-ti iU«I$HSrtHI HIHH
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY 
 
 Property 
 
 LAW LIBRARY 
 
 \ than in 
 se return, 
 
 jraiKs^ewnging to this 
 ^Vibtvfry are never sold, 
 exchanged or given away.
 
 %7<1 
 
 LOS 
 
 fc 
 
 
 * V^ 

 
 MANUAL 
 
 OF 
 
 INTEENATIONAL LAW, 
 
 FOR THE USE OF 
 
 Navies, Colonies and Consulates, 
 
 JAN HELENUS FERGUSON, 
 
 MINISTER OF THE NETHERLANDS IN CHINA; FORMERLY OF THE 
 NETHERLANDS ROYAL NAVY AND I OLOHIAL SERVICE. 
 
 1)1 six Parts 1>oninl in tiro Volumes. 
 
 VOL. I. 
 
 THE HAGUE: LOISTDON : 
 
 MARTIN CS NYHOFF. W. "B. WHITTTNGUAM & Cc 
 
 HOlSrGKlOIN'G : 
 
 NORONHA & Co. 
 
 1884. 
 (All rights reserved by the Author.)
 
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 F2>1 IS c
 
 THE RIGHT HONOURABLE 
 
 THE JONKHEER VAN DEE DOES DE WILLEBOIS 
 
 DOCTOR OF LAW, 
 
 KNIGHT COMMANDER OP THE KOTAL OBDEB Of THE NFTHF.KLAND LIO.V. 
 
 4c, be., 
 
 HIS NETH RLANDS MAJESTY'S MINISTER 01 FOREIGN IPFAIRS. 
 
 TO THE JURIST THE STATESMAN 
 WD THE DIPLOMATE 
 
 BUI OBI kRTICUl I 
 
 THE FRIEND 
 
 I His WORK IS M0S1 RESPECTP1 I.I \ [NSCRIBED 
 
 in 
 
 l 1 ! I : AUTHOR. 
 
 767955
 
 PREFATORY NOTE. 
 
 Considering the descriptive character of the title of this 
 Manual, it will hardly appear necessary to add, by way of 
 preface, more than a few words, and these merely to ex- 
 plain the general plan of the work. 
 
 In the first place, the reader will observe an attempt 
 here made to explain the first origin of Law. The practical 
 rules which determine legal relations amongst Xations are 
 so intimately connected with those which determine all 
 moral relations, that a clear comprehension of the former 
 depends upon a careful examination of the latter. Nothing 
 short of a careful inquiry into the bearin r s which moral 
 relations have upon the legal relations existing among 
 Nations, will enable us to trace the first origin of Interna- 
 tional Law back to its fountain source. Hence it is evident 
 that it would be impossible satisfactorily to expound the 
 legal rules which govern the intercourse of States without 
 a previous investigation of the original moral substratum 
 of those rules. 
 
 The theory of the Moral Law of Nature, as explanatory 
 of the origin of Law, has been sketched, in its outlines at 
 least, in Part I. The author's views on this subject are 
 not brought forward here with a view to claim any origin- 
 ality whatever, but, being the result of miscellaneous 
 reading, they are offered to the reader as an honest attempt
 
 \ I 
 
 to give, by means of the physiological laws of the human 
 mind, a scientific explanation of the manifestations of the 
 Mora! Law of Nature. 
 
 The propositions brought forward for this purpose, being 
 based on the p .nary consideration that the successive 
 stages in the evolution of International Law are but so 
 many natural phenomena, can easily be tested by modern 
 natural science, and will therefore readily recommend 
 themselves to all minds endowed with genuine common 
 sense. The exposition here given of the natural laws 
 which guided this evolution of International Law might 
 have been elaborated far more exhaustively, and would 
 have ga'ned thereby in cl arness, especially as regards 
 details, but the scope of this Manual did not admit of more 
 detailed treatment. Besides, scientific truth does not 
 suffer by an author's individual short-comings as regards 
 clearness of diction and exposition. Simple suggestions, 
 thrown out to indicate the Law of Nature underlying any 
 particular phenomenon, may often further our apprehension 
 of the truth, though the words employed be ev<-r so 
 incommensurate in lucidity compared with the vividness 
 and distinctness of our own convictions on the subject. 
 Thus this unpretending sketch of the Moral Law of Nature 
 will fulfil the author's purpose if it but pave the way 
 for some better gifted mind, to give a more lucid scientific 
 solution of the problems presented by phenomena the causes 
 of which appear to be as yet far beyond the horizon of 
 our present conceptions while, in fact, they might perhaps 
 be readily explained by human Intellect combined with 
 Feeling, when the Moral Mental Organism has been allotted 
 its proper place in the physiology of the human Mind. 
 All serviceable scientific hypotheses, though differing in
 
 modes of verification, have, as stated on page 7, this crite- 
 rion in common that they must be based o:. the assump- 
 tion of a f.tetor competent to produce all the phenomena of 
 the respective Laws of Nature, in other words, they must 
 be consistent with physical facts. The hypothesis with 
 regard to the combination of Conscience and Sympathy, 
 which two factors form the Moral Sense described under 
 the name of Feeling on page 14, will be found, by careful 
 and unbiassed investigation, to be consistent with physical 
 facts and those actual relations from which all human 
 rights and obligations susceptible of enforcement, called 
 Law (Jus, Droit, liecht). must and do proceed. 
 
 This work is divided into six parts which are grouped in 
 two volumes, following the usual distinction made between 
 the subjects of law and their le^al relations. Every legal 
 relation (Rechtsverhaltniss). says Savigni, consists of two 
 elements, the matter or substance and the legal determina- 
 tion or regulation of this matter.* Hence the first three 
 Parts, constituting the first volume, treat, besides general 
 principles, the nature, rights and attributes of States and 
 their institutions with regard to individual status and 
 responsibility. The first volume, therefore, may be re- 
 garded as an exposition of the material element, that is to 
 say, of the simple facts of international legal rela'ions, while 
 the second volume, in the remaining three parts of the book, 
 discusses the mutual relations and reciprocal responsibili- 
 ties of States, in peace and war. representing thus the formal 
 element, that is to say, that by which the lacts are endowed 
 with legal significance. 
 
 Thus the first volume contains the general principles 
 bearing on the origin of Law and expounds the manner in 
 
 * Von Savigni. System, § 52.— William Guthrie's translation of Volume VHI. 
 fl 869). Introduction.
 
 \ ] 1 1 
 
 which those principles developed through the Moral Law of 
 Nature, into International Law. The first volume contains 
 further a description of the Individual Rights of States and 
 of the modifications which these rights undergo, in their 
 practical contact with identical rights of other States. In 
 this volume there are also included those special rules of 
 international intercourse, known under the general appella- 
 tion of Maritime International Law. 
 
 The second volume contains an exposition of the Mutual 
 Rights and Responsibilities of States in their ' normal 
 
 intercourse and also the special rules and usages which 
 devolve from that abnormal state of international intercourse 
 called war. At the same time are treated the different 
 conditions which exist between b.dlijprent parties and the 
 relations existing between these pai sand those who do 
 not take any active part in the conflict, called neutrals. 
 Lastly tin se proceedings are explaine i through which the 
 re-establishment of peace is brought about, by means of 
 preliminary negotiations and treaties of peace, with or with- 
 out interference of neutrals. 
 
 But in compiling the present work the author had above 
 all to comply with the main requisite of a Manual, viz., 
 that the arrangement of the subject matter be so method 
 as to facilitate practical reference and that the treatment be 
 so concise; as to impress itself readily upon the memory of 
 the reader. Consequently a Manual has to be written with 
 as much brevity as clearness will allow, and with as much 
 succinctness as the breadth of the subject permits. For 
 these reasons the author was limited in his plan with regard 
 to the division of the subject matter as well as with re 
 to the execution, and ventu nention apleafor 
 
 indulgence of his readei -
 
 The Manual of International Law, which is hereby 
 offered for the use of Navies, Colonies, and Consulates, 
 is a compilation of notes, gathered in the intervals of busi- 
 ness, and of occasional observations and impressions which 
 accumulated during an active participation, successively, in 
 the duties of these several branches of the public service, 
 and which are now brought together into a popular form. 
 
 The object aimed at was not a profound or scientific 
 treatment of International Law, which has formed already 
 the task of far better and competent writers of text-books, 
 but to furnish a Manual for practical use and ready refer- 
 ence in the hands of those who have no occasion or time to 
 consult elaborate text-books, while their particular situation, 
 far away from the respective centres of legal consultations, 
 instructions or guidance, renders the pressure of business 
 or professional exigencies the more felt, as prompt action, 
 in some decided direction, is often of great consequence. 
 To this end a compendium of the practical rules of Inter- 
 national Law and Jurisdiction is surely a desideratum. In 
 how far we have succeeded to supply such a want, we must 
 leave others to judge, as no one can better find out the 
 merits or faults of a work like this than those who put it to 
 the test of practical use. The author's sole aim in publish- 
 ing the present work being to render some service to those 
 whose profession brings them often face to face with the 
 practical requirements of International Rules and Usages, 
 the author would feel amply recompensed for his labour, if 
 this book should produce no other result than that of 
 merely inducing some abler writer to produce a far superior 
 work of practical utility. 
 
 j. h. f: 
 
 -list. Ins-.
 
 PART I. 
 
 GENERAL PRINCIPLES.
 
 CHAPTER I. 
 THE OKIGLN" OF LAW. 
 
 § 1. — Social life is the natural consequence of m lr ^. ersal 
 the human organism and, as such, necessarily Law o/ Nature 
 develops itself in conformity with the Universal 
 Law of Nature. 
 
 The Universal Law of Nature is the composite 
 effect of the various natural conditions which are 
 at work in the Universe and which are called 
 Laws of Nature, in consequence of the regularity 
 with which they appear to our consciousness. 
 
 As laws are the manifestations of forces, and ™<> •??»•<•<<?/' 
 
 -. Creation. 
 
 effects always indicate causes, we are accustomed 
 to call the causes of these natural conditions the 
 forces or powers of Nature. For the same reason 
 the Universal Law of Nature, which is the con- 
 structing unity of the systems formed by the 
 Laws of Nature, is correlative to the idea of a 
 Universal Cause, Force or Power, and as this 
 First Cause is made known to us, by irrefragible 
 induction, as the absolute motor, force or life of 
 all that we are conscious of in Nature, it may be 
 represented, by way of a hypothesis which is 
 based on natural phenomena, by the term Spirit 
 of Creation. 
 
 In inorganic and organic evolution, the Spirit 
 of Creation is presented to our senses by the 
 forces in matter and by the vital element in 
 organisms. In the evolution of the mind, on the 
 other hand, the Spirit of Creation is presented to 
 our senses by that consciousness of its influence,
 
 genera!. 
 
 Part I. ] THE ORIGIN OF LAW. [ Ca ff' ' 
 
 which is called the Soul, that is to say the highest 
 development of that' motive power in the evolu- 
 tion of the mind known as Feeling, which will 
 be described in the following pages. 
 
 Hypotheses in Thus it is to Matter and Force, which consti- 
 tute the primary manifestations of the Absolute, 
 that all natural phenomena must be traced.* 
 But Science is not yet able to trace all natural 
 influences, by consistent induction, to their primor- 
 dial causes, nor has Science reached as yet "that 
 highest unification which Philosophy seeks." 
 We are often hardly aware of the effects of the 
 Laws of Nature, which in scientific language are 
 called phenomena. Thus philosophical or specu- 
 lative reasoning must often supply the place of 
 Science, or it has, under the name of hypothesis, to 
 be slipped into some scientific formula to pave 
 the way for its comprehension by the human 
 mind. Such is the case with all methods adopted 
 for the purpose of explaining the course of the 
 development of the Laws of Nature. Thus it is 
 also with the interpretation of natural phenomena 
 in the description of organic evolution, through 
 reproduction, perpetuation and modifications of 
 the forms of living beings — (not of their origin, as 
 people unacquainted with Darwin's works often 
 think) — in the manner described by Professor 
 Darwin in his famous books, called "The Origin 
 of Species" (the term Species being the scientific 
 equivalent of forms of organisms) and "The 
 Descent of Man." Darwin's theories regarding 
 
 * "A further inference was, that Philosophy, as we understand it, 
 " must not unify separate concrete phenomena only; and must not 
 "stop short with unifying separate classes of concrete phenomena, 
 " but must unify all concrete phenomena. If the law of operation 
 "of each factor holds true throughout the Cosmos; so. ton. must the 
 
 " law of their co-operation. And hence in comprehending the < !osmos 
 
 "as conforming to this law of co-operation, must consist that highest 
 "unification which Thilotiopliy seeks," llEKULKT SPEJa'iiK. First 
 
 Principles, § 186.
 
 parti. ] THE ORIGIN OF LAW. [ Ca {F' 1 
 
 the causes of the developmental changes in the 
 structural forms and physiological functions and 
 properties of organisms, called variation, adapta- 
 tion, survival of the fittest, &c, are hypothetical 
 statements of causes which, (whatever may be the 
 controversial nature of philosophical assumptions, 
 when taken up in scientific propositions), go far 
 towards forming a development hypothesis ex- 
 planatory of the Universal Law of Nature, or 
 what we called the manifestations of the Spirit 
 of Creation, by aiding the human mind to infer, 
 with the nearest possible accuracy and with a 
 prestige of scientific plausibility, the existence 
 of causes which it could not arrive at through 
 direct demonstration.* These hypothetical sup- 
 positions are at present indispensable to natural 
 science in general, but particularly to physiology 
 and psychology, in order to supply the want of 
 sufficient data to fill up the gaps yet remaining 
 in the corroboration of facts, as well as to 
 make up for the imperfection or inadequacy of 
 our Physico-Mental Organism, called fieason. 
 "The privilege," says Professor Oscar Schmidt, 
 " on which the progress of Science generally relies, 
 is that of investigating, according to determined 
 points of view, and accepting probabilities as truth 
 in the garb of scientific conjecture or hypothesis."! 
 
 * Evolution, whether by the process of successive changes of con- 
 ditions " through multiplication of effects," as Mr. Herbert Spencer 
 described it before Darwin, or by natural selection, which is the 
 Darwinian theory, or whether both combined, (as Mr. Herbert 
 Spencer accepts it, in the Fourth Edition [1880] of his "First Princi- 
 ples"), is as good as an established fact of history, but the causes of 
 these effects are yet a hypothesis, and it is with truth that Professor 
 Huxley said on the evidence of palasontology : " the evolution of many 
 existing forms of animal life from their predecessors is no longer an 
 hypothesis, but an historical fact ; it is only the nature of the phy- 
 siological factors to which that evolution is due which is still open 
 to discussion." (Encyclopa>dia Britannica, 1S7S). 
 
 f Prof. Oscar Schmidt. The Doctrine of Descent and Dar- 
 winism. Chapter on the Pedigree of Vertebrate Animals (Henry S. 
 King & Co., London, 1875), p. 248.
 
 fail. ] THE ORIGIN OF LAW. [^f"' * 
 
 " Do not allow yourselves," says Professor Huxley, 
 "to be misled by the common notion that a hy- 
 pothesis is untrustworthy simply because it is a 
 hypothesis. It is often urged, in respect to some 
 scientific conclusion, that, after all, it is only a 
 hypothesis. But what more have we to guide us 
 in nine-tenths of the most important affairs of 
 daily life than hypotheses, and often very ill-based 
 ones ? So that in Science, where the evidence of 
 a hypothesis is subjected to the most rigid exa- 
 mination, we may rightly pursue the same course." 
 Further on he says: "There is a wide gulf be- 
 tween the thing you cannot explain and the thing 
 that upsets you altogether. There is hardly any 
 hypothesis in this world which has not some fact 
 in connection with it which has not been ex- 
 plained ; but that is a very different affair to a 
 fact that entirely opposes your hypothesis. In 
 this case all you can say is that your hypothesis 
 is in the same position as a good many others."* 
 Hypotheses are, with regard to the nature of the 
 evidence required for their verilication, of three 
 distinct classes, viz. : physical, mental and moral, 
 and must accordingly be tested by evidence an- 
 swering to the correlative Laws of Nature. A 
 hypothesis based on physical causes, must be ve- 
 rified through demonstration of the working of 
 the forces inherent in matter. It is to be tested 
 by the Physical or Chemical Laws. A hypo- 
 thesis built on purely logical bases, is to be veri- 
 fied through abstract mathematical or logical 
 reasoning. It is to be tested by the Mental Law. 
 Finally j :» purely moral hypothesis requires veri- 
 fication by inward conviction of what is morally 
 right or wrong. Its test lies in the Moral Law. 
 
 * Pbop. Thomas H. Huxley. Lectures on "Origin of Species." 
 
 Humboldt Library of Popular Science Literature, Vol. I, pages 518 
 and 629.
 
 Part I. ] THE ORIGIN OF LAW. [ Cn ^ ! 7 
 
 The latter is the most subtile of all, as being the 
 youngest Law of Nature, that is, the latest addi- 
 tion to the chain of evolution in which the human 
 mind shares ; a law whose abstruse subtility ne- 
 cessitates our pushing our investigations into 
 tenuous and recondite truths, based on Reason 
 and Feeling combined (§2). Though differing 
 in modes of verification, hypotheses of all classes 
 have this criterion in common, that they must 
 be based on the assumption of a factor competent 
 to produce all the phenomena of the respective 
 Laws of Nature, of which the verce causce are 
 undemonstrated or inconceivable to our mind. 
 This is the standard rule in all attempts to des- 
 cribe the Laws of Nature, whether physical, men- 
 tal, or moral, and on this principle the following 
 hypothesis of the general development of the 
 Universal Law of Nature is proposed. 
 
 A general observation of Nature, as it appears umthetkai 
 on our globe, indicates that the development o£o/'Z"unh<e°'Li 
 the Universal Law of Nature has taken place «j its course of 
 gradually, as by stages, which may be called 
 stages of Creation, while the influence of the 
 Spirit of Creation, which is the originative cause 
 of the forces operative in Nature, is manifested 
 through all these stages, admitting of no line of 
 demarcation between the different stages ; — so 
 that by the latter term we mean merely a gene- 
 ralization of groups of bodies or objects in which 
 a particular force or law of Nature becomes more 
 conspicuous to our observation. 
 
 Submitting six of these stages to a general 
 review, and including what we think to be the 
 beginning of those objects represented to the pre- 
 sent state of consciousness of the human mind 
 (that is to say the first stage) up to the stage in 
 which we exist at present (that is to say the sixth 
 
 Evolution.
 
 8 I'akti. ] THE ORIGIN OF LAW. [^T" 1 
 
 stage), we find that the evolution of the Uni- 
 versal Law of Nature, through the gradual deve- 
 lopment of the different forces of Nature, is mani- 
 fested as follows. 
 Mauar. AVhen Matter, — which term is but a symbolic 
 
 name for that simple substance, which could as 
 well be called consolidated or latent force, and 
 constitutes the original groundwork of creation, — 
 is formed into compound substance, through the 
 operation of the forces whose influence is perceiv- 
 able in the Physical or Chemical Law (which law 
 includes all isomeric and isomorphous transforma- 
 tions of inorganic matter, and all decomposite com- 
 binations of compound substances), the first stage 
 in Creation is accomplished. The motive or vital 
 power, which emanates from the Spirit of Crea- 
 tion and manifests itself already in the Physical 
 Laws through the chemical metamorphoses and 
 other phenomena of matter and forces, appears 
 more developed in the second stage, which is the 
 reign of the Law of Vegetable Organism. 
 
 Animal life belongs to the group that may be 
 styled the third stage, that is to say the sphere 
 of the Law of Animal Organism, while the fourth 
 stage is the province of the Law of developed 
 Animal Organism or Instinct, and represents the 
 highest stao'e in Creation in which animals not 
 endowed with reason are found. 
 
 The appearance of the human Mind on Earth 
 constitutes the fifth stage of Creation, that is to 
 say the reign of the Law of Physico-Meiital 
 Organisms. This stai>'e includes the intellectual 
 faculties of man, considered as the species, such 
 as he generally appears all over the Earth, de- 
 veloped through successive evolutions from the 
 first principles of Matter, to a complete, erect and 
 stalwart form of being, endowed with a material 
 nature and animal propensities, but with that
 
 PabtI. ] THE OEIGIN OF LAW. [^T' 1 
 
 higher physiological development of animal in- 
 stinct and mental faculties which in the case of 
 man are called Reason. This species is the per- 
 fect man of the materialist. But man's develop- struggle between 
 
 , • ,1 i . .i n i . x ~the moral and 
 
 ment, or, strictly speaking, the development otthe material 
 his mind, does not stop here, for by degrees cor- 
 responding with his social progress, and in the 
 same proportion as the surrounding conditions 
 were more or less favourable to the adaptations 
 of his moral organism, he has entered the sixth 
 stage, — that is to say the sphere of the Moral 
 Law, which governs that highest order of Creation 
 at present known on the Earth, viz., our Moral 
 and Mental Organism, in other words, the moral 
 development, through which consciousness of the 
 Good, which is the perfect harmony of Justice 
 and Benevolence, is created in the human mind. 
 Here the struggle for material existence is accom- Martyrdom. 
 panied and often neutralized (as manifested in mar- 
 tyrdom) by the fiercer strife of the moral element 
 of Nature in its struggle to maintain its existence in 
 opposition to the surrounding animal propensities, 
 a battle which follows the line of evolution from the 
 lower to the higher mental organism, through de- 
 velopment and adaptation of the higher moral and 
 mental organs, and leads up, in gradual progres- 
 sion, to that harmonious combination of Justice 
 and Benevolence in the human mind, which is 
 the manifestation of the Good, and which prepares 
 the mind for the conception of the Soul (§2). 
 
 This process in the evolution of human Mind Motet taium. 
 may be called Moral Selection and Survival 
 of the fittest, in contradistinction from gradual 
 retrogression, through degeneration of the moral 
 organs and sometimes total suppression of the same, 
 caused by want of application or through disuse 
 of these faculties, in which cases the mind re-
 
 10 Past I. ] THE ORIGIN OF LAW. [%"'' 
 
 mains within the range of a lower stage of moral 
 development, or gradually sinks back to that state 
 of soulless Materialism, unguided and unchecked 
 by Moral Sense, in which only impulses of the 
 animal propensities can claim an acknowledged 
 natural influence. * 
 
 origin o/species. Thus the different forces or powers of Nature 
 constitute in their successive combinations, as 
 united by the motive element of the Spirit of 
 Creation, the different stages of Creation, in which 
 the Universal Law of Nature represents itself to 
 human consciousness in the form of groups, as 
 stated above. Each group has its own peculiar 
 classes of bodies or objects, embracing countless de- 
 veloped forms and varieties of forms, called Spe- 
 cies, and coming on the scene in the course of each 
 stage at the point at which the respective Power, 
 or the Law which is the manifestation of that 
 Power, predominates in Creation. The various 
 objects and classes of objects of organic nature have 
 each its own inherent constituent qualities, and 
 find their respective places in Creation through 
 
 * " If the process of continuously adapting organisms to their 
 environment takes place in Nature at all, there is no reason why 
 we should set any limits on the extent to which it is able to go, up 
 to the point at which a complete and perfect adaptation is achieved." 
 George J. Romanes, M.A., LL.D., F.R.S. " The Scientific Evidences 
 of Organic Evolution" Nature Series (Ed. 1SS2, page, 5). "Now, not 
 only is it rational to infer that changes like those which have been 
 going on during civilisation will continue to go on, but it is irrational 
 to do otherwise. Not he who believes that adaptation will increase 
 is absurd, but he who doubts that it will increase is absurd. Lack 
 of faith in such further evolution of humanity as shall harmonise 
 its nature with its conditions, adds but another to the countless 
 illustrations of inadequate consciousness of causation. One who 
 leaving behind both primitive dogmas and primitive ways of 
 looking at tilings, lias, while accepting scientific conclusions, acquired 
 those habits of thought winch Science generates, will regard the 
 conclusion above drawn as inevitable. He will find it impossible 
 to believe that the processes which have heretofore so moulded 
 all beings to the requirements of their lives that they get satis- 
 faction in fulfilling them, will not hereafter continue so moulding 
 them. IIerbert SrE>;cER, "The Lata of Ethics." Chapter 
 X. § 67.
 
 Part i. ] THE ORIGIN OF LAW. [° H §T' * 11 
 
 development in conformity with the Universal 
 Law of Nature, and having sprung up through 
 the Law of Nature governing the particular con- 
 dition of the substances of which they are re- 
 spectively constituted, they appear as distinct 
 off- shoots of the main trunk which, gradually 
 growing, throws out higher branches, each giving 
 origin, in its respective line, to countless shoots of 
 its own, whilst the same source feeds all, and each 
 derives its organic life from the same Motive 
 Power and Universal Cause. 
 
 The links of evolution cannot be looked forz^m&o/ 
 t the Species. AVe are obliged to reduce 
 these vast masses of observations to general laws, 
 to find some main solution for the development 
 of Nature through evolution, for, by searching in 
 the by-paths of creation, we are apt to lose the 
 main track, while looking in vain for many a 
 missing link. 
 
 By the foregoing hypothesis the development 
 of the Universal Law of Nature or of Creation on 
 Earth, or, in other words, the evolution of Nature 
 on Earth, is represented as a chain of continued 
 progress, with links of which each is necessary 
 as a base for the continuation of the next, 
 forming a system of mutual dependencies, for each 
 serves, in its special sphere and to its full extent 
 and capacity, for the development of the other. 
 These links are the combined results of the different 
 powers of Nature, and that these powers are all 
 subject to the influence of one Universal Cause, 
 is manifested by the systematic development of 
 Nature, called Evolution, the factors of which are 
 Matter, Force and Life, which, in the case of 
 mental organism, are combined with Feeling.
 
 12 Part J. ] THE ORIGIN OF LAW. [ C " A ^ ' 
 
 impossibility of But neither the nature of these forces, nor what 
 
 demonstrating , n i tit i •• e ~r • n n t-i 
 
 theprimdi<y is called Matter, nor the origin of Lite or of Jbeel- 
 
 motor of , - , . A 71 t . . 
 
 Evolution. mg, the immediate motor of evolution in organic 
 nature, are explicable by Science or by any system 
 of logic in the description of Evolution, that is, 
 by any evidences from the Physical or Mental 
 Law. No better exhibition of the inadequacy of 
 Science, which is the highest power of concep- 
 tion of the Physico-Mental Organism of man, 
 could possibly be given than by quoting the 
 words of Mr. Herbert Spencer with which 
 he concludes his chapter on Ultimate Scienti- 
 fic Ideas. " Ultimate Scientific Ideas, then, 
 are all representative of realities that cannot 
 be comprehended. After no matter how great 
 a progress in the colligation of facts and the 
 establishment of generalizations ever wider and 
 wider — after the merging of limited and derivative 
 truths in truths that are larger and deeper has 
 been carried no matter how far ; the fundamental 
 truth remains as much beyond reach as ever. 
 The explanation of that which is explicable, does 
 but bring out into greater clearness the inexpli- 
 cableness of that which remains behind. Alike 
 in the external and the internal worlds, the man 
 of science sees himself in the midst of perpetual 
 changes of which he can discover neither the 
 beginning nor the end. If, tracing back the 
 evolution of things, he allows himself to entertain 
 the hypothesis that the Universe once existed in 
 a diffused form, he finds it utterly impossible to 
 conceive how this came to be so ; and equally, if 
 he speculates on the future, he can assign no limit 
 to the grand succession of phenomena ever un- 
 folding themselves before him. In like manner 
 if he looks inward, he perceives that both ends 
 of the thread of consciousness are beyond his 
 grasp; nay, even beyond his power to think of
 
 Part I. 
 
 THE ORIGIN OF LAW. [^fT 1 13 
 
 as having existed or as existing in time to come. 
 When, again, he turns from the succession of 
 phenomena, external or internal, to their intrinsic 
 nature, he is just as much at fault. Supposing 
 him in every case able to resolve the appearances, 
 properties, and movements of things, into mani- 
 festations of Force in Space and Time ; he still 
 finds that Force, Space, and Time pass all under- 
 standing. Similarly, though the anal}'sis of 
 mental actions may finally bring him down to 
 sensations, as the original materials out of which 
 all thought is woven, yet he is little forwarder ; 
 for he can give no account either of sensations 
 themselves or of that something which is conscious 
 of sensations. Objective and subjective things 
 he thus ascertains to be alike inscrutable in their 
 substance and genesis. In all directions his in- 
 vestigations eventually bring him face to face 
 with an insoluble enigma ; and he ever more 
 clearly perceives it to be an insoluble enigma. 
 He learns at once the greatness and the littleness 
 of the human intellect — its power in dealing with 
 all that comes within the range of experience ; 
 its impotence in dealing with all that transcends 
 experience. He realizes with a special vividness 
 the utter incomprehensibleness of the simplest 
 fact, considered in itself. He, more than any 
 other, truly knows that in its ultimate essence 
 nothing can be known."* 
 
 This proves the inability or inadequacy of 
 our Physico-Mental Organism and explains the 
 reason why the Spirit of Creation, the Absolute 
 Cause of all, and its actions on the human mind 
 are undemonstrable by Science or, in other words, 
 incomprehensible to the mind through Reason, 
 unaided by the prevision of that herald of a 
 
 * First Principles, Chapter III. Ultimate Scientific Ideas. § 21.
 
 14 PautT. ] THE ORIGIN OF LAW. [ Cn $T" * 
 
 nobler conception, which in Evolution is called 
 Feeling, and which quickens the physico-mental 
 functions into the higher development of the 
 Moral-Mental Organism, in the sphere of which 
 it is called the Soul. 
 
 intellect. Reason is the evolved result of different im- 
 
 pressions of Experience as adapted to actual 
 physiological conditions. Those impressions, vi- 
 vified and brought into relationship with each 
 other by the ever growing motive power of Feel- 
 ing, have gradually developed, through evolution 
 from Instinct, into what is called Intellect, the 
 basis of the higher mental development. 
 
 Hypothesis With the foreo-oino- propositions we couple the 
 
 regarding p 11 • i *? . ° ■*■ *■-,. r . , L .-p., 
 
 intuition. following hypothesis regarding intuition. I he 
 element of our Moral Mental Organism, which has 
 
 Feeung. above been designated by the simple term Feeling, 
 
 is the germ from which the Human Soul develops. 
 This essential substratum of the Ego of our state 
 of consciousness, constitutes a law of the con- 
 scious mind, and forms the condition under which 
 we think when the mind, having entered into 
 its full intellectual and moral development, is 
 unbiassed, pure and unshackled by d priori 
 theories. Deriving its origin from Life itself, 
 Feeling is ever present, though in a latent form, 
 in all organisms. Foreshadowing in its gradual 
 development, with its innate susceptibilities, the 
 successive stages of evolution, Feeling is ever the 
 forerunner, the nascent motor of a higher mental 
 development, and is already manifested in that 
 spontaneous lucidity of Instinct, bordering on 
 Reason, which we are so often astonished to 
 observe in animals. Forecasting the adaptations 
 of Intellect, Feeling becomes permanently con- 
 spicuous at the first dawn of Reason, of which it
 
 Tart I.] THE ORIGIN OF LAW. [ CH §l. T ' ' 15 
 
 is ever a concomitant in the human mind, whose 
 continued evolution and adaptation to a higher 
 form of organism it presages. Feeling underlies all 
 our scientific speculations, and helps them through 
 every dead lock of the mechanism of Reason ; in- 
 deed without its stimulating and subtile vitality, 
 this mechanism would stop, just at the point 
 where its forces are most wanted for the progress 
 of Science. For this progress is mainly due to 
 hypotheses based on Primary Truths, but the 
 basis of all hypotheses, even of those regarding 
 the most positive science, is Feeling, for Truth is 
 felt where Science cannot procure any evidence for 
 demonstration. Feeling is, accordingly, system- 
 atized Intuition in those mental organisms which 
 have reached a higher stage of development. 
 Hence, the more the human mind advances in 
 its course of development, the more is Feeling 
 pre-eminent, and the more extensively and consis- 
 tently will it be listened to. Genuine Feeling Feeling versus 
 will then be kept free from the delusive influence 
 of Imagination, which latter is often mistaken for 
 the former. But Imagination is the faculty or 
 combination of faculties by which certain ideas 
 are evolved in the mind, whilst Feeling is the 
 final criterion by which these ideas, created by 
 Imagination, are tested, when Reason, over- 
 powered by Imagination, is not to be trusted or 
 is inadequate for its functions. Imagination is 
 thus merely the effervescence of Reason, which 
 sometimes produces ebullitions dangerous to the 
 stability of the mind, whilst Feeling, constant 
 and constructive as all the Laws of Nature, is 
 the regulating principle of Reason. Being con- 
 comitant with Reason, it connects human con- 
 sciousness with the Unknowable, with that Inscrut- 
 able Cause which manifests itself in the Universal 
 Law of Nature, by causing us to feel intuitively
 
 16 iakii. ] THE ORIGIN OF LAW. [ C " § A " ' l 
 
 what is undemonstrable to Reason, and thus to 
 exercise, as nearly as possible, the same kind of 
 control over the unknowable world as that which 
 we already possess in respect of the phenomena of 
 the material world. As such, it is recognizable 
 as the Soul, which unites the human creature 
 with its Creator. 
 
 The soui. The Soul is the highest manifestation of that 
 
 power of nascency in the evolution of mental 
 organism which is described here as Feeling. 
 The influence of the Spirit of Creation, as noted 
 above, is manifested in motion, observed in the 
 process of Evolution, i. e., the process of forces 
 in matter, which it quickens into organism, and, 
 working on this, gives impulse, to the respective 
 processes of development and growth, in con- 
 formity with the general progress of the Universal 
 Law of Nature, of which it is the Power. " The 
 Power which the Universe manifests to us," says 
 Mr. Herbert Spencer, "is utterly inscrutable."* 
 This First Cause, or Absolute, this fountain- 
 head of all laws, physical and moral, with their 
 all-pervading principles, which we call the Spirit 
 of Creation, transcends human knowledge, and is 
 inconceivable to the human mind, which can only 
 perceive its effects in Matter, when it is called 
 Force ; in Organism, when it is called Life ; and 
 feel, through that special innate faculty of the 
 highest organism of the Mind in evolution which 
 is called Feeling, its impulses and inspirations, 
 which constitute the Soul. The influence of the 
 Spirit of Creation in the evolution of the Mind 
 not being perceivable through Sense, as in the 
 inorganic and organic evolutions, this influence 
 is made cognizable to the Mind through the Soul, 
 
 * First Principles. § 11.
 
