effect of a neutral, on the right of visitation and search,
11. 292
neutral vessels under enemy’s, ii. 295
case of the ‘ Freya ’ in 1800, ii. 293
navy regulations of the United States as to, ii. 29 3
COREA,
territorial independence guaranteed, 1. 305
powers of consuls in, i. 417
COUNTERFEIT COIN, i. 159
INDEX 631
COUP D’ASSURANCE. See AFFIRMING GUN
COUP DE SEMONCE. See AFFIRMING GUN
COURTS,
prize, i. 62
COURTS-MARTIAL (British),
how regulated, i. 598
CREDENCE,
letters of, i. 385
CRETE,
administration of (1898), i. 75
pacific blockade of (1897), i. 508
CRIME,
rules of law as to the punishment of, i. 219
extradition crimes, i. 250, 273
United States army regulations for the punishment of, ii. 61
CRIMINAL LAWS,
how far local, i. 219
CRUISERS. See SHIPS OF WAR
CUBA,
debt of, attitude of United States as to, 497
blockade of, 214
CUSTOM,
what constitutes a, ii. 482
what, binding on States, i. 5 5
CYPRUS, administration of, i. 74
DALY (JUDGE),
remarks of, on privateering, i. 85
DANUBE,
navigation of the, i. 186
DARDANELLES,
rights of Turkey over, i. 180
DEBTS,
public, how affected by change of government, i. 96
distinction between, already incurred and obligations, i. 261
effect of treaty of peace on, i- 337
right of a nation to enforce payment of, i. 517
right of State to confiscate, of enemy, i. 591
effect of declaration of war on, i. 587
provisions of 34 Geo. III. e. 79, as to enemy’s, i. 589
course adopted by the Confederate States in 1868 as to
enemy’s, &c., i. 589
practice of Great Britain as to enemy’s, i. 592
course adopted by Great Britain in I 79 3 as to enemy’s, i. 592
by Denmark in 1807 as to enemy’s, i. 592
the Silesian loan, i. 593
course adopted by Great Britain towards Portugal in 1840,
I. 1 1 5
Great Britain and the Russian-Dutch loan, i. 590
sequestration of British, by Denmark in 1807, i. 592
right of capture of documents evidence of, 77
effect of military occupation on, ii. 494
effect of complete conquest on, ii. 5 30
of Hesse-Cassel in 1814, 533
632 INTERNATIoNAL LAW
DECEITFUL INTELLIGENCE, i. 623
DECLARATION
of Paris, ii. 135, 236
of St. Petersburg, i. 619
of war among the Greeks and Romans, i. 3, 575
in modern times, i. 573
latest instance of a public, i. 577
necessity of a, i. 578, 596
instances of wars without any, i. 578
absolute or conditional, i. 579
effect of, i. 580
on treaties, i. 314, 597
DEFENSIVE WARS,
lawfulness of, i. 541
declaration of war not necessary in, i. 5 79
DEMOCRACY, i. I 57
DENIZEN, i. 431
DENMARK,
claim of, over the Sound, i. 178
ordinance of, in 1807, sequestrating debts due to British sub—
jects, i. 592
DESERTERS,
seamen, from merchant ships, i. 286
Fugitive Offenders Act, 1881, i. 286
how to be treated, ii. 38
harbouring, during armistice, ii. 349
United States army regulations as to, ii. 59
DESPATCHES
of ambassadors, i. 3 54, ii. 322
nature of offence of carrying enemy’s, ii. 322
cases on carriage of enemy’s, ii. 322
case of the ‘ Trent,’ 32 5
license to trade, whether a protection for carrying enemy’s,
ii. 388
DIGEST, i. 4
DIPLOMACY,
remarks on, i. 292
DIPLOMATIC AGENT (AMBASSADOR, &c.)
inviolability of ambassadors among the ancients, i. 3
rights of public ministers discussed between 1713 and 176 3,
i. 18
Papal nuncios, i. 290, 3 52
representatives of States in matters of ceremony, how ranked,
1. I 31
salutes to diplomatic officers, i. I40, I43, I51, 395
immunity of foreign ministers, i. 35 7
who are diplomatic agents for the purposes of the Extradition
Act (British), 1870, i. 285
right of a State to send and receive diplomatic agents, i. 288
to refuse particular individuals as diplomatic
agents, i. 290, 388, 396
diplomatic relations between Great Britain and the Pope,
1. 291
native subjects as ministers from a foreign power, i. 291
INDEX 633
DIPLOMATIC AGENT (AMBASSADOR, &c.)-—continued.
by what department of government diplomatic agents to be
sent and received, i. 292
modern classification of public ministers, i. 350
nature of the ofiice of ambassador, i. 351
right of sending ambassadors, to whom confined, i. 351
envoys and ministers Plenipotentiary, i. 351
ministers resident, i. 352
chargés d’affaires, i. 353, 399
secretaries of embassy, i. 353
attachés and families of ministers, i. 354, 392
messengers and couriers of ministers, i. 354
domestic servants of ministers, i. 355, 362, 376
extraterritoriality of ministers, i. 35 5, 367, 399
nationality of children of ministers, i. 358
offences by and against ministers, i. 3 58, 378
diplomatic privilege, i. 3 58, 372, 399
ministers when not exempt from local jurisdiction, i, 3 58,
368,372
ambassador forcibly detaining his fellow-countrymen, i. 3 76
service of English process on minister abroad, i. 360
case of the ambassador of Peter the Great, i. 360
United States, i. 340
Sun-Yat-Sen, 1906, i. 376
statute 7 Anne, 0. 12, as to privileges of ambassadors, i. 362
ministers carrying on trade, i. 369
instances where ministers have been sued, i. 360, 383, 392
case of Combaut in 1603, i. 376
citizens in the service of a foreign minister, how regarded,
i. 3 76
evidence of ministers, how taken, i. 379
inviolability of house of ministers, i. 380
property of a minister not exempt from local jurisdiction,
i. 382
exemption of ministers from taxation, i. 383
privileges of ministers as to religious worship, i. 385
case of Michilchenkorff in 1867, i. 377
diplomatic agents, how accredited, i. 38 5
letter of credence and letters patent, i. 38 5
a minister's arrival at his post, how notified, i. 387
reception of foreign ministers, i. 387
safe-conducts, &c., for ministers, when requisite, i. 388
passage of ministers through friendly States, i. 159, 389
instances where ambassadors have been arrested, i. 374
mission of a minister, how determined, i. 391
termination of mission by death of minister, i. 391
recall, i. 392
efliuxion of time, i. 393
by death, &c., of sovereign, i. 393
dismissal, i. 393
duties of diplomatic agents towards local government, i. 395
United States naval regulations in case of death of minister,
&c., i. 391
national character of, i. 45 3
responsibility of State for acts of, i. 473
duty of State to, i. 484
right of, to address petitions to the House of Commons of
Great Britain, i. 386
634 INTERNATIONAL LAW
DIPLOMATIC AGENT (AMBASSADOR, &c.)---continued.
plenipotentiaries to conferences and congresses, i. 502
United States army regulations as to, 55, 63
carriage of despatches of ambassador of enemy, i. 354, ii. 3; 3
limits of operations of war as to ambassadors, ii. 325
when to be deemed contraband, ii. 329
case of the ‘ Trent ’ in reference to, ii 325
an ambassador on the high seas, when inviolable, ii. 332
DISCOVERY, VESSELS OF,
exemption of, from hostilities, ii. 123
DISPUTES, INTERNATIONAL,
settlement of, i. 497
amicable accommodation, i. 497
compromise, i. 498
mediation, i. 498
arbitration, i. 500, 520
Hague Convention, 1899, i. 501
text of, i. 525
treaties thereon, i. 52 5
conferences and congresses, i. 502
retortion, i. 503
retaliation, i. 504
reprisals, i. 505
seizures, i. 508
embargoes, i. 516
pacific blockade, i. 508
DIVORCE, i. 215
by consuls, i. 409
DOMAIN. See PROPERTY
DOMICIL,
effect of, on national character, 1'. 444
definition of, i. 44 5
various kinds of, i. 446
how determined, i. 447, 460
French law of, i. 45 3
of ambassadors, i. 453
of consuls, i. 453
of wives, i. 454
of widows, i. 454
after divorce, i. 45 5
of minors, i. 455
of students, 1. 456
of servants, i. 456
of soldiers, i. 4 56
of merchants, i. 458
of prisoners, i. 456
of exiles, i. 456
of seafaring men, i. 469
effect of treaties on, i. 458
double, i. 454
how it reverts, i. 460
DOMINION OF THE SEA,
controversy respecting, i. 134, 179
DOM I N I UM ,
definition of, i. 162, 228
INDEX 635
DOVER,
limits of port of, i. 197
012011" D’A UBAINE, i. 266
DROIT D’ENQUETE DU PA VILLON, ii. 276
DROIT DE RENVOI, i. 493
DROIT DE RETRA CTION, i. 206
DROITS OF ADMIRALT Y,
"usages of Great Britain as to, ii. 392, 408
condemnation of Danish vessels in 1807 as, i. 592
DUDLEY (LORD),
as to arrest of ambassador’s servants, i. 375
‘ DUTY OF THE FLAG,’ i. 136
EGYPT, i. 73, 235
international courts, i. 424
law of liquidation of, i. 1 16
powers of consuls in, i. 417
ELBE,
navigation of the, i. 187
EMBARGOES,
historical instances of, i. 516
course pursued by Russia and Turkey in 18 53 as to, i. 586
Russia and Japan in 1904, i. 587
United States and Spain in 1898, i. 587
EMIGRATION. See EXPATRIATION
EMPEROR ,
title of, i. 130
ENEMY,
debts of, i. 516
ransom to, i. 478
whether pirate an, i. 478
who is an P ii. I
treatment of an, ii. 2
allies of, ii. 3
associates of, ii. I I
auxiliaries furnished to, ii. 9
right to kill, ii. 23
right to make slave of, 26
general rule of conduct towards, 92
contracts with an alien, 14 3
United States army regulations as to person and property of,
11. 57
See PROPERTY AND TRADE
ENEMY SHIPS, ENEMY GOODS, ii. 317
the rule of, how far implied by the rule of ‘ free ships, free
goods,’ ii. 317
ENLISTING TROOPS
for foreign service, ii. 192
ENVOYS. See DIPLOMATIC AGENTS
EQUALITY,
rights of, between States, i. 125, 132
636 INTERNATIONAL LAw
EQUITY,
rules of, ii. 529
ESCHEAT,
according to English law, 1. 206
EVIDENCE,
foreign judgments, how far, i. 256
of laws of a foreign country, i. 2 59
of contracts, &c., made in a foreign country, i. 260
foreign judgments, how made, i. 261
in extradition cases, i. 2 50, 273
of ambassadors, &c., i. 379
of domicil, i. 447, 461
necessary for condemnation on account of breach of blockade
ii. 22 5, 227
sentence of foreign court of admiralty, how far, ii. 438, 45 3
transfer of allegiance, ii. 508
EXEQUATUR,
withdrawal of, from consul, i. 406
EXPATRIATION (EMIGRATION),
right of, how considered in difierent countries, i. 433
rule of international law as to, i. 440
how far an excuse for illegal enterprises, i. 48 3
EXPLOSIVE BULLETS,
prohibition of, i. 619
EXTRADITION,
remarks on the practice of, i. 250, 27 3
case of Perkin Warbeck, i. 253
Edmond de la Pool, i. 252
the ambassadors of the Abassines, i. 25 I
Anthony Fazons, i. 2 52
Cardinal Pole, i. 2 53
Morgan, i. 2 53
King Charles I., i. 253
N apper Tandy, i. 2 52
Daniel Washbum (1819), i. 254
Arguelles (1864), i. 2 54
Bidwell (1873), i. 254
Winslow and Brent, i. 281
Wilson, i. 276
treaties and conventions of, i. 27 3
General Extradition Act of Great Britain (1870), i. 27 5
depositions in extradition cases, i. 279, 284
decision of the New York Circuit Court on the late Extradi-
tion Act of Great Britain, i. 281
extraditable crimes, i. 28 3
Act to amend the Extradition Act, 1870 (1873), i. 28 3
(1895M, 285
(1906), i. 283
provisions of the Hong Kong Ordinance, i. 275
seamen deserters, i. 286
EXTRATERRITORIALITY,
rights of, i. I 58, 2 30
of ships of war, i. 2 30
case of the ‘ Exchange,’ i. 231, 233, 238
‘ Independencia,’ i. 2 38
INDEX 637
EXTRATERRITORIALITY—continued.
remarks of Lampredi on, i. 239
Azuni on, i. 241
Pinheiro-Ferreira on, i. 241
Hautefeuille on, i. 241
Bluntschli on, i. 241, 359
case of John Brown and the British ship ‘ Tyne ' (1820),
1. 242
opinion of Lord Stowell as to the protection of the British
flag, i. 243
case of the ‘ Santissima Trinidad,’ i. 238
the ‘ Charkieh,’ i. 231
the ‘ Prince Frederick,’ i. 231
the ‘ Parlement Belge,’ i. 2 35
the ‘ Constitution,’ i. 236
of diplomatic agents, i. 357
of consuls, i. 404, 409
of foreigners in China and the East, i. 420, 422
EYRE,
the case of ex-governor, i. 570
FEDERAL UNION
of States, i. 77
FISHERIES
treaties between England and the United States, i. 176
FISHING BOATS,
exemption of, from hostilities, 124
FLAG,
provisions of Le Ordinance de Hastings as to saluting the,
i. I 36
‘ duty of the flag,’ i. 136
case of the ‘ Native,’ i. 141
agreement (1877) between the maritime Powers as to salutes
to, i. 140
British Admiralty circular as to salutes to British, i. 14 3
salutes to, i. 141
to be used by English merchantmen, i. 147
provisions of 57 and 58 Vict. c. 60, as to wearing illegal, i. 147
ritish, over private house in time of war, ii. 164
protection under British, on a ship of war, i. 242
flag to be hoisted by British consular officers, i. 401
wars waged for insults to, i. 484
enemy’s goods, how protected by neutral, ii. 318
neutral goods, how affected by enemy’s, 318
neutral ship using enemy’s, ii. 319
uses of, of truce, ii. 369
license to trade under, of particular nation, 3 79
United States army regulations as to, of truce, 63
navy regulations as to, of truce, 346
FLOATING MINES,
attitude of Russia in 1904 as to, i. 620
FOREIGN LAWS,
Act to facilitate acquaintance with, i. 260
FOREIGN ENLISTMENT,
statutes of the United States as to, 191
the case of the ‘ Meteor,’ &c., ii. 192
638 INTERNATIoNAL LAw
FOREIGN ENLISTMENT ACT, 1870 (BRITISH),
R. v. Jameson, case of, i. 477, ii. 194
remarks on some sections of 33 and 34 Vict. c. 90, i. 90, 612,
11. 192
liability of officers of foreign ships of war under, 1. 231
instances of suspension of, i. 612
cases in which, was called into operation, 168
the Foreign Enlistment Act, 1870, ii. 192
form of warrant for detention of vessel, ii. 194
FOREIGN JURISDIcTIoN ACT, 1890, i. 416
FOREIGN MARRIAGE ACT (1892), i. 385, 605
F OREIGNER (ALIEN),
‘ Droit d’Aubaine,’ i. 206
rules of international law as to, i. 205, 51 I, 583
rules of English law as to, i. 207, 432, 584
rules of the United States as to, i. 207, 585
laws of trade and navigation affecting, i. 218
criminal laws affecting, i. 219
jurisdiction of a State over, i. 22 3, 432
right of, to make a testament, i. 226
status of, on board an English ship, i. 247
cases under the 24 and 25 Vict. c. 95, with respect to, i. 248
extraterritoriality of, in China, i. 420
remedies of, inter se, in China, i. 423
naturalisation of, i. 432
course adopted by the United States during the civil war
towards, i. 449
provisions of the British Naturalisation Act, 1870, as to,
1. 4 32
right of, to petition House of Commons of Great Britain,
i. 386
right of, to letters of reprisal, i. 5 I8
pyrovisions of Magna Charta and 27 Edward III. as to, i. 584
nited States navy regulations as to, in blockade-runners,
1. 4 50
Aliens Act, 1905 (5 Edw. VII. 0. 13), i. 494
serving State, 1. 612
duties which may be required of domiciled, i. 613
taxation of, i. 493
may be special constable, i. 613
civic or national guard, i. 613
FORUM CONTRACTUS,i. 222
FORUM DOMICILII, i. 222
FORUM REI GESTE, i. 222
FORUM RE] 5115,1222
FRANCE,
French naval regulations, i. 147
law of divorce, i. 218
convention between, and the United States with respect to
consuls, i. 407, 413
treaty between, and China, i. 415
laws of naturalisation, i. 436
domicil, i. 453, 455
refusal of mediation in 1870, i. 500
INDEX 639
FRANCE-continued.
treaty with Great Britain to refer disputes to the Hague
Court of Arbitration, i. 525
martial law in, i. 602
conduct of French in 1815 as to works of art, ii. 80
opinion of French Government in 1870 as to the contraband
nature of coal, 256
rules of salvage in war, 5 55
‘ FRANCONIA,’
case of the, i. 170, 191
FREE SHIPS, FREE GOODS, i. 22
remarks on the maxim of, ii. 315
decisions as to the privilege of, ii. 317, 3 3 7
principle of, when first put forward, 314
FRERA or TREUGA DEI, i. 7
FUGITIVES. See DEsERTERs
FUGITIVE OFFENDERS ACT, 1881, i. 286
GENEVA,
badge of, ii. 16
GENEVA, CONFERENCE OF, 1871, 174
rules . applicable to neutral governments adopted at the,
11. 175
award given at the, ii. 175
reasons of Sir Alexander Cockburn for not signing the award
given at the, 179
GENEVA, 1864, CONVENTION OF, 41
application of to maritime warfare, 51
And see ART. 60 of the Hague Convention with respect to
the laws of customs of war (1899), 50
GERMANY,
the North German Confederation, i. 78
GOODS
of the enemy, 7 3, 317
GOVERNMENT,
distinction between, de fare and de facto, i. 8 5
GREAT BRITAIN,
rights of blockade recognised by, in 1861, i. 90
declaration of, in 1821, on foreign interference, i. 105
attitude of, in 1840, towards Egypt, i. 106
18 34, towards Spain, i. 107
1847, towards Portugal, i. 108
1827, towards Greece, i. 105
1860, towards Naples, i. 108
1903, towards Servia, i. 290
dominion claimed by, over British seas, i. 134
naval regulations as to salutes, i. 14 3
territorial jurisdiction, i. 168, I76
treaties with the Slave States, i. 270
general extradition Act, 1870, i. 275
treaty of guarantee with Japan, 1902, i. 305
treaty‘making power of, i. 330
statute of Anne, 0. 16, as to privileges of ambassadors, i. 362
consular officers, i. 400
duties of British consuls, i. 408
jurisdiction of consuls in the East, i. 415
640 INTERNATIONAL LAW
GREAT BRITAIN—continued.
treaties with China, i. 415
Japan, i. 418
Supreme Court of Justice in China and Japan, i. 418
proclamation in 1793 and 1807 as to seafaring men, i. 444
ugitive Offenders Act, 1881, i. 286
instructions in 1862 as to domicil, i. 446
treaty of naturalisation with the United States, i. 4 38
N aturalisation Act, 1870, i. 4 32
I895, 1- 435 , _
national status of women and chIldren, 1. 45 5
enactments as to piracy, i. 477
dispute with Spain in reference to Nootka Sound, i. 498
abolition of slavery by, i. 270
treaties for suppression of negro slavery, i. 274
petitions to the House of Commons, i. 386
enactment as to seamen deserting from merchant ships, i. 286
proposal of mediation to France and Prussia in 18 70, i. 500
reprisals in 18 50 in reference to the case of Pacifico, i. 505
the case of the ‘ Caroline,’ i. 51 1
right of sovereign to prohibit subject from leaving the realm,
i. 5 16
treaty with France to refer disputes, i. 52 5
right of sovereign to make war and peace, i. 5 7 5
enactment passed during Crimean war as to Russian bonds,
securities, &0., i. 582
provisions of Magna Charta and 27 Ed. III. as to foreigners,
i. 584
usage as to Droits of Admiralty, i. 592
provisions of 34 Geo. III. 0. 79, as to enemy’s debts, i. 589
practice as to enemy’s debts, i. 591
treaty with the United States as to enemy’s debts, i. 591
attitude towards Mexico in 1861, i. I I6
martial law, i. 598
instructions in 1798 to vessels with letters of marque, ii. 131
Naval Prize Act, 1864, 90, 549
Court of Constable and Marshal, i. 600
claim of, to seize British seamen in American vessels, ii. 302
declaration in 1854 as to contraband, 317
privateering, ii. 318
prize courts of, ii. 406, 45 3
statutes relating to Martial Law, ii. 473
Foreign Marriage Act, 1892, i. 385, ii. 605
marriage with deceased wife's sister (6 Edw. VII. 0. 30), i. 213
Marriage with Foreigners Act (1906), 600
rules of salvage in war, ii. 5 58
Foreign Enlistment Act, 1870, 192
form of warrant, detention under,
ii. 194
proclamation of neutrality in 1877, ii. 205
in 1898, ii. 209
in 1904, ii. 209
British territorial waters, i. 169, 191
Russo-Japanese War, 1904, as to North Sea incident, 202
text of agreement to arbitrate, ii. 203
instructions as to supply of coal, ii. 2 56
friction with Russia as to interference with neutral com-
merce, ii. 263
INDEX 641
GREAT POWERS OF EUROPE,
who are, i. 126
GREECE,
emancipation of, i. 105
war with Turkey, 1897, i. 75
pacific blockade of, by Powers, 1897, i. 508
GUARANTEE, T REATIES OF, i. 304
how far binding, ii. 9
GUERRILLA TROOPS,
what are ? i. 614
how to be treated when made prisoners of war, i. 615
what is killing of enemy by ? i. 615
when may be punished as banditti, i. 615
insurgent inhabitants or levies en masse, i. 615
HABEAS CORPUS (WRIT OF),
suspension of the, i. 604
United States Act of Congress as to the, i. 604
HAGUE CONVENTION, 1899,
(i.) as to laws and customs of war on land, i. 66, 609, 18
test of, 42
(ii.) as to adapting to maritime warfare the principles of
the Geneva Convention, 1864, i. 66, 609, 18
test of, 5 1
(iii.) as to Pacific settlement of International Disputes, i. 66
test of, i. 525
treaties thereon, i. 52 5
HAGUE CONVENTION, 1907, 53A
HALE AND ANDRE,
cases of, i. 630
HALLECK,
instructions of, for armies of the United States, 70
HALLEMUND,
case of, 510
HAY-PAUNCEFOTE TREATY, i. 322
HEAD MONEY, ii. 411
HIGH SEAS,
vessels on, subject to what laws, i. 229
capture of property on, ii. 96, 99
HONOURS OF WAR, WITH ALL THE,
meaning of the phrase, 35 5
HORSES,
when contraband of war, 2 57
HOSTAGE, ii. 368
United States army regulations as to, ii. 59
Transvaal War (1899), as to, i. 336
HOSTILE TERRITORY, i. 597
HOVERING ACT, i. 168
‘ H UA SCA R,’
case of the, i. 479
VOL. II. T T
642 INTERNATIONAL LAw
IMMOBILIA, E] Us ]URISDICTIONIS EssE REP UTANTUR
UBI SITA SUNT, i. 259
IMMUNITY
of neutral territory, i. 518, ii. 306
of ships of war in foreign ports, i. 230
of sovereign in foreign territory, i. 23 5
of ambassador, when determined, i. 391
IMPRESSMENT
of seamen by British cruisers, 302
rules of the United States as to the, of seamen, ii. 304
English statutes in reference to the impressment of British
seamen from British merchantmen, ii. 303
INDEPENDENCE,
rights of, i. 100
wars of, i. 55 5
INDIANS,
status of American, i. 80
treaties between, and the United States, i. 82
IN HERITANCE,
governed by what law, 1. 200, 206
IN N OCEN T PASSAGE,
right of, i. 184
INSTAN CE COURTS,
part of the English Admiralty Court, ii. 429
courts in the United States which are, ii. 4 3o
jurisdiction of, 433, 453, 457
INSTRUMENTS AND MUNITIONS OF WAR, i. 617
rules as to, being deemed contraband, ii. 250
what is included within the terms, ii. 259
exported during Crimean war, ii. 25 5
See WAR
INSURANCE,
effect of declaration of war on, i. 580
of vessel and cargo, when illegal, ii. 159
of articles contraband of war, ii. 268, 270
effect of Declaration of Paris, 1856, as to certain, ii. 270
on colonial or coasting trade, ii. 338
on enemy’s property protected by license, ii. 382
\INSURRECTION
of the Legations in 18 59, i. 95
distinction between. and revolution, ii. 484
insurgents, how punishable, ii. 488
historical instances of punishment of insurgents, 489
United States’ army regulations as to, ii. 69
INTERFERENCE,
right of, with other States, i. 102
by the Powers with Turkey, 1897, i. 75
by Russia, Germany, and France with japan, 1895, i. 295
INTERNATIONAL LAW,
among the Jews, i. 2
among the Greeks and Romans, 1. 3
effects of Christianity on, i. 4
after fall of Roman Empire, i. 5

INDEX 643
INTERNATIONAL LAW—continued.