 Pa in I 
 
 • ] THE ORIGIN OF LAW. [°j ™" * 17 
 
 which is then presented to our consciousness as 
 the relation which exists between our Moral- 
 Mental Organism and the Spirit of Creation ; in 
 other words : the Soul is the active agent of the 
 Spirit of Creation in the process of the higher 
 evolution of the Human Mind (§§ 2-7). If the 
 Mind is in an abnormal or unsound state, through 
 complete moral depravity or physical unfitness 
 for moral or rational conception, then the current 
 of communication between the Soul and the Mind 
 is suspended, the ray which enkindled Feeling 
 and Righteousness is excluded, the spiritual life is 
 suppressed, and the body is then morally dead, 
 being then only animated by the common animal 
 instinct, or by those shreds of intelligence which 
 sometimes clino; to the human mind after Reason 
 and Feeling have become extinct. When de- 
 rangement or decomposition of the physical 
 organs obstructs the circulation of the blood, 
 physical life is impossible ; thus it is with spiritual 
 life, when the mind is unht to receive and develop 
 the impulses of the Soul (§§ 3-7).* 
 
 The Human Mind, — by which term is designated The iloral Law 
 
 J a O Qf Xature is the 
 
 the individual subject of thought, perception and ^.f\%J" v '- 
 conception in general, with all the correlative func- eechx). 
 tions of consciousness and volition, — is able, when 
 in sound normal condition and activity, to exer- 
 cise its natural powers and susceptibilities in 
 various mental operations. Those powers and 
 susceptibilities are called Faculties, and have 
 distinct functions, distinct modes and spheres 
 of activity. The conditions under which this 
 
 * " Then shall the dust return to the earth as it was, and the spirit 
 shall return into God who gave it." JEcch-siastes. XII. 7. 
 
 " There is a spirit in man, and the inspiration of the Almighty 
 giveth them understanding. Who teacheth us more than the beasts 
 of the earth and maketh us wiser than the fowls of Heaven." Job, 
 XXXII. 8. and XXXV. 10 and 11.
 
 18 Taut I.] THE ORIGIN OF LAW. f "^' 1 
 
 takes place constitute the Mental Law, so 
 far as these conditions regard the connections 
 of the Mind with hodies outside the Mind ; 
 and the same conditions constitute the Moral 
 Law when regard is had to the inward relation 
 of the Mind with the Soul. This relation is 
 manifested through the Moral Senses, called 
 Conscience and Sympathy, which distinguish the 
 human mind in its highest pitch of development 
 from the rest of creation on Earth, and it is 
 through these Moral Senses that the Moral Prin- 
 ciples or Moral Truths are developed in the 
 human mind. These Truths are the principles 
 of Ethics, the moral rules of man's conduct, 
 individual as well as social (§§ 5—7). Thus, by 
 the development of the human mind, through 
 the Moral Law of Nature, aided by suitable sur- 
 roundings of social conditions, the moral obli- 
 gations, which constitute the main guidance of 
 men's acts, are developed, controlling the indivi- 
 dual moral conduct of man as well as reimlatino; 
 his relations with his fellow-creatures. These 
 moral obligations form the basis of the rules 
 which regulate the conditions of the social rela- 
 tion of men, called Law (Jus, Droit, EechtJ, the 
 special aspects of which, as bearing on the rela- 
 tions which exist between different societies or 
 aggregates of individuals, are treated in this work.
 
 Parti.] MORAL LAW AND CIVILIZATION. [ Ca f£; u ' 19 
 
 CHAPTER II. 
 
 Development of the Moral Law 
 and Civilization, 
 
 §2. Primary Truths or First Principles are Primary Trum 
 brought under the cognizance of the Mind through 
 the intuition of Feeling, as stated in §1. These 
 Truths are ideas which are fundamental to and 
 presupposed in the operation of the understanding; 
 they are, however, not furnished by sense awa- 
 kened in the mind on occasions of material ex- 
 perience, nor are they produced by sensuous 
 experience, for they spring up in the mind as by 
 intuition whenever the fitting occasion is present- 
 ed; whence it may be inferred that they are con- 
 ceived in the mind through the special power of 
 Feeling, operating under appropriate circum- 
 stances.* 
 
 These Truths are of two distinct classes, viz. : 
 Physical Truths, the principles of the physical laws 
 of nature ; and Moral Truths, the primary ideas of 
 right and wrong, which are the First Principles 
 of Justice, (§5). These latter form the subject- 
 matter of the present chapter. 
 
 In the preceding section we have noticed that 
 Feeling and Soul are one and the same pheno- 
 menon of manifestation of the Absolute, being 
 called Feeling in the sphere of the Mental Law 
 and Soul in the sphere of the Moral Law. The 
 latter term, Soul, is used, in the same sense, in 
 the description of the development of the Moral 
 Law and Moral Civilization. 
 
 * Joseph Haven. Mental Philosophy. Ed. 1878, page 34-229.
 
 20 
 
 Pari I.] MORAL LAW AND CIVILIZATION. 
 
 [" C'HAPT. II. 
 
 L 5 2. 
 
 The Good. 
 
 The Moral 
 Senses, viz., 
 ( 'onseience and 
 Sympathy. 
 
 The source of moral development, from which 
 mankind derive the impulse for the continuation 
 of the strife in the progress of civilization in its 
 purest nature, is the Soul. Emanating from 
 the Spirit of Creation, — the Absolute Cause of the 
 Universal Law of Nature, and the fountain-head 
 of Perfect Good,- — the Soul imparts to the human 
 being, through its Moral-Mental Organism (§1), 
 the nature of the Good. The Good is not what 
 is agreeable or disagreeable to the senses, nor any 
 concept of speculation based on the principle of 
 utility, though it is intimately connected with 
 general welfare. It is the perfect harmony of 
 Justice and Benevolence, which constitutes the 
 Moral Law of Nature, the parent of all virtues. 
 
 These two elements of the Good, as revealed to 
 us through intuition by the Soul, are presented to 
 our consciousness through the moral senses, viz., 
 Conscience and Sympathy (§1). Conscience im- 
 presses on the mind the distinction between right 
 and wrong, and the principles of Justice, which 
 constitute the Law of Conscience. Sympathy, on 
 the other hand, is the moral sense through which 
 the emotions, which engender the disinterested 
 affections called Benevolence (§§ 5-7), are 
 awakened in the mind. 
 
 Rh fueousiutt. 
 
 The conception of the one is not necessarily 
 preceded or followed by the emotion of the other. 
 They are co-existent in the sound and pure mind, 
 and, though distinct, stand in equal counterpoise 
 in the balance of Righteousness, which is the state 
 of purity of the human mind when in perfect 
 harmony with the Soul. Justice is the rule of 
 right conduct and duty, as dictated by Conscience, 
 which keeps alive the awful sense of right and 
 wrong. But Benevolence, which is the reflection
 
 Pakti. ] MORAL LAW AND CIVILIZATION. [ Cn |" n 21 
 
 in the pure mind of the Creator's love for its crea- 
 tures, allows no rules to be imposed upon human 
 nature except such as the frail human powers 
 are able to bear, and such as are beneficial to the 
 progress of mankind, without overtasking its 
 strength. For Justice, apart from the moder- 
 ating control of Mercy, degenerates into des- 
 potism, and from despotism into tyranny. But 
 to keep Benevolence free from any bias to 
 laxity or excessive lenity in procedure, which 
 might encourage lawlessness in the human 
 mind, Conscience, which approves of and com- 
 mands just actions, can forbid the Will to con- 
 tribute to the gratification of Sympathy whenever 
 affections, excited by Imagination, become dan- 
 gerous to that genuine Benevolence which is in 
 perpetual agreement with the principle of Right- 
 eousness. 
 
 Thus the Good is presented to our mind, 
 through the Soul, as a state of perfect harmony 
 between Conscience and Sympathy. Hence, the 
 more these Moral Senses are developed, the 
 stronger is the conception of the Good in the Mind. 
 
 Akin to their common source, viz. Feeling, both 
 Conscience and Sympathy likewise derive their 
 origin from Life itself and pass, with the lat- 
 ter, through all stages of Evolution. Both Con- 
 science and Sympathy are sometimes, to a certain 
 degree, manifested in animals, especially when 
 those powers are awakened by training, but their 
 harmonious combination, effected through the 
 Soul, is developed in the higher stage of mental 
 Evolution, which is called the Moral- Mental 
 Organism. This harmony is the manifestation of 
 the Moral Law of Nature, and thus manifests the 
 influence of the Soul in the human Mind. The 
 Moral Law of Nature, by establishing the dis-
 
 22 Part I. ] MORAL LAW AND CIVILIZATION. [ C *f£; Ih 
 
 tinction between virtue and vice, is as essential 
 for the moral government of Creation, in the 
 accomplishment of the progress of the Evolution 
 of the human race, as the other Laws of Nature 
 are for the material and organic development of 
 the universe. * 
 
 As Justice is the right Reason, so is Benevo- 
 lence the right Sentiment. Both are impulses of 
 the Soul, proceeding from the divine elements of 
 Justice and Mercy, which, when combined, produce 
 the disinterested affections or virtues called piety, 
 humanity, love, integrity, modesty, chastity, 
 faithfulness, temperance, self-control, patience, 
 self-sacrifice, manliness, self-respect, and the 
 noble passions of courage, indignation or disin- 
 terested aversion to wrong, and all further im- 
 pulsive ardor towards the good, the great and 
 the beautiful. 
 
 ne standard of All manners of conduct which are styled Vir- 
 tues, are marked by an intrinsic similarity of 
 character, through having a common source. 
 This source is the Moral Law of Nature, the 
 Standard of the Good, which is manifested to the ' 
 human mind in the perfect harmony of Con- 
 science and Sympathy. Good and evil, or 
 right and wrong, are thus, by no means, va- 
 
 * As it is with the physical, so it is with the ethical. "A belief, ns yet 
 fitful and partial, is beginning to spread amongst men, that here also 
 there is an indissoluble bond between cause and consequence, an 
 inexorable destiny, a law which altereth nut, Confounded by the 
 multiplied and ever-new aspects of human affairs, it is no1 perhaps 
 surprising that men should fail duly to recognise the systematic 
 Character of the divine rule. Vet. ill the moral as in the material 
 
 world, accumulated evidence, is gradually generating the conviction, 
 that events are not at bottom fortuitous; hut that they are wrought 
 oul in a certain inevitable way by unchanging forces, in all ages 
 there has been some glimmering perception of this truth; and cx- 
 perience is ever giving to that perception increased distinctness. 
 Indeed even now all men do. in one mode or Other, testify of such a 
 faith. Every known creed is an assertion of it." IlEItUEUT 
 Spencer, Social Statics. Edit. 18813, page 54. 
 
 the Good.
 
 Pari I. ] MORAL LAW AND CIVILIZATION. [ Cl ""- 1L 23 
 
 liable or merely relative qualities, changing 
 with temporary circumstances of civilization. 
 The value of man's ethical judgment, his 
 conception of the Moral Law of Nature, natu- 
 rally varies in conformity with the degree 
 of development to which his Moral- Mental 
 Organism attains. Hence it comes that certain 
 acts are in some particular stage of the develop- 
 ment of this organism, through deficient deve- 
 lopment of the Moral Sense, regarded as in- 
 different, as matters with which morality has no 
 concern ; that certain acts are, in conformity 
 with the relative state of ethical valuation, deemed 
 expedient, which in the respective stage of moral 
 development is tantamount to good, whilst the 
 very, same acts are, in another more highly deve- 
 loped stage of civilization, condemned as actually 
 vicious. When we clear away from the path, 
 which this development has gradually traversed 
 in the history of the human race, all desultory 
 human acts prompted by special motives of ex- 
 pediency or caused by the contending propensi- 
 ties of mankind, in its struggle for moral exist- 
 ence, we cannot fail to acknowledge that the 
 working of the Moral Law of Nature is plainly 
 manifested through the mist of ages and in the 
 midst of what, at first sight, we would think 
 hopeless barbarism. Side by side with the great- 
 est deviations from this law, caused by the lower 
 animal propensities of the human mind, the his- 
 tory of mankind shows often the most lucid 
 appreciation of the Good, traits of harmony with 
 that universally acknowledged standard, the 
 Moral Law of Nature. This Law of Nature, the 
 standard of the Good, is ever the same. The 
 appearance of differences in the valuation depends 
 upon the standard of ethical judgment, that is to 
 bay upon the state of the Popular Conscience and
 
 24 PaktI. ] MORAL LAW AND CIVILIZATION [ C 
 
 Chapt. n. 
 
 §3. 
 
 the development of the Spirit of Law in the res- 
 pective stage of civilization (to be described in 
 §§10&11), which is the exponent of the relative 
 state of development of the Moral-Mental Organ- 
 ism of man. The Moral Law of Nature is, in the 
 natural course of the evolution of the human mind, 
 growing into that state of preponderance, which 
 forms what we termed above the sixth stage of 
 creation on Earth, but its progress is often 
 checked by the animal propensities of the lower 
 stages, though its development is undeniably 
 traceable in the history of mankind as a whole . 
 
 origin of Eva S 3. Against this harmony of the Moral 
 
 and its control. T * . P , . , . * 1 r> i 
 
 Law, which is the creative element of the 
 Good, there is constant war waged, through 
 Imagination, — that active author of evil thoughts 
 in the mind when wrongly excited, — on the 
 part of the rapacious selfish inclinations of 
 man's animal nature. This war manifests itself 
 by the countless forms of vices, which are 
 caused by love of power, by feelings of ambi- 
 tion, envy, jealousy, love of wealth, lewdness 
 and by other animal appetites. Unless checked 
 by Conscience and right Sentiment, those vices 
 produce a habit of malignity, which, as the reverse 
 of Righteousness, is the state of depravity of the 
 human mind when not under the ennobling influ- 
 ence of the Soul. * 
 
 The worst of all is that Imagination, that pa- 
 rent source of the evil thoughts, which arouse our 
 animal propensities by exciting the material 
 nature of man, creates by its hallucinations false 
 
 * •• I delight in the law of God after the inward man : but I see a 
 different law in my members, warring against the law of my mind 
 and bringing me into captivity under toe law of sin, which is in my 
 members." "Romans, VII. 22 k. 23, and Romans, VIII. 1.
 
 PakiI. ] MORAL LAW AND CIVILIZATION. [^J™""" 25 
 
 virtues. What is only covetousness based on 
 rapacity, is represented by Imagination as a noble 
 ambition striving to reach the Great and the Good. 
 What is only vanity based on brutish propensi- 
 ties, is held up by Imagination as courage, as a 
 noble passion of disinterested self-sacrifice, which 
 in reality can only originate from sympathy with 
 the welfare of our fellow-creatures. Finally, alas ! 
 the brutish desire of lewdness, — that vilest of our 
 animal inclinations, — is represented by Imagina- 
 tion as the pure but unguarded virgin mind, 
 under the influence of the affections of the heart. 
 Lewdness is thus represented as if it were the 
 noblest conception which the human mind is 
 capable of, — as love. But the baneful influence 
 of Imagination on Reason is here easily detect- 
 ed, if the Will is but strong enough. Love is 
 based on moral duty, and love which is not re- 
 concilable with duty marks itself as that spurious 
 compound of base desires which is but the pro- 
 duct of Imagination, and which cannot stand the 
 test of the Moral Law of Nature, because the 
 Good is manifested in perfect harmony of Con- 
 science and Sympathy, which arises when Con- 
 science and Heart, Reason and Feeling agree. 
 
 When fanciful Imagination is inflamed by the 
 passions of selfishness, and, unfettered by judg- 
 ment, reasoning, knowledge, truth or facts, takes 
 entire possession of the mind's field, she becomes 
 then the active agent through which malignity is 
 instilled in the human mind. Imagination, the 
 creative power of the ideal, so beautiful and 
 sublime in her pure state, so useful an agent and 
 so indispensable for success in poetry, music, and 
 in the plastic arts and sciences, to minds of a 
 high order, in the invention of new combinations, 
 through happy conjecture, supposition or inven-
 
 rcnAPT.n. 
 
 26 Pari I.] MORAL LAW AND CIVILIZATION. [_ §" 
 
 tion, — is the fiend of the human race whenever 
 she becomes the servant of malignant passions. 
 As Conscience is the moral faculty, of Justice, 
 and Sympathy that of Benevolence, thus also is 
 a vitiated Imagination the parent of Vice. * 
 
 But fortunately for man, his mind is so 
 constituted that the evil, engendered by his 
 animal nature, can be neutralized, and the power 
 of a vicious Imagination counteracted, in its own 
 sphere, by another faculty of the mind called At- 
 tention. This is the power the mind has to direct 
 its thoughts towards any given object to the 
 exclusion of others. As both of those faculties 
 are under the control of the will, it only requires 
 strength of will and discipline of the mind, 
 and the growth of evil, which is engendered by 
 a corrupting Imagination, will be checked by 
 fixing Attention on the Good to the exclusion 
 of all evil thoughts. If you have the good 
 luck to possess any, — and be it only one, — bright 
 recollection of some former state of harmony be- 
 tween your actions and the Good, bring that up 
 in your mind and fix attention on it, and it will 
 save you ; for this thought gives pleasure, and 
 shews that there exists no happiness outside the 
 Good, while it predicts the pains of the reverse. 
 This anchor is safe, for it is cast in good holding 
 ground, provided that the cable of your attention 
 on the Good does not part, but succeeds in 
 arousing the determined resistance of the mind 
 to all aggressions of the awakened selfish pas- 
 sions and desires of the animal nature, which are 
 
 * "Imagination cette superbe puissance, cnnemie do la 
 
 raison, qui so plait a la controler et a la domirier pour montrer 
 combien elle peut, en toutes choses, a etablir dans l'homme une se- 
 conde nature. Elle a Bes heureux, sea malheureux, ses sains, ses 
 riches, ses pauvres; elle fail croire, douter, nier la 
 raison, elle suspend Lea sens, elle les fail sentir; ''11" s ses Eons ct 
 i ; h rim ne nous depite d'avantage que de voir qu'elle 
 remplil ses hotes d'unesati Eaction bien autrement pleine et entiere 
 que la raison." PASCAL, Pcnscas. Art, III, 53,
 
 parti.] MORAL LAW AND CIVILIZATION. [ Ch ^ ,u - 27 
 
 so fatal to purity of mind, a requisite indis- 
 pensable for the maintenance of relation with the 
 Soul. But strength of will and discipline of the 
 mind cannot be attained except by earnest effort, 
 by resolute purpose and diligent training, for 
 " the spirit truly is willing but the flesh is weak." 
 
 This moral training of the mind is essential Religion. 
 for the completion of our moral organization and 
 for the maintenance of strength sufficient to guard 
 us from the evil of our own nature, by preserving 
 us from those temptations which are engendered 
 through evil thoughts, by means of keeping the 
 mind in constant communion with the Good. 
 Now this moral training of the mind is the province 
 of the religion, which teaches how to keep the 
 Mind sound and pure, and in perfect harmony 
 with the Soul. "We mean that religion which 
 teaches Divine Love, and shows how Eternal 
 Justice is mitigated by Mercy for the gradual 
 elevation of mankind. That religion is, in 
 fact, the only religion operating in perfect 
 harmony with our Moral-Mental Organism ; 
 — provided we do not wilfully spoil this most 
 sublime result of Evolution, the work of Crea- 
 tion on Earth, which forms the corresponding 
 medium between Soul and Mind, by damping 
 the strings of moral sense and thus untunias: 
 the harp on which the Soul would bring forth 
 those harmonious vibrations, which are to our in- 
 ward ear the voice of our Creator. 
 
 Another instance of the inadequacy of Reason to Moral Doubt. 
 supply, unaided by the Soul, all the wants of our 
 Moral -Mental Organism, consists in the fact that, 
 where Reason is not supplemented by Moral Sense, 
 there remains a void, a darkness in the human 
 Mind, which may be called Moral Doubt. The more 
 Sympathy is suppressed and timid Conscience
 
 28 parti.] MORAL LAW AND CIVILIZATION. [ €lI ^ n> 
 
 kept aloof, the greater becomes the Doubt. But 
 when Reason is in harmony with the Moral Law, 
 so that Conscience and Sympathy regain their 
 sway, there is no place for Doubt in the human 
 Mind, which is then in its normal state of har- 
 mony with the Soul (§ 13). 
 
 Manifestation of As noted before, the two elements of the Good, 
 viz., Justice, whose agent is Conscience, — and 
 Benevolence, which is represented by Sympathy 
 in the human Mind, constitute in their combina- 
 tion the Moral Law of Nature, and are conceived 
 in the Mind, through the Mind's moral faculties 
 just named, by the inspiration of the Soul. 
 
 From this proposition we draw the conclusion, 
 that, through the conception of the Good, the 
 Soul, the active agent of the Spirit of Creation, 
 is manifested in the human Mind (§2). 
 
 Christianity. But this is not all. That condition of progress 
 towards perfection, through Evolution, which we 
 called the Moral-Mental Organism (§1), repre- 
 sents, when developed in the highest degree 
 through the Moral Law of Nature, the physiologi- 
 cal condition of the most perfect being this Earth 
 ever beheld in the shape of man. We mean Him 
 who came, by the will of God, to impress on the 
 creatures of the Earth the fact of their being con- 
 nected, through the Soul, with the Eternal Crea- 
 tor ; to foreshadow the future nature of mankind, 
 by throwing light on the goal the Moral Law of 
 Nature is leading to. It might be possible to 
 reach, by induction, the conception of the nature 
 of Christ as such when on Earth. Indeed, if the 
 history of mankind did not already possess this 
 ever living example, the philosophy of Evolution, 
 if consistent in its search for the goal of the de- 
 velopment theory, would postulate such a being, 
 as the final link, as the utmost consequence of its 
 conclusions.
 
 part i. ] MORAL LAW AND CIVILIZATION. [ Ch J£- n 29 
 
 The sense of security or certainty which es- 
 tablishes conviction in the mind, when Feeling 
 (forecasting that state of perfection of which 
 Christ is the example) is in harmony with the 
 Moral Law of Xature, is the parent source of that 
 inexplicable peace of mind called Faith, which con- 
 stitutes the conception of Christianity. This con- 
 ception so completely settles in the mind the 
 equilibrium between Conscience and Sympathy, 
 and regulates its actions in harmony with the 
 Moral Law of Nature, that, in reality, this is "the 
 peace of God which passeth all understanding," 
 forming the most palpable manifestation of the 
 Soul. 
 
 From the foregoing propositions, which are con- me creator. 
 nected with our hypothesis regarding Feeling and 
 Intuition ( § 1 ). as the manifestation of the Primary 
 Cause or Absolute in the Evolution of the Mental 
 Organism, we draw this final conclusion, based 
 on the broad principles of Evolution in its utmost 
 consequence, viz., that, through the conception 
 of the Good, the Soul is manifested in the human 
 Mind, and that the Moral Law of Nature (which 
 is the Good) is the medium of our communication 
 with our Creator, which will carry us safely to 
 our destination, if we sincerely adhere to the Good. 
 
 There are two sorts of evil, or rather the^2>£!" 
 influence of evil on human destiny is two- 
 fold, viz., material or physical evil, which, when 
 properly viewed, gives impulses to the Good 
 by stimulating the moral sense of the well-or- 
 dered individual mind, and moral evil, which is 
 depravation of the mind. The one, unforeseen 
 and unavoidable in life, is necessary in the 
 world, for the development of moral sense in 
 man ; the other can and must be prevented, 
 for its appearance is not simply a misfortune to
 
 fCHAPT. II. 
 
 30 Parti. ] MORAL LAW AND CIVILIZATION. [ CHA ? 
 
 ourselves and others, but baneful to the Good in 
 all its aspects, a woe to man. Hence the origi- 
 nator of evil is cursed, while the evil produced 
 by him is brought under control, through the 
 Moral Law of Nature.* The evil which comes 
 to us from without, the accidental misfortunes 
 which meet us on our way, are calculated, in what- 
 ever form they may arrive, to awaken our Con- 
 science and Sympathy, to strengthen the relation 
 between Soul and Mind, — in fact, to bring us 
 nearer to our Creator. But the evil which origi- 
 nates from our own animal nature, which pol- 
 lutes not only our own mind and makes it unfit 
 to receive and develop the impulses of the Soul, 
 but generates also evil in others, is the evil we 
 pray to be guarded against and from whose temp- 
 tation we desire to be delivered. " TVatch and 
 pray lest ye enter into temptation " is the di- 
 vine commandment. The purest mind is the one 
 that is nearest to God.f 
 
 jSSz£P §4. Thus it is that, through the Moral Law 
 feT-aiZyare of Nature, the ideas of Righteousness are created 
 ^JopmlTof in the mind of the individual man, and that rules 
 soaety. £ or ^g g U id ance f his conduct and for the per- 
 
 formance of his duties are laid down. These 
 
 * " Woe unto the world because of occasions of stumbling ! for it 
 must needs be that the occasions come ; but woe to that man through 
 whom the occasion cometh I " St. Mathew. XVIII. 7. 
 
 f St. Matthew. VI. 13. St. Mark. XIV. 38. Joseph Haven. Mo- 
 ral Philosophy, p. 67-86. DR. Adam Ferguson. Institutes of Moral 
 Philosophy. ' Idem. Principles of Moral and Political Science. 
 Ralph Cudworth. Treatise concerning Eternal and Immutable 
 Morality. 
 
 "La Vcrtu a son gcrme dans Fame humaine e'est une con- 
 sequence de son origine. Particule eman6e de la Divinite, elle 
 tend d'elle meme a l'initiative du principe de son emanation; ce 
 principe la meat, la pousse et l'inspire. Cette particule detacb.ee 
 de la grande ame, specifiee par son union a tel ou tel corps, est le 
 genie de chaque bomme, ce genie Le porte an beau, au bun, a la 
 felicite. Sa souvcraine felicitl consiste a l'ecouter ; alors on choisit 
 ce qui convient a la nature generate, a Dieu, ct Ton rejette ce qui 
 contredit son harmonie, sa loi." Zenon. BlTTIBZ, Science des 
 Droits. Loi Morale, p. 321-333.
 
 part I. ] MORAL LAW AND CIVILIZATION. [ Cha § "; u ' 31 
 
 rules are, in turn, communicated, through the 
 individual man and through family life, to the 
 general community or society, and exercise 
 eventually an influence on its external as well 
 as internal condition, moulding the political as 
 well as the moral conduct of the Nation, as an 
 aggregate of rational human beings. * 
 
 But the influence of the Moral Law, as indi- 
 cated by the ennoblement of the Mind through 
 the action of the Soul, can be traced also outside 
 our moral nature, and, in fact, in all concerns of 
 life in which the human Mind has actually a share, 
 for when the Mind is ennobled, habits and taste 
 and judgment are refined. Hence it is that our 
 ideas and our judgment, when contemplating 
 scenes of Nature or works of Art or Science, are 
 moulded by the inspiration of the Good, when 
 emotions run parallel with intellectual powers. 
 Traces of this fact may be noticed in many pro- 
 ductions of the mind within the spheres of Art, 
 Science and Literature. 
 
 There are certain objects in Nature and Art, 
 which, so soon as perceived, strike the cultivated 
 mind as beautiful or the reverse. Again, there 
 are certain traits of character and courses of con- 
 duct, which, so soon as observed, strike us as 
 morally right or wrong. The ideas of the beauti- 
 ful and the right are thus awakened in the mind 
 by the perception of the corresponding objects, 
 but they belong to two distinct classes of 
 judgments, viz., aesthetic and moral. ^ 
 
 This progress in Art and Science, with the con- 
 sequent ennement of habits and taste, is the out- 
 come of the development of the Physical Truths 
 in the M ind (§5). But although this progress 
 
 * Sik James Mackintosh. Discourse cm the Law of Nature and 
 Nations. 
 
 f Joseph Haven. Mental Phil., page 262.
 
 32 part I. ] MORAL LAW AND CIVILIZATION. [ Cn | 
 
 fCnAPT.H. 
 
 bears the mark of the inspiration of the Good, 
 and thus shows the connection which exists 
 between Moral and Physical Truths, both of 
 which are intuitions derived from Feeling, it is 
 progress only in the material sphere of civili- 
 zation ; for taste is not more Conscience than 
 Intelligence could be, nor can culture of the 
 mind and refinement of manners constitute 
 Morality (§ 6-7). All that is morally right is 
 also inherently beautiful and true, but the so- 
 called civilization as exhibited by Art and Science, 
 with the consequent refinement of taste and habits, 
 does not always coincide in the history of man- 
 kind with a corresponding progress towards the 
 Good. The latter can only be attained through 
 the complete and full effect of the principles of the 
 Moral Law of Nature, when freely working on 
 the individual mind. 
 
 The development of Society depends on those 
 moral and material principles of progress, which 
 lead nations gradually, through longer or shorter 
 stages of development, from the original condi- 
 tion of barbarous races to the degree of excellence 
 called civilization. The different types of those 
 stages of moral and intellectual improvement and 
 social and material advancement are exhibited to 
 us by Ethnology in the savage, the semi-barba- 
 rous, the less-civilized and civilized tribes, hordes, 
 peoples and nations of the Earth. 
 
 From those types we learn what is meant by 
 civilization and how the development of the moral 
 element plays an essential part in the material 
 progress of a nation, by leading it from its ori- 
 ginal condition, where brute force and narrow- 
 minded egotism dominate all internal as well as 
 ext< trial relations, into gradual acknowledgement 
 of the principles of Justice and Humanity, in ac-
 
 Paw I. ] MOKAL LAW AND CIVILIZATION. [ CH $" ,U ' 33 
 
 cordance with its internal moral progress and the 
 ennoblement of its relations with other nations.* 
 
 § 5. — Primary Truths or First Principles, the pff^pfrutfu. 
 consciousness of which, is noted in § 2, may be 
 divided into two distinct classes, viz., Moral 
 Truths and Physical Truths ; which classes differ 
 from each other also as regards the modes in 
 which Truth develops in the Mind. As the 
 capabilities of the powers of the Mind often differ 
 in their application, so the development of Pri- 
 mary Truths in individual minds really differs in 
 proportion to the capacity and relative freedom 
 of the Mind. 
 
 This variation gives prominence to the differ- 
 ences which mark the process of development 
 in the Mind of Moral and Physical Truths res- 
 pectively. Moral Truths are less dependent on 
 the physico-mental development of the Mind's 
 functions than Physical Truths, for the develop- 
 ment of Moral Truths does not depend upon the 
 degree of cultivation of the different faculties of 
 knowledge, collectively called Intelligence, but 
 upon the measure of purity and soundness pos- 
 sessed by the Mind ; that is, upon its moral 
 as well as upon its physical aptitude to re- 
 ceive the intuitions engendered through Feeling. 
 The development of Physical Truths, on the other 
 hand, is independent of any state of purity or 
 perversion of the mind, and of any moral concep- 
 
 * " Lea Sciences morales parviennent a mieux definer a l'homme 
 6a nature spirituelle, a mieux lui tracer le cercle de ses devoirs, & 
 
 mieux organiser les institutions Admirable effet des graudes 
 
 associations humaines : la marche incessante de l'homme vers le 
 mieux. Car l'homme ne doit pas etre separe de ses ceuvres, et 
 l'experience nous montre que, reuni, comme exige sa nature, en 
 Soeiete" avec ses semblables, ses oeuvres, ses actes, ses principes^ sea 
 lois sont esseutiellement perfectible et s'avancent toujours, quoique 
 irr^gulierement, quoique avec ses intervalles de recul on de perturba- 
 tions, dans cette voie de la perfectibilite." Ortolan. Regies 
 Intern, et Dijil, de la Mer. Edit. 1864, Vol. I. page 5.
 
 34 past I. ] MORAL LAW AND CIVILIZATION. [ CH $ P 5 . "' 
 
 tion of Conscience and Sympathy, being performed 
 through the power of Reason, which differs in 
 each individual ; so that those Truths are more 
 or less discernible in accordance with the degree 
 of development to which these faculties have 
 attained. Hence arises the distinction which is 
 observed between the nature of the development in 
 the human mind of Moral Truths and Physical or 
 Scientific Truths. The former, as principles of 
 Justice, develop, through combination with the 
 other element of the Moral Law of Nature, into 
 those laws of ethics, of human conduct and duty, 
 by which we perceive and follow the Good (§2). 
 The development of Physical Truths, on the other 
 hand, depends on those investigations and state- 
 ments of the Laws of Nature which constitute 
 Science. 
 
 Both Moral and Physical Truths are constitu- 
 ent principles of the Universal Law of Nature 
 which maintains the general order of Creation. 
 Moral Truths form the basis of human responsibi- 
 lity, the law of human conduct and duty, and give 
 certain directions to Reason. But Physical 
 Truths, finding their development in Reason, 
 through inductions founded on experience, and 
 thus brought forward by the strength of reasoning, 
 are dependent on the degree of development to 
 which the individual faculties of knowledge have 
 attained, and seem to have Reason for their source. 
 