sources of, i. 6, 6o
'efiects of Reformation on, i. 7
influence of the Popes on, i. 7
earlier maritime laws, i. 9
writers on, before Grotius, i. I I
from 1684 to 1713, i. 14
writers on, after Grotius, i. 15
from 1713 to 1763, i. 17
1763 to 1789, i. 21
1789 to 1815, i. 24
1815 to 1842, i. 29
1842 to 1861, i. 33
1861 to 1906 i. 39
definition of, i. 50
divisions of, i. 51
treaties, i. 55
customs, i. 55
rules of, how far obligatory, i. 5 5
remarks on the imperfect state of, i. 60
Roman civil law in relation to, i. 61
INTERNMEN T,
' of troops during Russo-Japanese War, 1904, ii. 17 3
INTERPRETATION
of treaties, rules for, i. 318
INTERVENTION, WARS OF, i. 558
grounds of, i. 559
rule of international law in reference to, i. 106, 5 59
when justifiable, i. 560 ‘
remarks of Canning on, i. 102
remarks of Chateaubriand on, i. 104
declaration of the British Government in 1821 on, i. 105
course adopted by Great Britain in 1840 as to Egypt, i. 106
remarks of Lord Mahon on, i. 107
in election of Pope, i. 1 11
humanity, when a ground for, i. 108
case where, authorised, i. 1 I 1
course adopted by Great Britain, France, and Russia in 1827
as to Greece, i. 105
course adopted by Great Britain in 1860 as to Naples, i. 108
Italy in 1860 as to Umbria and the Papal
territory, i. 109
to enforce demands of foreign creditors, i. 1 14
for self-preservation or defence, i. 122
IN VIOLABILITY
of treaties, i. 307
IRON,
when contraband, 252
ISLANDS,
rights of domain and property in, i. 174, 182
‘ Lz'grze de respect,’ i. 183
the case of the ‘ San Juan,’ i. 184
jAMESON, R. v.,
case of, 194
T T 2
644 INTERNATIONAL LAW
JAPAN,
status of, 1. 290
abolition of consular jurisdiction in, i. 290, 419
treaty with China, 1895, i. 295
with Great Britain of Guarantee, 1902, i. 305
war with Russia, 1904, i. 121
release of ships captured after declaration of peace but
before ratification of treaty, i. 340
sinking of the ‘ Kow-shing,’ i. 520
treaties with Great Britain, i. 418
United States, i. 418
British Supreme Court of Justice for China and Japan, i. 418
JOINT CAPTURE
of prize, ii. 399
by land and sea forces, ii. 404
JUDGMENTS (SENTENCES),
effect of criminal, i. 25 5
foreign, how far conclusive, i. 2 56, 259
how authenticated, i. 261
JUDICIAL POWER
of a State, i. 221
extent of, as to crimes, i. 220
jURA MAJESTA TIS, i. 159‘
JURISDICTION, TERRITORIAL,
distinction between maritime territory and, i. 167
of the British Crown, i. 17 5
of the United States, i. I 7 5
of Turkey over the Dardanelles and Bosphorus, i. 180
limits of, i. 247
of State over its citizens, i. 222, 256
foreigners, i. 223
property, i. 224
savages, i. 220
ships, i. 230
over private vessels of another State, i. 2 3o
provisions 06f the Foreign Jurisdiction Act (British), i. 221,
249,4I
]US AD REM, i. 464
]US ALBINATUS (Droz't d’Aubaz'ne), i. 206
]US ANGARIAE, i. 519
]US DETRACTUS (Droz't d6 Re’imctz'on), i. 206 -
]US DISPONENDI, i. 227
]US EMINENS, i. 162
]US GEN TI UM ,
its origin, i. 3, 50
]US IN RE, i. 464
]US INTER GENTES, i. 50
]US POSTLIMINII, ii. 535
]US TERRITORI UM, i. 240
KEYN, R. v. See FRANCONIA
INDEX 645
KHEDIVE OF EGYPT, i. 235. And see EGYPT
KING’S CHAMBERS, THE, i. 175
KNACKE,
case of, i. 441
‘ KNIGHT COMMANDER,’
case of the, 310
Kos'zTA, MARTIN,
case of, i. 1 I7
‘ KOW-SHING,’
case of the, i. 520
LAKES,
rights of property in, i. 181
LAND,
tenure of, by foreigners, i. 201
LANSDOWNE (L0RD),
on the volunteer fleet of Russia, 1904, I 37
on Russia’s attitude as to neutral commerce, 1904, ii. 26 3
on the right of Russia to sink neutral vessels, I904, 3 1 1
LEGATION,
rights of, i. 288
instances of rights of, accorded to pirates, i. 294
institution of permanent legations, i. 349
secretaries of, i. 35 3
LEGISLATION,
general rights of, i. 198
extent of municipal, i. 20 5
as regards foreigners, i. 206
LETTERS OF CREDENCE, i. 38 5
LETTERS OF MARQUE, ii. 126
LETTERS OF PERMISSION, 130
LETTERS OF REPRISAL, i. 505, 127
LEX FORI, i. 205
LEX LOCI CONTRACTUS, i. 201
LEX LOCI DOMICILII REGIT ACTUM, i. 200
LEX LOCI REI SITE, i. 199, 454
LICENSES,
course pursued during the Crimean war as to, ii. 372
necessity of, discussed, ii. 149
definition of, ii. 371, 38 3
‘ general license,’ ii 37 3
‘ special license,’ 3 7 3
how vitiated, ii. 376
whether assignable, 377
enemy’s property, whether protected by, 381
to an alien enemy, ii. 381
extent of protection of, 38 3
for importation only, 384
whether retrospective, 387
alteration of, i1. 388
how far a protection for illegal acts, ii. 388
646 INTERNATIONAL LAw
LIEBER’S INSTRUCTIONS
for armies in the field, ii. 54
LIGHTHOUSES,
erection of, in England, i. 161
maintenance of, i. 178
LIGNE DE RESPECT, i. 183
LOANS
for belligerent State by neutrals, ii. 186
LOOTING,
after relief of legations in China, 1904, 37
LOUVRE,
works of art collected in the, ii. 79
MAGELLAN
pirates, i. 479
MAGNA CHARTA,
with regard to foreign merchants during war, i. 584
MAIL PACKETS, _
when exempt from ordinary process of a foreign tribunal, I. 2 3 5
postal convention (1843) between France and England as to,
in time of war, ii. 124
carrying enemy’s despatches, 322
the case of the ‘ Trent,’ 325
‘ MALA CA,’
case of the, ii. 13 7
MANIFEST. See BILL OF LADING
MARE CLA USUM, i. 179
the Baltic Sea, i. 179
the Black Sea, 1. 180
inland lakes, i. 181
MARITIME
territory one league beyond the shore, i. 167
ceremonial, i. 1 3 3, 140
jurisdiction for customs purposes, i. 168
of a neutral State, ii. 171
MARQUE, LETTERS OF,
distinction between, and ‘ letters of reprisal,’ ii. 126
provisions of 55 Geo. III. 0. 160, as to, ii. 131
form of, ii. 128
form of letters of reprisal, ii. 126
instructions issued in 1798 by the British Government to
owners of vessels having, ii. 131
instructions issued by the United States in 1812 to com-
manders of American privateers, ii. 131
origin of, 130
course adopted by the United States in 1861 as to, ii. 139
issued by both belligerents to the same vessel, ii. 140
law of Plymouth colony as to, ii. 141
general character of treaties as to, ii. 141
Declaration of Paris, 1854, as to, ii. 1 3 5
remarks of Nelson on, 134
volunteer navy in 1870, ii. 136
in 1904, ii. 137
INDEX 647
MARRIAGE,
how considered in different countries, i. 208, 593
general rules of international law as to, i. 208
the case of Sottomayor 1). De Barros, i. 210
divorce, i. 215
solemnisation of, by consuls, i. 409, 608
effect of, on domicil, i. 454
national character in England, i. 435
putative, i. 215
morganatic, i. 215
nationality of British married women, i. 43 5
MARRIAGE, FOREIGN, ACT, 1892, ii. 605 _
with a deceased wife’s sister, 1906 (6 Edw. VII. c. 30), 1. 213
with Foreigners Act, 1906 (6 Edw. VII. c. 40), ii. 600
MARTIAL LAW,
the case of ex-Governor Eyre, i. 570
nature of proclamation of, i. 599
distinction between, and military law, i. 599, ii. 47 3
how to be applied, i. 602
conditions under which, applied on the Continent, i. 602
in Great Britain, i. 602
Court of Constable and Marshal, i. 600
in the United States, i. 603
efiect of proclamation of, 47 3
English statutes relating to, 47 3
case of Lambdin P. Milligan, ii. 475
United States army regulations as to, ii. 54
MEDIAT ION
in international disputes, i. 498
protocol to the Treaty of Paris, 18 56, as to, i. 499
proposal of Great Britain for, to France and Prussia in 1870,
1. 500
the Pope and the Caroline Islands, i. 500
MEDITERRANEAN PASSES, ii. 117
MERCENARIES,
who are, i. 612
Swiss soldiers, 8
MERCHANT VESSELS
on the high seas, i. 229
in foreign ports, i. 245
subject to right of search, 284
MERCHANTS (TRADERS),
national character of, i. 444
domicil of, i. 45 I
resident in the East, i. 458
neutral, in enemy’s country, i. 458
in own country, i. 4 8
MEXICO,
non-payment by, of public debt, i. I 16
MILITARY CEREMONIAL, i. 13 3
MILITARY CONVENTIONS, i. 295
MILITARY JURISDICTION, ii. 94
United States army regulations as to, ii. 5 5
5 648 INTERNATIONAL LAW
MILITARY LAW,
distinction between, and martial law, i. 598
MILITARY NECESSITY, 92
United States army regulations as to, ii. 5 5
MILITARY OCCUPATION, i. 462, ii. 465, 484
MILITARY PERSONS, 321
Nigretia, case of, ii. 322
MILITARY RIGHTS, i. 344
MILITARY SALVAGE, ii. 557
MILITARY SERVICE
of British subjects in America during the Civil War, i. 613
Prussian laws of, ii. 60
MINISTERS,
classification of, i. 350
MINISTERS PLENIPOTENTIARY, i. 351
MINISTERS, RESIDENT, i. 351. See DIPLOMATIC AGENTS
MINORS, i. 454
MISSISSIPPI,
navigation of the, i. 188
MISTAKE,
fight between two ships by, ii. 419
MIXED TRIBUNALS, i. 63. See EGYPT
MOBILIA SEQUUNTUR PERSONAM, i. 200
MONACO
a semi-sovereign State, i. 80
MONARCHY, i. 15 7
MONEY,
loans of, to belligerents by neutrals, ii. 185
MONROE DOCTRINE, the, i. 92
attempt to extend in 1895, i. 92, 95
MORESNET, i. 72
MOSQUITO INDIANS,
protectorate over, i. 322
MOST,
case of, i. 478
NARROW SEAS,
British claims to, i. I 34
NATION
distinguished from State, i. 70
NATIONAL CHARACTER (NATIONALITY),
how determined, i. 430, 444
how lost, i. 432
duration of, conferred by naturalisation, i. 436
case of Martin Koszta, i. I I 7
effect of doctrine of allegiance on, i. 440
of merchants, i. 459
native character easily reverts, i. 460
of an ambassador, how affected by domicil, i. 453
of a consul, how affected by domicil, i. 453
INDEX 649
NATIONAL CHARACTER (NAT IONALITY)--contz'nued.
how affected by military occupation, i. 462
cession by treaty, i. 467
revolution, i. 467
employment, i. 468
of ships, i. 469
of women and children in England, i. 435
NATIONAL WARs, i. 558
NATURAL OR DIVINE LAW,
definition of, i. 52
NAT URAL-BORN BRITISH
subject, who is ‘a, i. 455
N ATURALISAT ION . See NATIoNAL CHARACTER
rights of naturalised British, i. 41 I
treaty of, between Great Britain and the United States, i. 438
British Naturalisation Act, 1870, i. 432
1895,1435
NAVAL PRIZE ACT, 1864, 268
NAVAL STORES,
when contraband, 25 1
NAVIGATION
of the Black Sea and Dardanelles, i. 180
of the Sound, i. 180
of rivers passing through several States, i. 184
of the Danube, i. 187
of the Rhine, i. 186
of the Mississippi, i. 188
of the St. Lawrence, i. 188
of the Suez Canal, ii. 170
NEUTRAL,
duty of, as to mediation, i. 498
how affected by declaration of war, i. 596
when to be considered an enemy, 21 1
transfers of enemy’s ships to, 109, 1 5 5
when, ship may acquire hostile character, ii. 113
proofs of a vessel being, ii. I I 5, 299
vessels trading with enemy, ii. 14 5
attitude of Russia in 1904, 310
agent for English subjects in enemy’s country, ii. 147
trade with enemy through port of, ii. I 52
ship, when liable to forfeiture, ii. I 58
definition of, 161
rule as to trade of, I63
duties of, towards belligerent, ii. 16 3, 294, 305
warning not to enter dangerous ports, 16 5
rights of belligerent in territory of, 16 5
Battle of Chemulpo, ii. 172
rights of, in belligerent territory, 164
passage of troops through territory ef, ii. 167
hostility in, territory when justifiable, ii. 168
port, how it may be used by belligerent, ii. 169
duties of, determined by Treaty of Washington, 175
right of, to assist belligerent by money, ii. 18 5
subscription by, for a belligerent State, 186
case of Sandoval, ii. 191
650 INTERNATIONAL LAW
NEUTRAL—continued.
case of the ‘ Nashville,’ ii. 188
case of the ‘ Alabama,’ ii. I 74
duties of belligerent ships in ports of, ii. 18
entrance and egress of, ship into and from blockaded port,
ii. 22 5, 2 30
duty of neutrals professing to trade with neutral port, ii. 232
passenger on neutral ship violating blockade, ii. 2 39
ship under enemy’s convoy, 29 5
right of, to lade property in an armed enemy vessel, ii. 299
remarks on the violation of, duties, 307
carriage of enemy’s goods in, ship, ii. 308
right to cut cable between neutral and belligerent, ii. 324
carriage of, goods in enemy’s ship, 314
enemy’s property, how affected by, flag, 315
property, how affected by enemy’s flag, ii. 315
declaration of Great Britain in 18 54 as to, commerce, ii. 317
declaration of Paris, 18 56, as to, commerce, ii. 318
use of enemy’s flag and pass by, ship, ii. 3 19
carriage of enemy’s despatches by, ship, 322
rights of, country as to its relations with the enemy, ii. 323, 3 3 3
‘ rule of the war of 1756,’ 333
‘ rule of 1793,’ 333
what State may determine validity of maritime prizes, ii. 424,
43 1
whether prize court may sit in a, territory, ii. 4 32
transfer of conquered territory by belligerent to, ii. 493
prisoners of war in, territory, ii. 5 39
NEUTRALISATION, ii. 306
NEUTRALITY,
two kinds of, ii. 13, 162
proclamation of, when necessary, ii. 161
what is violation of, ii. 162, 306
duties of, ii. 163
rules of, adopted at the Geneva Conference, ii. 17 5
statutes of the United States relating to, ii. 191
statutes of Great Britain relating to, ii. 192
duty of, as to belligerent property, ii. 19 5
.compulsion and duress, how far a justification for a departure
from, ii. 199, 246, 321
declaration as to, made by Great Britain in 1854, ii. 317
proclamation of, by Great Britain in 1877, 1898, 1904, ii. 205
NON-COMBATANTS,
who are, i. 609
how, may become combatants, i. 616
when exempted from extreme rights of war, ii. 22
NON -INTERCOURSE
of belligerents, i. 580
exceptions to the rule of, i. 582
NOOTKA SOUND,
dispute between England and Spain, i. 498
NORTH SEA INCIDENT, ii. 202
text of agreement to arbitrate thereon, 203
NORTH WEST
coast of America, dispute as to, i. 176
I
INDEX 651
N UN CIO, i. 290, 351, and see DIPLOMATIC AGENTS
OBLIGA TIO EX QUA SI CONTRA CTU, i. 23 1
OBLI GA TI 0 EX Q UA SI DELI CTO, i. 23 1
OCCUPATION,
military, during war, 465
OPINION,
wars of, i. 5 56
OREGON,
claim of United States to, i. 498
ORIGIN,
domicil of, i. 446
PACIFICO,
case of, i. 506
PAGANS,
derivation of name of, i. 5
PANAMA,
Isthmus of, i. 320
PAPAL GUARANTEES,
Italian law of, i. I 53
PAPERS, SHIPS, ii. 115
spoliation of, ii. 301
carrying on coasting trade of enemy under false, 336, 338
condemnation on proof of spoliation of, ii. 446
PARIS, CONFERENCE OF, 18 56
principles adopted as to maritime law, 135
list of the Powers that have given adhesion to those principles,
11. 1 35
amendment proposed by the United States, 97, 138
declaration adopted as to blockades, 217
Insurances, 11. 270
contraband, 318
remarks of Professor de Martens in 1876 on the, ii. 136
right of visitation and search, how affected by the, 318
PARIS, TREATY OF, 1814, i. 592
ditto of 1856, how far abrogated, i. 181
the 23rd protocol to the, i. 499
PAROLING, 321
United States army regulations as to, 66
PARTNERSHIP,
effect of war on, i. 581, 143, 154
PASSAGE
of troops through neutral territory, i. 232, ii. 167
PASSPORT. See SAFE—CONDUCT and CoNsULs ‘
false representation as to, under British law, i. 395
PATRIMONIAL KIN GDOMS, i. I 65
PEACE,
obligation to make, i. 328
of Westphalia, i. 334
of Utrecht, i. 3 3 3
652 INTERNATIONAL LAW
PEACE—continued.