 The same moral obligations, which in the pre- 
 sent generation extend their sway over all man- 
 kind, were acknowledged by human Conscience 
 as Moral Truths long before human Intelligence 
 conceived the simplest Physical or Scientific 
 Truth. But the simplest Scientific Truths, with 
 or without the constructions of scientific educa- 
 tion, teaching or experience, may be forgotten, or
 
 Parti. ] MORAL LAW AND CIVILIZATION. [ C "} P 5 TlL 35 
 
 they may be displaced by the knowledge of other 
 Physical Truths, with their correlative sciences. 
 Nevertheless, the spiritual impulses of Justice and 
 Love, which are in their tender germs already 
 discernible in the spontaneous actions and 
 inclinations of the child, at the first dawn of 
 reason, when yet free from all bias of human 
 training or worldly experience, cannot be effaced 
 from the pure Mind, whose natural inclination, 
 when in a normal state, ever was and is to follow 
 the impulses of the Soul. But as Reason is the 
 reflective power whose office it is to disclose the 
 right and the wrong, as well as the true and 
 the false, the beautiful and the reverse, it is one 
 and the same faculty of our organization through 
 which the synthethic process or induction both 
 of Moral and of Physical Truths takes place. 
 The differences which mark the process of their 
 respective development in the mind are often 
 disregarded, as the same test applies to both, 
 viz., the reliability of our mental faculties and 
 the correctness of their operations. This is what 
 leads the sceptical materialist, who can see nothing 
 beyond his narrow horizon, to deny to human Mind 
 the organism of Feeling with its power of pre- 
 scient or intuitive conception, which constitutes 
 the medium of communication with the Soul. 
 He banishes all this from Creation, as not being 
 comprehended in his philosophy, which does not 
 admit of any progress of Evolution beyond the 
 Physico-Mental Organism. But the inadequacy 
 of .Reason is fully demonstrated by the fact that, 
 although our physico-mental faculties are limited 
 and consequently our rational knowledge which 
 depends upon those faculties, these are by no means 
 the limits of our consciousness; for who does not 
 readily apprehend, without any attempt to define 
 them, the meaning of the terms truth, oiiffht,
 
 36 Part I.] MORAL LAW AND CIVILIZATION. [ Cn j£ n - 
 
 right, conscience, sympathy? Can Reason alone 
 or Logic define them ? No more than they can 
 define space and time, or matter and force. But 
 those ideas do not require any analytical defini- 
 tion to be understood, for if we cannot circum- 
 scribe them by logical definition, Ave can surely 
 feel them and be perfectly cognizant, through 
 Feeling, of all the emotions they engender. ' ' Thus, 
 T condZn{d he it is for instance," says Joseph Haven, "that 
 we conceive space. It is a positive and necessary 
 form of thought. We cannot but conceive it, but 
 how do we conceive it ? It must be either finite or 
 infinite, of course, for these are contradictory 
 alternatives, of which the one or the other must be 
 true. But we cannot positively conceive or re- 
 present to ourselves as possible either alternative. 
 We cannot conceive space as bounded finite, a 
 whole beyond which is no further space ; this is 
 impossible. Nor on the other hand can we realize 
 in thought the opposite extreme, the infinity of 
 space ; for travel as far as we will in thought, we 
 will stop short of the infinite. There are two 
 inconceivable extremes, of which, as contradictory, 
 the one or the other must be true ; and between 
 these inconceivable extremes lies the sphere of the 
 conceivable. Thus it is ever and in all the rela- 
 tions of thought. It is the same as to time. As we 
 think all things material to exist in space, so we 
 cannot but think all things, mental as well as 
 material, to exist in time; yet M*e can neither 
 conceive, on the one hand, the absolute commence- 
 ment of time, nor yet, on the other, can -we conceive 
 it as absolutely without limit or beginning. Thus 
 with causality ; for the reason we cannot conceive 
 the absolute commencement of any thing that 
 exists in time, hence, we are compelled to the 
 belief that every event has and must have a cause. 
 It is the result of our inability to think the un-
 
 Part I.] MORAL LAW AND CIVILIZATION. [^J"' 11, 37 
 
 conditioned. Thus the conceivable lies ever 
 between two incomprehensible extremes. The 
 conceivable is bounded ever by the inconceivable ; 
 only the limited, the conditioned, is cogitable. 
 The infinite and absolute lie beyond the bounds 
 of possible thought and knowledge to man, they 
 are unknowable, inconceivable." 
 
 This is the Law of the Mind, as taught by 
 Reid and Stewart in Scotland, by JoufFroy and 
 Collard in France, and developed by Sir William 
 Hamilton, who called it the " Law of the Condi- 
 tioned." It has been worked out to its full con- 
 sequence by Mr. Herbert Spencer, in his work 
 entitled "First Principles."* 
 
 This Law presents to us the Creator as infinite 
 and absolute, as a being in reality incomprehen- 
 sible to the mind that adores Him. " A God that 
 can be comprehended, says Hamilton, is no God ; 
 a Deity understood would be no Deity at all. 
 Canst thou by searching find out God ? Canst 
 thou find out the Almighty to perfection ?" f 
 
 This proves again the inadequacy of Reason to 
 constitute, when left alone and without the help 
 of a higher faculty of intuition, the criterion of 
 human accountability. It indicates also the exis- 
 tence of a moral sense in the human mind, which 
 immediately approves or disapproves without 
 reference to any further consideration of logical 
 utility, and serves as an inspiring agent to 
 Reason, tending to develop in the human mind 
 the element of Righteousness, called Justice. 
 Yet, though the nature and constituent principles 
 of this moral sense of the mind, called Con- 
 science, may be beyond the sphere of logical de- 
 
 * Herbert Spencer. First Principles. Part I. The Unknow- 
 able. Joseph Haven. Studies of Phil., p. 34. Idem. History of Phi- 
 losophy, p. 395. Hamilton. Lectures, p. 531. 
 
 t Hamilton's Lectures on Metaphysics. Vol. I, p. 300-309.
 
 38 PabtI. ] MORAL LAW AND CIVILIZATION. [ Ch J£ >IL 
 
 finition, it has real existence, for its infallible 
 hold on the human mind, its dominion over 
 Reason and Intelligence, and its powerful in- 
 fluence on the dealings of mankind, are mani- 
 fested in all periods of human life, in all states 
 of intellectual development and in all stages of 
 civilization. 
 
 And this is likewise the case with regard to 
 the other moral sense, viz. Sympathy, which 
 imparts to the human mind the element of Right- 
 eousness called Benevolence. 
 
 conscience. §6. Human Conscience is timid and speaks 
 
 tenderly to Reason, while dazzling Imagination 
 overpowers it. Hence Conscience appears a 
 coward when it has to wrestle in the mind with 
 malignant passions or with shrewd Selfishness, 
 operating under the disguise of "general utility" 
 or "reason of State," and shrinks alike from the 
 burning fury of the one as from the other's cold 
 grip of treacherous arguments, which, owing to 
 the false colors hoisted, are often mistaken for 
 commonsense ; — and yet, this timid Conscience, 
 though bullied out of countenance for the mo- 
 ment, is the agent of immortal truth, for the 
 power of remorse, the strength of an accusing 
 conscience, can never be overawed by passions 
 nor lulled into inactivity by reasoning. Can 
 Conscience err ? Conscience is the connecting 
 link of Justice between the Soul and the Mind, 
 and, as such, the messenger of truth, but its 
 promptings are perceived through the faculties 
 of the mind, and human mind is not and cannot 
 be infallible. The reasoning power as well as the 
 judgment may fail. This is the consequence of 
 the frailty of the human organization, with which 
 the faculties of the mind keep equal pace ; but this 
 docs not and cannot dispense a rational man,
 
 past I.] MORAL LAW AND CIVILIZATION. [ Cn § A " ,n - 39 
 
 endowed with a sound mind, from the moral 
 obligation (when not prevented by forces beyond 
 the control of free will) to act as he sincerely 
 believes to be right, that is, to follow the dic- 
 tates of his Conscience, which will not mislead 
 when listened to with sincerity, which is purity 
 of mind free from any bias of interest and emo- 
 tions. But when Conscience casts its light on 
 an impure mind, depraved by rapacious selfish- 
 ness or moved by angry passions, its image is 
 distorted like the gentle moon reflected in stormy 
 waters ; yet, the voice of this faithful messenger 
 of eternal truth keeps ever sounding in our moral 
 ear, until fully acknowledged, though alas often 
 too late, which is the cause of all human misery. 
 
 At the most solemn period of human history 
 the question was asked : What is Truth ? But, 
 as we perceive the true nature and power of 
 moral truth when we are ourselves the actors 
 and the decision of Conscience concerns our own 
 good or evil deeds, thus the heathen philoso- 
 pher, who put that question, gave the answer 
 himself through an effort to appease his accusing 
 conscience, which effort is indicated by his form- 
 ally washing off his hands the guilt of innocent 
 blood. * 
 
 § 7. From the Soul, which is the originator of Sifef 
 the principles of Good in the human mind, and 
 which distinguishes the intuitively rational man 
 from the brute acting by instinct, proceeds, — 
 through the Moral Sense of Conscience, as noted 
 in § 2, — the intuition which awakens in our mind 
 certain elementary ideas of reason and impulses, 
 
 * '•' A good conscience, it has been said, is the only object of uni- 
 versal desire, since even bad men -wish, though in vain, for the hap- 
 piness which it confers. It would be more correct to say that an 
 accusing conscience is an object of universal dread. But in either 
 case,' whether for approval or condemnation, very great is its power 
 over the human mind." Joseph Haven. Mental Philosophy. Ra- 
 tional Emotions, p. 436.
 
 40 Part I. ] MORAL LAW AND CIVILIZATION. [ Cn |£" IL 
 
 whereby the mind retains its impressions in the 
 form of necessary and immutable obligations, which 
 come so natural to our reason, that not to follow 
 them seems contrary to our nature and thus 
 wrong, while to obey them, seems natural and 
 right. The fact is, we are then complying with 
 our conscience and thus constituting the innate 
 criterion, by which our judgment pronounces 
 the spontaneous verdict of right and wrong, — 
 the ought or ought not of moral obligation, as 
 impressed on our minds by Conscience. This 
 takes place, through the same natural judgment 
 by which we perceive the distinction between 
 simple truth and direct falsehood or between two 
 contradictory propositions, whenever the vo- 
 luntary act of any responsible rational being, — 
 in our own case or in that of others, and irres- 
 pective of the question whether it be an act 
 already performed or one only proposed, or de- 
 signed, — is made an object of contemplation. 
 The verdict, which is always in harmony with 
 Reason, is the expression of approval or disap- 
 proval pronounced on the part of Conscience with 
 reference to the act contemplated. 
 
 This harmony of Conscience and Reason, the 
 test of right judgment, is the Law of Conscience, 
 the manifestation of the Law of right and wrong, 
 — the immutable natural justice, universal and 
 inevitable as the Moral Law of Nature, whose 
 essential element it is (§ 2). * 
 
 * Sir William Hamilton. Lectures on Metaphysics and Logic 
 Edit. 1801, Vol. I, p. 300-389; Vol. II, p. 519. Joseph Haven. 
 Mental Phil p. 314-326 & 561. Mem Moral Phil. p. 07. Ch. Verge. 
 Le Droit d. (t. avunt et rtcpuis 1789. Introd. Dr. d. G. dc G. F. 
 Mao-tens. Woolsey Internat. Lan\ § 1. Sir James Mackintosh. 
 Disc, on the Lair of Nature and Nations. Halleck. Internat. Lam 
 (Edit. Sir Siiiorston Baker), ch. II, §§ 13 & 18. Victor Cousin. 
 ('nurse dc VSistoire delaPhilos. Moderne, (Edit, 1846), Vol. I, p. 
 307-322. Barthelemy St. Hilaire, Memoire surla Science Sociale, 
 La Loi Morale etc., Seance et Travaux do I'Academie des Sciences 
 Morales et Politiques. Tome XXXIII, p. 200; Bhillimore. Com- 
 ment. Internat. Law. Vol. I, Bart I, ch. III.
 
 Part I. ] MORAL LAW AND CIVILIZATION. [^af 11, 41 
 
 § 8. He who denies the existence of a Moral S^S- 
 Law of Nature, of that Law of our Moral-Mental " a " 07l ^ conrf " c '- 
 Organism, which constitutes the highest stage of 
 Creation on Earth reserved to Mankind (§ 1), 
 cannot believe in a standard of Justice and Be- 
 nevolence, and must make good and evil de- 
 pendent upon ever varying conditions ; for there 
 cannot be any standard of the Good without the 
 correlative conception of a condition forming part 
 of the Universal Law of Nature, that is, that Law 
 of the Good, which we called the Moral Law of 
 Nature. 
 
 But, furthermore, this inspiration of the Soul, 
 this longing toward the Good, as the natural 
 consequence of our Moral-Mental Organism, is 
 corroborated by History in all its stages, and is 
 most conspicuous in the process of development 
 of Societies or States, in Europe as elsewhere. 
 This is a plain indication of the influence which 
 the Moral Law has on the growth of civilization, 
 and which is exhibited by the general craving 
 after some positive rules of conduct calculated to 
 bring the principles of this Law, which in the 
 inwardly conscientious man is universally felt to 
 exist, into practical or visible shape, for the re- 
 gulation of the mutual rights and obligations 
 of men, and for the peaceful intercourse between 
 nations. 
 
 Mr. Hall, in his recent great work, gives the 
 following historical account of the way in which 
 the conception of International Law arose. The 
 state of things which presented itself in Europe, 
 for a considerable time before International Law 
 came into existence, is described by him as fol- 
 lows: — 
 
 1. " Such material restraint as was supplied at 
 an earlier period over the greater part of civilized 
 Europe by the feudal relations, and over much
 
 42 PaktI. ] MOEAL LAW AND CIVILIZATION, f 08 }"" 11 ' 
 
 of it by the superiority of the Empire, had 
 disappeared, and such moderating influences as 
 had been exercised by the Church had also 
 disappeared, influences, in other words, which, 
 whatever their material power, had at one time 
 deeply affected the imagination, had died away." 
 
 2. " No means existed of setting up any au- 
 thority of a like external nature, competent to 
 maintain international order ; and no habit of 
 reference to a formulated moral standard, in- 
 dependently of external authority, had grown 
 up." 
 
 3. " Rules of conduct were becoming daily 
 more necessary, through the increasing inter- 
 course between both States themselves and the 
 subjects of States, and through the wider area 
 over which the relations of States were continually 
 spreading." 
 
 " Under such circumstances it was natural, that 
 a craving should be felt for the discovery of a 
 rule of international conduct, capable of im- 
 pressing itself on the Mind with something of 
 the force of Law. That such a craving was 
 generally felt, there are many indications, and, 
 in fact, without its existence as a powerful 
 motive among the European peoples at large, 
 international law could obviously not have 
 obtained recognition. The only distinct attempts 
 to satisfy it were however made by legal writers ; 
 and it was by them, as the medium through 
 which the ideas found expression which were 
 latent in the general mind, that International 
 Law was placed upon its original speculative 
 basis. To understand how that basis came to 
 be adopted, therefore, it is only necessary to 
 examine the works of the writers by whom the 
 advent of Law was prepared." * 
 
 * W. E. Hall. International Law. Edit. 1880. pge 657.
 
 tart I. ] MORAL LAW AND CIVILIZATION, [^j™" 11 ' 43 
 
 § 9. — What, then, was the cause of this general S^Lf. that 
 craving, of this universal and urgent demand for 
 law ? Of course, there was a general sense of the 
 necessity of establishing some rules of conduct 
 between nations and men, who, being freed from 
 material restraint and blind obedience, were, 
 with their degenerated consciences, cast adrift in 
 a sea of boundless doubts as to what was right 
 or wrong in their mutual dealings, until brouo-ht 
 to the sense of Justice by the regenerating, self- 
 acting power of the free Moral Law of Nature. 
 The latter is the source of the sense of Justice, 
 that powerful motive, which gave birth to the 
 ideas, which were latent in the popular Conscience 
 but found expression through the leading minds 
 of the time, by men like Franciscus a Vitoria, 
 Covarruvias, Soto, Saurez, Melanchthon, Olen- 
 dorp, Hemming, Albericus Gentilis. Their argu- 
 ments were finally summed up conclusively by 
 Hugo Grotius before the grand jury of civilized 
 humanity, and the verdict was thereupon given 
 which saved modern civilization from drifting- 
 back into the chaos of the dark ages of Euro- 
 pean barbarism. 
 
 Hugo de Groot, more generally known as orotic. 
 Grotius, the acknowledged founder of the science 
 of International Law, the blessed reformer who 
 stemmed the current of moral corruption caused 
 by the policy of dissimulation, injustice and crime, 
 as taught by Machiavelli and his school in that 
 dark period of European Society, in which criminal 
 frauds and treacherous artifices made up the 
 policy called Reasons of State, maintained, in his 
 famous work, " The Laws of War and Peace," * 
 
 * De Jure Belli ac Pacis, of which the last Latin edition, cor- 
 rected by the Author, appeared at Amsterdams in 1642, has been 
 repeatedly translated. The best French translation is_ that of Mr. 
 Pradier Fod&re, published in 1867.
 
 44 part I. ] MORAL LAW AND CIVILIZATION. [gloTn! 
 
 the existence of a fixed standard of right, and 
 thus of a real distinction between right and wrong. 
 He also taught that the rule of conduct imposed 
 by our Conscience, which enjoins certain actions 
 while it condemns others, a rule which is indis- 
 pensable for the maintainance of any society of 
 rational human beings, constitutes the Law of 
 Nature ( Jus Naturale). * 
 
 SS? r §10- This craving after Justice, which has been 
 
 defined as "a constant and perpetual disposition 
 to render every man his due," is the result of the 
 working of the Moral Law of Nature in the in- 
 dividual minds of the thinking and leading mem- 
 bers of Society, by which process, and more or 
 less perfect, in conformity with the degree of 
 susceptibility possessed by those minds regarding 
 the influence of the Moral Law, the Popular Con- 
 science is formed. 
 
 Scarcely two individual members of any Society 
 will be found to think exactly alike or to have 
 the same perception of what is right or wrong, for 
 it is seldom that individual minds are in the same 
 condition of soundness and purity which would 
 enable them to develop the intuitions of the Soul 
 into identical conclusions, though, as regards the 
 main principles, many leading minds of the So- 
 ciety may agree, and form on this agreement a 
 common conclusion. 
 
 ™lu ( 'c/°Lal. §11. This common conclusion, the outcome of 
 the principles on which all agree, is the manifesta- 
 tion of the Popular Conscience, which is then ap- 
 plied as a standard of measure or ultimate test of 
 the laws of that Society or, in other words, as its 
 law-giver, to teach its Jurisprudence or to ex- 
 plain the facts of History, and it is then called 
 the Spirit of Ij(iw. 
 
 *Dc Juiuo Bklli ac PAOIS, Lib. I, Cap, I, §10.
 
 PahtI. ] MORAL LAW AND CIVILIZATION. [ Ch § A u. IL 45 
 
 This Popular Conscience or Spirit of Law, being 
 the reflex of the progress made on the road to 
 civilization by the respective Society, Nation or 
 State, — for which reason it is also called the 
 National Spirit of Law, — must naturally change 
 its aspect with every stage on this road, made by 
 the subject whose immanent phenomenon it is, 
 i.e., by the collective leading minds of the res- 
 pective Nation. In the same proportion as civi- 
 lization progresses, the Spirit of Law approaches 
 in a rising scale towards the standard of the Good, 
 but likewise any retrogression in that respect 
 caused by any disturbance of the harmony of the 
 Moral Law within the individual mind, must 
 have a depressing effect on that scale. 
 
 The Spirit of Law having given birth to the 
 usages of Society, these, gradually developing, 
 become, through the expressed or tacit sanction 
 of the faculty invested with sovereign power in the 
 Society, consolidated into Positive Law, for the 
 government of that Society as Body-Politic and 
 for the definition of the reciprocal relations between 
 individual members and between these and the 
 sovereign power of the Society or State formed 
 by them. Thus the Spirit of Law of every State 
 and every period manifests itself through the 
 Law (Jus, Droit, Recht) with which it correla- 
 tively changes on the road to civilization, accord- 
 ing to the fixed rules of the Moral Law of Nature, 
 which are beyond the caprices of the day (§1). 
 Every era in the history of a Nation has its own 
 Spirit of Law and its correlative usages and 
 Positive Law. In consequence thereof, the Posi- 
 tive Law of each individual State differs from 
 that of another State, in proportion to its 
 respective condition, history, tradition, morals, 
 climate, nature of the soil and other inherent 
 natural circumstances. It is not possible to make,
 
 46 PabxI. ] MORAL LAW AND CIVILIZATION. [° B ^: U ' 
 
 a priori, one set of laws suitable for all nations, 
 unless every individual mind had the same moral 
 capability; nor can this be the province of the 
 Moral Law of Nature, which, as the Law of the 
 Moral-Mental Organism (§1), is evolved,— like 
 all Laws of Nature,— by spontaneous gradual 
 development. This gradual moral development 
 of Societies of human beings operates through 
 the practical medium which we have noted in 
 the Spirit of Law and which explains itself to 
 the Popular Mind through Common Sense. 
 
 common sense. §12. Common Seiiseis that plain, practical 
 logic, suitable to common intelligence, as formed 
 by the actual composition of the human mind, 
 under the influence of the Moral Law of Nature, 
 of which it is the logic and, as such, the lan- 
 guage of Conscience and Sympathy combined, by 
 the harmony of which its arguments are proved. 
 As such it is the only sure foundation for the 
 loftiest structures of human thought, the safe 
 holding ground for the anchor of a sound mind, 
 which, losing this, is cast adrift among the cliffs 
 of inextricable doubts and destruction. It is the 
 only logic comprehensible to Popular Conscience, 
 as it speaks to Feeling as well as to Reason, of 
 which two elements, combined, the Popular Un- 
 derstanding is formed. Where the mechanism 
 of Reason is inadequate, there Feeling (which is 
 the impulse of the Soul) supplies the want. Hence 
 it is that the human mind is able to feel as well 
 as it can reason, and its Common Sense partakes 
 of both (§1). 
 
 If we cultivated our Feelings as we cultivate our 
 Intellect, they would be in better harmony with 
 each other, and our Common Sense would be 
 good and complete; while now, in many cases, 
 it is only half the faculty it should be. This
 
 Part! ] MORAL LAW AND CIVILIZATION. [^"i"" 47 
 
 makes man the more one-sided, selfish, cruel and 
 stupid, the more he learns, and at last, it causes 
 his mind to give way, through its not being pro- 
 perly balanced by those two inseparable elements 
 of our Moral- Mental Organism, Reason and Feel- 
 ing. Such is Common Sense, which, as the 
 natural test of logics, is impartial, though not 
 neutral, and takes over sound ideas from all sys- 
 tems indiscriminately, without sanctioning or 
 criticizing any special doctrine, because it follows 
 a course of its own. Only that which comes de- 
 liberately in its way is utterly abolished, for it 
 is the Popular Understanding, forming the Spirit 
 of Thought of the living generation, which is 
 now on the highroad to civilization, as the Po- 
 pular Conscience forms the Spirit of Law of that 
 generation. When the Moral Law of Nature is 
 applied to common life, Common Sense is the 
 logic by which its influence is explained, to test 
 the practicability of its rules in the actual cir- 
 cumstances of social life, and to co-ordinate the 
 facts of Social Science, as it is through Common 
 Sense that the isolated facts of history are brought 
 into a comprehensive whole. Here we have an 
 explanation of the influence which this Law of 
 Nature exercises on the progressive Social Evo- 
 lution of the human race. 
 
 § 13. — The pure dogmatism of the old Scho- The Empirical 
 
 i • i-i i • , n School. 
 
 lastic philosophy is not stranger to Common 
 Sense than the Positive Empirical. Both fail 
 to keep a firm hold on the free popular mind. 
 The one might influence the human imagination 
 and thus captivate Reason for a while, and the 
 other might fascinate the masses, by the false 
 lore of a material liberty which is without spiritual 
 freedom, or charm the Imagination of unthinking 
 youth into loyalty to the Empire of Reason, the
 
 48 Pact I. ] MORAL LAW AND CIVILIZATION. [ ClI § A n; IL 
 
 promised land of an animal materialism free from 
 all moral restraints, where the Mind stops short 
 of the highest development allotted to it in crea- 
 tion. But neither the one nor the other can make 
 man believe without thinking or make him think 
 without feeling. If the one can make believers 
 without faith, it cannot make non-thinkers void of 
 Reason, and if the other might succeed, through 
 the attraction of a delusive simplicity of shallow 
 arguments, under the disguise of Common Sense, 
 to form inexperienced minds, wanting in self- 
 organisation or purity, into sensuous unbelievers, 
 it cannot complete its task by bringing the ever- 
 living inspiration of the unbiassed human mind 
 under the positive mode of thought of Empirical 
 Philosophy. The tyrannical shackles of all one- 
 sided, narrow and exclusive philosophies will 
 be cast off by the self-seeking and self-deter- 
 mining human Mind, when left free to follow its 
 own inspirations, to regain its natural course of 
 thought in Common Sense, to satisfy the convic- 
 tions of Reason and the longings of Feeling. 
 The international <S 14. — In conformity with the Popular Con- 
 
 Spirit of Law. . J r . 70* U Jf T ' 
 
 science, an International spirit oj Law is gene- 
 rated by the relations which naturally must 
 spring up between individual States. This Spirit 
 of Law displays the influence which it exercises 
 on the external life and voluntary acts of Nations 
 towards Nations, by producing those usages, 
 which form the basis of what is called the Law 
 of Nations or International Law. 
 
 These usages of Nations cannot be formed into 
 Written or Positive Law, for the reason that 
 there is no Body-Politic, endowed with legis- 
 lative and executive power and having for its 
 constituents Nations or States. They have, 
 however, inherent binding force, because Intern- 
 ational usages are, when generally acknow-
 
 i-aktI. ] MORAL LAW AND CIVILIZATION. [ C " § A £; IK 49 
 
 ledged, a reflex of the best part of the various 
 Positive Laws, that is to say of those parts which 
 bear more conspicuously the mark of the in- 
 fluence of the Moral Law ; for these usages must 
 satisfy the Popular Conscience, in the case of 
 each Nation or State. The only common stand- 
 ard of Popular Conscience, as it appears in the 
 various Nation or States, is the Moral Law of 
 Nature. In this all agree. But starting from 
 this common standard, the Popular Conscience 
 of each Nation or State is differentiated by the 
 varying progress of civilization, at every period 
 in the history of Nations. The indicator of these 
 variations is the International Spirit of Law of 
 each successive period, which, in harmony with 
 the changes in the sentiments and external con- 
 ditions of individual nations, is the reflex of the 
 moral development of the international life of the 
 body of States. These subtile elements of Law 
 form the common source from which International 
 Law, this brightest part of the History of Nations, 
 flows forth. "Bright effluence of bright essence 
 increate!" 
 
 Thus it is that International Law, not being 
 capable of being put into the form of Positive 
 Law by any worldly authority, depends for its 
 support entirely on the spontaneous develop- 
 ment of civilization, as engendered by the human 
 Mind, through the ennobling impulses of the 
 Soul. Under this influence International Law 
 has been gradually modified, in conformity with 
 the progress of civilization. Instances of this 
 process of modification are : laws enhancing res- 
 pect of alien life, rights and property ; laws and 
 treaties regarding slavery and slavetrade; the 
 definition of rights of nationality and domicili- 
 ation ; the protection of exiles ; the extradition 
 of criminals ; liberty of conscience ; security of
 
 50 TartI. ] MORAL LAW AND CIVILIZATION. [$\Tsi 5 
 
 intellectual property ; liberty for the navigation 
 of the seas ; neutrality ; the laws of war, and so 
 forth. These are so many instances of inter- 
 national moral progress which is ever going on ; 
 for " the life of Nations," says Savigny, " can be 
 compared to the human life, which is never 
 stationary, but represents a continuous succession 
 of organical development."* 
 
 From this development has resulted the code 
 which treats the rights and duties of Nations. 
 It is not a written code, indeed, but one which 
 does not the less subsist, as an effect of the col- 
 lective working of the Popular Conscience, opera- 
 tive in Civilized Nations at all stages of the his- 
 tory of Mankind. It is founded on the mutual 
 consent, tacit, expressed or presumed, of all civi- 
 lized nations. 
 
 " Cette loi" says Hefter, " seretrecit ou s'elargit 
 avec le degre cle culture des nations. Reposant 
 d'abord sur une necessite ou sur des besoins pure- 
 ment materiels, die empninte, dans ses developpe- 
 menfs, a la morale, son autorite ct son utilite, et 
 s affrancliit successivement de ses elements impurs." 
 We have but to add, that we cannot foil to acknow- 
 ledge how clearly the effect of the Moral Law of 
 Nature is exhibited in this development, through 
 the International Spirit of Law. f 
 mc Philosophy §15. By this development of the moral prin- 
 Bistorkaischooicipies (§5), the intuition of the Soul is combined 
 with the actions of the Mind and shows the re- 
 
 * Von Savigny. System des Rom. Rechts, vol. r. ch. II, §7. 
 
 " The duties of men, of subjects, of princes, of lawgivers, of ma,L r is- 
 trates and of states are all parts of one consistenl system of universal 
 morality. Between the mosl abstract and elementary maxim of 
 moral philosophy, and (lie mosl complicated controversies of civil or 
 public law, there Bubsi i- ■■> connection. The principle of Justice, 
 deeply rooted in the nature ami interest of man, pervades the whole 
 Bystem and is discoverable in every pari of it, even to its minutest 
 ramification, in a legal Eormality or in the construction of an article 
 in a treaty." SirJ, Mackintosh. Diseowseon the LamofNatwe 
 
 (mil An/ in//.;. 
 
 t Bbfptbb. Le Droit Intern, rtc l'Europe. Edit. Berffson, §2.
 
 PaexI. ] MOEAL LAW AND CIVILIZATION. [ C "fi5. "' 51 
 
 lation in which the Soul, as original motive power, 
 stands to Reason in the human Mind, and thus 
 to the motives of our actions. This may furnish 
 the clue to the fountain-source of many causes, 
 which are only discernible in their effects, but 
 remain unexplained by the mute facts of History. 
 When we attribute to this motive power the 
 relation we feel must exist between these effects 
 and the fountain-source of their causes, between 
 the phenomenon and its inherent factor, or, to 
 comprehend all in well-known terms, between 
 historical and philosophical data, we should 
 surely not expect to satisfy Empirical Science ; 
 but neither are we sinning against any of its 
 demoustrations, by attributing this onward strife 
 of Society, this incessant progressive evolution of 
 civilization, which plainly shows an inherent 
 action of the human Mind, to the influence of the 
 Soul, for the Moral Law of Nature, the Law of 
 the Good, is also the Law of Society. This can- 
 not be otherwise, for the Moral Law of Nature 
 consists not only in the dictates of Justice, but 
 ia the perfect harmony of both elements of Right- 
 eousness, as imparted to our Nature ; of which 
 Justice, as expressed by the Law of Conscience, 
 is but one element, the other being Benevolence, 
 which, as we have noted before (§2), takes into 
 account the frailty of human nature, tempering 
 the stern sense of Justice in proportion to the 
 actual tottering pace of Society, and promoting 
 its gradual development and the sure progress of 
 the human race towards the Good, for virtue 
 without charity does not exist. * 
 
 The omission of taking into account this 
 mitigating element of the Moral Law of Nature, 
 
 * " Though I speak with the tongues of men and of angels and have 
 not charity, I am become as sounding brass or a tinkling cvnib.il." 
 St. Paul. I Cor. XIII. 1.
 
 52 Part I. ] MORAL LAW AND CIVILIZATION. [ CnA /i T 5 . n ' 
 
 which makes Justice applicable to the natural 
 state of human Society, so that, of the two 
 elements forming the Popular Conscience, called 
 the Spirit of Law, one always qualifies the other, 
 or in other words, the mistaking; of the fluctu- 
 ating Spirit of Law for the immutable Moral 
 Law, seems to be the cause of the difference 
 which exists between the Philosophy of Law 
 and the Historical School. 
 
 When contemplating history in the different 
 aspects of that social evolution, which civilization 
 has underorme through the working; of the Soul 
 on the individual mind and which is exhibited in 
 the written laws of the different epochs of civili- 
 zation, we may well exclaim with a recent writer 
 of the Historical School, li V evolution progressive 
 du Droit n a jamais subi de temps a" arret et depuis 
 sa premihe manifestation inconsciente sortie de 
 V instinct popidaire, jusqu a son riche epanouissement 
 feconde par ies travaux des savants, le droit s'est 
 developpe comme la vie meme, comme une force 
 inker ente a Vhumanite." 
 
 " Et quel spectacle grandiose que a v assister ainsi 
 a la formation lente du Droit, de le voir emerger 
 du travail latent de la conscience populaire, sur- 
 gissant pour repondre au.r necessites sociales et 
 constiluant pen a peu V individuality nationale. v * 
 
 This is the action of the Popular Conscience, 
 which, as Spirit of Law, is permanently at work 
 in conformity with the Law of Conscience, to 
 find the minimum of individual sacrifice which 
 would produce the maximum of public welfare. 
 It is the combined effect in the human mind of 
 both elements of the Moral Law of Nature, the 
 perfect harmony of which constitutes the Good. 
 