TREATY OF PEACE,
Vattel’s definition of, i. 334
validity of, i. 345 .
captures at sea, made after signature of, 1. 341
execution of stipulations in, i. 34 .
the principle of ‘ Utz' possz'detz's,’ when applicable, 1. 339
PERDUCTIO INFRA PRESIDIA, ii. 546
PERMISSIVE LETTERS, ii. 139
PERSONA STANDI IN ]UDICIO, i. 581, ii. 369
PERSONAL
union of two States, i. 76
capacity, laws respecting, i. 205
‘ PETERHOFF,’
case of the, ii. 214
‘ PETERSB URG,’
case of the, i. 121
PILLAGE, ii. 87. See PLUNDER
PIRACY,
nature of, i. 58, 294
Where punishable, i. 250, 294
whether privateersmen to be treated as prisoners of war or
pirates, i. 85, ii. 140
robbery by a girate in an English haven, i. 250
the pirates of unis, Tripoli, and Algiers, i. 294, 476
the case of the ‘ Huascar,’ i. 479
‘ Virginius,’ i. 481
who are pirates P i. 478
punishment of, in Great Britain, i. 477
what ships are girates, i. 479
provisions of ritish Prize Act, 186 5, as to ransom to a
pirate, i. 478
visit of vessels suspected of, ii. 272, 276
whether slave trade is, ii. 278
salvage for recapture of a vessel from pirates, 1i. 561
PLEDGES,
when given, i. 312
instance of the canton de Vaud (Switzerland), i. 314
PLENIPOTENTIARIES, i. 503. See DIPLOMATIC AGENTS
PLUN DER,
remarks on, ii. 37
property exempt from, ii. 77
POLITICAL REFUGEES,
extradition of, i. 276
POPE,
States having rights in election of the, i. 11 I
rights to election, in whom, i. I 1 1
form of exclusion adopted in 1823 against the election of
Cardinal Severoli, i. 1 12
from what ranks to be selected, i. 1 12
time within which election to be made, i.‘ 112
precedency conceded to the, i. 128
status of, since 1870, i. 96 128
INDEX 653
POPE—continued.
guarantees given to the, by the Italian Government, i. 1 5 3
diplomatic relations with Great Britain, i. 291
alleged pretensions of the, as to treaties, i. 310
status since loss of Papal States, i. 3 52
reference to the duties of humanity, i. 490
See CoNcoRDAT and NUNCIOS
PORTS,
admission of foreign ships of war into, i. 230
property carried into neutral, 171
are part of the territory of a State, i. 167
PORTUGAL,
British interference in, i. 108
POSTAL UNION,
universal, i. 306
POSTLIMINY, RIGHT OF,
defined, 5 3 5
its foundation, 536
when it takes effect, 5 37
in cases of prize, ii. 545
connection between treaties of peace and, 537
in cases of allies, ii. 538
as regards real property, ii. 540
as regards towns, provinces, &c., ii. 541
decision of the United States courts as to grants of territory
by Great Britain after Declaration of Independence,
11. 541
as regards a ‘ retrocession,’ 543
as regards a subjugated State resuming its independence,
11- 544
case of the city of Genoa in 1814, ii. 544
as regards recapture, ii. 545. See REcAPTUREs
law of nations as to, how far binding, 547
municipal laws of different nations as to the application of
the, ii. 548
PRECEDENCE 1
of States, i. 128, 132
PRE-EMPT ION ,
remarks on the custom of, 267
27 and 28 Vict. c. 25, as to, ii. 268
PREROGATIVE,
definition of, i. 157
PRESERVATION OF THE BALANCE OF POWER, i. 559
PRESTATION,
right of, i. 520
PRISONER OF WAR,
power of, to make treaty of peace, i. 330
domicil of, i. 456
who may be made, i. 609
ransoming, ii. 26, 364
exchanging, ii. 26
permitting, to resume liberty, ii. 28
conditions which may be enforced on release of, 28
duty of supporting, ii. 30
654 INTERNATIONAL LAW
PRISONER OF WAR—continued.
what labour may be required of, ii. 31
treatment of, in 1809, by the Spaniards, ii. 32
modern custom as to supporting, ii. 33
treatment of, violating parole, ii. 34
who cannot be kept and cannot safely be put
on parole, 34
weak garrison, when made, 35
taken, during armistice, ii. 349
duty of, released on parole, ii. 3 5 7
hostages for, ii. 368
slaves if, ii. 26, 435
right of postliminy as regards, ii. 539
United States navy regulations as to, ii. 358, 395
army regulations as to, 59
PRIVATE INTERNATIONAL LAW
is a misnomer, i. 38
PRIVATEERS,
Judge Daly’s remarks on, i. 85
whether, are pirates, 140
when commission necessary for, ii. 129
checks imposed by commercial States on, ii. 134
declaration at the Conference of Paris (1856) as to, ii. 1 3 5
course adopted in 1812 by the United States as to, ii. 131
advocacy of, by the United States, ii. 139
abstract right of nations to, 138
declaration of Great Britain in 18 54 as to, ii. 317
illegal captures by, ii. 420
remarks of Lord Nelson on, ii. 134
PRIZE
made after signature of treaty of peace, i. 341
the case of the ‘ Mentor,’ i. 342
the case of the ‘ Gerasimo,’ i. 463
made by uncommissioned vessels, i. 476, ii. 409
definition of, ii. 90
to whom they belong, ii. 90
distribution of, ii. 90, 392, 41 1
provisions of Naval Prize Act, 1864 (British), as to, ii. 90, 548
provisions of the Act of Congress (1864), as to, ii. 91, 5 50
property captured on land by a naval force of the United
States, whether a prize, ii. 97
what are lawful, ii. 99
remarks on the law of, ii. 100
ship sold by enemy to a neutral, how far a lawful, ii. 99, 1 1 1
effect of right of stoppage in transita as to, ii. 108
vessels exempt from being made, ii. 12 3
made by belligerent in neutral waters, ii. 188
made in violation of neutral rights, i. 2 31, ii. 195
what. exempt from inquiry in neutral court, 198
made in neutral waters, ii. 195
made during armistice, ii. 349
capture of, how effected, ii. 545
after condemnation, property in relates back to,
11- 559
nature of captors’ interest in, before condemnation, 390, 42 3
duty of officer who seizes, ii. 390
duty to captor as to having prize adjudicated, ii. 395
INDEX 655
PRIZE—continued.
regulations of the United States navy as to, ii. 39 5
joint captures of, ii. 399
rule as to who are to be deemed captors, ii. 400
transport and storeships, when to be deemed joint captors,
11. 403
convoying ships, when to be deemed joint captors, ii. 403
what persons entitled to a share in, 402
land forces, when to be deemed joint captors, 404
joint captures by allies, 405
privateers, ii. 406, 409
revenue cutters, 407
boats, ii. 407
tenders, ii. 407
non-commissioned vessels, ii. 408
fraud in joint captors, 410
right in, how forfeited, 412
grounds on which restitution of, decreed, 415, 548, 553, 55 7
consequences with which restitution of, may be attended,
11. 415
captors of, when liable for costs and damages, 416
validity of, how determined, 424
OfiICBI'S and crew of, when entitled to wages from prize
property, 430
right of belligerent to sell, in neutral territory, 432
destroy, how interpreted by Russia,
1904. 245
case of ‘ Knight Commander,’ 310
carried into neutral port, 435
in 1870, 169
in 1898, 169
in 1904, ii. 169
when prize court will order sale of, 447
course to be adopted where captors do not bring, for adjudi-
cation, ii. 448
after what period, condemned by prize court, ii. 448
whether recaptures are, ii. 5 50
rights of postliminy in, in neutral country, 5 38
laws of postliminy applicable to, 545
prize property, when subject to pay salvage, ii. 5 5 5
who entitled to abandoned, 5 58
PRIZE COURT,
authority of, i. 62
rule of domicil in, i. 445
jurisdiction of, as to property captured in civil war, 1. 587
jurisdiction of, as to prizes made out of its territorial autho-
.l‘lfiy, 11- 4052 434 _
provisions of 27 and 28 Vict. c. 25, as to jurisdiction of,
11. 40 5
Prize Courts Act, 1894, 428
convention between England and France as to jurisdiction
of, 406
forfeiture or restitution of prizes, when decreed by, 413
by what, validity of prizes to be determined, 424
rule as to what courts have prize jurisdiction, 428
English Court of Admiralty, how far a, ii. 429
constitution of a, ii. 93
proceedings in British, 453
656 INTERNATIONAL LAW
PRIZE COURT—continued
procedure of American, ii. 444
courts in the United States which have prize jurisdiction,
11. 429
in conquered territory, ii. 432
extent of jurisdiction of, ii. 433
how far decision of a foreign, receivable in evidence, ii. 437
course adopted by the King of Prussia in 17 5 3 as to the
sentence of British, ii. 440
practice in, ii. 457
course adopted by the United States in I 794 as to the sen-
tence of British, ii. 441
presumption as to sentence of a foreign, ii. 442
laws to be administered by a, ii. 442
evidence in, ii. 444, 45 7
provisions of 27 and 28 Vict. c. 25, as to evidence in, ii. 445
provisions of 27 and 28 Vict. c. 2 5 , as to proceedings of prize
court, in reference to joint captors, i1. 449
provisions of 27 and 28 Vict. c. 2 5, as to the jurisdiction of
prize court in reference to condemnation, ii. 449
Who may appear as a claimant in a, ii. 449
mortgages, how treated in, ii. 450
master, duty of, ii. 421
PROBABLE CA USE OF SEIZURE, ii. 415
PROCEEDINGS IN REM, i. 224
PROPERTY,
1. RIGHTS OF PROPERTY GENERALLY.
how affected by change of government, i. 96
of a State, i. 160
the term ‘ domz'm'um ’ as applied to, i. 161
right of a State to acquire, i. 164
to dispose of, i. 164
‘ patrimonial kingdoms,’ i. 16 5
State rights of, in coasts, i. 167
in islands, i. 174
in gulfs, straits, rivers, i. 178
in the narrow seas, i. 134
in inland lakes, i. 181
in Africa, i. 175
laws of real, i. 199
laws of personal, i. 199
Scottish law as to immovables, i. 200
laws of the middle ages with respect to the, of deceased
foreigner, i. 206
how affected by marriage contract, i. 215
jurisdiction of State over, i. 224
right to destroy private property in war, i. 520
captured in civil war, how condemned, i. 587
2. ENEMY’s PROPERTY ON LAND. See CoNQUEsT.
right of State to seize, i. 586, ii. 75
provisions of Magna Charta as to, i. 584
declaration of Lord Clarendon in 1854 as to, i. 586
conduct of French and Germans in 1870 as to, ii. 74, 84
title to, how acquired, ii. 74, 76
given by treaty of peace, ii. 75
alienation of, before confirmation of conquest, ii. 75
neutral purchasers of, ii. 76
INDEX 657
PROPERTYa—cont'inued. _..