 * " La Philosophic <lu Droll et VEcolo Histortque." Logon d'ouver- 
 ture du cours de limit Naturel, par .Mr. ADOLPHE PEINS, Professeur 
 h rUnivorsitt: de Bruxelles, RevUO do Droit International. Tome 
 XIV. 1882. No. <>./>. 565.
 
 part I. ] MORAL LAW AND CIVILIZATION. [ CnA § 7g. IL 53 
 
 But when this harmony is broken, the cheerful 
 prospect is converted into the mournful con- 
 templation of a retreat on the road to civilization, 
 for then the moral combination and strength of 
 the individual mind is broken, and, the mind 
 gradually becoming distorted and polluted by 
 passions, by prejudices or selfish motives, personal 
 morality is impaired. Where this is the case as 
 regards the leading faculty of a Nation, there 
 the national standard of morals is deo*eneratino\ 
 civilization is coming to a standstill and civil 
 liberty and national prosperity decline. When 
 the moral principles of a Nation are corrupt, its 
 international conduct becomes untrustworthy 
 and vile, and the Nation, having sinned against 
 itself, is ready for any act of injustice towards its 
 neighbours and in spite of any temporary aggran- 
 disement, effected through violation of the prin- 
 ciples of justice and humanity towards its weaker 
 neighbours, the decay of the unsound State is 
 irrevocably decreed by the Moral Law of Nature, 
 as proved by all recorded facts of History. * 
 
 Thus the Moral Law of Nature, which has its 
 agent in the Popular Conscience and its Logic 
 in Common Sense, manifests its influence, not 
 merely as regards the individual progress of the 
 Nation or State, but also in the dealings of 
 Nation with Nation ; for it represents in the 
 human Mind the elements of the law as laid down 
 in the divine commandment, "Do unto others 
 as thou wishest to be done unto thyself," which 
 is the only true principle of utility, and the 
 loyal rule for the combination of self-interest 
 with general welfare. 
 
 * Rittiez. Science des Droits, Causes de desordre, Faits Politi- 
 ques, p. 290-293. 
 
 Victor Cousin. Philosophic Moderate. 1846. " Du lien ct du, mal 
 moral." Vol. I, p. 337-343. 
 
 Ortolan. Regl. Intern, ct Diplomatic de la Mer. Edit. 1864. 
 Vol. I. p. 63.
 
 54 PabxL ] INTERN. LAW AND JURISPRUDENCE. [ C "$ 
 
 Chapt. 111. 
 
 1G. 
 
 CHAPTER III. 
 
 International Law and its Jurisprudence. 
 
 origin of states. &16. Social life is, as stated at the beginning, 
 
 Natural and To- , i "* , i r ,i i 
 
 meal Nationality. i\\Q natural consequence ol the human organ- 
 ism, for man does not exist in an isolated state, 
 as long as natural causes have free play. By- 
 virtue of the intellectual faculties and the sensi- 
 bility of his mind, man is essentially a social 
 being, and he is always bound to be so, whatever 
 may be the nature of his associations, which vary 
 in conformity with the special circumstances 
 affecting his development and modify the degree 
 of civilization to which he actually attains. 
 
 This is the natural origin of societies or aggre- 
 gates of human beings, which are called Nations 
 or States, the reciprocal moral and material or 
 political relations of which form part of the sub- 
 ject matter of International Law, as will be ex- 
 plained hereafter. 
 
 Groups of the same race, identical in origin, 
 and having common usages, languages, or idioms, 
 and common moral aptitudes, are called People* or 
 Nations, when designated from a natural historical 
 or philological point of view, and constitute the 
 Ethnographical or Natural. Nationality. 
 
 When political individuality is ascribed to a 
 people, as subject to Law, it is called a State ; 
 which designation refers to the people as Body- 
 politic, possessing a common government, com- 
 mon laws, common internal and external powers, 
 civil and political, and common interests, in all 
 matters affecting the Political Nationality. 
 
 Different Nations can, by their common con- 
 sent, be united into one State ; in which case all
 
 PabtI. ] INTERN. LAW AND JURISPRUDENCE, [ eH §w. UL 55 
 
 the individuals composing the State have the 
 same political nationality, though they may differ 
 greatly from an ethnographical point of view. 
 
 A nation can also be divided into several States 
 with as many different political nationalities ; 
 and different States may form a Union of States, 
 in which all the individuals composing these 
 States have one and the same political nationality 
 defined by the Union. 
 
 For the recognition of a State as such, that is, condiams/or 
 as a community having political individuality, individuality of 
 
 . t,» • t it rru Slates as Persons 
 
 certain conditions are indispensable, lnese are of international 
 that the community, claiming recognition as a State 
 and all the rights and duties attached to such a 
 status viewed from the stand-point of International 
 Law, must be an organised Body-politic, which 
 should consist of individuals who do not belong 
 or owe allegiance to any other State, and which 
 should not be incorporated by virtue of any out- 
 side authority, concession, grant or charter, but 
 definitively established on its own defined terri- 
 tory with its own government and legislation, 
 possessing also the means and ability to maintain 
 its integrity. 
 
 Without these conditions, the fulfilment of 
 which constitutes the State as a member of the 
 family of States, whose mutual relations form the 
 subject of International Law, no society or aggre- 
 gate of human beings can be denominated a State 
 or admitted on equal terms to international rela- 
 tionship with existing States. 
 
 Thus, for instance, chartered Trading or Co- 
 lonization Companies, though having their own 
 government and administration, and uncontroll- 
 ed management of their affairs on their own 
 extended territorial property, cannot have inter- 
 national relation with any foreign Government
 
 CilAPT. III. 
 
 56 TahtT. ] INTERN. LAW AND JURISPRUDENCE. [ Ctt fli 
 
 except through the Government from which their 
 charter emanates, and under whose protection 
 they are established or to which they owe alle- 
 giance. * 
 
 Nomadic tribes, living in wandering groups 
 without a permanent or defined territory, though 
 they be closely united and organized for their 
 internal government, cannot be regarded as States, 
 because they fail to fulfill all the conditions above 
 mentioned. They may, however, in some cases, 
 be admitted to the privileges of International 
 Law and hold intercourse with civilized States, 
 whenever such tribes are ready to reciprocate 
 international privileges, according to their ability 
 or as far as their condition will permit. As a 
 general rule, when privileges of International Law 
 are extended to uncivilized nations, this is done, 
 at. the prompting of humanitarian views, without 
 requiring reciprocity on their side, unless as one 
 of the methods made use of to gain them over to 
 civilization. 
 
 Associations of pirates and other outlaws, 
 though not belonging to any nationality nor 
 owing allegiance to any State, are disqualified to 
 form States, as having themselves no right of 
 existence, f 
 
 " The marks of an independent State," says 
 Mr. Hall, " are that the community, consti- 
 tuting it, is permanently established for a poli- 
 tical end, that it possesses a defined territory 
 and that it is independent of external control. 
 It is postulated of those independent States which 
 are dealt with by International Law, that they 
 have a moral nature identical with that of indi- 
 
 * PHILLIMOEE. Connn. on Intern. Law. Vol. I. Ed. 1879, p. 199. 
 Heffter. Europ. Volks-Uccbt, §13-20. Wiieaton. Mem. Intern. 
 Law. Edit, Dana, §5. IJE Martens. L. VIII., §§ 260 et seq. 
 
 f Pjiillimohe. Comm. on Intern. Law, Vol. I. Edit. 1879. 
 CALVO. Lc Droit Intern. Vol. I. 1870. Liv. II, p. 117.
 
 taut I. ] INTERN. LAW AND JURISPRUDENCE. [ C "fn. TIL 57 
 
 viduals, and that, with respect to one another, 
 they are in the same relation as that in which 
 individuals stand to each other who are subject 
 to LaAY. They are collective persons and as such 
 they have certain rights and are under certain 
 obligations." * 
 
 The investigation and systematical arrange- 
 ment of the rights and obligations of States, with 
 their various practical modifications, form the 
 subject-matter of this Manual. For the clear 
 understanding of the various aspects and combi- 
 nations of these rights and obligations, however, 
 it was deemed indispensable to trace them up 
 to their sources, that is to the law by which the 
 Moral Nature of States is governed, and which 
 forms the basis of their rights and obligations. 
 This was done in the foregoing chapters. 
 
 We will now proceed to investigate the practi- 
 cal application of those rights and obligations in 
 the case of the Society of States, where they form 
 the basis of International Law. 
 
 §17. In the work above cited, Mr. Hall says *fo** and obu- 
 
 r ,1 ,/,i ... / ri J \ gallons of Stales. 
 
 iurther, the capacity m a corporate person ( State) 
 
 to be subject to Law evidently depends upon the 
 
 existence of a sense of right and a sense of oblhni- 
 . ... *— * 
 
 tion to act m obedience to it, either on the part of 
 
 the community at large or, at least, of the man 
 or body of men in whom the will governing the 
 acts of the community resides." f The cause 
 which produces this sense of obligation, to act in 
 conformity with Law as existing in the leading 
 minds of those governing States, having been 
 investigated in the preceding chapters, we will 
 now endeavour to describe the Law which prac- 
 tically governs the rights of States, and their 
 obligations to act in obedience to that Law. 
 
 * W. E. Hall. Intern. Law. Edit. 1880, §1. 
 f Idem. Intern. Law, page 14.
 
 .111. 
 
 58 PabtI. ] INTERN. LAW AND JURISPRUDENCE. [ Cl "n. 
 
 Considering that social life is the natural con- 
 sequence of the human organism and, as such, 
 subject to development in conformity with the 
 Law of Nature governing that organism (§1), 
 it is but natural that States, which are the out- 
 come of social life, have, in their collective capa- 
 city as aggregates of moral beings, the same 
 moral obligations assigned to them as man, but 
 with a vaster and completer sphere of action and, 
 consequently, with some special prerogatives and 
 rights (§18). 
 
 The duties of a civilized State are of two sorts. 
 
 1°. In the first instance, those duties which 
 constitute the raison d'etre of a State and are 
 essential to its existence, consist in the obliga- 
 tions which arise between the Government and 
 the individual subjects or citizens (Staatsangeho- 
 rige) in all matters pertaining to public order and 
 to the moral and material progress of the nation. 
 These are the internal relations of the State, 
 which may be varied or modified without contact 
 with the internal or external attributes of any 
 other State. 
 
 2°. But, in the second instance, in order to be 
 able to fulfil its internal duties undisturbed, and 
 to its full extent, the State must enjoy the out- 
 ward security and respect essential for the free 
 exercise of its full faculties and all its attributes, 
 as a Body- Politic. This necessarily imposes on 
 the individual State the duty of intercourse with 
 other States, in order to establish its rights, 
 which, with regard to their external relations, 
 are called International Bights. 
 
 These International Rights are enumerated as 
 follows. 
 
 1°. The right of existence ; from which devolve 
 the rights of self-preservation and of self-defence 
 with the accessory rights of redress, retortion
 
 parti. ] INTERN. LAW AND JURISPRUDENCE. [ CnA § u'. m ' 59 
 
 reprisal, seizure, interference, and that of making 
 war and concluding- peace. 
 
 2°. The rights of sovereignty, independence, 
 equality and respect. 
 
 3°. The right of property. 
 
 4°. The right of legislation. 
 
 5°. The right of intercourse and international 
 commerce. 
 
 6°. The right of legation, negociation and 
 treaty. 
 
 7°. The right of neutrality. 
 
 The principle features of these rights and their 
 correlative obligations, which constitute the dif- 
 ferent objects of what is termed International 
 Law, are separately sketched in the succeeding 
 parts of this work. 
 
 In the case of all well organised civilized States, 
 their rights and corresponding obligations are res- 
 pectively of the same nature. Owing to this 
 similarity of attributes and interests, international 
 rights and duties must devolve upon every State, 
 as a natural obligation to respect the rights of 
 every other State, and thus to maintain its own 
 security for the proper fulfilment of its internal 
 obligations. 
 
 A State which refutes all international inter- 
 course, places itself outside the pale of the Law 
 of Nations and has in consequence no guarantee 
 for its safety.* 
 
 From this it appears obvious that the interests international 
 
 i i • /• o • -i • l 11 1 Morality. 
 
 and duties of States are identical, and that tne 
 mutual interests of civilized States are so inter- 
 woven, that each, by the due performance of its 
 own duty, promotes the welfare of all. Again, 
 
 * Thus China and Japan, and recently Corea, after centuries of 
 seclusion and exclusion of foreigners, entered into the family of 
 Nations to secure their own interests.
 
 60 Tart, l] INTERN. LAW AND JURISPRUDENCE. [ CnA ^ H UL 
 
 it is obvious that the substitution of might for 
 right brings misery not only on the oppressed but 
 also on the oppressor. 
 
 Plato observed that the just State differs in 
 nothing from the just man, and Hugo Grotius 
 maintained that the ethical principle should under- 
 lie all transactions between nations as well as 
 those between individuals. 
 
 The rights and duties of Nation towards Nation, 
 the origin of which loses itself in the mist of 
 ages, when mankind began to form itself into 
 Societies, became more and more discernible when 
 these different Societies, through having inter- 
 course with each other, found it necessary for 
 mutual safety and for their own individual benefit 
 to abide by certain rules, tacitly or expressedly 
 consented to. 
 
 In the same proportion as Nations advance in 
 civilization, their rules of conduct towards each 
 other are gradually brought into conformity 
 with the principles of justice and morality, and 
 find henceforth support not alone by material 
 considerations and purely selfish motives of 
 mutual preservation, but also by the awakened 
 Human Conscience, which, when developed into 
 National or Popular Conscience, tends more and 
 more towards the practical observance of the 
 Moral Laws of Nature. This takes place not 
 only in the case of States of equal strength and 
 pretensions, but, indiscriminately, among all the 
 members of the great commonwealth of Nations. 
 
 This constitutes what is termed International 
 Morality, which is the principal agent in the 
 forming of the International Spirit of Law (§14). 
 
 ne dealing* & §18. We find that civilized States, in their 
 
 State towards ■» . . . . n ■>■■ 
 
 state tested at the mutual intercourse, in times ot peace as well as 
 Natore. in times of war, invariably appeal to Public
 
 Part, l] INTERN. LAW AND JURISPRUDENCE. [ Cha § 7s. IIL 61 
 
 Opinion for the justification of their acts. This 
 may be done sometimes in the manner in which 
 Pilate appeased his conscience, but, however that 
 may be, it is a plain acknowledgment that Justice 
 is expected to be observed in the intercourse of 
 States, in the Society of Societies, as it is a con- 
 stituent element of Society itself. 
 
 The civilized Nations of all ages recognized the 
 Moral Law as binding upon themselves in their 
 internal relations. There are historical facts 
 which indicate that the observance of the princi- 
 ples of this law, in external as well as internal 
 relations (however imperfectly realized) were 
 not unknown to Greece and Borne, the oldest of 
 civilized Nations on whose institutions modern 
 European Laws are modelled. Cicero, in his great 
 work on the commonwealth, maintains " that 
 God has given to all men conscience and intellect 
 and that, where these exist, a law exists of which 
 all men are common subjects," and Plato repu- 
 diates the idea that any Society could flourish 
 which did not respect the rights of other Socie- 
 ties. * 
 
 A State must be regarded with respect to its 
 rights and duties, and to the consequences of its 
 relations with other Bodies-politic, from two 
 different points of view, viz., de jure and de facto. 
 On the one hand, a State must be regarded as a 
 
 * Thilliaioke. Common Internat. Law. Vol. I. Edit. 1879. 
 Chap. 3, §§ 17-27. 
 
 The same rules of morality, which hold together men and families 
 and which form families into commonwealths, also link together these 
 commonwealths, as members of the great Society of mankind. Com- 
 monwealths, as well as private men. are liable to injury and capable 
 of benefit from each other ; it is therefore their interest as well as 
 their duty, to reverence, to practise and to enforce those rules of 
 justice, which control and restrain injury, which regulate and aug- 
 ment benefit, which, even in their present imperfect observance, pre- 
 serve civilized States in a tolerable condition of security from wrong 
 and which, if they could be generally obeyed, would establish and 
 permanently maintain the wellbeing of the universal common- 
 wealths of the human race. Sir Jas. Mackintosh. Discourse on the 
 Lam of Nature and Nations.
 
 62 Tart I. ] INTERN. LAW AND JURISPRUDENCE, [^is." 1 ' 
 
 moral person, as being an aggregate of self-con- 
 scious agents, if we are to comprehend the 
 standard principles of its moral obligations. On 
 the other hand, it is necessary, in order to avoid 
 ambiguity in our conclusions, to bear in mind 
 the difference which de facto exists in the nature 
 of the respective rights and duties of these two 
 subjects of the Moral Law, viz., the individual 
 man in his social relation to his fellow- creatures 
 and the societies of moral beings, called States, 
 in their present mutual conditions ; from which it 
 results, that certain prerogatives and exceptional 
 rights are attributed to States which could not be 
 possessed by individuals. 
 
 Reason therefore, which is the exponent of 
 Conscience, through Common Sense, and as such 
 a distinct source of International Law, guides the 
 application of the principles of the Moral Law of 
 Nature to the rights and duties of States, by 
 following the International Spirit of Law, (§§ 4 
 and 14). * 
 
 international S19, As we have seen in the preceding para- 
 
 Lato, Interna- •> ..■ L -.. OJ - i , 
 
 tionaijun.yn-u- oraphs, the nature, necessities and interest ot 
 
 tfence, Diplomacy fA. l ' . . 1 , . , 
 
 States give rise to international concerns, which 
 establish international claims or rights with their 
 corresponding duties and obligations; hence comes 
 International Law. There exists, however, in 
 the great Society of States no legislative power 
 and therefore no written code of International 
 Law, but there exist more or less generally 
 acknowledged rules of reciprocity of conduct, in 
 peace and war. Such rules have been sanctioned, 
 ell her by written agreements concluded between 
 
 * Phillimobe, Vol.1. L879. Preface, page VII, and Chap. IV, 
 
 pi 80. Vol. III. L873, page 878. G. F. de Mabtenb. Precisdu 
 
 i . oH .i, (Jen . Edit, i So I. Note of Ch. Verge, §4, page 41. 
 Klttbeb, Droil dee Gens Modernede N iirope. Edit, Ott. 1861, §37, 
 page 58. Vattel. Edit. Pradier Fodere. 1863, Preface of Vattel, 
 page 47, and Prelim. §*>.
 
 tart I. ] INTERN. LAW AND JURISPRUDENCE. [ CHA "5. m ' 63 
 
 sovereign States, and called Treaties or Conven- 
 tions, and forming the Conventional Law, which 
 has direct binding force for the States under 
 contract and serves as precedent in many cases, 
 or they have been sanctioned by custom or usage 
 of long standing among Nations, voluntarily 
 admitted as the Customary Law. These two 
 elements constitute what may be called the 
 Positive Law of Nations. But as this Law, 
 hedged in by the narrow limits of special and 
 isolated conventions and tacitly admitted cus- 
 toms, could not supply all the wants of interna- 
 tional intercourse, in the manifold conditions of 
 peace and war, it is supplemented by a third 
 element. This may be called the Necessary Law 
 of Nations, and serves for all those cases for 
 which no provision is made, either by treaty or 
 custom. This third element, necessary to com- 
 plete, through International Jurisprudence (§20), 
 the rules, essential for the intercourse of civilized 
 nations, necessary to cement the loose stones of 
 the Positive Law of Nations, composed of customs 
 and conventions and stray facts of historical 
 precedents, into the solid international structure 
 that constitutes the stronghold of social progress 
 and civilization, is the Law of Conscience which 
 is the law of Justice. (§7). * 
 
 These three legal elements, viz., the Written 
 Law, Customs and Justice, form, in their con- 
 bination. what is called International Law 
 (jus inter gentes). 
 
 What constitutes the science called Interna- 
 tional Jurisprudence (§20) is the knowledge and 
 application of the Conventional and the Cus- 
 tomary Laws of Nations, in all conditions of 
 international intercourse, in peace and war, sup- 
 
 * Vattel. Droit des Gens. Prelim. §§ 6-9. G. F. de Martens. 
 Precis clu Droit des Gens. Edit. 1858. Note of Ch. Verge, §4, p. 41.
 
 Chapt. III. 
 
 64 parti. ] INTERN. LAW AND JURISPRUDENCE. [ CH ^d. 
 
 plemented and commented upon, in conformity 
 with the precepts of the Natural Moral Law, that 
 is, according to Justice founded on Common 
 Sense, by the authority and impartial judgment 
 of able and experienced writers. 
 
 The Juris-consultus of International Law, 
 when accredited by the Government of his State, 
 through special diploma or letter of credit, as 
 their agent in the intercourse with another State, 
 is called a Diplomatist and his profession as such 
 Diplomacy, which is the art of conducting inter- 
 national affairs to satisfactory results. 
 
 international §20. International Legislation is not possible, 
 '1'X'nm- for want of a general International pact or covc- 
 
 Tnce. u " tJ " l " nan t s based on the constitutional principle that 
 the individual interest of each State should be 
 subordinate to the general interest of the com- 
 munity of Nations. However, this absence of an 
 International Jus Statutarium did not prevent 
 the development, de-facto, of International Rules. 
 These rules actually constitute Law (jus) by 
 virtue of the purity of their origin, by the ad- 
 vantages accruing from their existence to the 
 moral progress of Societies, which are the im- 
 portant subjects, and by the immensity of the 
 interests involved in moral intercourse between 
 all human beings. 
 
 Laws (leges) enacted by legislation, are neces- 
 sary to indicate and to secure, by sanctions and 
 penalties, the performance of what is right. But 
 taws could not create moral obligations which 
 did not previously exist in the human conscience. 
 Where there arc no laws, there it is still our duty 
 to do what is right. * 
 
 It is obvious that the want of International 
 Legislation and the peculiar nature of Interna- 
 
 * Josspb Haven. Moral Philosophy, page 24,
 
 run i. ] INTERN. LAW AND JURISPRUDENCE, f "^]. 1 "' 
 
 tional Law, caused by the unsettled character of 
 its Spirit of Law (§14), necessarily extend the 
 sphere of International Jurisprudence, which, 
 whilst expounding the meagre text of the posi- 
 tive elements of treaties and customs, must needs 
 supply, to some extent, this want, by applying 
 the necessary element of Justice, and thus esta- 
 blishing a sort of Judicatory Legislation, in order 
 to arrive at a general and practicable system of 
 International Corpus Juris. 
 
 This constitutes International Jurisprudence 
 a special science, embracing a vaster field than 
 Civil Jurisprudence with its rich and well defined 
 sources. But as it is of equal interest to all 
 civilized nations to have the conditions of their 
 mutual intercourse clearly brought to the know- 
 ledge of all, in order to make those rules res- 
 pected and accepted as a common guide for all, 
 the materials, necessary for the building up of an 
 established International Jurisprudence, are slow- 
 ly but continually contributed by all civilized 
 nations, through the development of the Inter- 
 national Spirit of Law. 
 
 The difference between Legislation, in the 
 ordinary sense, and the rules put forward by 
 International Jurisprudence consists in this, that 
 the latter, having no authority but that of a few 
 established maxims, cannot enforce its rules, but 
 simply ■ proposes its doctrines to human Con- 
 science and Common Sense, and advises their 
 acceptance, on the strength of their intrinsic 
 truth, justice and utility. * 
 
 * " Mais precisement parce quHl rCexistepowr le droit emtre nations, 
 it i legislatew, nijuge, il importe au plus liaut degre: lo. De deter- 
 miner ct defaire recormaitre ces droits aussi clairement, aussi <j6ne~ 
 ralement que possible, par toutes les voies suseeptibles de supplier a 
 Vaosenee li'uiu- legislation ecrite. 2o. De /aire penStrer, de repandre 
 dans Vopi/nion publlque et dan* Irs Gouvcrnemerits Souverains le senti* 
 meat da, respect de ces droits, la ferine resolution de les observer de son 
 propre movvement et avee fidelite a Vigard des autrcs, autant que les
 
 rCHAPT. III. 
 
 GQ Part I. ] INTERN. LAW AND JURISPRUDENCE, [^"i. 
 
 Presmt condition § 21. The Introduction of the Law of Con- 
 
 and definition of . * . ..._... r» T j. 
 
 international science, as an acknowledged element ot Inter- 
 national Law, is only practicable to the extent to 
 which the fluctuating standard of international 
 morality, as existing at a given time between 
 nations, by virtue of the respective moral civiliza- 
 tion of individual States, will admit it (§7). 
 A State's capability of being subject to Law evi- 
 dently depends upon the exercise of a sense of 
 right and of a sense of the obligation to act 
 in obedience to it, either on the part of the 
 community at large or at least of the person 
 or body of persons in whom the will govern- 
 ing the acts of the community resides (Hall, 
 page 13). International Law, being based on 
 International Morality, depends upon the state 
 of progress made in civilization. Hence arises 
 the difficulty of giving an all-comprehending 
 definition to International Law. What ought to 
 be permanently understood among civilized na- 
 tions as the main principles and the basis of their 
 mutual intercourse, we have noted already to be 
 the Moral Law of Nature (§■!). But we have 
 also seen (§§ 10-14), that the Spirit of Law is 
 the practical medium through which this general 
 Law influences humanity at all the stages of 
 progress on the road to civilization. 
 
 Investigating thus this Spirit of Law, we find 
 the definition of International Law to consist in 
 certain rules of conduct which Reason, prompted 
 by Conscience, deduces as consonant to .Justice, 
 with such limitations and modifications as may be 
 established by general consent, to meet the exigencies 
 of the present state of society as existing among 
 
 vuii a h nir n Kim itjiiril, ujiii qu* oi sentiment imiversel supplit autant 
 qut possible h V absence d'unjuge et qu'ii d&faut de tout autre moyen 
 plus i ■tiiriin -. la disapprobation commune atteigne les violations que le 
 plus fort mi le plus Jtabile in voudraient eommettre." Ortolan. 
 Diplomatic de l« Mcr. Edit. 1864. Vol. [, page 58.
 
 Paiit I. ] INTERN. LAW AND JURISPRUDENCE. [ C "f 2 T n1, 67 
 
 nations, and which modern civilized States regard 
 as binding them in their relations with one another, 
 with a force comparable in nature and degree to 
 that binding the conscientious person to obey the 
 laws of his country. All depends thus upon the 
 capability of the "conscientious person," who re- 
 presents here the International Popular Con- 
 science, which is the International Spirit of Law.* 
 
 From this it appears obvious that, in the pre- 
 sent state of international intercourse between 
 States, no immutable system for a generally ack- 
 nowledged Law of Nations has, as yet, been arrived 
 at, although the principles of the Moral Law of 
 Nature are individually upheld by all civilized 
 States, by the impartial application of Justice to 
 all included within the respective territories. 
 
 That "Righteousness exalteth a Nation, while state Policy. 
 sin is a reproach to any People," this warning- 
 lesson of ancient wisdom which holds good for 
 the rational dealings of Nation with Nation 
 through all generations, is fully acknowledged, 
 but the influence which the Moral Law, the 
 Law of Conscience, exercises on the actions of a 
 Nation, is not regulated by its national moral 
 standard only, but also by its relative freedom 
 from powerful outward causes of pressure, which 
 may sometimes be beyond the control of its most 
 conscientious leaders. Thus it is, that we some- 
 times see Nations act in contradiction to their 
 Popular Conscience, as exhibited by their popular 
 organs, and this for want of a free will to follow 
 the dictates of that Conscience. 
 
 * Wheaton. Edit. Dana. § 14. W. E. HALL. Intern. Law. 
 Edit. 1880, pages 1 & 13. 
 
 " It is true indeed that a law controlling independent sovereign 
 States can only become such by their free consent, it must, as we 
 have seen, be voluntary. But this code of voluntary rules cannot, for 
 that reason, be arbitrary, irrational or inconsistent with Justice." 
 Woolsey. Intern. Law. Edit. 1879. page 14,
 
 68 Tart I. ] INTERN, LAW AND JURISPRUDENCE. [ Ca ^\ 
 
 in. 
 
 It is the aim of sound State-Policy, to keep 
 clear of a position so degrading to the national 
 character, and to secure free exercise of the 
 National Conscience. * 
 
 justice versus It has been stated, that there can be no law 
 between Nations as there is no palpable authority 
 nor any acknowledged common superior, no in- 
 ternational executive to enforce the precepts of 
 international laws. No Nation will take up arms 
 to punish another Nation which, whilst engaged 
 in warfare, wilfully disregards the common law of 
 Nations. And it is fortunate that such is the 
 case ; for it was the attempt to set up such an 
 authority of external nature over the affairs of 
 Nations, which prevented so long the pure deve- 
 lopment which international morality might 
 have enjoyed through the free progress of 
 civilization. The inefficiencv of such superior 
 direction or international executive, which, in 
 whatever shape it may clothe its authority, 
 would never be free from the shortsightedness, 
 egotism and partiality, which is the nature of 
 all human institutions, is exhibited by history, 
 in the struggle between Church and State for 
 secular supremacy, in their claim to guide the 
 destinies of the Nations of Europe, and in the 
 feudal pretensions of the great Potentates of the 
 Easl . What have they all led to but to a retarda- 
 tion of the free development of civilization. It is 
 
 * "The science which teaches the reciprocal duties of Sovereign 
 States, is ii"i a \ : i i 1 1 and useless .-(inly. If ii were bo, the same thing 
 affirmed of the science of private morality, the duties in- 
 culcated by which are frequently destitute of the sanction of positive 
 
 law an. I are ei ied merely bj conscience and social opinion. As 
 
 Hi- \.'i;. ■ v I. nee "i' "-i.il intercourse in private life depends upon 
 ill- i i in oi th e dutie . bo the existence of thai mutual inter- 
 courei wh i < cntial to their happine and 
 
 pri pi 1 1 , depend upon the rules which have generally been adopt- 
 ed by ili" great Society of Nations In regulate thai intercou 
 Whcaton, Elemenl oi tntern, Law, Ed, Dana, Pref, page 21,
 
 PabtI. ] INTERN. LAW AND JURISPRUDENCE. [ CBi $i. m ' 69 
 
 true, "pour ce genre cV infractions, it rHy a pasdejuge 
 ici-bas," * and it is natural that such is the case; 
 for what human institution could sit in judgment 
 over transgressions of this nature, over crimes 
 committed by Nations. The Judge required is 
 not personified on earth, — no more than the Great 
 Regulator of our moral obligations, who imparts 
 to our minds, through the Soul, a ray of His 
 Spirit for our guidance, so that, notwithstanding 
 this absence of a visible judge, civilized humanity 
 finds itself restrained by the irresistible power of 
 the human Conscience, which, in affairs of nations, 
 has a sure agent in Public Opinion, the organ of 
 the Popular Conscience, and whose reprehensions 
 are not seldom the visible powerful factors of 
 effectual retribution. f 
 
 It is not the physical enforcement of a law 
 \vhich constitutes its legality. The principal 
 condition for the existence and maintainance of 
 all necessary laws is moral sanction, for no power, 
 be it ever so strong, can uphold an unjust law for 
 any length of time. Justice is a Law of Nature 
 and not the offspring of human power, for what 
 becomes of the power which is not based on Jus- 
 tice? Let History speak and we shall find that 
 where the two are combined, there it is Justice 
 above all which is indispensable for the preserva- 
 tion of power. The pretention that might is right 
 was regarded by Goethe as an infernal principle, 
 when he put in the mouth of Mephistopheles the 
 
 words, hat man Gewalt, so hat man Recht.% 
 
 — . , \ 
 
 * Letter of Count von Moltke to Professor Bluntscbli, dated 11th 
 December. 1880. Revue de l'lnstitute de Droit Intern., Vol. XIII. 
 1881, page 80. 
 
 f Heffter. Le Droit Intern, de l'Europe. Trad. I. Ber^son 
 Ed. 1873. §2, page 3. B 
 
 Halleck. Intern. Law. Coram, by Sir Sberton Baker. Ed. 1878 
 Cb. II. §§13-16. 
 
 % " Le Droit regno a d'autres conditions que la Force — il nuffit a 
 celle-ei d'etre toujour* la force ou la paraitre ; il /out qtfelle .s'allie a 
 I ignorance. Le ressort de la tcrreur cc detent a la lumiere. celui du
 
 70 Past I ] INTERN. LAW AND JURISPRUDENCE, [^"i. 1 "' 
 
 The broad basis on which the principles of 
 International Law rest, makes it possible to com- 
 prehend all mankind in the sphere of this Law, 
 as it is applicable not merely to the intercourse 
 existing* between Christian Nations, but also to 
 the intercourse existing between these and non- 
 christian people, and to the intercourse existing 
 between these latter, while it is also binding on 
 civilized Nations, as far as practicable, in their 
 dealings with uncivilized Nations for purposes 
 of mutual benefit. Equality of States, whether 
 in civilization or in dependency, is not a necessary 
 condition for the conception of legal relations 
 existing between States on the basis of the Moral 
 Law of Nature.* 
 
 Whenever Nations come in contact with each 
 other, their mutual intercourse is subject to the 
 Law of Nature, as the Law which is morally 
 binding before any regular compacts have evolved 
 from such intercourse. 
 
 Another essential consequence of the supreme 
 government which the Moral Law of Nature ex- 
 ercises as regards the affairs of Nations is this, 
 that, by applying or keeping in view these prin- 
 ciples, any differences which might arise between 
 States, can on the basis of this Law be settled 
 by arbitration, for when the absence of positive 
 
 droit s'y fortifie ; la force %e manifests par In VanaliU de ses attaques, 
 le droit ne so re-vele, tie se montre auso hommes que sous des forma 
 intelligcntes, on il cesse d'etre h droit; imaiU de Vintelligencc, il no pevt 
 s'adresserqu'aelle. C'est nn ilement qui reohercliect pourtuit h trovers 
 tout oe qui n'est que matiriel, reservant accueil et sanction h ton/ oe 
 qui " passipar Vamcet disaveu & oe qui n,est pat marqui de cesciau." 
 Le Droit dans ses maximes, page 135, Rittiez. Science des Droits, 
 $0. Ch. XV. % 4-7. 
 
 * The result of the Dutch firms in Aelieen is one of the proofs 
 
 furnished by modern history, thai moderation in warfare towards 
 uncivilized people is nut only duty, bul secures Bucce 
 
 II. i. ii. Thk DlTKB OF Lbuohtenbebg'b letter (<> Prof. Martens 
 of St. Petersburg, of 19 February, 1881, with regard to (he Laws of 
 War (si - Revue de Droil international, 1881, p. :i<>7) proves practically 
 thai ii is possible to respect these Laws under exceptionally trying 
 circumstances,
 
 Parti. ] INTERN. LAW AND JURISPRUDENCE, f "^. 111, 71 
 
 instruments and proofs might render arbitration 
 doubtful or impossible, there are the principles of 
 Justice and Humanity in which all agree. 
 