what, liable to seizure, 76
what, exempt from seizure, ii. 78
what, exempt from the operations of war. ii. 81
modern rule as to seizure, &c., of private property, 82
exceptions to this rule, ii. 83
private property of sovereign, how considered, ii. 83
conduct in F ranco-Austrian campaign (1859) as to private
property, ii. 83
conduct in American civil war (1863) as to private property,
83
seizure of private property, when unavoidable, 84
rights of private property, how afiected by change of sove-
reignty, 528
meaning of the term ‘ property,’ ii. 529
3. ENEMY’s PRoPERTY ON THE HIGH SEAs. See PRIZE.
distinction between property on land and@ high seas, ii. 96
remarks on this distinction, 97
established law of nations as to, ii. 98
course pursued by England in 18 54 as to, ii. 99
by the belligerents in 1870 as to, 98
how far protected by neutrality of shipper, 101
shipped y enemy to neutral consignee, ii. 104
how affected by right of stoppage in transitu, 107
English admiralty rule as to national character of, 108
rule of admiralty as to transfers of enemy’s vessels to neutrals,
11. I 11
proofs of national character of ships, ii. 1 1 5
vessels exempt from capture, 123
4. PROPERTY IN ENEMY’s COUNTRY.
right to confiscate, i. 584
time for withdrawal of, ii. 148
protection of, ii. 148
when liable to capture, I 50
5. PROPERTY OF NEUTRAL, i. 458, 468. See NEUTRAL, NEU-
TRALITY, SHIPs, PRIZE
PROTECTORATE,
effect of a, i. 74
PROTOCOL, i. 319
PROVISIONS,
whether contraband, ii. 2 52, 262
rules of British Admiralty as to, being contraband, ii. 262
PROVOST,
opinion of Sir Arthur Wellesley as to a provost establish-
ment, ii. 36
duty of provost marshal, 37
PRUSSIA,
discussion with United States as to an ambassador’s house,
i. 366
the Silesian loan, i. 593
PUBLIC DEBTS,
how affected by a change of power, i. 316, ii. 497, 532
in the case of Cuba, 1898, 497
Transvaal, 1899, ii. 529
effect of treaties on, i. 344
VOL. II. U U
658 INTERNATIONAL LAW
QUAM LEGEM EXTERI NOBIS POS UERE, EA NDEM ILLIs
PONEMUS, i. 585
QUARANTINE, i. 491
RANSOM,
promise of, to a pirate, how far binding, i. 477
treatment of prisoners of War before introduction of ransom-
ing, ii. 26
former practice as to, ii. 364
modern practice as to, ii. 364
‘ ransom bill,’ ii. 366, 433
contract of, how considered, 366
how carried into effect, 367
taking hostage in case of, ii. 368
effect of contracts of, 369
jurisdiction of prize court as to, ii. 43 3
effect of recapture on ransom bill, ii. 560
RATIFICAT ION
of treaties, i. 296
REAL UNION
of two States, i. 76
REBELS,
diplomatic intercourse between, and foreign States, i. 85
RECALL,
letter of, i. 392
RECAPTURE,
validity of, after peace, i. 343
definition of, ii. 5 35
onus probandi in cases of, ii. 546
by what law determined, ii. 548
provisions of 27 and 28 Vict. c. 25, as to, ii. 549
United States enactment as to, ii. 5 50
cases of restitution on, ii. 5 56
French ordinances as to, ii. 5 53
laws of Spain as to, ii. 5 5 3
Denmark as to, ii. 5 54
the States-General of the United Provinces, 5 54
quantum of salvage allowed in, ii. 5 5 5
of neutral property, ii. 5 5 5
allotment of salvage in, ii. 5 56
time when, vests in captors, ii. 5 36, 5 57
rules of salvage in cases of, ii. 5 56
effect of, on ransom bill and hostage, ii. 560
of a vessel by her own crew, ii. 561
rules of joint, ii. 563
RECIPROCITY, RULE OF,
remarks on the, ii. 39
in recapture of property of allies, ii. 548
from pirates, ii. 561
RECOGNITION, ‘
Canning’s and Mackintosh’s remarks on the meaning of, i. 91
REGALIA, i. 159
RENVOI, DROIT DE, 1. 493
INDEX 659
REPRISALS,
when resorted to, i. 505,- 518
the case of Pacifico in 18 50, i. 506
different kinds of, i. 507
‘ letters of reprisal,’ ii. 126
historical instances of, i. 519
embargoes, i. 516
REPUBLICS,
rules of ceremonial applicable to, i. 131
REQUISITIONS, i. 344. See CONTRIBUTIoNs
RETALIATION, i. 504
United States army regulations as to, i. 614, ii. 57
RETORSION, i. 503
RETROCESSION,
rights of postliminy as regards a, 543
REVENUE CUTTERS, ii. 407
REVENUE LAWS,
effect of military occupation as regards, 479
operation of, over newly-acquired territory, 526
REVOLUTION. See INSURRECTION
rights of, ii. 485
when justifiable, ii. 487
wars of, i. 55 5
RHINE, THE,
navigation of, i. 186
RHODIAN LAws, i. 9
RIVER,
dominion of a, to whom it belongs, i. 176, 182
Filum a me or Thalweg, i. 182
right of innocent passage ’ over a, i. 184
principles of the Roman civil law as to the navigation, &c.,
of a, i. 185
treaties respecting the navigation of certain rivers, i. 186
decision of the Emperor of Germany in reference to the St.
Lawrence, i. 184
blockade of mouth of a, ii. 217
ROME,
occupation of, i. 95, 108
ROOLES D’OLERON, i. 9
ROSS,
bishop of, i. 573
‘ ROYAL HONOURS,’ i. 130
RULE OF» 1756, i. 18, ii. 333
RULE OF 1793, i. 18, ii. 333
RUSSIA
and the Black Sea, i. 181, ii, 137
war with Japan, 1904, i. 121
volunteer navy, i. 121, ii. 137
release by Japan of vessels captured after peace but before
ratification of treaty, i. 340
attitude as to floating mines, i. 620
660 INTERNATIONAL LAW
RUSSIA—continued.
sale of German ships, converted subsequently into cruisers,
11. 174
North Sea incident, 202
text of agreement to arbitrate thereon, ii. 203
attitude as to contraband, 245, 25 5, 263
right to destroy prizes, ii. 245
attitude towards neutral shipping, ii. 310
RUSSIAN DUTCH LOAN, i. 589
RUSSIAN EMBASSY
and Michilchenkorfi, i. 377
SAFE-CONDUCTS OR PASSPORTS,
granting of, to vessels of discovery, ii. 123
distinction between safe-conducts and passports, 358
different kinds of, ii. 360
revocation of, ii. 360
punishment for violation of, ii. 360
ransom bill, 366
licenses, 371
United States army regulations as to, ii. 63
Mediterranean pass, 117
SAFEGUARD,
definition of, ii. 361
punishment for violation of, ii. 361
when requisite for cartel ship, ii. 362
ST. PETERSBURG DECLARATION, i. 619
‘ SALLY,’ the,
case of, ii. 100
SALISBURY (LORD),
on detention by ambassadors of his fellow-countrymen, i. 376
SALUS POPULI SUPREMA LEX, i. 520, 607
SALUTES,
usage of nations as to, i. 13 3
treaties respecting, i. I 37
what, to be returned gun for gun, i. 140, 142, 146
by merchant vessels, i. 141, 147
equality of sovereign States as to, i. 140
by ships of war on high seas, i. 142
in ports, i. 142
to sovereigns, i. 142
British regulations as to, i. 143, 146
French ,, ,, 1. 147
Spanish ,, ,, i. 148
United States ,, ,, i. 149
instances of disputes respecting, i. I 52
SALVAGE,
in the case of ships of war, i. 231
question of military, how determined, ii. 548
quantum of, allowed in recapture, ii. 5 5 5
how regulated in the United States, ii. 5 50
in England, ii. 548
in France, ii. 5 53
INDEX 661
SALVAGE—continued.
allowed to a privateer, ii. 5 5 5
a government vessel, 5 5 5
a non-commissioned vessel, ii. 5 5 5
in case of neutral property, ii. 5 55, 5 59
distinction between military and civil, ii. 5 57
rules of military, 5 58
for recapture of a vessel by her own crew, ii. 561
from pirates, ii. 561
when allowed to land forces, 563
SAN JUAN (ISLAND), i. 184
SANDOVAL,
case of, 191
SARAWAK,
protectorate over, i. 221
SAVAGES
tried by Admiralty, i. 220
SCOTCH MARRIAGES, i. 214
SEAMEN, DISTRESSED, i. 307
deserters, i. 307
SEARCH. See VISITATIoN
SEIZURE, i. 508
case of the ‘ Caroline,’ i. 5 I 1
right of authorising, i. 518
jus angcm'w, i. 519
United States army regulations as to, ii. 57
SELF-PRESERVATION,
rights of, i. 121
SEMI-SOVEREIGN STATE
defined, i. 79
SERVIA, ‘
relations with Great Britain, 1903, i. 290
SETTING FORTH AS A VESSEL OF WAR,
what constitutes a, ii. 5 5 1 ~
British enactments as to, ii. 549
what not a, 5 52
SHIPS (VESSELS),
I. SHIP OF WAR,
salutes by, on high seas, i. 142
in ports, i. 142
exemption of, from local jurisdiction, i. 229
ri hts of extraterritoriality of, i. 219—24 5
criminal taking refuge in, i. 241
bringing illegal prize into a neutral port, i. 2 31
breaches of Foreign Enlistment Act by officers of foreign,
1. 231
capturing smugglers in territorial waters, i. 2 31
local laws to be observed by, i. 231
arrest on shore of crew of foreign, i. 232
fugitive slaves on British, i. 267
case of the ‘ Virginius,’ i. 481
‘ Shah ’ and the ‘ Huascar,’ i. 479
neutral, communicating with blockaded port, ii. 2 32
662 INTERNATIONAL LAW
SHIPS (VESSELS)-—continued.
right of, to ascertain nationality of merchantmen, ii. 275
See SETTING FORTH As A VEssEL OF WAR
2. MERCHANT SHIP,
salutes by, i. 141, 147
ship of a sovereign prince used as a, i. 235
~ jurisdiction of a State over, i. 245
status of foreigners on board British, i. 247
punishment of offences committed by British subjects on
board, 1. 248
fugitive slaves on British, 1. 266
national character of, how determined, i. 469
deserters from, i. 286
seizure of, for transport of soldiers, &c. (y'us angariee), i. 519
papers of, ii. 1 15
load line mark on British, ii. 1 16
spoliation of papers of, ii. 301
use of false papers by, 301
engaged in slave trade, ii. 277
3. SHIP (IN TIME OF WAR),
acquisition of hostile character by a neutral, ii. 1 1 1
release of enemy ships captured after declaration of peace
but before ratification of treaty, i. 340
proofs of neutrality of a, ii. 114
what, exempt from capture, ii. 12 3
trading with enemy, when liable to confiscation, ii. 151
transfer of, of enemy to a neutral, ii. 1 10, 1 5 5
evidence of ownership of a, ii. 1 5 5
ground for forfeiture of a neutral, ii. 157
effect of enemy’s license on, and cargo, ii. 1 5 7
insurance of, engaged in illegal trade, ii. 159
rights and duties of neutral State towards belligerent, ii. 169
duties of neutrals with respect to asylum to belligerent, ii. 176
duties of belligerent, with respect to the right of asylum, ii. 1 87
arming and equipping, in neutral ports, ii. 176
captures by armed, in violation of neutrality, ii. 19 5
duty of neutral, threatened with capture, ii. 198
what is a sufficient violation of blockade by a neutral, ii. 227
sailing for neutral port with intent to violate blockade, ii. 228
entrance and egress of a neutral, into and from blockaded
ports, ii. 225, 230, 234
Owners of a, how far bound by act of master in prize court,
11. 2 3
conseque3nces to, for violating blockade, ii. 237
how affected by contraband cargo, ii. 244
Russia’s claim to destroy prizes, ii. 24 5, 310
neutral, when contraband, 2 59
penalty to neutral, for resisting search, ii. 289
what, exempt from visitation and search, 289
carriage of neutral goods in enemy’s, ii. 314
carriage of enemy’s goods in a neutral, ii. 308
rule of prize law as to goods found in enemy’s, ii. 319
use of enemy’s flag by neutral, ii. 320
neutral, in employment of enemy, ii. 320, 5 52
carriage of enemy’s despatches by neutral, ii. 322
cases of condemnation of, for carrying on coasting and
colonial trade of enemy, ii. 3 34
INDEX 663
SHIPS (VESSELS)--—contirmed.