 §22. The great problem which the simple ti* eomo-hu- 
 
 . , ■ ,r itti , • i j n , , torical svstem of 
 
 question, What is right, presents to our international 
 mind, when brought to bear on questions of " ""'*' 
 equity in International Jurisprudence, has called 
 forth two distinct views with regard to the na- 
 ture and origin of International Law, there being 
 no Legislative Authority to determine the prin- 
 ciples of this Law. The one, the tendency of 
 which is to look to the human Conscience, as 
 directed by the Moral Law of Nature, for its prin- 
 ciple element of Law in international intercourse 
 and called the Philosophical Idealistic School, 
 whilst the other, styled the Historical Practical 
 School, acknowledges only the positive element of 
 International Law, composed of treaties and 
 customs. 
 
 These two systems or views are defined by 
 Mr. Hall as follows. '"International Law con- 
 sists in certain rules of conduct which modern 
 civilized States regard as being binding on them 
 in their relations with one another, with a force 
 comparable in nature and degree to that binding 
 the conscientious person to obey the laws of his 
 country, and which they also regard as being 
 enforcible by appropriate means in case of infrin- 
 gement. Two principal views may be held as 
 to the nature and origin of these rules. They 
 may be considered to be an imperfect attempt to 
 give effect to an absolute right which is assumed 
 to exist and to be capable of being discovered ; 
 or they may be looked upon simply as a reflec- 
 tion of the moral development and the external 
 life of the particular nations which are governed 
 by them. According to the former view, a dis-
 
 72 pabtL ] INTERN. LAW AND JURISPRUDENCE. [ Cax ^i U1 ' 
 
 tinction is to be drawn between international 
 right and international positive law ; the one 
 being the logical application of the principles of 
 right to international relations, and furnishing 
 the rule by which States ought to be guided ; the 
 other consisting in the concrete rules actually in 
 use, and possessing authority so far only as they 
 are not in disagreement with international right. 
 According to the latter view, the existing rules 
 are the sole standard of conduct or law of present 
 authority, and changes and improvements in 
 those rules can only be effected through the same 
 means by which they are originally formed, 
 namely, by growth in harmony with changes in 
 the sentiments and external conditions of the 
 body of States," * (comp. § 14). 
 
 As in every problem involving great social or 
 moral questions, so also in this, both sidss are re- 
 presented by equally learned and conscientious 
 men. In this fact lies the possibility of these two 
 systems being reconciled in their practical applica- 
 tion in Diplomacy. Thus, in so many instances 
 of diplomatic intercourse, it was found useless 
 to bring forward historical precedents of treaties 
 or customs as arguments in the case, when posi- 
 tion and circumstances are so constantly chang- 
 ing, or at other times, to explain, justify or cri- 
 ticize any point of the Positive Law of treaties 
 and cust i (ins, without having recourse to abstract 
 rules of equity. In all these cases the only reason- 
 able appeal seemed to be to natural Justice, that 
 is to the Law of Conscience (§ 7 ) ; so that, positive 
 i is the Practical Historical Theory may appear, 
 it is often found wanting in efficiency. On the 
 other band, the Philosophical Idealistic School 
 find palpable proofs for the validity of its doc- 
 trines in many historical facts of treaties and 
 
 * W, Ji. Ball, International Law, Eatroductorj Chapter, p. 1,
 
 1'AKTl. ] INTERN. LAW AND JURISPRUDENCE. [ flB f 2 T 2. IIL 73 
 
 established customs, thus often appealing to 
 these proofs of the positive elements of Interna- 
 tional Law ; and yet no treaty or convention 
 can subsist, unless based on the Moral Law of 
 Nature, which defines the criteria of its inviola- 
 bility, its binding force being the general rule of 
 Justice, as dictated by Human Conscience, viz., 
 that voluntarily contracted obligations for lawful 
 objects must be respected by all contracting par- 
 ties. Even customs and usages of long standing 
 invariably lose strength, the moment they cannot 
 bear the test of Justice and advancing civiliza- 
 tion. Moreover from this difference of systems, 
 with regard to the elements of International Law, 
 two different sorts of State Policy and their res- 
 pective Diplomacy have arisen as their result. The 
 one taking actuality for its starting point, looks 
 only for material proofs and historical precedents 
 for its arguments, and thus, banishing Moral Law 
 from practical International Jurisprudence, causes 
 Morality to shun Politics. The other, looking 
 to the moral element of equity for its chief ally, 
 tries to introduce Morality, which ought to form 
 the basis of the internal policy of every civilized 
 Nation, also in its external policy ; a Diplomacy 
 however, which in practical application might 
 defeat its object, as not being always supported 
 by the International Spirit of Law, which is the 
 reflex of the actual state of moral developement 
 of the external life of Nations.* (§14.) 
 
 * " Si Valliance des mots morale et politique parait avoir quelque- 
 ohose (Vet range, d 'incoherent, ee n' est point au clioses, e'est aux hommes 
 qiCil faut demander com/pte de cette apparente contradiction. La, 
 Politique Meter ieure, telle que la raison la definit, telle que la morale 
 Vavoue, a pour basses la Justice et la Moderation. Conseiller a un 
 Peuple Vamitie de ses roisins, procurer des appuis a sa faiblesse, la 
 defeudre centre les pr&tentions de Vorgueil, centre les envaldssements 
 de la force et, si jamais Vadresse pent etre qyermisc, tic V employer quia 
 ma intenir des relations de bicnveillance, a eearter des occasions da 
 rupture eutrc les nations que la jalousie, V ambition et Vinteret tendent 
 sans cessc a dixiser, tel doivent etre le but et les moyens de cette
 
 74 PabtI. ] INTERN. LAW AND JURISPRUDENCE. [ CH § P 2 T 2. m ' 
 
 From the foregoing comparison of the two 
 views or theories, it is obvious, that, to practical 
 International Jurisprudence, both, the Historical 
 as well as the Moral element of the Law, are 
 indispensable. Thus arises a combination of 
 the two systems, which may be called the Ethico- 
 Historical theory. * 
 
 This system gives the following rules in the 
 practice of International Jurisprudence, viz.: — 
 
 1. Look first, for existing treaties or conven- 
 tions bearing upon the subject of negociation, for 
 any rights or duties relating to it, direct or 
 indirect. 
 
 2. If there be no treaties or conventions, direct- 
 ly or indirectly deciding the case, investigate the 
 general and special customs, which, by usage of 
 long standing, have created obligations affecting 
 the matter. On this point it must be borne in 
 mind, that these two elements of the Positive 
 Law of Nations are sometimes contradictory or 
 reacting on each other, viz., that treaties some- 
 times abrogate customs, whilst treaty stipulations 
 may lose the necessary legal strength or force to 
 convince, by prescription, through the tacitly ac- 
 ceding to undeniable customs of long standing 
 and general expediency. 
 
 3. When both the conventional and the cus- 
 tomary elements fail to give satisfactory solution 
 in the case, then the opinions of text-books, as to 
 what is to be regarded as the rule of Natural 
 Moral Law, must supply the Standard of Justice, 
 
 brancJie de la poUtiqiu que Von a disignie sous le turn de Diplomatic" 
 B. Joi v. La Morale apvliqide a la Politique. Chap. IV, Hittiez, 
 Soienoe de» Droits, p. i > s - 
 
 * "The Law of Nations is Pounded upon Justice, Equity, Convc- 
 nience and the reason of the thing." Answer of the British Govern- 
 ment, of L8tfa January, I7.";3, to the Prussian Government on matters 
 ■ a repri :i 
 
 PHILLIMORB, Comm. on Intern, Law. Vol. I. Ed. 187!>, p. H 
 (Sources of Intern, Law).
 
 Part I. ] INTERN. LAW AND JURISPRUDENCE. [ Cn ^2. m ' 75 
 
 as well for the settlement of the points on which 
 the authorities of positive laws have failed, as to 
 supplement and correct defective or vicious trea- 
 ties and customs. 
 
 The practical order of classification of the 
 three elements of International Law is thus as 
 follows : — 
 
 1. Public Treaties. 
 
 2. Customs. 
 
 3. Abstract reasoning on what is right or 
 wrong in the intercourse of Nations, that is the 
 Law of Justice. * 
 
 To the Diplomatist the ethical value of an 
 argument is of the highest importance, when put 
 forward at its proper time ; for moral validity is 
 the test of all doctrines and not the less is this 
 the case in international concerns, where the 
 absence of positive elements of law makes 
 Ethics the only common basis for transactions 
 between Nations. If a doctrine has secured uni- 
 versal acceptance, the fact that it is universally 
 accepted is the proof of its moral validity. If it 
 has failed in this, there is no material power able 
 to secure its final success, through its acceptance 
 by human Conscience, and it is not only useless 
 but immoral to put forward the relation in which 
 such vicious usages stood once- to acknowledged 
 principles in barbarous ages or in a less civilized 
 stage of development of society. If the Barrister 
 has only to ask to what degree this or that prin- 
 ciple has been acted upon, and if, through absence 
 of positive law, precedents are the only sources 
 from which, for his purpose, authority in a dis- 
 puted case can flow, the Statesman is bound to 
 take a broader view and cannot ignore that the 
 bond of Justice is the only lasting usage between 
 Nations, for "International Law consists in 
 
 * Ortolan, Diplomatie de la Mer, Edit. 1864, Vol. I, p. 69.
 
 76 Part I. ] INTERN. LAW AND JURISPRUDENCE. [° 
 
 nAPT. III. 
 § 22. 
 
 rules of conduct which modern civilized states 
 regard as being binding on them in their relations 
 with one another, with a force comparable in 
 nature and degree to that binding the conscien- 
 tious person to obey the laws of his country," — 
 and this, because these "rules" may be looked 
 upon as a reflex of the moral development of the 
 nations which are governed by them. * Those 
 usages which a conscientious person regards as 
 binding upon him and which may be looked 
 upon as the reflex of the moral development of a 
 Nation, can fairly stand the test of moral validity. 
 
 * W. E. Hall, p. 1.
 
 part i. ] HISTORY OF INTERNATIONAL LAW. \ m Qa ^ V ' 77 
 
 CHAPTEE IV. 
 
 History of International Law. 
 
 §23. Although it was at first only for mo- Historical da- 
 tives of self-preservation, that nations were led toSl^ 
 the adoption of certain rules to guide their mu- 
 tual intercourse in peace and war, we find, at a 
 very early date, not only in Europe, but also 
 among civilized Asiatic nations, this pivot of sin- 
 gle utility, the sole support of the old interna- 
 tional usages, gradually broadening towards a 
 vaster basis. The rules of warfare were estab- 
 lished, theoretically at least, far more on humani- 
 tarian principles, whilst rules of intercourse in 
 peace and war were tacitly or expressedly agreed 
 upon, as emanating from the Natural Moral Law. 
 Thus came to be established the inviolability of 
 envoys and ambassadors, the right of asylum, 
 the obligation of treaty, the principles of inter- 
 national maritime and commercial laws. 
 
 The foundation and development of the princi- 
 ples of International Law was brought about in 
 Europe, since the fall of the Roman Empire, 
 mainly through the influence of Christianity and 
 through the adoption of the system of Roman Law, 
 and Jurisprudence by nearly all the nations of 
 regenerated Europe, which brought them under 
 some degree of legal uniformity, especially with 
 regard to the rules of obligation by contract and 
 other law theories. But the strongest influence in 
 this direction was exercised by the revived inter- 
 national intercourse through commerce and na- 
 vigation ; while, with the gradual abolishment 
 of the Feudal system, the central governments 
 of the principal States were compelled to enter
 
 78 Parti. ] HISTORY OF INTERNATIONAL LAW. j. 6 ^ 17, 
 
 into direct and more frequent and regular inter- 
 course with each other. 
 
 The multifarious causes which, as the history 
 of the different nations of Europe shows, effect- 
 ed the progress of international Law, can only 
 be fully understood through a systematical treat- 
 ment of the whole General Political History of 
 Europe. A summary statement of isolated facts, 
 in the narrow limits prescribed by the object of 
 the present work, would be of no practical use. 
 We must therefore restrict our historical sketch 
 to the special branch of Laws, concerning an- 
 cient maritime commerce, as given below (Chapter 
 XVII) and refer our readers to the special Histo- 
 rical works regarding the progress of International 
 Law in Europe and America.* 
 
 * A. H. L. Heeren. Handbuch der Gescbichte des Europae- 
 ischen Staaten Systems und seiner Colonien. Goettingen, 1809-1821. 
 French translation, Paris 1840. 
 
 Robert Ward. Enquiry into the Foundation and History of the 
 Law of Nations in Europe from the time of the Greeks and Romans 
 to the age of Grotius. London and Dublin. 1795, 2 vols. 
 
 Henry Wheaton. History of the Law of Nations in Europe and 
 America, from the earliest Times to the Treaty of Washington. 1842. 
 New York, 1845, 2 vols. A most suitable sequel to the works of Ward. 
 
 Rob. von Mohl. Die Gescbichte und Literatur der Staatswis- 
 senschaften. Erlangcn, 1855-1858, 3 vols. 
 
 F. Laurent. Histoire du Droit des Gens, 3 vols., 3d Edit. Paris. 
 1853. 
 
 John Hosack. Rise and Growth of the Law of Nations. 1882.
 
 PART II. 
 
 THE INDIVIDUAL RIGHTS OF STATES, 
 
 AND THE MODIFICATIONS 
 
 OF THESE RIGHTS.
 
 CHAPTER V. 
 
 The Sovereignty Eights of States. 
 
 §24. In §17 (page 58) we enumerated the sovereignty and 
 International Rights, as qualifications indispen- 
 sable to civilized States for the uninterrupted ful- 
 fillment of their duties and attributes, as such. 
 The principal features of these rights and their 
 correlative obligations are now separately sketched 
 in this and the following chapters. 
 
 The term Sovereignty designates the possession 
 of the supreme power of the State exercised, to 
 its full extent, externally as well as internally ; 
 hence the distinction of Internal and External 
 Sovereignty. 
 
 Internal Sovereignty is exercised in conformity 
 with the Constitution of the State for purposes 
 of government and internal policy; while Ex- 
 ternal Sovereignty, in the exercise of its functions 
 for the maintainance of external relations, on the 
 principles of Independence and Equality with 
 other States, is a subject of International Law. 
 
 The term Sovereignty is more particularly 
 applied to the external attributes of the State, 
 whilst Internal Sovereignty is, by way of contra- 
 distinction, then designated by the term Auton- 
 omy. 
 
 The Internal and External Sovereignty of the Government. 
 State is repr° ented by its Government, the organ 
 through which the relations of a State with other 
 States are managed. 
 
 When a State has no definite Government, or 
 is in a condition of anarchy, international rela- 
 tions are suspended without, however, impeding 
 the Sovereignty of the State. In like manner,
 
 82 l'AUTii.] THE SOVEREIGNTY EIGHTS. [ CH §£'. V " 
 
 recognition of a particular Government of a State 
 might be refused by one or more States without 
 calling in question the State's Sovereignty, by 
 which is meant the Body-politic formed, collect- 
 ively, of all the individuals composing the State 
 in question. 
 
 sovereign states. Sovereign States, also called Powers, are the 
 following States or Unions of States. 
 
 1°. Those States which have the moral right 
 and faculty of existence, on certain conditions 
 indispensable for Political Individuality, as stated 
 in § 16 (page 55), and possess the means of 
 maintaining this existence among civilised na- 
 tions, and 
 
 2°. Those States whose chief Government, 
 having complete power to enter into any interna- 
 tional relation, is free with regard to its actions 
 towards all other States, as well as in its auton- 
 omy, and independent of all established legal or 
 de facto control by any other State. 
 
 Right to Recogni- The Sovereignty of a State lias regard only to 
 its actual political status in the Society of Na- 
 tions, independent of its origin, the nature of its 
 power or dominion, and the extent of its territory, 
 and includes its Colonies and Possessions, as these, 
 however distant they may be or scattered over 
 the globe, constitute integral parts of the State.* 
 The rightofa State to recognitionas a Sovereign 
 Power, depends solely on iis possessing the qual- 
 ities stated above. The question when or bow 
 those qualities may have been acquired, whether the 
 State is still the Bame society as originally formed 
 or whether il separated itself from a community 
 of which it previously formed a pari or depend- 
 
 iii . i.. . Blem, ini. Law. Edit. Dana. Pari I. Oh. M. Kli ber. 
 i '...it di Gens. 6 -'"•. Ob colaj I 'iplom, dc le Mer, Vol, I. Liv, I. 
 
 Ui. II. 
 
 liun.
 
 part II.] THE SOVEREIGNTY RIGHTS. [ Cn ^; V ' 83 
 
 ency, is no concern of International Law. Poli- 
 tical reasons may retard the formal recognition 
 of a State by other States, but this does not debar 
 its right to recognition. A State is cle jure a 
 Sovereign Power, the moment it has constituted 
 itself cle facto as such. This is the status juris ; 
 but it remains, nevertheless, of great importance 
 to the newly formed State to be practically and 
 formally acknowledged by the leading Powers as 
 a Sovereign State. The choice of an occupant 
 for a vacant or disputed throne, although be- 
 longing exclusively to the concern of the in- 
 terested State, is seldom concluded without the 
 concurrence of the leading Powers. This is a 
 matter of etiquette as well as a guarantee for the 
 peaceable establishment of the new Dynasty. 
 
 Mere influence exercised by one State wpoiwnion / crowns. 
 the internal or external affairs of another State ( "'°' ei ' somhs) 
 does not impair the Sovereignty of the latter. * 
 
 Neither is such the case when the Sovereign 
 of one State is, at the same time, the Sovereign 
 of another, when the union of several crowns 
 consists only in the person of the Sovereign 
 (unio personalis) which, by no means, implies 
 the political Union of the States (unio civitatum) 
 as each State preserves its complete and distinct 
 Sovereignty, f 
 
 A State whose territory has been declared Neutral state*. 
 neutral, by a pactum between neighbouring 
 States, remains entirely independent and in com- 
 plete possession of all its Sovereignty Rights, 
 as this condition of neutrality, — which does not 
 effect its independence, but on the contrary, 
 
 * Phillimore. Com. on Intern. Law. Vol. I. Part II. Calvo. 
 Le Droit Intern., Vol. I. Liv. II. Halleck. Intern. Law. Ch. III. 
 
 f Thus the kingdoms of Sweden and Norway have the same king, 
 in personal union. The King of the Netherlands is at the same time 
 Grand Duke of Luxemburg, &c.
 
 84 Part II.] THE SOVEREIGNTY EIGHTS. [^f^ - 
 
 is a guarantee to its integrity, — is of special im- 
 portance to the contending interests of those 
 Powers, who, to keep the reciprocal condition 
 of territorial rights and claims in proper equilib- 
 rium, have mutually pledged themselves not to 
 trespass on the territorial rights of the neutral 
 State, and this in order to maintain what is called 
 the balance of power. 
 
 protected sover- A Sovereign State having contracted an alliance 
 to secure the protection oi one or more states 
 against some act of direct or indirect aggression, 
 threatened by other States, does not, by the mere 
 status of a protected State, forfeit any part of its 
 Sovereign Rights with regard to States outside 
 the pact, provided that no condition of the treaty, 
 regulating the protectorate, do, in reality, infringe 
 upon any of the Sovereign Rights of the protected 
 State. 
 
 colonial Protect- Another distinct sort of so-called protectorates 
 is that which, sometimes, is established by Mari- 
 time and Colonial Powers over native States on 
 islands or continents outside of Europe. This 
 is mostly done in the political interest of the 
 protector himself, but often, at the same time, for 
 the more disinterested purpose of advancing pros- 
 perity and civilization among semi-civilized na- 
 tions, for which end such alliances are essentially 
 useful. This sort of dependency, however; 
 might more suitably be called vassalage. The 
 change of terms could not make any difference as 
 far as the natives are concerned and the real posi- 
 tion of the protected Slate would be placed in 
 its proper light. 
 
 Tributary states. Tributary States am those which arc subjeel 
 to tributary obligations or vassalage in relation 
 to another State, with which they are connected
 
 r„RT ii.] THE SOVEREIGNTY RIGHTS. [^f^* 85 
 
 as their acknowledged Suzerain. In such cases, 
 the degree of dependence is determined by the 
 amount of freedom of action, which such a State 
 may be left to enjoy with regard to its autonomy 
 and its outward relations with other States. * 
 
 Tributary rights and obligations, like all other 
 agreements among Nations, cannot be dissolved 
 without the consent of both parties, and other 
 States are bound to respect these rights and 
 obligations. But when the Suzerain has, tacitly 
 or expressedly, allowed his tributary to make 
 treaties with other States independently, or to 
 enter into any political or commercial agreements 
 with other powers, unchallenged by the Suzerain 
 State, the Suzerainty Right cannot subsequently 
 be claimed at the convenience of the Suzerain 
 State with the views of annnllino- the agreements 
 in question. 
 
 Treaties, concluded by a Tributary or Vassal 
 State, and having for their object the renuncia- 
 tion of vassalage or the placing of one State under 
 the protection of another, require, at all times, 
 the expressed sanction of the Suzerain concerned. 
 
 Tributary States are sometimes called Semi- 
 Sovereign. Under this denomination ail those 
 States are comprehended whose faculties of 
 Sovereignty are limited in consequence of their 
 dependence upon other States. 
 
 The condition of a protected State is different^™"* letaem 
 from that of a Tributary or Vassal State. Then°wan/wm- 
 protectorate is regarded as the result of a volun-"" 
 tary act of a State, placing itself under the pro- 
 tection of one or more States, by special contract 
 and for certain temporary objects. These objects 
 
 * Vattel. Droit des Gens. Prelim. Ch. Verge. Introduction. 
 Martens. Precis du Droit des Gens. Ortolan. Regies Intern. 
 Chap. I & II. Halleck. Intern. Law. Edit. Sir Sherston Baker. 
 Vol. I. §§ 1-19. Calvo. Lc Droit Intern. Vol. I, Liv. II, § 50, etc.
 
 Chapt. V. 
 
 86 Part II.] THE SOVEREIGNTY RIGHTS. [ CH §». 
 
 may at any time cease to exist, in which case the 
 protectorate becomes superfluous and thus revo- 
 cable as having no more any raison cTctre. On 
 the other hand, the vassalage of a Tributary 
 State is, in most cases, the result of former con- 
 quest or of a treaty made to avoid invasion, 
 by which the right of conquest is waived in 
 favour of that of tribute. The latter thus 
 always implies dependency, irrespective of the 
 amount of freedom which may de facto be left to 
 the vassal in course of time and irrespective of 
 the question how far the tie of dependency may 
 eventually have been relaxed. 
 
 Tributary obligations or relations of vassalage, 
 being interwoven with the history of the Tribu- 
 tary State concerned and bound up with the 
 natural conditions of things, cannot ordinarily be 
 departed from, without consent of the Suzerain. * 
 
 Another essential difference subsisting between 
 a Tributary State and a Protected State is that 
 the Executive Government of the former is sub- 
 ject to investiture by the Suzerain, which is never 
 the case with a protectorate. 
 union of sover- x 25. Different States are sometimes united, so 
 as to represent, outwardly, one Sovereignty, 
 though their respective internal conditions, with 
 regard to government and legislation, may be 
 more or less distinct or independent of each other. 
 
 Federal and Cm- UllionS of States COMIC under two principal 
 
 categories, viz.: the Perfect Union, called Inoor- 
 porate States, by which the Sovereignty, internal 
 and external, of each individual State is com- 
 pletely merged in the community, forming a 
 united Sovereignty f ; and the Lmperfecl Union, 
 
 * PHILLIMOBE. Com. Int. I.;i\v. Vol. I. Pari II. page 98. 
 
 f Such iB the caBe of the United Kingdom of Great Britain and 
 [reland and of the State compo Lng tli" A.ustro-Hungarian Empire, 
 witi, ,,,,,,. , c ptioti regarding the relation of Hungaria i" the other 
 
 ites.
 
 PaetII.] THE SOVEREIGNTY EIGHTS. [ Cu §25. V- 87 
 
 which is again of two sorts, namely the Federal 
 Union and the Confederacy. 
 
 When individual Sovereign States form a Fed- 
 eral Union or a Confederacy, the external sov- 
 ereign functions are delegated by all to one 
 Chief- Government, in order to represent all or 
 each of them (as the case may be) in the inter- 
 course with other States outside the Union, whilst 
 also the Internal Sovereignty of the several com- 
 ponent States of the Union undergoes, at the same 
 time, certain modifications, in conformity with 
 the nature and conditions of the compact. 
 
 The distinction between a Confederacy (Staa- 
 tenbund) and a Federal Union (Bundesstaat) 
 is commonly understood to consist in this, that 
 in a Confederacy each State completely retains 
 its individual Sovereignty as regards internal 
 government policy and legislation and also re- 
 garding its external affairs, in all cases not dero- 
 gatory to the effect of the power delegated to the 
 Executive of the Confederacy, — each State being 
 united with the others in so far only as is strictly 
 necessary for the common object of the Union, 
 as defined by the pact. * On the other hand, in 
 the case of a Federal Union, the different Sover- 
 eignties are incorporated in one Federal Govern- 
 ment, both for external affairs and general internal 
 policy, but each State retains nevertheless its 
 complete autonomy with regard to internal State 
 legislation, as stipulated by the Federal Constitu- 
 tion, f 
 
 The difference lies, with regard to the internal 
 
 affairs, in the direct or indirect relations which 
 
 * Such is the case of the German Confederation and of the Swiss 
 Cantons. 
 
 f Such is the case of the United States of America, Venezuela. 
 Columbia, etc.
 
 Cbapt. V. 
 
 88 p**i "■] THE SOVEREIGNTY RIGHTS. [^H; 
 
 exist between the individuals composing each 
 State and the Central Government or the re- 
 presentative of the general Sovereignty of the 
 Union. In a Confederacy, the relation of the 
 private individual subject to the General Govern- 
 ment is an indirect one, that is to say it requires 
 the mediation of the Government of each State, 
 through whose agency the general laws of the 
 Confederacy must be promulgated in order to 
 have effect in the State. On the other hand, in 
 a Federal Union, the relation of the private in- 
 dividual to the Federal Government is a direct 
 one ; the laws of the General Legislature, within 
 the scope defined by the Constitution, being 
 binding on all the subjects throughout the whole 
 Union, without the interference of State author- 
 ity. 
 
 The Chief- Government of a Confederacy re- 
 presents its members, as regards all external 
 relations, not only collectively, but also each 
 State individually, whilst the Federal Govern- 
 ment always represents the whole undivided 
 Union. * 
 
 huo/a § 26. Every Sovereign State is entitled to the 
 s rZ'i!Zn ! i','r full exercise of all the rights appertaining to a 
 separate, distinct and independent organisation, 
 collectively called the Sovereignly Rights, in any 
 manner and under any condition, as long as it 
 does not infringe upon the rights of any other 
 independent State possessing equal faculties and 
 rights. 
 
 The rights and attributes of each Slate are 
 limited only l»v the Moral Law of Nature and by 
 the usages founded thereon, by similar rights and 
 
 Wheaton. [ntern. Law. Part I., §§ 20-45. PHILLlMOBfl. Com. 
 int. Law. Vol. J. Part II. Chapter U. 
 
 and Conditional 
 Righto
 
 enumerated. 
 
 taut ii.] THE SOVEREIGNTY RIGHTS. [ ° H f le". V * 89 
 
 attributes belonging to other States, or by con- 
 tracted obligations. 
 
 The rights which naturally belong to a State, 
 per se, for the sole reason that it is a State, as 
 being essential to its existence as such, are called 
 the fundamental or absolute rights, in distinction 
 from the conditional or occasional rights, which 
 are the results of particular conditions and cir- 
 cumstances of intercourse with other nations, or 
 the consequences of the exercise of the absolute 
 rights. 
 
 The absolute or fundamental rights of Sover- rime Rights 
 eign States, under which classification all cases 
 or details of International Law must be com- 
 prehended, (as stated on page 58) are the fol- 
 lowing : — 
 
 1st. The Right of Existence and of Self-pre- 
 servation, which involves the following condi- 
 tional rights : — 
 
 a. The Right of Redress, which implies the 
 principles of Amicable Arrangement and 
 Transaction or Compromise, of Mediation and 
 Arbitration, and also of Conference and Con- 
 gress. > 
 
 b. The Rio-ht of Retribution and Retaliation. 
 
 c. The Right of Reprisal. 
 
 d. The Right of Seizure of the object of dis- 
 pute. 
 
 e. The Right of Interference and Intervention. 
 /. The Right of making War and concluding 
 
 Peace. 
 
 From the Right of Self-preservation devolves 
 the principle of Balance of Power. 
 
 2nd. The Right of Independence which in- 
 cludes that of Equality and Respect, 
 
 3rd. The Right of Property (Territory). 
 
 4th. The Right of Legislation.
 
 90 i'ahtil] THE SOVEREIGNTY RIGHTS. [§>?*& 
 
 5th. The Right of Intercourse, Representation 
 or Legation and International Commerce. 
 6th. The Right of Negotiation and Treaty. 
 7th. The Right of Neutrality. * 
 
 me night of §27. Every State has, like every individual, 
 
 rr^r^tiotmd\h& natural right of existence, from which devolve 
 Mf.de/ence. the Rights of Self-preservation and of Self-defence. 
 The Right of Existence, naturally the first of 
 the absolute or fundamental rights of a State, 
 forms the basis of all conditional rights. It im- 
 poses the most sacred obligations on all the in- 
 dividuals composing the State, as it is the guar- 
 antee for the integrity of the State, for the free 
 exercise of all its rights and faculties, and for the 
 security of the national institutions and the safety 
 of all its members, collectively or individually. 
 
 In the maintainance of this right every indi- 
 vidual member of the State is morally bound to 
 co-operate to the full amount of his capabilities. 
 The Right of Self-preservation and Self-defence 
 involves all other incidental or conditional rights 
 necessary to place the State in perfect condition 
 for purposes of defence, and to guarantee its safety 
 and independence, without giving, by a dispro- 
 portionate increase of aggressive warlike means, 
 reasons for alarm or distrust to other States and, 
 in consequence, for interference, f 
 
 Right o/ into- § 28. Independence is the right which natur- 
 ally Hows from that of Sovereignty of which 
 it is the complement. It is the right of a Sover- 
 eign State to establish, -maintain and alter its 
 government, its constitution or any part of its 
 
 * Wheaton. Intern.Law. Pari II. Chap. I. Ki.i BE] 
 (lens. Edit. Otfc. ! 861, relim. $ 15*. 
 
 Hepfteb. Droit Intern. §§ 29-31. Ortolan. Diplomatic <!<> la 
 Mer. Liv. I. Chap. II and 111. Halleck. Intern. Law. Edit. Sher- 
 ton linker, page 80 et seq. 
 
 | Kluber. Droit des Gens. § 58, Calvo. Le Droit Intern. Vol- 
 II. Edit. 1870. §131. 
 
 pendence.
 
 pabth.] the sovereignty rights. [ c ™ v - 91 
 
 internal organization and legislation, without the 
 consent of any other State. In fact, the right of 
 independence implies the right of a State to be ex- 
 empted from any interference as regards its Sover- 
 eignty rights ; Sovereignty being the right to act 
 without being controlled. Independence implies 
 the right to be left irresponsible, — as long as the 
 exercise of Sovereignty does not impede the 
 rights of others, — and to be treated on a footing 
 of perfect equality by all other Sovereign States. 
 
 § 29. The Equality which exists between Sover- Rijhtofi-^a 
 eign States does not proceed from equality of ' ! 
 power, extent of territory or number of individ- 
 uals composing the State, but from the similar- 
 ity of those rights and obligations, which con- 
 stitute the status of equality before the Law of 
 Nations. The principle on which this right of 
 equality is based is the same as that which, in 
 civilized States, belongs to all citizens possessed 
 of equal personal responsibilities, i. e., the natural 
 right of equality before the law of the country, 
 irrespective of the amount of social or material 
 preponderance belonging to individuals. Thus, in 
 this respect as in many other instances, the status 
 juris of States, with regard to International Law, 
 is analogous to that of individuals with regard to 
 their respective Civil Laws. 
 
 The Riffht of Respect is asserted by the claim Right of r^ct 
 
 O I'll ttn d R'-putatton. 
 
 of an Independent State to be treated with due 
 regard by other States ; it includes the Right 
 of Reputation, that is, the claim that others should 
 abstain from criticizing its national reputation, 
 while it is endeavouring to uphold unstained its 
 national character and honour. 
 
 The inherent moral dignity of man must be 
 found in the State ; its total absence is a sure 
 sign of approaching dissolution. Self-respect is
 
 CnAPT. V. 
 
 92 part it.] THE SOVEREIGNTY RIGHTS. 
 
 the fountain source of national virtues and a ju- 
 dicious pride in its own honour and reputation 
 is a nation's first moral claim. National pride, 
 when based on self-respect, will then not degen- 
 erate into that haughty demeanor and ungen- 
 erous bullying of weaker States, of which Europe, 
 in its history of the last century, affords so many 
 detestable examples. True national self-respect 
 exhibits that genuine manly dignity and magna- 
 nimity, worthy of any great civilized Nation, 
 which claims for itself what it considers to be a 
 moral duty not to withhold, on its own part, from 
 others vested with equal rights, although they 
 may be unable to vindicate their rights by force. 
 
 MutMai under- Therefore, every State has the same essential 
 ^irdto^R^ht interest in the prevalence of a mutual under - 
 of re^t. landing with regard to International Respect, 
 
 based on the following conditions, which are to be 
 
 observed reciprocally. 
 
 comity between 1st. Respect is clue to the Right of Existence, 
 """' Independence and Integrity of other States, and 
 toleration is to be granted to all their other in- 
 ternational rights, as long as the exercise thereof 
 does not infringe upon the rights of others. 
 