provisions of 39 and 40 Vict. c. 36, as to coasting trade, ii. 341
neutral, when subject to pay salvage, 5 5 5
cases on restitution of neutral, on recapture, ii. 5 56
4. VEssEL OF D1scovERY, 123. See PRIZE, MAIL PACKETS,
FISHING BoATs, CARTEL SHIP
SHIPWRECK,
powers of British consuls as to shipwrecked British subjects,
i. 408
exemption of, from capture, ii. 125
jurisdiction over wreck once landed, 434
SICK AND WOUNDED IN WAR,
United States army regulations as to treatment of, 63
instances of the treatment of, 17
provisions of the Convention of Geneva, 1864, as to, 41
Hague Convention, 1899, as to, ii. 42, 51
SIEGE. See BLOCKADE
state of siege, i. 603
SILESIAN LOAN, THE, i. 593, ii. 314, 441
SLAVERY,
contracts for sale of slaves, i. 266
historical sketch of, i. 263
Lord Mansfield’s decision in Somersett 1;. Stewart, i. 266
fugitive slaves on British ships, i. 268
the British Admiralty Slave Circular, 1892, i. 269
treaties between Great Britain and the Slave States, i. 272
the United States and the Slave States, i. 272
treaties of Great Britain for suppression of negro, i. 270
General Act of Berlin Conference, 188 5. i. 272
Brussels Conference, 1889-90, i. 27 3
International agreement to deal with the ‘ White Slave
Traffic,’ 1904, 614
of prisoners of war, 26
United States army regulations as to slaves, ii. 59
employment of slaves in war, i. 61 I
slave trade, whether piracy, 278
regulations agreed upon in 18 58 for suppression of the slave
trade, ii. 279
provisions of the Treaty of Washington as to the African
slave trade, 281
provisions of 36 and 37 Vict. c. 88, as to vessels fitting out for
the slave trade, ii. 282
SLIDELL AND MASON,
capture of, ii. 325
‘ SM OLEN SK ,’
case of the, i. 121
SOLDIERS,
domicil of, i. 456 '
United States army regulations as to commercial transactions
0 , 11. 59
SORENSEN v. REG, ii. 100
SOUDAN WAR, 1896-1899, i. 7 3
SOUND,
claim of Denmark as to the, i. I 78
664 INTERNATIONAL LAW
SOURCES OF INTERNATIONAL LAW, i. 50
SOVEREIGN,
definition of, i. 156
privileges of a, i. 159, I6 3
Immunity of, i. 235
rights of, in England, i. 516, 576
SOVEREIGN TY,
definition of, i. 69, 73, 156
of a de endent State, i. 71
of a tri utary State, i. 72
effect of a protectorate on, i. 74
how acquired, i. 80
how determined, i. 95
‘ de facto ’ and ‘ de furs,’ i. 89
recognition of, i. 90
effects of change of, i. 96
rights of, i. 100, 156
a prerogative of the king, i. 157
difference between, and property, i. 160
alienation of sovereignties, 1. I66
rights of, over the sea, i. 167
to legation and treaty, i. 288
SPAIN,
dispute with England as to Nootka Sound, i. 498
list of contraband articles, 1898, ii. 255
SPHERE OF INFLUENCE, i. 75
SPIES,
who are, i. 627
provisions of Hague Convention, 1899, as to, i. 629 ~
of Naval Discipline Act as to, i. 573
cases of Hale and André, i. 630
United States army regulations as to, ii. 63
attitude in Russo-Japanese War, 1904, as to newspaper
correspondents, 245
SPON SION S, i. 297
STATE,
definition of a, i. 69
distinction between a, and a nation or people, i. 70
sovereignty of, i. 71
union of States, i. 75
confederation of States, i. 77
composite, i. 79
semi-sovereign, i. 79
sovereignty of, how acquired, i. 80
relation of, to its individual members, i. 80, 1 17
duty of, towards a countr divided by civil War, i. 80
how affected by change 0 sovereignty, i. 90
dismemberment, 1. 96
division, i. 97
incorporation with another State, i. 98
rights of sovereign, i. 100
foreign interference in government of, i. 102
equality of sovereign States, i. 125
right of, to assume titles of dignity, i. 126
ruler of a, how considered, i. 129
INDEX 665
STATE-contz'nued.
rank of, how determined, i. 132
right of, to regulate its ceremonies, i. 132
rights of, as to salutes, i. 141
powers and prerogatives of, i. I 5 7
laws affectin , in the Middle Ages, i. I 58
property an domain of, i. 160
maritime territory of, i. 167
territorial jurisdiction of, 'i. 167
rights of, in coasts, gulfs, islands, narrow seas, rivers, &c., i. 174
of legislation of, i. 198
judicial ower of, i. 221, 247
jurisdiction of, over its citizens, i. 222
resident foreigners, i. 223
property, i. 224
duty of State as to its citizens, i. 1 15, 226
jurisdiction of, over ships, i. 229
as to criminal matters, i. 247
effect of criminal sentence of a, i. 25 5
rights of legation, i. 288
treaty, i. 29 3
naturalisation, i. 432, 440
mutual duties of States, i. 471
responsibility of, for acts of its rulers, officers, &c., i. 47 3
subjects, i. 475
duties of, to ministers, &c., of other States, i. 484
rights and duties in reference to trade. i. 485
duties of mutual assistance, i. 487
duty of, to preserve independence of another State, i. 489
right of one, to ask assistance of another, i. 492
quarantine, i. 491
right to expel foreigners, i. 493
tax foreigners, i. 493
duties as to deserters, i. 286
duty of, before resorting to arms, i. 496
right of, to declare war, i. 574
to confiscate debts, i. 590
who bound to defend, i. 608
service of, how regulated, i. 609
right of, to raise troops, i. 610
foreigners serving, i. 612
limit of hostility between subjects of belligerent States, 2
duty of, as to exchanging prisoners of war, 27
what agreements of officers are binding on, 28
dutyuof, as to supporting its own subjects prisoners of war,
11. 30
right to capture documents, evidence of debts, ii. 77
remain neutral, 161
papers, &c., 78
what property passes to victorious, 82
relations of allied States to common enemy, 143
right of, to demand redress for unlawful condemnation of a
foreign prize court, 439
STOPPAGE IN TRANSITU,
effect of right of, on maritime captures, 107
STRAITS,
jurisdiction over, i. I 34
666 INTERNATIONAL LAW
STRATAGEMS,
what allowable, i. 623
instances of unworthy stratagems, i. 624
deceitful intelligence, 1. 627
SUBSIDY,
treaties of, i. 306
SUCCESSION
regulated by law of domicil, i. 226
SUEZ CANAL, the, 17o
SURETY, T REATIES OF, i. 304
how far binding, ii. 9
SUSPENSION OF ARMS, ii. 346
SWISS,
remarks on the, Confederation, i. 78
treaty power of, cantons, i. 29 5
enrolment of, as soldiers to a foreign State. ii. 8
treatment of French prisoners in 1870 by, Government, ii. 168
neutralised, ii. 306
trade in time of war, ii. 384
TELEGRAPHIC CONVENTION, INTERNATIONAL, i. 307
TERRE DOMINIUM FINITUR UBI FINITUR ARMO-
RUM VIS,i. 168
TERRITORY,
definition of national, i. 167 ,
distinction between territorial jurisdiction and maritime, i. 167
41 and 42 Vict. c. 73, 1878, as to territorial waters, i. 170
TESTAMENT,
rules of international law applicable to, i. 226
factio testamenti est 7'uris civilis, i. 228
by British subject abroad, i. 200
TEXT-WRITERS,
a source of international law, authority’ of, i. 65
TITLE
to property captured in, war, ii. 75, 540
TITLES OF DIGNITY. See CEREMONIAL
right of princes and States to assume, i. 126
ancient supremacy of the Emperor of Germany, i. 128
assumption of the title of empress by the Queen of England,
I. 127
assumption of the title by the King of England (1901), i. 127
claims of the Pope, i. 128
assumption of the title of emperor by the Czar, i. 127
attempt to classify sovereigns, i. 132
the titles of emperor and king, i. 130
TORPEDOES,
use of, 16 5
TOUSIG, SIMON,
case of, i. 117
TRADE,
1. GENERALLY,
right to, i. 485
duty of mutual, i. 48 5
INDEX 667
TRADE—continued.
2. WITH THE ENEMY.. See LIcENsEs and COASTING AND
CoLoNIAL TRADE
rule as to, ii. 143, I52
exceptions to the rule against, ii. 144, I 5 1
course pursued during Crimean war as to, ii. 372
decisions as to what is, 146
penalty for, 145
vessel engaged in unlawful, when liable to capture, 1 5 3
for what it disqualifies, 148
character of, how determined, ii. I 5 1
extent of unlawfulness of, ii. 1 5 7
classification of articles of trade, ii. 250
‘ rule of the war of 1756 ’ as to, 334
‘ rule of the war of 1793 ’ as to, 339
TRADE MARKS, i. 307
TRANSVAAL REPUBLIC,
treaty by, whether within powers, i. 29 5
war with Great Britain, 1899, i. 366
no formal declaration of, i. 577
military occupation of by Great Britain, ii. 470
debts of, attitude of Great Britain, as to, 529
Jameson Raid, the, 194
jamesorz, R. v., case of, 194
TREASON,
when committed out of but tried in England, i. 2 50
where punishable, i. 2 50
when not punishable, i. 443
United States army regulations as to, 70
TREATIES,
among the ancients, i. 3
how affected by change of government, i. 96
when a ground for interfering in affairs of another State i. 106
language of, i. I 33
right of a State to negotiate, i. 29
invalid, i. 294
by semi-sovereign States, i. 29 5
of Skimonoseki, 189 5, i. 295
ratification of, i. 296
of guarantee between Great Britain and Japan, 1902, i. 30
how far obligatory, i. 307, 309
binding on the law courts, i. 301
divisions of, i. 302
maintenance of, i. 313
swearing to, i. 308
requisites to make, obligatory, i. 309
alleged pretensions of the Popes as to, i. 310
dissolution of, i. 314
unaffected by a declaration of war, i. 314, 597
interpretation of, i. 317
treaty-making power of Great Britain, i. 3 30
of the United States, i. 296, 3 30
void and voidable, i. 347
of alliance, i. 306, 3
of commerce, i. 306
of confederation, I. 305
668 INTERNATIONAL LAW
TREATIES—contz'nued.
of extradition, i. 2 50, 273
of guarantee and surety, i. 304, ii. 9
of peace, i. 328
respecting salutes, i. 137
the sale of States, i. 165
of the United States with respect to foreigners, i. 207
the Slave States, i. 272
of Great Britain with the Slave States, i. 272
of a Christian State with an infidel nation, i. 294
respecting consuls, i. 413
with China, i. 415
with Japan, i. 418
with reference to domicil, i. 458
treaty of naturalisation between Great Britain and the
United States, i. 438
to refer disputes to the Permanent Court of Arbitration at the
Hague, i. 525
for suppression of negro slavery, i. 270, ii. 565
of succour, ii. 8
TREATY OF LONDON, 1871,
and the Black Sea, i. 181
apparent breach by Russia, 1904, i. 121
TREATY OF PARIS, 1856,
as to the navigation of the Danube, i. 181
as to mediation, i. 499
TREATY OF WASHINGTON. See WASHINGTON
‘ TRENT,’
case of the, ii. 325
TREUGA DEI, i. 7
T RIBUNALS,
decisions of mixed, a source of international law, i. 63
TRIBUTARY STATES, i. 72
TROOPS,
maintenance of, in enemy’s country, ii. 85
passage of, through neutral territory, i. 236, I67
TROPPAU AND LAYBACH,
Congresses of, i. 129
TRUCE, ii. 346. See FLAG
TURKEY,
powers of consuls in, i. 415
British subjects in, how triable, i. 417
war with Greece, 1897, i. 75
UNION,
personal, i. 76
real, i. 76
incorporate, i. 77
Federal, i. 77
UNITED STATES,
attitude towards Mexico in 1866, i. 83
constitution of, i. 79
acquisition of foreign possessions, i. 95
dispute with Great Britain as to drying fish in British North
American colonies, i. 177
INDEX 669
UNITED STATES —-continued.