 2nd. Respect is due to the moral and political 
 dignity of the Executive Government, and such 
 respect should be shewn by using the proper 
 official titles and appellations of the State and 
 its Sovereign or Chief Magistrates, in matters of 
 correspondence, or when making reference to 
 those dignitaries in public documents or in 
 speeches delivered by statesmen in power. 
 
 3rd. Consideration is due to the adopted form 
 of Government, to the Constitution and the Laws 
 of a State. It is therefore commonly understood, 
 that the National Institutions of each State should 
 be reciprocally respected, by not being ignore* 1 
 
 individual Stales.
 
 part ii.] THE SOVEREIGNTY RIGHTS. [ CH §£>'. V ' 93 
 
 in the case of claims, negotiations or occasional 
 references. 
 
 4th. The National Fame forms the most pre- 
 cious regalia of a Nation and is guarded with a 
 just feeling of jealousy from the attack of any one. 
 Misrepresentation of historical facts, tending to 
 lessen the glory of a people, is always a cowardly 
 act, but when the Government of a State allows 
 such misrepresentations to be recorded in official 
 documents, in order to add surreptitiously to its 
 own credit or to that of its officers, the act has 
 all the ignominy of slander and must be followed 
 by disgraceful consequeuces for the usurper. 
 
 No Government that is aware of its own dignity 
 will allow its officers to disregard the just claim 
 to reputation and respect possessed by other 
 Nations. * 
 
 5th. It is particularly a display of want of 
 respect and comity to allow combinations of con- 
 spirators openly to organize themselves for the 
 overthrow of the established Government of a 
 friendly State. 
 
 6th. Although, apart from treaty agreement, 
 no State is obliged to help another in the ad- 
 ministration of its Criminal Laws, which have, 
 generally, no effect outside the respective territory 
 or jurisdiction of a State, yet it is a moral duty 
 of any civilized Government, not to allow the 
 counterfeiting of foreign coins and bank-papers 
 within its territory, nor to allow the organization 
 of bands of smu°'o\lers on the frontiers with the 
 object of making contraband inroads upon the 
 territory of a neighbour, especially when these 
 bands have been in armed contest with the officers 
 of the State in cpiestion, and friendly appeal has 
 been made from the suffering State for the sup- 
 pression of the mischief. 
 
 * Vattel. Droit cks Gens. Liv, I. Chap, XV. Liv. II. § 14.
 
 94 PabtH.] the sovereignty eights. [ Ch §29'. v# 
 
 It is admitted as a general principle that, 
 although not legally bound to do so, every 
 Government is expected to suppress, as far as its 
 constitutional laws will allow, any combination 
 within its jurisdiction tending to violate the laws 
 of a friendly State, especially with regard to acts 
 which are punishable by its own laws when 
 committed within its territory. Of course, faithful 
 reciprocity is expected in all cases. 
 
 7th. It is regarded as a general principle of 
 friendly international intercourse, not to exclude 
 the subjects of any State from participation in 
 those civil rights, securities and privileges which 
 are allowed to other foreigners under similar cir- 
 cumstances ; in other words, not to make a dis- 
 tinction between nationalities within the State's 
 jurisdiction, unless it be on the basis of treaties 
 of reciprocity. 
 
 8th. The observance of the ordinary rules of 
 etiquette and public ceremonials is due to Foreign 
 Sovereigns, their Ambassadors and Diplomatic 
 Agents, to Vessels of War, to Foreign Princes 
 and to Statesmen in power. In this respect every 
 State follows its own regulations of maritime 
 etiquette and other ceremonials, which, however, 
 are nearly all of the same tenor, having all for 
 their basis the acknowledged principle of equality 
 between Sovereign States and Chiefs, and their 
 Agents, and between Officers of equal rank; the 
 aim being the mutual exchange of courtesy, as a 
 token of good understanding between friendly 
 Nations. 
 
 international International Comity (comitas qentium) is the 
 courtesy of Nations, which consists in the regard 
 reciprocally due, in the intercourse of civilized 
 Sovereign States, to those mutual rights and moral 
 claims, which, although doI forming an acknow-
 
 tart li.] THE SOVEREIGNTY RIGHTS. [ ClI f?»'. V- 95 
 
 ledged usage of International Law, are neverthe- 
 less based on the equality of Sovereignty. The 
 maintenance of relations of comity on the part of 
 all civilized States tends to promote mutual good 
 feeling among Nations, and is thus of the utmost 
 consequence for their general welfare. 
 
 Colonial Governments have many opportunities 
 to show their appreciation of International comity 
 and politeness. 
 
 The difference between Comity and Private 
 International Law, which latter is often treated 
 as identic with Comity, is noted in § 50.
 
 96 Taut n] TERRITOEIAL EIGHTS. [^'sw/ 1 ' 
 
 CHAPTEE VI. 
 
 Right of Property and Territorial Rights. 
 Private and S 30 The term Property, as Grotius defines it, 
 
 Public State Pro- . s. J » > 
 
 perty. is an appellation <nven to that which man calls 
 
 Eminent Domain., . i i • l • i f 1 t> i ^ 
 
 his own, and which consists oi Jus rersonale and 
 Jus Reale. * Whilst the former of these terms 
 has reference to movable effects, called personal 
 property, which can be disposed of without any 
 interference of municipal law, the latter of those 
 two terms refers to immovable goods, called real 
 property, the alienation of which is regulated by 
 the formalities of law. 
 
 In an analogous manner, the Property of a State 
 is considered to be either Private Property or Pub- 
 lic Property. The Private Property or Domains 
 of a State are of no concern to International Law. 
 Such property is solely regulated through inter- 
 nal legislation, by virtue of which the Govern- 
 ment of a State disposes of these properties with 
 the same absolute right as any individual can 
 dispose of his own personal effects. The Public 
 Property or Public Domains of a State constitute 
 property which, as being connected with the ex- 
 ternal Sovereignty Rights of a State, is subject 
 to International Law as well as to the Internal 
 Public Law of the State concerned. 
 
 There is another kind of proprietary right, 
 which is peculiar to the status of a State, as Body 
 Politic, namely the right of disposing, — by virtue 
 of the attributes of internal Sovereignty, in cer- 
 tain extraordinary cases of public interest or 
 necessity or for the public safety, — of property 
 belonging to private individuals residing within 
 
 * OnoTius, Introduction to Dutch Jurisprudence. Liv, I, Ch. I. 
 Sect, viii.
 
 r.uiT 11 
 
 TERRITORIAL RIGHTS. [ §». - 97 
 
 the jurisdiction of the State. This right, which 
 is called Eminent Domain (dominium eminens), 
 is also regulated by the Internal Public Law of 
 each State, * 
 
 The Territorial Rights of a State comprehend : Territorial 
 
 ° l Rights. 
 
 1st. All within the limit of the State, mainland 
 as well as the islands adjacent to its coasts, also 
 the seas, lakes and rivers, which are conterminous 
 with the territory comprised within the boun- 
 daries of the State ; all, of course, with the excep- 
 tion of those portions of territories or waters, 
 which are called enclaves, being situated within 
 the boundaries of one State whilst belonging to 
 the domain of another State. 
 
 2nd. The Colonies and Possessions outside 
 the original boundaries of the Mother- State, in- 
 dependent of geographical situation or position. 
 
 3rd. Under the Jurisdiction of a State come also, 
 besides the territorial properties above mentioned, 
 the mouths and estuaries of rivers, the bays and 
 a certain portion of the sea, called the Territorial 
 Waters, being within the range of the coast- 
 defences of a State or within a distance of one 
 marine league (3 English marine miles) from any 
 land belonoiuo- to the State's territory. This is 
 called the Maritime Territorial Jurisdiction. \ 
 
 * Phillimore. Comm. Intern. Law. Edit. 1879. Vol. T, page 221. 
 Wheaton. Edit. Dana. §§ 161-163. VATTEL. Droit des Gens. Edit. 
 Pradier Fodere. Vol. I. § 235. Heftter. Euxop. Volker. § 64. Or- 
 tolax. Domaine International. §§ 13 et seq. Halleck. Intern. 
 Law. Edit. Sir Sheraton Baker. 1878. Vol. I, page 129. 
 
 f GROTIUS. De Jure Belli ac Pads. Liv. II. Cbapt. III. §10-14 
 Vattel. Droit des Gens. Liv. I. § 289. Martens. Precis de Droit 
 des Gens. § 40. Kluber. § 130. Wheaton. Ed. Dana. §§ 177-181. 
 Woolsey. Edit. 1879. § 5G. The Treaties between Great Britain 
 and the United States, of 1818, and between Great Britain and 
 France of 2nd August, 1839, settle the limits of exclusive fishery for 
 each of the contracting States at one league or 3 English marine 
 miles. The British Act of 1833 assumes the marine league as the 
 limit of maritime territorial jurisdiction. Compare Chapt. XI,
 
 98 p ™ »■] TERRITORIAL RIGHTS. [°"tIi. VI ' 
 
 Auamtion of re,-- The Territorial Property of a State may be 
 """" ?/Y ^ rt -"- alienated in either of the two following ways, 
 viz.. either to private individuals or corporations 
 or to another State. In the former case the 
 State retains its sovereignty and jurisdiction, 
 with the right of eminent domain. In the latter 
 case, Territorial Property being alienated by ces- 
 sion to another State, the Sovereignty Right, 
 together with all its international consequences, 
 is transferred along with the land to the State 
 acquiring it, and the political nationality of the 
 inhabitants of the ceded territory is exchanged 
 for that of the new State. 
 
 Acquisition of §31. Indisputecl territorial possession exists 
 
 Terr torial • , 1 r n • 
 
 Rights. m the following cases, viz. : — 
 
 1 st. Possession from time immemorial or con- 
 temporaneous with the origin of the State. 
 
 2nd. By international treaties, through cession, 
 transfer, purchase, gift or exchange. 
 
 3rd. Occupation of territory voluntarily aban- 
 doned by a former occupant; or of unoccupied 
 territory without settled inhabitants or recognized 
 owner. 
 
 4th. By right of conquest, legally established 
 as possession and recognized as such after the 
 conqueror has entered into peaceful possession, 
 by virtue of a treaty of peace; tor until then 
 the conquest is merely an occupation by armed 
 Ion 
 
 5th. By alluvial increase of the Territorial 
 Property (incrementumj. Islands, formed by 
 drift of river or sea-tides, belong to the Nat ion by 
 whose laud's mud or whose water's sand 1 hey 
 were caused. 
 
 6th. P>v Usucapion and Prescription. 
 
 The right of possession once legally acquired 
 continues for an unlimited period, unless it be
 
 l'AKT 
 
 ill.] TERRITORIAL RIGHTS-, [ Ch ^32. "'' 99 
 
 expressly stipulated otherwise by a'- treaty of 
 temporary cession. * 
 
 §32. The occupation and taking possession oi' m^t 0/ om.pa- 
 property which has no owner, is a natural right, t°"\ 
 as all things on earth are for the use of man, and 
 any individual has an equal right to anything 
 that has not fallen into the possession of another. 
 
 The appropriation of territories must be follow- 
 ed by a de facto occupation. Right of property is 
 not constituted either by the simple discovery of 
 an island or any tract of land, nor by a tempo- 
 rary occupation after the discovery, if followed 
 by total abandonment for an indefinite length 
 of time, f 
 
 The principle that only continued de facto 
 occupation of a territory constitutes the right of 
 property is essential, and it is indispensable for 
 the legitimation of the right of property claimed 
 by those Nations which have occupied countries 
 originally inhabited by savages or semi-barbarous 
 natives, on the ground that these nomadi: tribes 
 did not comply with the natural obligation 
 implied by territorial possession, viz., the culti- 
 vation of the ground. While living in an unset- 
 tied state, hunting and wandering from one place 
 to another, these natives overran the land without 
 occupying or inhabiting it, wherefore they do not 
 suffer any real wrong when a civilized industrious 
 Nation occupies a portion of the waste land with 
 a view to make the neglected ground contribute 
 to the support of the human race by judicious 
 exploitation. On this principle Colonial Posses- 
 sions are established. 
 
 * Phillimore. Coram. Int. Law. Vol. I. §§ 255-260. Wheaton. 
 Edit, Dana. Pt, II. Chapter IV. 
 
 f Vattel. Droit des Gens. Edit. Pradier Fodere. 1P63. Vol. I. 
 § 208, page 491. Martens. Precis du Droit des Gens. Vol. I. § .°v7. 
 Kltjber. §126, Heftter, Droit Intern, de I'Europe. 8 70.
 
 100 PiM II.] TERRITORIAL RIGHTS. 
 
 flAPT. VI. 
 
 532. 
 
 The occupation of any Terra Firma is supposed 
 to include the presumption of possession of its 
 adjacent unoccupied islands, on the principle that, 
 when two things are conterminous or in close 
 connection, the more valuable annexes to itself 
 that which is less valuable. Thus the possession 
 of an island gives no right or claim on any por- 
 tion of the opposite mainland. * 
 
 By an Act of Congress of the United States 
 of America, which was approved on 18th August 
 1856, a general rale has been established with 
 regard to the discovery and the use of guano 
 islands by citizens of the United States (U. S., 
 Laws, XI, 119), regulating the discovery and 
 peaceful possession taken of deposits of gnano 
 on islands, rocks or keys, not being within the 
 lawful jurisdiction of any other Government and 
 not occupied by the citizens of any other Govern- 
 ment. "Such island, rock or key, may, at the 
 discretion of the President of the United States 
 aforementioned, be considered as appertaining 
 to the said United States, securing the citizens 
 of the United States the use of the same for 
 removing the guano deposits which they have 
 discovered and legally taken possession of beyond 
 the jurisdiction of any foreign State, with condi- 
 tion to sell or ship the guano to citizens of the 
 United States only, and at rates fixed by Statutes. 
 Nevertheless such islands, rocks or keys are not 
 made part of the territory of the United Stales, 
 and all acts done and offences or crimes commit- 
 ted thereon, or in the waters adjacenl thereto, 
 
 are to be held and deemed to have been done <>r 
 
 committed on the high seas, on board a ship or 
 vessel belonging to the United States, and be 
 
 ■ Vvriii.. limit .1, - Geus. Edit Pradier Fod6r£, L863. Liv. I. 
 ii.umI xyii. Qbotidb. Dutch Jurisprudence. Book II, 
 eh. f X. Calvo Droit [ntern. Vol, I. Liv, V,
 
 Pari if.] TERRITORIAL RIGHTS. [ CHA §33. VI ' 101 
 
 punished according to the laws of the United 
 States relating to such ships or vessels and 
 offences committed on the high seas." * 
 
 Possession through Usucapion and Prescription usucapion and 
 
 . <■ • i i • i • p i Prescription. 
 
 is the right obtained on territory alter long, un- 
 interrupted and undisputed public occupation, 
 provided this occupation of the land have been 
 peacefully effected, through a bond fide presumed 
 abandonment on the part of the former owner, 
 and not by usurpation or through taking undue 
 advantage of his error, misapprehension or weak- 
 ness, or when he has been driven from the pos- 
 session by force majeure or by the violence of third 
 parties, f 
 
 § 33. Another mode of coming into possession ne/ait-acam- 
 of property or right, in time of peace, is the fait- 
 accompli, which is the occupation of contested 
 property by unexpected proceedings or surprise, 
 with the aim of establishing a right of possession ; 
 thus placing the opposing party face to face with 
 an accomplished fact which can be disputed only 
 by force. 
 
 * Wheaton. Elem. of Intern. Law. Dana's Note 104, on Guano 
 Islands, page 255. Halleck Intern. Law. Edit. Sh. Baker. 1878. Ch. 
 VI. Vol. I. p. 139. 
 
 f Vattel. Droit des Gens. Liv. II. Chapter XL Wheaton. 
 Elem. of Intern. Law. Part II. §§ 1G4 and 165. Phillimore. Comra, 
 Intern. Law. Vol. I. Edit. 1879. Part III. Chap. 13. "L'tisu- 
 capion et la prescription sont meme, jusqu'a un certain point, plus 
 necessaires entre etats souverains qu'entre particuliers. En effet, les 
 demeles qui s'elevent de nation a nation ont une tout autre import- 
 ance que les querelles individuelles : ces dernieres peuvent se regler 
 devant les tribunaux, tandis que les conflicts internationaux abontis- 
 sent trop souvent a la guerre ; il faut done, dans l'interct de la paix, 
 comme dans celui de la bonne harmonie entre les nations et des pro- 
 gres du genre humain, ecarter tout ce qui pourrait jeter le trouble 
 dans le droit de possession des souverain, lequel, larsqu'il arecu, sans 
 conteste, la consecration du temps, doit etre regarde comme impre- 
 scriptible et legitime. S'il etait permis, pour etablir la possession 
 primordiale d'un etat, de remonter indefinement les cours des annees 
 et de se perdre dans la nuit des temps les plus recules, peu de souve- 
 rains seraient surs de lour droits, et la paix ici-bas deviendrait im- 
 possible." Calvo. Le Droit Intern. Theor. et Prat. Edit, 1870. Vol. 
 I., page 289.
 
 102 PiiwII.] TERRITORIAL RIGHTS. [ Cn §33'. V1 " 
 
 Possession taken through occupation on the 
 principle of fait- accompli, can never claim pre- 
 scription to legalize the right of property. 
 
 The fait-accompli is distinct from occupation 
 or conquest effected by virtue of open war. 
 Though both are based on the doctrine of " Might 
 is Right," the latter is an assumption of power 
 openly made with a fair chance of repulse, while 
 taking possession by a fait-accompli, involves, 
 unless forced upon a State by the necessity of 
 securing its good rights against an aggressive 
 party, all the immorality attaching to treacherous 
 usurpation of power.
 
 il.] COLONIAL POSSESSIONS. [""Jm.^"" 108 
 
 CHAPTER VII. 
 
 Colonial Possessions. 
 
 § 3 4. The original meaning of the term Colony, origin 0/ ooto. 
 — as the latin word colon ia, derived from the 
 verb colo or colere (to till or cultivate the ground) 
 and colon us (husbandman) indicate. — signified 
 the transferring of people from one country to 
 another for the purpose of cultivating the unhus- 
 banded soil, and the allotting of lands to such 
 emigrants for that purpose. These people were 
 then called coloni. Hence the term Colonist. 
 The meaning of the word Colony was, however, 
 extended, so as to signify the country or place 
 where sucli colonists settled. The meaning which 
 we now attach to the word Colony is quite differ- 
 ent from that given to the word as used in ancient 
 history with regard to the Phoenician and Grecian 
 settlements of emigrants. The term is now used, 
 according to its most general modern accepta- 
 tion, to designate various classes of the scattered 
 territories of a State, situated outside the original 
 boundaries of the parent State. The political con- 
 stitution of such territories may differ from that 
 of the latter, in matters of local legislation and 
 internal finance, in conformity with the wants and 
 degrees of civilization on the part of the original 
 inhabitants of the soil, but such territories form 
 nevertheless integral parts of the parent State, 
 as a general Body-politic. On this head our 
 present colonial system corresponds, to a remark- 
 able degree, with the ancient Roman colonia, 
 a system of organized municipalities which were 
 situated outside the parent State, y^t closely 
 connected and responsible to its Central Govern- 
 ment, and which made the same distinctions, in
 
 104 I'aht ii.] COLONIAL POSSESSIONS. [ CHJ §l4. V1L 
 
 according the privilege of Citizenship, as we 
 practice now between the natives and the white 
 population of our modern Colonies in the East. 
 
 The Phcenecians were early settlers in the 
 fertile island of Cyprus, opposite their own coast, 
 but their colonies extended also along the North 
 Coast of Africa as far as the Pillars of Hercules, 
 along the coast of Spain the Balearic islands, 
 Sardinia and Sicily. Many of these soon threw 
 off their dependence on the Mother Country and 
 formed themselves centres of trade and coloniza- 
 tion. From the Greek word Metropolis comes 
 our expression Mother Country. 
 
 The earlier Greek colonies seem to have been 
 founded on the same plan as those of the Phoeni- 
 cians, especially by the emigration taking place 
 after the Troy an war, into the Ionian islands, 
 Creta, Rhodes, Corcyra, Aegina, Cos, and the 
 coasts of Asia-Minor, Byzantium, Selymbra, 
 Heraclea and other places on the coasts of the 
 Euxinc. 
 
 Then came the Roman system of colonization, 
 for political and economical purposes, which 
 resembles more the modern type. 
 
 The Venetian system was like that of Rome. 
 The Venetians ruled over the people by means of 
 their colonies and garrisons. But while the aim 
 of the Venetians was con<|iiest and dominion. 
 the ( renoese, who took possession of most of their 
 colonics, principally sought to extend their com- 
 mercial establishments. 
 
 With the progress subsequently made in uavi- 
 gation and increasing communication with distant 
 reg'ons, the system of colonization entered ;i dis- 
 tinctly new pnase. It was no more applied to 
 the relations of people of nearly the same race 
 and little differing from each other in degree of 
 civilization, — but colonization was now extended
 
 j>aht ii.] COLONIAL POSSESSIONS. [° HA §35. VIL 105 
 
 to nations, vastly differing in race and intelligence 
 and inferior in both of these respects to the 
 colonizers. The preponderance of the latter, 
 naturally resulted in the demoralization and the 
 degeneration of the system, so that there was no 
 more question of colonization but of the exploita- 
 tion of countries, newly acquired through the 
 suppression of the rights of the aborigines. This 
 gave an. immoral bias of arbitrary power and 
 injustice to the colonial policy of the European 
 States, from which it is but slowly recovering 
 at the present time. 
 
 The European colonization of the 15th and 
 16th centuries exhibits, in the case of the newly 
 discovered Western Hemisphere, aspects and 
 results differing from colonization effected in the 
 East. In the New World, European migration 
 resulted, to a great extent, in the complete 
 transplanting of the race, as well as the civil- 
 ization of the respective parent-countries in 
 the new possessions, and this by extinguish- 
 ing the aborigines or by absorbing them in the 
 conquering race. In the East, on the other 
 hand, the European civilization, which Western 
 nations brought with them, had but slow effect 
 on the native remnants, left after centuries of 
 stagnation, of Avhat was once the height of the 
 civilization of the human race. 
 
 §35. Colonial Policy in general kept equal Prmdpieso/ 
 
 . ,t ,i • .1. ,. (. ,, , *■ ,. Modem Colonial 
 
 pace with tne civilization ot the parent-countries, policy. 
 The Colonial and Maritime Powers of Europe 
 and America view, at present, the occupation of 
 or protectorate over native Islands or States from 
 a different standpoint than that which jealousy 
 and competition prescribed a few centuries ago, 
 and nowhere lias civilization shown greater 
 power of development than in the Colonial sys-
 
 106 PartJI.] COLONIAL POSSESSIONS. [ CHA § P 35. VH " 
 
 tern, as exhibited by the history of the last four 
 centuries. The new era of Colonial activity has 
 abandoned the principle of taking advantage of 
 the natives by demoralizing them. The aim is 
 now to utilize large tracts of land for useful cul- 
 tivation and to open new outlets for the com- 
 merce and industry of all parties. * 
 
 Treaties with independent native chiefs have 
 no more for their sole object the securing of one- 
 sided gains, but are now concluded on the basis 
 of mutual security and always contain, now-a- 
 days, clauses most beneficial to the material and 
 moral progress of the uncivilised nations, by 
 binding them to abstain from slave-trade, human 
 sacrifices, piracy, and the like. Treaties be- 
 tween Suzerain Colonial Powers and the Native 
 States under vassalage or protectorate, likewise, 
 often contain stipulations controlling the impor- 
 tation of opium, fire arms and ammunition, in 
 order to suppress these sources of infinite mis- 
 chief and bloodshed among the uncivilized native 
 populations, while the trade in all other com- 
 modities is left entirely free; no impediment being 
 placed in the way of legal commercial intercourse 
 between these native Protectorates and the sub- 
 jects or citizens of third Towers. The revenue 
 derived from imports and exports is also left 
 entirely at the disposal of the Native Chiefs under 
 protection. 
 
 The ri.'jlii of Colonial Powers t<> establish and 
 exercise protection and control over neighbouring 
 uncivilized Native States, emanates from the 
 
 * An example of this in Lme is the recent Eta 
 
 Colonizal East Coast ol the Red Sea in the territory <>i 
 
 LCtioned by the [talian i.< gi latnre through the Law oj 5th 
 
 ./„/„./ -•..'«... ■-/. bich authorize the Government of the Mother 
 
 tablish the legislative, administrative, judicial and 
 
 financial i onofthene'w Colon] In comformity with its pre- 
 
 local "ii b basi i admil further development in 
 
 conformity w itfa its future progri
 
 Part ii.] COLONIAL POSSESSIONS. [ ClU |M. m 107 
 
 necessity of self-preservation felt by these Powers, 
 who, finding themselves compelled to take charge 
 of the preservation of order and safety on the 
 frontiers or in the neighbourhood of their islands 
 and territorial waters, have a right to expect 
 from all other Powers acknowledgment and res- 
 pect of the treaties concluded with the respective 
 Native Chiefs for such purposes. 
 
 In the case of a country not under actual terri- 
 torial occupation or jurisdiction of any Western 
 Power, the right of traffic and commerce with the 
 aborigines and native chiefs is incontestably open 
 to all nations and free from tolls and charges of all 
 description for the benefit of any foreign Power, — 
 provided the treaty stipulations agreed to between 
 the respective chiefs and the Western Suzerain 
 Colonial Power are respected by the foreign vessels 
 and traders visiting such native ports or islands. 
 
 §36. It has been noted above that Colonies Responsibilities 
 and Possessions form an integral part of the State S3ft^« 
 to which they belong, independent of geograph- 
 ical conditions; the original State being called the 
 mother-country. However, as these Colonies 
 and Possessions often form the outposts of the 
 civilization of the mother-country, special consi- 
 deration is due to their policy and legislation 
 which, as such, may differ from the internal 
 Public and Private Law of the original State. 
 
 The fundamental difference between the legis- 
 lation of a State and its Colonies and Possessions, 
 cannot be allowed to infringe upon or modify its 
 International obligations towards other States. 
 In other words, a State cannot appeal to the 
 exceptional character of any colonial legislation 
 as a necessity for exemption from any generally 
 acknowledged rule of International Law, for this 
 would give to Colonial Powers an undue privilege
 
 108 part ii.] COLONIAL POSSESSIONS. [^Ts'c™' 
 
 above other States that have no such additament. 
 In the present stage of civilization and in view of 
 the progress which has been made in International 
 intercourse, all narrow minded colonial jealousy 
 is utterly out of season. No Power following 
 a wise and liberal colonial policy (the only one 
 which can exist now-a-days) ought to have any 
 reason to fear the neighbourhood of any other 
 friendly Power in a colonial settlement. On the 
 contrary, every well-minded and able coloniza- 
 tion scheme should be wellcome as a new fel- 
 low-worker in the great field of civilization, for 
 the formation of millions of new centres, product- 
 ive of trade and consuming the products of in- 
 dustry. 
 
 It is no contradiction of this general rule, if 
 we say that, when placed in the light, in which, 
 through the progress of civilization, Colonial 
 Possessions must be viewed in our days, the 
 amount of responsibility and care which devolve 
 upon States which now-a-days take the lead of 
 civilization among barbarous or semi-civilized 
 nations in distant regions, and often with great 
 sacrifice to the mother-country, must also be taken 
 into consideration. When the Colonial Policy 
 of a State is scrutinized, one must not leave out 
 of account the responsibility devolving upon 
 every Colonial Power, for thus only fair compar- 
 ison can be drawn with other States, which are 
 free from all such incumbrances and restraint on 
 their national developmenf and internal aggran- 
 dizement . 
 
 It is ,i matter of simple justice then to view 
 both sides of the question, and when a Colonial 
 
 Power practices, as far as is consistent with sell- 
 
 preservation, a liberal colonial policy, adverse to 
 the principle of exploitation of the Datives and 
 
 free from the old colonial jealousy of exclusion
 
 PART II.] COLONIAL POSSESSIONS. [ C "^6 V "' 109 
 
 of foreign enterprise and commerce, it is not too 
 exacting to expect other States to restrain their 
 subjects from causing trouble among the natives, 
 and to respect treaties with third Powers and 
 their legal claims.
 
 110 Part II.] LEGISLATION AND JURISDICTION. [ 
 
 Chapt. VIII. 
 §37. 
 
 CHAPTER VIII. 
 
 Right of Legislation and Jurisdiction. 
 General Prin- S 37. The exclusive right of Legislation on 
 
 ciples of the Legis- ,, J . , . . •?• i • , i i 
 
 laaon and Juris- all matters within its territories and, with regard 
 
 diction of a State. , . . -i • , ••■ 1 ,i 
 
 to its subjects or citizens, wherever they may- 
 reside, is essential to the Sovereignty of a State. 
 
 The Judicial Power of a State is co- extensive 
 with that of Legislation within its territories and, 
 with regard to its subjects, in some instances, 
 which will be noted hereafter (§§45-49), also 
 outside its domain. 
 
 All individuals within the territory of a State, 
 its own subjects or citizens as well as aliens, 
 whether domiciled or temporary residing, are, — 
 with some exceptions established by Treaty or 
 through usage of International Comity and the 
 Rules of Private International Law (Ch. X), — 
 subject to the legislation, jurisdiction and control 
 of the State. They have consequently equal 
 right to protection and equal claim to legal and 
 practical security in the transaction of their law- 
 ful business ; wherefore, as a general rule, the 
 tribunals of a civilized State are open to foreigners, 
 in the same manner and to the same extent as 
 they are open to its own subjects, to have justice 
 administered to them in conformity with its 
 Laws. * 
 
 Pubik Law. Law The Right of Legislation of a State embraces 
 ate Law. ' ami Public Law (jus publicum), the Law of Persons 
 (jus personarum) and Private Law (jus priva- 
 tum). 
 
 Public Law lias reference to the constitution 
 and sovereign government, finance, policy and 
 
 * llu(;o GBOTIUS. Dutch Jurisprudence, Oh, XIII. Sect. III.
 
 Part II.] LEGISLATION AND JURISDICTION, [ CHA } T 37 VIIr ' 11 J. 
 
 to the general management of the State, of the 
 interests of its subjects or citizens (Staats-ange- 
 horigen) and of its internal and external affairs. 
 Public Law includes, accordingly, Political 
 Law (Staatsrecht) , Penal Law (Criminal Recht) 
 which covers also Police Legislation, Commercial 
 and Maritime Law and Public International 
 Law. 
 
 The Political Law of a State comprehends Pomcai Law 
 those legislative acts which establish fundamental iStaats ' €c 
 rules with regard to the criteria of what consti- 
 tutes its Political Nationality (jus civitatis), and 
 with regard to emigration, domiciliation in 
 foreign countries and expatriation of its subjects ; 
 with regard to the admittance of foreigners to 
 unmolested passage or peaceable residence, their 
 Right of Asylum and Domicile, their prohibition, 
 extradition or expulsion, also with regard to 
 questions of exteritoriality, and the conditions 
 required for the naturalization of aliens. 
 
 The Law of Persons (jus personarum) estab-£a»ef Person*. 
 lishes the legal status of the individual, with «£». ersma ~ 
 regard to his personal conditions, his age, pro- 
 fession, parentage and affinity, including the 
 rules of registration of birth, death, marriage and 
 divorce, the formalities appertaining thereto and 
 the relative legal consequences and obligations. 
 The Law of Persons establishes further with 
 regard to every individual, his capacity to possess 
 and to acquire rights and things, movable and 
 immovable, which are termed personal and real 
 property. The Law of Persons includes finally 
 the rights relating to succession and to the capa- 
 city of making a will, and the relation in which 
 the individual stands to Private Law, that is to 
 say, his capability of performing legal acts and 
 transactions in connection with the obligations 
 which correspond to things and to rights.
 
 112 Part n.] LEGISLATION AND JURISDICTION. | 
 
 rciupT. vhi. 
 
 38. 
 
 Political Law regulates the relation in which 
 the individual stands to the State, while the Law 
 of Persons governs his natural status and the 
 mutual relation of individuals in and outside of 
 family-life. 
 
 Primate Law Private Law is the term by which are com- 
 
 gatikes).' ' prehended the principles on which are regulated 
 the private interests of individuals with relation 
 to things and to rights, and the obligations which 
 correspond to them, (res, jura, obligationes), 
 embracing the Law of Contracts, the rights and 
 liabilities ex-contractu, and the legislation which 
 regulates rio-hts and claims to thing's movable or 
 immovable, the transaction originating therefrom 
 and the means whereby rights in general may be 
 judicially vindicated and executed or realized. 
 
 SSfowtt. The Law of Persons and the Private Law 
 
 constitute what is called Civil Law (jus civile), 
 with the legislation, jurisprudence and jurisdic- 
 tion appertaining thereto; thus including Pri- 
 vate International Law. 
 
 Political Right (jus civitatis) is the capacity 
 acquired by Political Nationality and in some 
 instances also by Domiciliation (§ 40), viz.: the 
 right to take a part in the Government and the 
 Legislation of a state. But with regard to Civil 
 Right (jus civile), there is rarely any distinction 
 made between aliens and subjects or citizens. 
 
 K?a § 3S. The internal policy of a State is closely 
 ' '/;//;";;! connected with its external success as a Nation, 
 laaons. an( j } as the basis of this policy is the entire range 
 
 of its legislation, it is obvious, that, in the present 
 slate of civilization and progress, the internal 
 legislation of States exercises a growing influence 
 on their mutual intercourse. This influence may 
 well 1)0 borne in mind by the Legislative Author-
 
 i-AKi ii.] LEGISLATION AND JURISDICTION. [ C " A $ T 3S V111 ' 113 
 
 ities of every civilized State, when making laws 
 for the regulation of the interests of their subjects, 
 in order to frame those laws which come into 
 direct contact with the legislation and usages of 
 other Nations, on that liberal and broad ground, 
 where all can meet for purposes of mutual and 
 general welfare. To this end the study of Inter- 
 national Law, in all its branches, is necessary for 
 those who are called to participate in the legisla- 
 tion of a State or to administer its laws, but, 
 more particularly is this study indispensable with 
 reirard to Private International Law. 
 
 The branches of legislation belonmns; to the ex 
 
 'O 
 
 Icrnttl Relet- 
 
 Public Law of a State, which have influence onS?fM. te 
 its external relations, are : — 
 
 1st. Laws connected with Sovereignty Rights, 
 as noted before, viz.: Nationality Laws, etc. 
 
 2nd. Laws regarding postal and telegraphic 
 concerns. 
 
 3rd. Commercial Laws (lex mercatoria, §§ 58-65 
 and 79-84). 
 
 4th. Law regulating the monetary system, 
 weights and measures. 
 
 5th. The Fiscal Laws. 
 
 6th. The Shipping Laws (§§ 66-78), i.e., Laws 
 regarding the Nationality of ships and ships-papers, 
 regarding collisions or fouling, salvage, ship- 
 wreck, stranding and flatson, pilotage and quar- 
 antine. 
 
 7th. Laws regarding prizes and prize-courts. 
 
 As to Civil Law, the branches of its legislation 
 which come more directly into contact with the 
 laws of other States, and as such overlap the 
 domain of International Law, are those concerning 
 the personal status of individuals, laws regarding 
 marriage and divorce, laws regarding wills, oblig- 
 ations, contracts and compromise.
 
 114 Part a] LEGISLATION AND JURISDICTION. [5 
 
 rcuAPT. viii. 
 
 38. 
 
 The questions connected with Commercial and 
 Shipping Legislation, which covers the principal 
 ground of international intercourse, are treated in 
 Part III, containing Maritime and Commercial 
 International Law, while the conflicts of these laws 
 of one State, with those of an other State, in their 
 mutual commerce and intercourse, are subjects of 
 Private International Law, treated in Chapter X. 
 
 AVith reference to Penal Law, the legislative 
 and judicial powers of a State extend over offences 
 committed by any individual within its territories, 
 whether native or alien, with the exceptions 
 hereafter to be mentioned (§§ 45-49). 
 
 In some particular instances those powers ex- 
 tend also beyond the territories of the State, 
 viz.: — 
 
 1st. In the case of offences, as specified and 
 prohibited under penalty by Public Law, com- 
 mitted against the integrity, internal or external 
 safety of the State and its public institutions of 
 commercial, domestic and foreign credit and its 
 financial establishments as guaranteed by Law, 
 wheresoever and by whomsoever such offences be 
 committed, whenever the offender is found within 
 the jurisdiction of the State or his extradition is 
 obtained. 
 
 2nd. In the case of all offences against the 
 Laws of Trade and Navigation of a State, com-' 
 mi! led anywhere by its own subjects or citizens. 
 
 3rd. In the case of all offences, committed any- 
 where, by a subject against a fellow citizen, when 
 both, having their domicile within the Native 
 State, are temporarily abroad. 
 
 4th. In cases, independent of the question of 
 domicile, when murder or other grave offences or 
 crimes, subject to infamous punishment, arc com- 
 mitted, anywhere, by a subject against fellow 
 citizens or foreigners, or by an alien against sub-
 
 part II.] LEGISLATION AND JURISDICTION. [ ClIAP § T 3s VI11 ' 115 
 
 jects ; whenever the culprit is found within the 
 territory or his extradition is obtained; provided 
 judgment have not already been passed and sen- 
 tence delivered in the case by the competent law- 
 court of the foreign State, within whose territory 
 the offence in question has been committed. 
 
 The offences, stated above, for which a subject 
 is punishable in his native State, though having 
 been committed beyond its territory, are the 
 same for which extradition is generally asked 
 by a foreign State ; thus any State, rendering- 
 punishable this class of offences, committed 
 abroad by its subjects, can fairly refuse, on this 
 principle, all demands for the extradition of its 
 own subjects (Comp. § 44). 
 
 5th. In the case of offences committed on 
 board of the Public Vessels (vessels of war) of 
 a State, in any parts of the world,— on the high 
 sea as well as within the territory of other States, 
 and without regard as to the person by whom 
 such offences be committed. 
 
 6th. In the case of offences committed on 
 board of the Private Vessels (merchant-ships) 
 of a State, when on the high sea and, in some 
 cases of internal ship's dicipline, also in foreign 
 ports, and, when such is stipulated by treaty, for 
 minor offences between the crews in those ports. 
 
 7th. Cases of Piracy and those acts which are 
 declared to be piracy by the Public Law of the State. 
 
 Piracy under the Laic of Nations (jure gentium) 
 are acts over which all States have equal right of 
 jurisdiction, to try and punish, without regard to 
 the question by whom or where such offences 
 be committed, as this class of offenders against 
 the Law of Nations do not possess any Political 
 Nationality (Chapt. XIII). 
 
 8th. Action taken for the suppression of the 
 Slave-trade.
 
 116 Part II.] LEGISLATION AND JURISDICTION. 
 
 ClIAPT. VIII. 
 
 5 38. 
 
 international In Civil and Criminal Legislation, as well as 
 ' in the compilation of Rules for the institution 
 and settlement of judicial questions (ordinatorim 
 lites), every State has made certain provisions, 
 establishing the principles on which the law- 
 courts of the State shall treat questions regarding 
 the conflict occasionally arising between the 
 laws which govern transactions in foreign coun- 
 tries and those of the State interested in the 
 same matter or affair. The International usages 
 regarding conflicts of Law are sketched in Chap- 
 ter X, which treats of Private International Law. 
 
 The Right of Legislation and Jurisdiction 
 possessed by a Sovereign State extends over all 
 persons within its territory, with the exception 
 of those cases in which the claims of jurisdiction 
 on the part of another State operate within its 
 territory ; such as in case of exterritoriality, 
 granted by treaty or capitulation, or through 
 common usage of International Law. These 
 exemptions and privileges are: — 
 
 1st. To the reigning; Sovereign or First Ma- 
 gistrate of another State and their respective 
 suites, whilst temporarily residing within its ter- 
 ritory on an amicable visit. 
 
 2nd. To representatives of foreign States and 
 to the members of their legations. 
 
 3rd. To A r essels of War of friendly Powers 
 entering its territorial waters. 
 
 4th. To armed forces of a friendly Power 
 passing through the territory of a State, with the 
 expressed or implied consenl of the Latter. 
 
 5th. To Foreign Merchant Vessels and their 
 crews, in cases expressedly stipulated by treaty, 
 or bv comity, in conformity with International 
 I ages (Compare §§ 15-1!) ). * 
 
 POBT. Conflict of Laws. §§ 5376-55. WHEATON. Elem. Int. 
 Law. Ed. Dana. Pari [I. Ch. II. Westlake. Priv. Int. Law. Cb. V. 
 ami VI. Philmmobe, Com, tnt, Law. Vol. [V.
 
 part ii.] DETERMINATION OF NATIONALITY. [ Ch ^9. IX ' 117 
 
 CHAPTER IX. 
 
 Jurisdiction of Persons. 
 Determination of Nationality. 
 
 §39. Nationality is called Natural or Tribal, Determination of 
 when the term is applied to individuals of the fatm-ai 'orTrib- 
 
 • • i . . n al Nationality. 
 
 same origin, race, people or nation, from an 
 ethnographical or philological point of view. 
 Nationality is called Political, when regard is had 
 to the subjects or citizens of a State as Body- 
 politic. When different peoples or nations are 
 united into one State, individuals of the different 
 Natural Nationalities have all the same Political 
 Nationality of the State. Hence the Nationality 
 which constitutes an object of International Law, 
 is the Political Nationality, or Political Citizen- 
 ship, which can be lost and acquired through acts 
 of legislation. 
 
 Political Nationality is acquired: 1°., by birth, mrncai Nation- 
 that is, from the nationality of the parents (not ** 
 from the mere accidental place of birth). This 
 is termed Original or Native Nationality ; 2°., by 
 law, called Naturalization. 
 
 The mere place of birth does not, per se, es- 
 tablish nationality, but the Nationality Laws of 
 several States give to the place of birth such legal 
 influence, that the individual, accidentally born in 
 their territory or within their jurisdiction, though 
 from foreign parents not domiciled there, has the 
 right to declare, within a certain time after 
 having reached his majority and become sui juris, 
 that he will take the nationality of his place of 
 birth, and on this declaration, when accompanied 
 by actual domiciliation, he is then regarded as a
 
 118 Fact II.] DETERMINATION OF NATIONALITY. [ CnA § 7o. IX ' 
 
 subject or citizen of the State, with complete 
 possession of Political Nationality. 
 
 Married women follow the nationality of their 
 husbands. Children born from married parents 
 follow the nationality of their father, but illegiti- 
 mate children (those whose parents are not 
 married) follow the nationality of the mother. 
 When such children are made legitimate, they 
 follow the nationality of the father, provided the 
 legitimation takes place when they are yet minors; 
 but if they are made legitimate at a time when 
 they are already of age, they can choose their 
 nationality for themselves. Foundlings, whose 
 place of birth cannot be proved, follow the 
 nationality of the corporation or persons by whom 
 they are adopted. 
 
 Political Nationality, is, in connection with 
 International Law, the first phase of the persoual 
 status of an individual and remains attached to 
 it as the predominating quality of this status, 
 wheresoever the individual may be found, 
 (§51). Political Nationality implies National 
 Allegiance, which is, in connection with domi- 
 ciliation, noted in the next section. 
 
 The jurisdiction of a State includes all indi- 
 viduals living within its territory, whether sub- 
 jects or foreigners. Under the term subject or 
 citizen (civis) of a State, are comprehended all 
 persons possessing the political nationality of the 
 State, whether originally or through naturaliza- 
 tion. 
 
 Domicile, 
 
 Nationality o/ & 40. Besides the Political National it v, which 
 comes irom the btatc, to which an individual owes 
 national allegiance, through birth or naturaliza- 
 tion (as noted in the foregoing section), and from 
 which he expects proper protection in his lawful 
 pursuits of life, abroad as well as at home, there
 
 Past II.] DETERMINATION OF NATIONALITY. [ CH j4 T J. IX ' H9 
 
 is another form of National Character which is 
 acquired by domiciliation, without the loss of 
 political nationality, and is called Nationality of 
 Domicile. 
 
 Domiciled Inhabitants (subditus temporalis) are 
 those who, although not having renounced alle- 
 giance to their native or original State, have 
 ceased to reside there and have taken a permanent 
 abode in a foreign country, forming a class of 
 inhabitants, with regard to civil rights, between 
 the subject or citizen and the alien. 
 
 From this Nationality of Domicile results a 
 temporary allegiance to the Municipal Laws of 
 the Domicile, termed local allegiance, but which 
 ceases the instant the individual leaves the State 
 in which his domicile is situated. 
 
 Although this Local Allegiance does not sup- 
 plant the allegiance which results from the Poli- 
 tical Nationality, which is termed national, ori- 
 ginal or native allegiance, yet, as most questions 
 of private rights to property or of commercial or 
 political privileges and exemption, whether in 
 peace or war, are, in the first place, tested by the 
 fact of domicile and not by nationality and, more- 
 over, by the strength of the enfranchisement 
 granted, and the obligations which the privileges 
 of denizenship (jus incligenatum) involves, with 
 regard to the Municipal Laws of the Domicile in 
 a Foreign State, the Nationality of Domicile must 
 of necessity suspend the claims, which the indi- 
 vidual has on the protection of his native State, 
 to a not inconsiderable extent, as long as this 
 state of domiciliation abroad does last. This 
 claim for protection from the native country can 
 even lose all ground, if brought to bear against 
 the Government of the domicile, when the indi- 
 vidual, though not being naturalized in his newly 
 adopted country, has established himself there in
 
 120 Past II.] DETERMINATION OF NATIONALITY. [ C,,A § ' 
 
 ArT. IX. 
 10. 
 
 such apparently permanent manner as to show an 
 intention of never returning to his native State 
 (sine animo revertendi). 
 
 An individual settled in this manner in a 
 foreign State during a war to which his native 
 State is a party, shares the fate of the hostile or 
 neutral character of the foreign country in which 
 he has fixed his domicile. * 
 
 From the foregoing it is obvious that the 
 decision of what is to be regarded as the legal 
 domicile of an individual is of the utmost 
 consequence. There are various definitions of the 
 term domicile, but all agree so far that the Legal 
 Domicile of an individual is the particular place 
 of his principal abode and home and the chief 
 seat of his affairs and interests, established with 
 intention to remain there for an unlimited time, 
 whether this place is situated in his native State 
 or in a foreign country, f 
 
 The principal criterion of Nationality of Dom- 
 icile consists in this, that the residence at a 
 particular place be accompanied by the intention 
 to remain there for an unlimited length of time. 
 This intention is proved by positive declaration, 
 combined with corresponding acts, or, where no 
 such declaration has been made nor avowal of 
 intention exists, in deducing the intention from 
 the following circumstances and facts : — 
 
 1°. Acquisition of property and investment of 
 capital in real estate or in vessels sailing under 
 the flag of the State of domiciliation. 
 
 2°. Resident establishment. 
 
 3°. Occupation ; character of trade, commerce 
 and business relations. 
 
 4°. Time of residence. 
 
 ♦Halleck. [ntern. Law. Vol. I. Chap. XII. Whkaton. lutein. 
 Law. Edit. Dana. Note 49, on g 85, page 1 12. 
 
 f Phillimore. Law of Domicile. §§ 11-16. Halleck. Intern. 
 Law. Vol. I. Chap. XII.
 
 Pabi ii.] DETERMINATION OF NATIONALITY. [ C "'j7u.' X ' 1^1 
 
 5°. Exercise of political rights and, in general, 
 the acceptance of qualifications and the exercise 
 of rights, which, by the local laws, are granted 
 to settled residents only. 
 
 These points are to be investigated with certain 
 considerations attached to them, as, for instance: — 
 
 1st. The mere possession of landed property 
 without permanent personal residence upon it (as 
 non-resident landowner) is no proof of domicilia- 
 tion, whether the property be acquired by direct 
 purchase or derived from inheritance. 
 
 2nd. This is also the case with regard to the 
 establishment of a residence for occasional use ; 
 but the purchasing of a house and the fitting it 
 up as a dwelling for the proprietor or his family, 
 when taken in connection with actual residence 
 of the proprietor, is a good proof of his intention 
 to remain. 
 
 3rd. With regard to occupation or trade, 
 domiciliation is proved when an individual has 
 contracted partnership or invested the greater 
 part of his capital in the country where he is 
 residing;. If his business relations and the char- 
 acter of his trade, occupation or enterprise are 
 such as to require his constant personal attention 
 or supervision or an indefinite period to bring 
 his business to completion, the conclusion may 
 fairly be drawn, that he intends to make that 
 place his permanent residence, although no posi- 
 tive personal declaration to that effect can be 
 proved. 
 
 4th. In certain circumstances, time of residence 
 may also constitute conclusive evidence of the 
 intention of permanent domiciliation, such as a 
 voluntary residence, during a considerable length 
 of time, in a country from which egress was 
 generally free, taking in consideration all external 
 and internal impediments or coercion preventing
 
 HAPT. IX. 
 
 122 Tart li.] DETERMINATION OF NATIONALITY. [ Cax ^o 
 
 any person leaving the place or returning to his 
 native country, as in the case of exiles, refugees 
 or fugitives, emigrating from their country on 
 account of civil war or political persecution or 
 commotion, for so long as the coercion lasts or 
 the force majeure exists in the form of war, 
 blockade, embargo or prohibition by general 
 application of certain Municipal Laws, for the 
 time being. 
 
 5th. The voluntary acceptance of Municipal 
 charges or the exercise of the right of suffrage 
 are likewise circumstances which furnish proofs 
 of domiciliation.* 
 
 The Legal Domicile of the husband is that of 
 the wife. The widow retains that domicile after 
 her husband's death. After a complete legal 
 divorce (a mensa et thoro) the woman has her 
 own domicile. The domicile of the minor is that 
 of the father or of the widowed mother or of the 
 guardian; the domicile o'f the illegitimate minor 
 is that of the mother. The domicile of the head 
 of a family is also the domicile of the whole 
 family, of the domestic dependents and of servants 
 
 * Halleck. Intern. Law. Edit. Sir Siif.uston BAKER. 1878. 
 From a note, in Vol. I. |». 365, we take the following extract. •• Dur- 
 ing (lie civil war in the United States, all persons who had v. .led as 
 
 State citizens were claimed by the United stales Governmenl as lia- 
 ble i" the conscription ; and the Act of Congress of 3rd March, 1st;:;. 
 expressly declared, that the levy should include all persons of Eoreign 
 birth who shall have declared en oath their intentions to become 
 citizi 
 
 •' .Mi'. S.. a. British subject, who had anounced his intention to be- 
 come natural] ed, applied, in October, L862, to he informed whether 
 be could claim the protection of the British Government. He was 
 fc l ( j | that, as hi' had so acted withoul consulting the British Govern- 
 ment, he must ii"t exped that, until a cai e should arise in which its 
 i, r€ | .,. mighl he requested, it would give any opinion of the 
 
 \-, lii-li il n. Of I UCh a e:i e. -Purl. I'd/irrs. t862." 
 
 ■ ■ I,, 1862, certain native born British subjects in Wisconsin claim- 
 ed |i i; , i. although Hi'';, had roted al elections, they had done so under 
 1 1,,. is alii md had no1 therebj forfeited their British 
 [r. Seward replied that, so far as ti xecutive author- 
 United States was concerned, no foreigner who had ao1 
 ,, naturalized, or who had noi exercised the righl of suffrage, had 
 hitherto (| red to serve in the militia."
 
 Pabt ii.] DETERMINATION OF NATIONALITY. [ 5^, ' 123 
 
 livino' under the same roof or domestic establish- 
 ment. 
 
 Exiles, banished for life from their country, 
 are expatriated and lose their original or native 
 domicile, together with their Political Nationality. 
 Banishment for a fixed term of years, has in Civil 
 Law, with regard to domicile, the effect of tern- 
 porary absence, wherefore exiles of this class 
 retain their claim on their native country and 
 their original national character. 
 
 An individual, having more than one domicile, 
 as a merchant carrying on commerce in different 
 countries, is regarded, in time of war, to have the 
 Nationality of the domicile of each of his places 
 of business, unless he has, by positive declaration, 
 corresponding with overt acts, designated one as 
 his principal domicile. This must be done before 
 the outbreak of hostilities, if he be a subject of one 
 of the belligerent powers, for the reason that no 
 change of nationality or transfer of domicile by 
 emigration is acknowledged b}?" the Law of Nations, 
 when this is done during the existence of hostili- 
 
 " Mr. Mercieb, the French Minister, wrote in a circular to the 
 French Consuls, that Frenchmen who had voted illegally in the 
 United States had no doubt rendered themselves liable to legal pe- 
 nalties in that country, but that they had not forfeited their French 
 nationality, or their right as aliens to be exempt from compulsory 
 military service. And lie referred to the laws of some of the States 
 which admit aliens to the exercise of the elective franchise. — Pari. 
 Papers, No. 536, 1862. The matter was referred by Lord Lyons to 
 the Hume Government, and he was instructed to abide by the deci- 
 sion of the American Law Courts.'' 
 
 "In 18(33 certain able-bodied male persons of foreign birth, who 
 had declared on oath their intention to become American citizens, 
 were called upon for military duty by the United States. On this 
 the British Government suggested that British subjects who had 
 merely declared their intention to become American citizens, but 
 had not exercised any political franchise, in consequence of such 
 declaration, ought to be allowed a reasonahle period after the passing 
 of the Act to exercise the option of leaving the United States or of 
 continuing residing therein with the annexed conditions. The United 
 States Government thereupon allowed sixty-five days to such persons 
 to exercise their option, and the British Government refused to inter- 
 fere on behalf of any intended citizens who had not availed them- 
 selves of the opportunity. — Pari. Papers, No. 331, 1S63."
 
 124 Tart II.] DETERMINATION OF NATIONALITY. [ CaA "6. 1X- 
 
 ties (flagrante hello), by subjects of a belligerent 
 State, with a view to protect their interests by 
 deserting their legal alliance in time of war. 
 
 The Political Nationality is never lost, nor the 
 allegiance resulting therefrom suspended, by the 
 Nationality of Domicile or local allegiance. The 
 obligations of the individual, with regard to his 
 native allegiance, remain unimpaired, though his 
 claim on protection, to be afforded to him by his 
 State against the State in whose territory he has 
 settled, and his right of ' foreignership with regard 
 to this State, may, in many instances, be suspended 
 by the local allegiance, which he owes to the 
 place where he iinds his daily bread or the 
 comforts and pleasures of life. 
 
 The temporary national character, imposed by 
 domiciliation in foreign countries, ceases with the 
 residence from which it arose, with the bona fide 
 intention to quit the country sine animo revevtendi 
 and having actually commenced the movements, 
 by overt acts, performed in good faith.* 
 
 The characteristic feature of the Nationality of 
 Domicile is, that it is presumed in the case of 
 every established resident found in a country, till 
 he give proofs of the contrary, that is until lie 
 proves that he is an alien having his legal domicile 
 in another country. 
 
 Of this presumption of law, Ilalleck gives the 
 following description. 
 
 ••The presumption of law with respecl to resi- 
 dence in a foreign country, is, thai the party is 
 then- animo manendi, and it lies upon him to 
 explain it. Tims, when the property of a for- 
 eigner, who, ;it the time of its shipment, was 
 living in a hostile country, is seized as that of ;in 
 enemy, the captors are nut hound to prove that 
 
 his place of residence was his actual domicile; 
 
 II a i LECK. Intern. Law, Vol. II., Chapt. XII.
 
 tart II.] DETERMINATION OF NATIONALITY. [^V* - 125 
 
 but it rests upon him to disprove the presumption 
 of the law, and to redeem his property from the 
 noxious imputation; he must give such evidence 
 of his intentions and plans as shall be effectual 
 to destroy it." 
 
 In order to repel this presumption of the law, 
 it is necessary for the party to prove that his 
 original intention was to remain only for a short 
 and definite period, that to accomplish the pur- 
 pose of his visit, neither a long nor an indefinite 
 period would be required ; that his past residence 
 had not been long enough, by the mere opera- 
 tion of time, to establish a domicile, and that he 
 had not been so mixed up with the trade and 
 navigation of the country, as to have accmired 
 its national character, by the very nature of his 
 occupation. The presumption is not repelled by 
 merely showing that his wife and family are 
 still residing in his native country, nor by prov- 
 ing that he contemplates returning to his own 
 country at some future period, or after he has 
 accomplished some particular object. He may 
 have separated himself from his family, or the 
 period of his return may be wholly uncertain 
 and indefinite ; or, if definite, it may be after a 
 long interval of time, or his neutral character • 
 may have been superseded by his occupation, or 
 by his being so incorporated in the trade or 
 navigation of the country, that its national 
 character is completely fixed upon him. In 
 order to repel this presumption of the law, he 
 must show clearly and conclusively, that such 
 residence in the foreign country has not, by the 
 law of domicile or otherwise, had any effect in 
 chamnno; his national character. * 
 
 * Halleck. Intern. Law. Edit. Sir Sherston Baker, 1878. Vol. I. 
 p. 3G7.
 
 rCnAPT. IX. 
 
 12G i'abt II.] DETERMINATION OF NATIONALITY. [ Ca ^i; 
 
 ougatiomo/a §41. With reference to an individual who by 
 
 State icith regard . , n ,-, ■, r> n , i 
 
 to temporary virtue ot the laws ot a foreign country has ac- 
 quired the Nationality of Domicile (as noted in 
 §40), there is no occasion for intervention on 
 the part of his native State for protection or 
 claims against the State of his domiciliation for 
 injuries sustained in body or property, through 
 acts of war committed against that State by a 
 
 The Foreigner's third Nation or through internal commotion or 
 revolution. However, when he can prove that 
 the Government under whose protection he has 
 taken his abode, is unable or unwilling to protect 
 him from discrimination directed against him, by 
 either of the belligerent parties, — whether the 
 acts of discrimination are against him personally 
 or directed towards his nationality, — his Govern- 
 ment would fail in their duty by not offering 
 him all protection in their power. 
 
 Foreigners, domiciled or not, cannot be enrolled 
 in active military service of any kind without 
 their own consent. They may be compelled to 
 help to increase, in time of necessit}^, the police- 
 force, in maintaining social order in the place of 
 their residence, with a view to public safely ; 
 also to take to arms to help in the defence of 
 their place of residence against the invasion of 
 savages, pirates, etc., as the means of warding 
 off some great general calamity by which all 
 suffer indiscriminately, but in neither case to be 
 used directly or indirectly for ordinary national 
 or political objects. * 
 
 An individual, temporarily staying or passing 
 through a State, has a claim upon the protection 
 of the laws of the Slate within whose territory 
 
 lie is ad i nil led. by virtue of the Slate's legislation 
 
 regarding the admittance of foreigners. This 
 
 » Blttntbchli, DroH fat. CodifW. §891. W. E2. Ball, im. 
 
 Law. §61.
 
 (dilation 
 nation. 
 
 Part II.] DETERMINATION OF NATIONALITY. [ CH fj2 f IX ' 127 
 
 claim is called the foreigner's right. Any act]! of 
 arbitrary discrimination against him must be 
 resented by his Government, and all actual 
 damages caused to him by the acts of officers or 
 agents of the foreign Government, not authorized 
 by existing Municipal laws of the place, can give 
 just claims for reparation. 
 
 §42. By Naturalization an alien acquires the^^. 
 rights of Political Nationality or Citizenship oft******** 
 the State which naturalizes him. The means 
 and formalities for acquiring Naturalization and 
 the circumstances by which Political Nationality 
 or Citizenship is forfeited, through expatriation 
 or other acts inconsistent with allegiance, are 
 provided for by legislation on the part of the 
 Public Law of each State. This is also the case 
 with regard to the question how far the original 
 tie of allegiance is dissolved by the acceptance of 
 titles, charges or functions from other States, by 
 banishment and other causes of criminal judg- 
 ments by which Civic Rights are impaired. 
 
 It was said above (§40), that the Political 
 Nationality of the individual attaches to him 
 even whilst he resides in foreign countries. This 
 is the case as long as he retains his Citizenship, 
 which cannot be renounced without being replaced 
 by that of an other country. 
 
 No individual can be regarded as released from 
 allegiance to the State to whose nationality 
 he is resorting, and thus from responsibility 
 towards that State or its laws with regard to 
 future criminal proceedings, except by virtue of 
 those laws or by the act of acquiring a new po- 
 litical citizenship, through naturalization, and 
 entering into the allegiance of another State ; 
 which is tacitly understood to involve complete 
 renunciation of all former allegiance. No formal 
 abjuration or renunciation is required to make
 
 rSSklOSALlTY. | 
 
 CHAI>T. IX. 
 
 128 PabtH.] DETERMINATION OEnXXIONALITY. [ CHA § 42 
 
 an act of naturalization legal, it being generally 
 admitted that the fact of having accepted natu- 
 ralization, per se, includes renunciation of any 
 former Citizenship. 
 
 The question whether a person is allowed to 
 regard himself as having no nationality at all, or 
 to belong to more than one Nation at the same 
 time, is left to be decided by his own caprice or 
 the amount of his individual self-respect, but, 
 with regard to the Law of Nations, every indi- 
 vidual, moving: anions* civilized communities, 
 must make up his mind to belong to one of them 
 or be satisfied to be dealt with at the convenience 
 of any Power within whose jurisdiction he hap- 
 pens to be found, and, if he has obtained more 
 than one Political Nationality, his last legal 
 Naturalization is regarded to be his actual 
 nationality (§40). 
 
 Naturalization being regulated by Internal 
 Public Law (§38), it comes, with regard to 
 conflicts of law, under the provisions of Private 
 International Law. But when naturalization has 
 taken place in violation of personal obligations 
 due to the native State, in consequence of the 
 personal status of the naturalized individual, 
 as for military or militia services due prior to 
 the expatriation, questions of naturalization bo- 
 come subject to the rules of Public International 
 Law. 
 
 On this head it is generally agreed, that natu-! 
 ralization does not protect an individual within 
 the jurisdiction of the country of his first nation- 
 ality against the claims of that country, for obli- 
 gations he actually owed as a subject before Iiis 
 expatriation. However, in order to avoid pos- 
 sible contentions on this score, naturalization i* 
 often the subject of International Conventions, 
 while the naturalization rules of most States
 
 tahi n.] DETERMINATION OF NATIONALITY. P'^. 1 *' 129 
 
 (in conformity with the generally adopted prin- 
 ciple that the Laws of the native State govern 
 the personal status of the individual) require from 
 the applicant for naturalization the proofs of 
 being free from all military or other personal or 
 civic obligation resulting from his personal status 
 in his native country. 
 
 At this point also Private International Law 
 is concerned in questions of naturalization (§ 51 ).* 
 
 § 43. The right of emigration is a natural con- Emigration. 
 sequence of individual liberty. No State can 
 force its subjects to remain on its territory when 
 natural human wants stir them to seek elsewhere 
 the necessaries or comforts of life. 
 
 The old systems, based on the misused right 
 of the Sovereign over his subjects, which formerly 
 was adhered to by certain States to forbid emi- 
 gration or to impose upon intending emigrants an 
 obligation to procure the necessary permission, 
 coupled with the condition that they return after 
 the expiration of such permission, is happily done 
 away with in European and American, and, for 
 the most part, also in the great Asiatic States. 
 The principle, which is but just and natural, now 
 prevails of granting complete liberty to every 
 individual to choose any place of abode where he 
 finds the most promising conditions of the amelio- 
 ration of moral and material existence. 
 
 This principle of free emigration does not 
 exclude measures of restriction, passed with the 
 object of regulating the manner of transport, or 
 to provide for the individual safety of emigrants 
 by insisting on some guarantee that proper treat- 
 ment be accorded to them in the new country. 
 
 * Phillimore. Comm. on Intern. Law. Vol. IV. Woolsey. 
 Intern. Law. LS79. § 70. Phillimoee. Comm. on Intern. Law. Vol. 
 I. 187'.). p. 443 et seq. Wheatox. Elem. Intern. Law. Note of 
 Mr. Dana, No. 49, on §85. British Naturalization Lam of /,s,". 
 (33 Victoria Ch. 14). Halleck. Intern. Law. Edit. Sheeston 
 Baker. Vol. I, Chapt. XII.
 
 Extradition. 
 
 150 iaki u. J EXTRADITION. [° H §44. IX ' 
 
 As every State has the right to regulate im- 
 migration to its territories as is most convenient 
 to the safety or prosperity of the country, with- 
 out regard to the Municipal Laws of the country 
 whence the foreign emigration proceeds, interna- 
 tional conventions are very often the only and, 
 at all events, the most convenient means to re- 
 gulate all questions of emigration. * 
 DroiiaAsaeand §44. The Droit d'Asile in a general sense, is 
 the right of an independent State to give admit- 
 tance and protection, in conformity with the 
 rules of its own legislation on this head, to all 
 individuals who claim the hospitality of its terri- 
 tories with the wish to establish themselves under 
 its jurisdiction, whether they come from their 
 native or any other State and whatever might he 
 the cause of emigration from their respective 
 domicile. 
 
 It is obvious, that this faculty is not unlimited, 
 and like all Sovereignty rights must lie modified 
 and regulated with respect to the rights of other 
 States us well, for although a State's attributes, 
 with regard to the maintenance of social order 
 and the suppression and punishment of crime, is 
 limited to its own territories or to cases in which 
 its own laws have been violated outside its 
 territories, yet, it, is none, the less the duty ;is 
 well as sound policy of every State to help to 
 promote general morality. To grant admission 
 and unconditional protection to all individuals, 
 and. among these, also to professional criminals 
 and characters of the worst description, who, 
 fleeing from justice, take refuge in the territory 
 of a neighbouring State. — would be :m insult to 
 Universal Justice and to the Public Conscience 
 of civilized nations, and a State thus acting would 
 undoubtedly compromise its own internal and 
 I. I. Liv. vim.
 
 Part 
 
 ii. J EXTRADITION. [^^.^ 131 
 
 external safety while making its Right of Asylum 
 a source of the greatest inconvenience to its 
 neighbours. 
 
 Protection is only due to those who are worthy 
 of it ; who, suffering persecution for the sake of 
 their political or religious opinions, or being 
 threatened to be crushed under the barbarous 
 cruelty of laws acting against all principles of 
 justice and humanity, seek refuge with a more 
 moderate political or religious legislature, or 
 claim the shelter of civilization. 
 
 The means of guaranteeing a State against the 
 danger of abuse of the Right of Asylum by 
 foreigners, must be found in a judicious legisla- 
 tion, whose provision it is to regulate the admit- 
 tance within the State of foreigners, and their 
 expulsion in the case of characters dangerous to 
 the internal safety of the State or its social order, 
 and also the extradition of criminals, claimed by 
 the Judicial Authorities of a foreign State whose 
 laws have been violated, to undergo their trial 
 or punishment, in conformity with the Public 
 Criminal Law of the State demanding the ex- 
 tradition. 
 
 The means of preventing a refugee misus- 
 ing the hospitality of a neutral territory, by 
 devising or continuing political plots against the 
 State from whose domestic or political persecu- 
 tion he fled, is the right of the State to impose 
 upon a stranger the condition of residing in the 
 interior of the State or at a certain distance from 
 the frontiers of the State in question. This 
 confinement to a certain part of the State is 
 termed Internmen t. 
 
 The Extradition of ' Criminals forms a subject 
 matter of the treaties concluded betAveen almost 
 all civilized States. Most States have, & priori 
 fixed, by legislation, the rules and principles on
 
 132 Part n.] EXTRADITION. 
 
 ClIAPT. IX. 
 
 544. 
 
 which they will conclude treaties for the extra- 
 dition of criminals with other States. 
 