as to killing seals in Behring Sea, i. 177
military regulations as to salutes and ceremonial, i. 149
laws as to islands unoccupied, i. 175
territorial jurisdiction, i. 176
laws respecting foreigners, i. 207, 438, 58 5
treaties of extradition, i. 274
extradition cases, i. 2 50, 274
treaties with the Slave States, i. 272
appointment of diplomatic agents, i. 292
treaty-making power, i. 296, 330
ratification of treaties, i. 300
rank of consular officers, i. 401
regulations for the consular service, i. 421
privileges of forei consuls, i. 406
convention with rance as to consuls, i. 407, 413
marriages solemnised by consuls, i. 410
treaty with China, i. 415
consular courts in China, i. 420
treaties with Japan, i. 418
Persia, i. 422
laws of naturalisation, i. 436
citizenship, i. 437
treatment of foreigners during civil war, i. 449
treaty of naturalisation with Great Britain, i. 4 38
the Cherokee nation, i. 81
abolition of slavery, i. 277
action in reference to the ‘ Caroline ’ in 18 37, i. 51 I
right to declare war, i. 575
confiscation by, in 1861, i. 589
laws as to debts due to an enemy, i. 589
treaty with Great Britain as to enemy’s debts, i. 591
martial law, i. 603
Act of Congress with respect to the Writ of Habeas Corpus,
i. 604
opinion of the Attorney-General as to the mode of trial of the
murderers of President Lincoln, i. 605
the Whisky Insurrection of 1794 and 179 5, i. 606
amendment proposed at the Paris Congress 18 56, ii. 97, I 3 5
course adopted in 1865 as to the rights of asylum, I71
statutes relating to neutrality, 191
definition of contraband 1897, 244
‘ cartel,’ how considered by, ii. 362
who may become citizens of, 515
rules of salvage in war, 5 50, 5 5 5
UNITED STATES—INSTRUCTIONS FOR THE GovERNMENT OF
ARMIEs OF THE UNITED STATEs IN THE FIELD, 40 et seq.
armistice, Arts. 135-147, ii. 67
art, works of, Arts. 34-37, ii. 58
assassination, Art. 148, ii. 69
belligerents, who are, Art. 57, ii. 61
intercourse between, Art. 86, ii. 63
booty, Art. 45, ii. 59
capitulation, Art. 144, ii. 68
cartel, Art. 109, ii. 65
citizens, Arts. 155, I 56, ii. 70
civil war, Art. I 50, ii. 69
classification of enemies, Art. 155, ii. 70
fi
670 INTERNATIONAL LAW
UNITED STATES—INSTRUCTIONS FOR THE GOVERNMENT OF
ARMIES OF THE UNITED STATES IN THE FIELD-—-00?’ll’i1’l%86l.
commercial transactions of soldiers, Art. 46, ii. 59
communication with enemy, Art. 98, ii. 64
crimes, punishment of, Art. 47, ii. 59
death, sentences of, Art. 12, ii. 55
deserters, Art. 48, ii. 59
diplomatic agents, Arts. 8, 9, 87, ii. 5 5, 64
enemy, property of, Arts. 31-44, ii. 57
enemy, person of, Arts. 32—44, ii. 57
using flag of, Art. 65, ii. 61
flag of truce, Arts. 111-114, ii. 65
using enemy’s, Art. 65, ii. 61
flags of protection, Arts. 1 15-1 18, ii. 66
fugitives, Arts. 42, 43, ii. 59
guides, Arts. 93-97, ii. 64
hospitals, Art. 34, ii. 58
hostages, Arts. 54, 55, ii. 60
insurrection, Art. 149, ii. 69
martial law, Arts. 1—12, ii. 54
messengers, Arts. 97, 100, ii. 65
military jurisdiction, Art. 13, ii. 5 5
necessity, Arts. 14-26 and 38, ii. 55, 58
oppression, Art. 4, ii. 54
officers, treatment of captured, Art. 7 3, ii. 62
outposts, Art. 69, ii. 62
parole, release on, Arts. 119-134, ii. 66
partisans, Art. 81, ii. 63
poison, use of, Art. 70, ii. 62
prisoners of war, who are, Arts. 49-80, ii. 60
who are not, Arts. 82-85, ii. 63
exchange of, Arts. 105-110, 123, ii. 65, 66
release of, Arts. 119-124, ii. 66
breaking armistice, Art. 146, ii. 68
prize money, Art. 45, ii. 59
quarter, giving, Arts. 60—66, ii. 61
rebellion, Art. 151, ii. 69
rebels, treatment of, Arts. 153, I 54, ii. 69
retaliation, Arts. 27, 28, 58, 59, ii. 57, 61
safe-conducts, Art. 87, ii. 64
seizure of private property, Art. 38, ii. 58
slaves, Art. 43, ii. 59
spies, Arts. 88, 89, 102, 104, 114, ii. 64, 66
traitors, Arts. 90-104, ii. 64
treason, Art. 15 7, ii. 70
uniform, using enemy’s, Arts. 63, 64, ii. 61
war, pursuit and object of, Arts. 29, 3o, 68, ii. 5 7, 61
wounded, treatment of, Art. 79, ii. 63
wounding, &0., disabled enemy, Art. 71, ii. 62
UNITED STATES—NAVY REGULATIONS,
vessel seized as a prize, ii. 395
convoy, ii. 293
death of a minister in foreign port, i. 391
flags of truce, ii. 346
foreigners in blockade-runners, i. 450
prisoners of war, paroling of, ii. 3 58
visitation and search, ii. 279
salutes, i. 1 5o
INDEX 671
U TI POSSIDETIS,
principle of, to what treaties applicable, i. 345, ii. 537
UTRECHT,
the treaty of, i. 33 5
VENEZUELA, '
President Cleveland’s message as to, 1895, 1. 92
pacific blockade of, i. 509
VENICE,
claim of, to Adriatic, i. 134
VERONA,
Congress of, i. 106
VESSEL. See SHIP
VICE-ADMIRALTY PRIZE COURTS, 455
VIENNA, CONGRESS OF, i. 131, 350
VIOLATION
of neutral waters, 169
of blockade, 222
by egress, ii. 2 35
‘ VIRGINIUS,’ the,
case of, i. 481
VISIT. SEE VIsITATIoN AND SEARCH
VISITATION AND SEARCH,
exemptions from, i. 354
treaty between United States and Great Britain as to mutual
right of search of vessels suspected of being engaged in
the slave trade, i. 301, 279, 283
nature of right of, i. 229, 272, 284
claim of Great Britain to the right of visit in time of peace,
272, 278
distinction set up between rights of, 27 5
Droz't d’erzque‘te du pavilion, 276
de vz'sz'te ou de recherche, 276
right of ships of war to ascertain nationality of merchantmen,
27 5, 285
code of instructions agreed upon by the British, French, and
United States Governments as to, 279
provisions of treaty of Washington as to visiting vessels en-
gaged in African slave trade, ii. 281
General Act of Brussels Conference, 1890, as to the same, ii.
283
provisions of 36 and 37 Vict. c. 88, as to visiting vessels
fitting out for slave trade, ii. 282
opinions of text-writers as to the extent of the right of, ii. 286
right of, how to be exercised, 287
to what vessels limited, 289
how afiected by a neutral convoy, ii. 289
and the right of impressment of seamen, ii. 302
instances where ships of war have been subjected to, ii. 302
Lord Eldon’s opinion on the right of, 313
Stowell’s opinion on the right of, 313
right of, how affected by the Declaration of Paris, 18 56, 3 18
license to trade, whether a protection for resistance to, 388
United States navy regulations as to, ii. 39 5
672 INTERNATIONAL LAW
VOLUNTEER NAVY
of Prussia and of Russia, ii. 136
in 1904, i. 121
‘ Petersburg,’ case of the, i. 121
‘ Smolensk, case of the, i. 121
VON MOLTKE, COUNT
correspondence with Bluntschli on ‘ Laws of War,’ ii. 18
WAR,
Wars of intervention, i. 5 58
imperfect war, i. 568
effect of, on treaties, i. 313, 348
ways in which, may be concluded, i. 328
rights acquired by a, caused by a breach of treaty of peace,
1- 347 _
Vattel’s remarks on, 1. 539
justifiable causes of, i. 540
remarks of Grotius on, i. 544
of Kent on, i. 544
motives for, i. 544
pretexts for, i. 544
unjust, i. 544
remarks of St. Augustin on, i. 546
of Dr. Wayland on, i. 547
of Dr. Lieber on, i. 551
lawfulness of defensive, i. 541
duty of a subject in reference to, i. 542
definition of, i. 5 5 3
wars of insurrection and revolution, i. 5 5 5
of independence, i. 5 5 5 -
of opinion, i. 556
of conquest, i. 556
civil wars, i. 5 57
national wars, i. 5 58
public wars, i. 566
a private war, i. 567
mixed wars, i. 567
perfect, i. 568
Imperfect, i. 568
solemn, i. 568
right to declare, in whom vested, i. 569, 574
unlawful, i. 571
distinction between unlawful and unjust, i. 5 71
reply of Earl Russell to Bismarck on the war by Prussia and
Austria against Denmark, i. 572
declaration of, i. 575
time from which, to be deemed regular and formal, i. 5 76, 595
effects of a, duly declared, i. 580
duties of citizens in time of, i. 608
implements of, i. 617
declaration of St. Petersburg, 1868, as to use of explosives in,
i. 619
use of 1poison as implement of, i. 618
use of arbarian troops in, i. 619
sinking of ships laden with stone at entrance of harbour, i. 620
setting adrift floating mines, i. 620
assassination in, i. 621
for preservation of balance of power, i. 5 59
INDEX 673
WAR—continued.
what stratagems allowable in, i, 623
law of nations in reference to a just and unjust, ii. 14
correspondence between Count von Moltke and Bluntschli
as to ‘ Laws of War,’ ii. 18
case of Ambrister, 200
persons exempt from the direct operations, ii. 15
alleyrand’s opinions as to the application of rights of, ii. 14
Convention of 1864 as to wounded in, 41
right to kill an enemy in, 34
instances of the exercise of the extreme rights of, ii. 40
rights of, as to enemy’s property, 73
modern usage of, as to private property, 82
wanton destruction in, 92
effect of, on partnerships, 154
rights of, where exercisable, I6 5
what a sufficient cause for declaring, i. 540
rule of the, of 1756, 334
rule of, of 1793, ii. 337
WASHINGTON, TREATY OF, 1842, i. 497
1871, i. 177, 184, 190, 174
1892, i. 177
WESTPHALIA,
peace of, i. 3 34
WHITE SLAVE TRAFFIC,
Convention, 1904, as to, 614
WIBORG v. UNITED STATES,
case of, 191
WILL. See TEsTAMENT
WILSON,
' extradition of, i. 276
WOMEN,
domicil of, i. 454
national character of, in England, i. 4 35
WOUNDED IN WAR,
Convention concerning, 41
WRON GS
in a ‘foreign country, jurisdiction over, in another country,
1. 25 5
ZANZIBAR,
powers of consuls in, i. 417
ZOLLVEREIN, THE, i. 305
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