 This legislation is a subject matter of the Pub- 
 lic Law of the States. The rules for extradi- 
 tion, being established more or less on the same 
 basis by the greater part of the States of Europe 
 and America, will, when compared, be found to 
 consist of the following general principles. 
 
 I. No State will surrender its own subjects, 
 whether native or naturalized citizens, to the 
 judicial criminal prosecution or judgment of 
 another State. 
 
 Several treaties, moreover, contain stipulations 
 to the effect that under the term " subjects" or 
 "citizens" are comprehended those aliens, who, 
 by the laws of the State from whom extradition 
 is requested, are, in questions of extradition, 
 assimilated with citizens or subjects, that is, those 
 who, though not personally naturalised, have 
 obtained the Nationality of Domicile (§ 40) ; 
 also any foreigner domiciled in the State, who, 
 having married a woman, native of the State. 
 has had from her one or more children born in 
 the State, such children being, by the law of the 
 State, regarded as native born subjects, and thus 
 protecting the " foreign " father of the "native 
 born " subject. 
 
 With regard to those who possess merely the 
 Nationality of Domicile, however, a distinction 
 is made when their extradition is demanded by 
 their own native State. 
 
 I I. Extradition of aliens takes place on demand 
 based on judgments of Law Courts, public judi- 
 cial accusation or citations of the Judicial Au- 
 thorities, in accordance with the laws of ( Jriminal 
 Jurisdiction of the Stale which demands the 
 extradition, and only for such crimes and 
 offences as arc stipulated iii the respective trea-
 
 kt il] EXTRADITION. 
 
 Chait. IX. 
 544. 
 
 ties. These are, murder and attempt to commit 
 murder, rape, forgery, arson, embezzlement by 
 public officers (when this is punishable with 
 infamous penalty), burglary, felony (qualified 
 theft), forging or knowingly passing or bring- 
 ing into circulation counterfeit coins or banknotes 
 or other paper current as money, with the inten- 
 tion to defraud others. Embezzlement by hired 
 or salaried persons to the detriment of their em- 
 ployers, is included when such crime is subject 
 to infamous punishment. 
 
 III. The extradition shall only take place 
 upon such evidence of criminality as, according 
 to the laws of the place where the fugitive or 
 accused is found, would justify his apprehension 
 and committal for trial, as if the crime or offence 
 had been committed there ; Political and purely 
 Military offences are excepted (comp. Military 
 Deserters). 
 
 The hearing and considering of the evidence 
 of criminality, with a view to committal by the 
 proper examining judge or magistrate, whereupon 
 the warrant may be issued for the arrest of such 
 fugitives, comes under the provisions of the lex 
 fori (§52), if not otherwise stipulated by treaty. 
 The quantity of evidence, necessary to procure 
 extradition, is also agreed upon by the treaties 
 of extradition. 
 
 IV. Extradition for purely political offences 
 is invariably excluded. 
 
 Political conspiracies which involve plots to 
 commit assassination or any other crime, for 
 which extradition is allowed, are not regarded as 
 purely political offences ; even when the plot did 
 not have the contemplated result.
 
 134 part li.] EXTRADITION. [""jS. 1 * 
 
 Military and Y. The Extradition or rendition of Military 
 
 ' Deserters from the Army or Navy depends almost 
 
 invariably on special treaty stipulations. This 
 
 is, however, not the case with seamen who 
 
 deserted from vessels within territorial jurisdic- 
 
 stmpu'andqmi- tioti. The help of the local police, for the arrest 
 
 ified desertion. n .. ,, . ,. -, 
 
 oi seamen staying over their time ashore, is 
 never refused by the local authorities to any 
 friendly vessel, public or private, within the 
 territorial waters, provided this constitutes simple 
 or disciplinary desertion, punishable by merely 
 disciplinary punishment. But criminal or quali- 
 fied desertion, that is desertion combined with or 
 complicated by offences, which are punishable, 
 after judicial investigation, by judicial sen- 
 tences, — whether by Court Martial or Civil Tri- 
 bunal, — comes under the head of Extradition of 
 Criminals, when there is no treaty with regard 
 to the mutual delivery of Military Deserters, 
 and must be treated accordingly, that is, in con- 
 formity with existing treaties or with generally 
 adopted International usages on this head. 
 
 Extradition of criminals docs not take place 
 then through diplomatic interference, and with 
 all the formalities prescribed by the respective 
 treaties of extradition. 
 
 Ruin reffordtuo The rendition or re-ini egration of naval deserters 
 
 Hi, Reintegration t • i • • • i 
 
 tfatamm,d»mt'QC vessels in port, or within territorial waters, 
 
 ing their vessels, . . *■ 7 . „ ... . „ 
 
 in the territorial ] ia ,yill< r for its ODieCt tin 1 facilitating 01 eoinnUTCC 
 
 miters of a Fur- <~> . . •' . „ , .-,.'.... , . . 
 
 tianBtate. and navigation, lb tree from the judicial formalities 
 which is inseparable from the extradition of 
 criminals. The proceedings are simple and 
 
 expeditions and BUDJeCt to the following rules. 
 
 1°. The request For the arrest, and rendition 
 
 or rc-integration of the deserted seamen is made
 
 Part 
 
 il] EXTRADITION. [?**}%!*' 135 
 
 by the Consul of the nationality to which the 
 vessel in question belongs, in writing, to the 
 competent local Authority, accompanied by au- 
 thentic proofs that the individual reclaimed forms 
 part of the vessel's crew, — which can be done by 
 exhibiting the crew list or muster-roll (rolls 
 cV equipage, Muster-rolle) when it regards a private 
 merchant vessel. 
 
 2°. The arrested Naval Deserters shall invaria- 
 bly be placed at the disposal of the Consul of 
 the nationality of the vessel to which he belongs, 
 in order to be sent on board. The arrested Naval 
 Deserter can be also kept in custody, if there be 
 no opportunity to despatch him, at once, to his 
 vessel. His detention shall, however, not exceed 
 thirty days; this being the customary limit of 
 time during which the arrested Naval Deserter 
 is kept by the local Authorities at the disposal of 
 the respective Consul. After the expiration of 
 the time limited, if not sent to his vessel or 
 shipped on board another, he is invariably set at 
 liberty and is not liable to further arrest or rendi- 
 tion on the same charge. 
 
 3°. As this summary mode of surrendering 
 Naval Deserters is based on the consideration that 
 the deserter is claimed for the immediate active 
 service of the vessel and as, to use the words of 
 Ortolan (Diplom. cle la Mer. Vol. I, p. 313) 
 "la necessite cle faire rentrer immediatement a 
 bord des navires les hommes qui en composent 
 Vequipage, qui y sont indispensables pour le 
 service, et dont la desertation pourrait mime mettre 
 le navire hors d'etat de naviguer" makes it im- 
 possible to resort to the ordinary mode of extra- 
 dition through Diplomatic agency, it is obvious, 
 that where this consideration does not exist, and 
 the individual is claimed to be placed under arrest
 
 136 pari ii.] EXTRADITION. 
 
 Chapt. IX. 
 
 to undergo a trial before Court- Martial or a Civil 
 Tribunal, there is no reason of expediency to 
 deviate from the ordinary proceedings of extra- 
 dition. For this reason, when there exists no 
 treaty of extradition of Military Deserters, a 
 Government, appealed to for the rendition of the 
 deserters of a Vessel of War, can insist on a 
 declaration, to be given in writing, by the chief 
 officer in command, that the individual reclaimed 
 has committed no other offence than that of simple 
 desertion, punishable by ordinary disciplinary 
 punishment. If the Military Deserter is charged 
 with any offence not mentioned by the existing 
 Extradition-treaty affecting the parties, the State 
 which surrenders him has the right to make the 
 rendition of the deserter depend upon the conditio 
 sine qua non, of his not being prosecuted for the 
 sake of that offence. * 
 
 4°. The costs of arrest and detention during 
 the time limited are charged against the account 
 of the Consul who claimed the delivery. 
 
 5°. If the deserter has committed any offences 
 against the laws of the country, he is not delivered 
 to the vessel until he has gone through the judi- 
 cial proceedings attached to the case, nor until 
 1 lie judgment of the competent tribunal has had 
 its effect in the matter. 
 
 6°. Deserters belonging to the nationality of 
 the State in whose territory they take refuge, 
 cannol be arrested nor be forced to join the 
 foreign vessel from which they deserted, although 
 they are always liable for damages, caused to the 
 vessel through their desertion; which damages 
 can be claimed before the competent tribunal of 
 the State (§49). 
 
 I \. Diplomatic de La mer. Vol. I, pp. 309 318. 
 r. Pebels. Au lieferung desertirter Schiffemannschaf ten. ( Ma- 
 rine Verordnungtblatt) 1883 J.
 
 pauth.] modifications of jurisdiction. [flSniS 1 137 
 
 §45. The exemptions from the jurisdiction Modifications & 
 
 3 i i . . . • i tne Sovereign 
 
 of a State which, m certain cases, exist with re- mum o/ juris- 
 
 , .... . . 1 diction. 
 
 gard to foreigners within its territory, or with 
 regard to its own subjects in places outside its 
 territory, to which, as a rule, m ordinary circum- 
 stances, the jurisdiction of the native State would 
 extend, can he considered under four different 
 aspects. For the better distinction of the cir- 
 cumstances under which the exemption of terri- 
 torial jurisdiction is either conceded or made 
 necessary, or assumed, those different aspects 
 may be characterized by the following terms, 
 viz. : — 
 
 1st. Exterritoriality. 
 
 2nd. Self -jurisdiction. 
 
 3rd. Abandoned Jurisdiction. 
 
 4th. Concurrent Jurisdiction. 
 
 §46. Under the term Exterritoriality or Ex- Exterritoriality. 
 tra- territoriality (jus exterritoriale) is compre- 
 hended the immunity from local jurisdiction, 
 conceded by a Sovereign State, whether by virtue 
 of special treaties or in consequence of generally 
 adopted usage ; granting, expressly or tacitly, to 
 foreigners within its jurisdiction, the right to 
 retain, wholly or to a certain extent, their own 
 national laws, with or without their own juris- 
 diction, that is, by complete or incomplete Ex- 
 territoriality (§38). 
 
 Apart from special agreement by treaty, the 
 established usage and comity of Nations have 
 acknowledged complete Exterritoriality in the 
 following cases. 
 
 1°. The Sovereign of a State, when he is, by 
 his own free will, temporarily sojourning in the 
 territory of another State, is exempt from all 
 jurisdiction of that State.
 
 138 Pakt II.] MODIFICATIONS OF JURISDICTION. [°™. 1X- 
 
 2°. Ambassadors or other Public Ministers, 
 whilst residing within the territory of the State 
 to which they are delegated, are not amenable 
 to local, civil or criminal jurisdiction. 
 
 3°. Foreign armies and vessels of war or the 
 Public Vessels of a friendly State, when passing 
 throuoh the territorial jurisdiction or sailing or 
 anchored in territorial waters (Conrp. § 27). * 
 
 self -jurisdiction. § 47. The Right of Self-jurisdiction, in con- 
 formity with the laws of the respective State, 
 exists in the following cases. 
 
 1°. In the case of Vessels on the open sea, 
 where no territorial jurisdiction exists, each 
 Vessel is subject to the laws and jurisdiction of 
 its own State. 
 
 2°. In the case of unappropriated soil, or in 
 the case of territories not belonging to any 
 community, whose jurisdiction is recognized by 
 the Law of Nations, as constituting a government 
 invested with legal power and jurisdiction. Such 
 is, for instance, the case with semi-civilized or 
 uncivilized countries, and with territories granted 
 or sold by chiefs of semi-civilized or uncivilized 
 countries to private individuals or to trading or 
 colonizing companies; for under whatever form 
 of organization they may be formed into com- 
 mercial establishments, they do not constitute an 
 integral part of any recognized independent State, 
 which is so far possessed of an organized civiliza- 
 tion, that its territorial jurisdiction over civilized 
 Western nations could be admitted. In such 
 countries ii<>\\\ and in those where there is no 
 regular national government, there is no rccog- 
 nizeable local jurisdiction, and likewise in those 
 places where the once recognized local jurisdic- 
 
 * Wheaton. Edit. Dana, §§95-102. W. E. Ball. Intern. 
 Law, p. 135-166. CALYO. Droit. Intern. Edit, 1870. Vol. I, i». 647
 
 pabtil] modifications of jueisdiction. [ Cii ^78. ix- 139 
 
 tion is suspended, in consequence of anarchy 
 caused by internal disturbance or external war- 
 fare. In such countries, consequently, each 
 nationality exercises exclusively its own juris- 
 diction, whether on land or on board its 
 vessels, and this on the admitted international 
 principle, that every Sovereign is bound to re- 
 tain jurisdiction and control over its subjects and 
 citizens, beyond its territorial jurisdiction, in so 
 far as such control can be exercised without 
 derogating" from the Sovereignty Rights of any 
 other recognized State or without delivering its 
 own subjects to the lawlessness or anarchy of 
 uncivilized or incompetent jurisdiction. * 
 
 §48. Abandoned Jurisdiction is always tern.- Abandoned juris- 
 
 -w diet i on * 
 
 porary and confined within certain limits. It 
 includes abandonment of protection from the State, 
 as when the State has expressedly or tacitly 
 renounced its right of jurisdiction and respon- 
 sibility over some of its subjects, in cases such as 
 the following : — 
 
 1°. In the case of those subjects who, by the 
 acknowledged law of war, fall into the hands of a 
 belligerent Power, for causes of violation of neutra- 
 lity, against the declared will of their own Govern- 
 ment ; in which case the neutral State is free from 
 all responsibility, when the acts are not committed 
 by its own agents. 
 
 * Phillimore. Coram, on Intern. Law. Vol. I. Edit. 1879. 
 §§ 339-34S, &c. Ortolan. Regies Intern. Vol. I. Liv. 2. Ch. 13. 
 Oalvo. Droit. Int. Edit. 1870. Vol. I. Liv. VI, p. 381. The British 
 Foreign Jurisdiction Act 1S7S, in its fifth section, referring to coun- 
 tries where there is no regular Government, enacts that "In any 
 country or place out of Her Majesty's dominions, in or to which any 
 of Her Majesty's subjects are for the time being resident or resorting, 
 and which is not subject to any government from whom Her Majesty 
 might obtain power and jurisdiction by treaty, or any of the other 
 means mentioned in the Foreign Jurisdiction Act, 1813, Her Majesty 
 shall, by virtue of this Act, have power and jurisdiction over Her 
 Majesty's subjects for the time being resident in or resorting to that 
 country or place, and the same shall be deemed power and jurisdic- 
 tion had by Her Majesty therein within the Foreign Jurisdiction 
 Act, 1843." Phillimore, Com, on Intern. Law, Vol. I. p. 473,
 
 140 tart ii.] MODIFICATIONS OF JURISDICTION. [ CHj g^. 1X " 
 
 2°. In the case of private vessels with their 
 crews, which are caught committing piracy or 
 other acts against the Law of Nations. 
 
 ?>°. In the case of private vessels and their 
 crews, legally arrested in territorial waters for acts 
 committed in violation of the territorial law of a 
 foreign State to which the territorial waters belong. 
 
 4°. In the case of those subjects who engage 
 in the service of a foreign State. 
 
 5°. In the case of passengers on board a 
 foreign public vessel in any waters. 
 
 6°. In the case of persons engaged in service 
 on board foreign private vessels on the high seas 
 and in foreign territorial waters. * 
 
 Neither jurisdiction nor protection is abandoned 
 in case of those subjects, who at any time, in peace 
 or war, may have been pressed into service, against 
 their will, under the flag of any foreign State, f 
 
 concurrent Ms- S 49. The following are cases of Concurrent 
 
 diction. T . -. . . ° 
 
 J unsdiction : — 
 
 1°. Consular Jurisdiction, with regard to the 
 police supervision over private vessels of the 
 respective Consul's nationality, in territorial 
 waters. 
 
 2°. Cases of exceptions from the adopted rule of 
 exemption or immunity from local jurisdiction, as 
 for instance, when persons, entitled to immunity, 
 voluntarily make themselves parties to the law- 
 suit. Such is the case when contentious juris- 
 diction is conferred, on the Tribunal concerned, 
 as, for instance when a Public Minister of a 
 Foreign State voluntary submits to appear in the 
 Court of Justice of the State to which he is 
 accredited as the representative of bis own 
 
 * \V. B. Ball. [ntern. Law. Edit. L880. §75. 
 f Bautbfenille, Des droits el des devoirs des nations neutres 
 en temps de ( pre maritime, Vol. in. p, 291,
 
 part il] MODIFICATIONS OF JURISDICTION. [° B |3. EL 141 
 
 country, or when a Public Minister is a subject 
 or citizen of the country to which he is accredited, 
 provided that State have not renounced its juris- 
 diction over him. 
 
 3°. In cases of alleged illegal detention, on 
 board a private vessel in foreign territorial waters, 
 of any member of its crew or passenger, not 
 belonging to the nationality of the vessel, and 
 claimed by the Local Authorities or by the res- 
 pective Consular Officer, through the Local 
 Authorities of the State in whose territorial waters 
 the vessel is at the time of the alleged illegal 
 detention. 
 
 4°. In cases of Extradition of Criminals or 
 Deserters (§44). 
 
 5°. In those cases, independent of the nation- 
 ality of the culprit, in which the local jurisdiction 
 prevails over the public vessel of a Foreign 
 Power within the territorial waters of the State. 
 
 6°. Temporary military occupation of a country . 
 Concurrent Jurisdiction forms part of the inter- 
 national attributes and functions of Consular 
 Officers (Chapter XV).
 
 142 run ll.] PRIVATE INTERNATIONAL LAW. [ C "f« X ' 
 
 CHAPTER X. 
 
 Private International Law. 
 I . — General Observations. 
 
 international § 50. Private International Law (jus gentium 
 regard to conflict privatum) is that part of the General International 
 Law which regulates, not the mutual relations of 
 the States, but the private relations which occa- 
 sionally occur between individual members of 
 one State and the laws of another State. 
 
 Through the free intercourse which exists 
 between Nations, it may happen that an individual 
 has, at one and the same time, a legal claim to 
 protection under the jurisdiction of different 
 States, viz.: on the ground of his nationality 
 rights, from his own State, and on the ground 
 of business transactions or acquired rights, from 
 another State. He may possess real property 
 in one foreign State, where he is a non-resident 
 land-owner (sujet forain) and has contracts or 
 testaments to be executed by him in another 
 State, where he resides, for the sake of business, 
 as a temporary resident (sujet passager), while 
 his domicile is either in his own State, where he 
 enjoys the Right of Domicile as well as his Poli- 
 tical Nationality, or in a third State, where he 
 has only the Nationality of Domicile (§40). 
 Now, as an individual, thus situated, may often 
 have recourse to the law-courts of one State to 
 execute contracts or to secure or attest rights, 
 entered into or acquired under the differing 
 legislation of another State, his case must give 
 occasion for conflict between his own rights, as 
 the laws under which some of his rights are ac- 
 quired and the laws which must secure the effect.
 
 part ii.] GENERAL OBSERVATIONS. [^o!^ 143 
 
 are not always the same and may sometimes be 
 contradictory. This is what is termed Conflict 
 of Laws, a natural consequence of the independent 
 ri^ht of Legislation and Jurisdiction of Sovereign 
 States and of the differences attending the provi- 
 sions of law passed by the State to which the 
 claimant belongs and by the State in which his 
 properties are situated or where his rights are 
 acquired by contract. 
 
 It is the interest of every State to promote 
 internal prosperity, by facilitating transactions 
 in real estate (in order to raise the value of its 
 lands), as well as to facilitate commercial and social 
 intercourse with other Nations. But as conflicts 
 of law between States are decidedly opposed 
 to such interests, it becomes more and more the 
 policy of enlightened civilized States to endeavour, 
 by acts passed by their respective legislature 
 or by treaties with other States, or tacitly, by 
 the decisions of their judicial or administrative 
 Authorities, to harmonize the differences existing 
 between the laws of States with regard to the 
 rights of aliens, as far as their respective consti- 
 tutional laws will admit of it. Thus, while, as a 
 natural consequence of independence, the Juris- 
 diction of a Sovereign State excludes all foreign 
 legislation from its territory, yet, through policy 
 or justice and for the reasons just mentioned, 
 several States have tacitly or expressedly con- 
 sented to recognize and adopt, by legislation or 
 jurisprudence, certain common rules or principles 
 of jurisdiction with regard to foreigners within 
 their jurisdiction and the laws of the respective 
 States which govern the personal status of these 
 foreigners, their properties, their actions and 
 transactions. This gave birth to a distinct branch 
 of the Law of Nations, called Private International 
 Law, which has for its object the reconciliation
 
 144 PahtH.] private INTERNATIONAL LAW. [ CH j60.' X 
 
 of the interests inherent in the Sovereignty of each 
 State, in matters of legislation, with the respect 
 due to the laws of other States. This reconcilia- 
 tion of conflicting interests is to be brought about 
 by an adjustment of the differences which exist 
 between the laws which regulate the interests of 
 individual subjects of one State and the legislation 
 of another, — while general Public International 
 Law has for its object the regulation of relations 
 existing between States and States. * 
 
 Definition o/Pri- The term by which this branch of International 
 
 rate International T • i • i i l rv j_ *j_1 j_1 'j.' 
 
 Law. Law is designated, has often met witn the criti- 
 
 cism that it does not convey the proper idea and 
 definition of this branch of legal studies as a science. 
 Yet the term Private International Law is never- 
 theless the one which is most generally adopted. 
 The reason thereof we find adequately stated by 
 Mr. Woolsey in the following remarks. " It is the 
 province of Private International Law to decide 
 which of two conflicting laws of different territories 
 is to be applied in the decision of cases, and, for 
 this reason, this branch is sometimes called the 
 Conflict of Laws. It is called Private, because it is 
 
 * Wheaton. Elem. Intern. Law. Part II. § 78, et seq. OALVO. 
 Droit Int. Vol. I. § 236, et seq. Phillimore. Com. on Int. Law. 
 Vol. IV. §2. Westlake. Private Int. Law. Introduction. Asskr. 
 Droit Int. et Droit Uniform. Revue de Droit Int.etde Legislation 
 comparie. 1880.;;. 1-22. "In that region which is sometimes called 
 Private International Law, and sometimes the Conflict of Laws, due 
 as it is to the intercourse with each other of the citizens of different 
 States, whether brought about through travel, commerce, continued 
 residence, or even colonization, there has been increasingly felt the 
 same pressing need to discover principles of utility and of justice, to 
 which the citizens of a variety of States and the tribunals of all States 
 will pay difference. The discovery of such principles to be successful, 
 must rest upon a scientific investigation of the grounds, Logical, social 
 and political upon which all laws rest. Apart from such an investi- 
 gation, the attempt, in any given country, to reconcile what is called 
 
 the Conflicl of Laws will always be exposedjto the danger of favouring 
 the interests or the prejudices of the citizens of the State where the 
 
 law is applied. Thereby Springs Up, as has Bprung up, an indefinite 
 diversity in the private International Law of each State in the place 
 of an identity of principle and practice, reflecting the identity of their 
 moral claims.'' I'uoK. Sheldon AMOS. The Science of Law. Edit. 
 Henbt S. King & Co. 1874. p. 12.
 
 l'Ain 11.] GENERAL OBSERVATIONS. [ §ro. ^ 
 
 concerned with the private rights and relations 
 of individuals. It differs from Territorial or 
 Municipal Law, in that it may allow the law of 
 another territory to be the rule of judgment in 
 preference to the law of that territory in which the 
 case is tried. It is International, because, with a 
 certain degree of harmony, Christian States have 
 come to adopt the same principles in judicial deci- 
 sions, where different Municipal Laws clash. It 
 is called Law, just as Public International Law is 
 called, not as imposed by a superior, but as a rule of 
 action freely adopted by the Sovereign Power of 
 a country, either in consideration of its being so 
 adopted by other, countries, or of its essential 
 justice. And this adoption may have taken 
 place through express law. giving direction to 
 Courts or throng] i power lodged in the Courts 
 themselves." * 
 
 From these remarks regarding the nature of 
 this Law, the following definition may be derived. 
 Private International Law is the term under 
 which are collectively comprehended those rules 
 and principles through which the Conflict of 
 Laws, arising out of certain juridical actions 
 and transactions of aliens and non-domiciled 
 subjects, is decided, and which, in general, solve 
 the question as to which law is to govern those 
 cases of actions or transactions which come under 
 the operation of more than one code of Municipal 
 Legislation or Jurisdiction. , 
 
 There is a difference between Private Interna- gSf^ 
 tional Law and what is termed Comity, though t i^ t/ Lawand 
 both originate in the good will, convenience or 
 policy of Nations, deeming it advisable to grant 
 to each other privileges which are not reciprocally 
 due between States and thus not stricti juris. 
 
 * Woolsey. Int. Law. Edit. 1879. § 73.
 
 146 PakiU.] private INTERNATIONAL LAW. [ C "§5o.' X ' 
 
 Comity, in a stricter sense, is the reciprocal 
 exercise of politeness between Governments of 
 States, and has regard to matters of mere courtesy, 
 based on the general principle of the Right of 
 Respect (§29), or it comprehends some special 
 voluntary acts, not due by treaty, which may 
 serve to facilitate the interests of internal policy 
 of either party. To the latter category belongs 
 also any privilege granted regarding direct and 
 special correspondence between the respective 
 Governments (§44), whilst Private International 
 Law includes modes of legal proceedings in the 
 application of foreign laws, as adopted by Legis- 
 lative Jurisprudence or by the Jurisdiction of 
 the Law Courts, without any direct interference 
 of the executive Government, unless when estab- 
 lished by special agreement between the respec- 
 tive States. In this sense Private International 
 Law may be called the Comity of Law Courts, 
 whilst Comity itself is the droit de convenance 
 between Governments. 
 
 The fundamental Rule of Private International 
 Law is formulated in the words Locus regit actum, 
 wbich lay down that, as a general principle, all 
 acts, contracts, deeds and conveyances of rights 
 or properties, judgments, marriages and divorces, 
 testaments and all actions and transactions in a 
 Court of Justice or out of Court, when regularly 
 done or executed according to the laws and 
 formalities of a Civilized State, are valid, in 
 form and substance, in another State; with 
 this derogatory provision, however, by which 
 Private International Law as well as Comity 
 are limited, and which devolves from the 
 right of self-preservation, viz., that no State 
 
 required to recognize the laws of a foreign 
 Stale when they work injustice to its own 
 subjects or are in direct contravention of 
 
 actum.
 
 paetii.] general observations. [ Ch §5o: x< 147 
 
 any positive law, or of the established usages or 
 morals of the country concerned. 
 
 The following are the sources of Private In-*?™"*'**"* 
 
 ~ International 
 
 ternational Law : — L «" : - 
 
 1st. Civil Codes in which express provisions 
 on the subject of this branch of Law have been 
 incorporated. Of these the Civil Code of the 
 Kingdom of Italy, as promulgated in 1865, 
 [Disposizioni sutta Publicazione, Interpretazione 
 eel Applicazione elelle Leggi in genercdle, Art. 
 6-12], is at present most conspicuous for its true 
 appreciation of the progress achieved in this 
 branch of Law. 
 
 2nd. Commercial Codes and Laws (lex mer- 
 catoria). 
 
 3rd. Maritime Laws. 
 
 4th. Established Usage. 
 
 5th. Decisions of Law Courts on questions of 
 Conflicts of Law. 
 
 6th. Writers on Private International Law. 
 
 The following pages contain a sketch of theg^tS^ 
 rules derived from these sources, and include : 'S^^ toJ 
 
 ei. The personal status or jural capacity of 
 aliens with regard to possession of 
 property, alienation and transfer of the 
 same ; with regard to succession to pro- 
 perty by inheritance, and with regard 
 to equality of legal capacity with citizens 
 (Political Nationality. Lex domicilii. 
 §51). [Re* Judicata. §85]. 
 
 b. The competency of Foreign Law Courts, 
 
 the (lex fori) (§ 52). 
 
 c. The validity of marriages and divorces 
 
 concluded or obtained in a foreign 
 country (ler foci ret jit actum. § 53). 
 
 'o
 
 148 Part n.] PRIVATE INTERNATIONAL LAW. [ Cn ^; X 
 
 d. Rights and properties, real and personal, 
 
 (Lex rei sitce. Lex domicilii. § 54). 
 
 e. Transactions and obligations contracted 
 
 under foreign law (Lex loci contractus. 
 §55).^ 
 /. Limitation and Prescription (§56). 
 g. Validity of will made in foreign countries 
 (Locks regit actum. Lex domicilii. 
 §57). 
 h. Mercantile and Maritime Law (Lex imr- 
 
 catoria. §§58-78). 
 i. Laws of bankruptcy. Certificates of dis- 
 charge and foreign curators or assignees 
 (§§79-84-). 
 ;'. The effect of sentences and judgments of 
 foreign Law Courts in the Court of 
 the domicile of parties. Proofs of foreign 
 laws, of foreign decisions and foreign 
 legal instruments (Commission Bega- 
 toire. Lex fori. Exceptio rei judicata]. 
 Lex loci execution is. §§ 85-87). 
 It is obvious that the limited space of this work 
 does not allow of more than a brief summary of 
 the principal subjects of this branch of the science 
 of law, which, like Public international Law, 
 developing with civilization, is slowly but steadily 
 growing into a system of rules, necessarily 
 adopted 1<> provide for the requirements of the 
 ever increasing intercourse between Nations. 
 w Out of the manifold legal questions arising from 
 
 ^national Q^^j. Q £ J.,^ j,, ^j,'.,, ,]„, ,, „1 ,},.,.( s , , r dtlZenS 
 
 of different States, in their ever expanding mutual 
 intercourse, are reciprocally interested, a branch 
 of jurisprudence lias sprung up, which is gra- 
 duaUy forming itself into ;i completely separate 
 departmenl of science, having it-> own text-books 
 and literature, so that the study of Private In- 
 ternational Law involves the examination "I' the
 
 p AB Tii] GENERAL OBSERVATIONS. [ C<l j?u'. X ' 149 
 
 various special works treating this particular 
 branch of the general Law of Nations. * To these 
 works we must refer the reader for a complete 
 study of the rules prevailing in the Law Courts 
 of the States of Europe and America, which con- 
 stitute the principles ■ of Private International 
 Law, as adopted through comity, common utility 
 or equity, in the different Municipal Codes or by 
 usage in the forms or modes of procedures of the 
 Law Courts of the various civilized Nations. 
 
 The space available for the subject matter treated 
 in the several paragraphs of this chapter requires 
 that we should limit ourselves to a brief sketch 
 of these rules. These paragraphs do not pretend 
 therefore to furnish perfect guidance in any given 
 case, but merely to serve as finger-posts indicat- 
 ing the main course to be pursued ; } r et they 
 will give the reader an idea as to what may 
 reasonably be expected from the Comity of Na- 
 tions in the present state of intercourse and 
 civilization. 
 
 * The following are the principal Works on Private Interna- 
 tional Law : — J. Westlake. Treatise on Priv. Int. Law. London, 
 1858. Fcelix. Traite de Droit Int. Prive, 4th Edition ; by Charles 
 Demangeat Paris. 1SG6. 2 Vols. Masse. Le Droit Commercial dans 
 ses rapports avec le Droit des Gens et le Droit Civil. Paris, 1S74, 
 3rd Ed. Vol. II. Sir Robert Phillimoee. The fourth volume of 
 his Comm. on Intern. Lair (London, 1S74), is a complefe text book 
 on Private International Law and Comity. STORY. Cnmmentaries 
 on the Conflict of Laws Foreign and Domestic. 7th Edit. Boston, 
 1872. Von Sayigxi. System desheutigen Romischen Rechts, 1849! 
 Vol. VIII. F. Lauraxt. Le Droit Civil International. Gaud. 
 1882. Dr. L. vox Bar. Das Internationale Privat-und Strafrecht. 
 The edition of 1802 is translated into English with notes by G. R. 
 Gillesp'ie, B.A., 18S3. R. de Mohl. Geschichte unci Literatur der 
 Staatswissenschaften. Vol. I, contains criticisms on works on Public 
 and Private International Law. Pasquale Fiore. Diritto Inter- 
 nationale Private. 2nd Edition. 1S74. Translated into French by 
 Pradier-Fodere. Paris. 1875. J. A. Foote. Treatise on Private 
 International Jurisprudence. J. M. C. Asser. ' ; Schets van het 
 Internationaal Privaatrecht.'' Haarlem, 1880. Bame de Droit Inter- 
 national et de Legislation Comjmree. a bi-monthly periodical, pub- 
 lished at Brussels, Leipzig. The Hague and Paris, by Messrs. Asser, 
 Westlake, Arntz. Alphonse Rivier and Ernest Nys. The first number 
 appeared in 1869. Journal du Droit International Prive, pub- 
 lished by Mr. Ed. Clunet in Paris.
 
 150 PahtH.] PKIVATE INTERNATIONAL LAW. [ GH j^ x ' 
 
 In treating the Maritime and Commercial Laws, 
 especially with regard to the lex mercatoria, 
 we have, besides noting the respective features 
 of Conflict of Laws, endeavoured to compile from 
 different acts of legislation, those rules which 
 appear to he the most available in cases of con- 
 current Jurisdiction which may occur between 
 different resident Consular representatives or be- 
 tween the Local Authorities and a Consul, espe- 
 cially in Colonial Territories (Chapters XV and 
 XVI). 
 
 II. — Personal Status. 
 
 p<,-sonai atat« s . §51. The Personal Status of an individual is 
 tin). iora ' determined by his legal condition with regard to 
 birth, age, affinity and civil capacity, as regulated 
 by the Laws of Statuta Personalia (jus persona- 
 rum) of the State in which he shares Political 
 Nationality and to which he owes allegiance as 
 subject or citizen, whether original or naturalized. 
 These Statuta Personalia, as noted above (§ 39), 
 follow the individual wherever he may be domi- 
 ciled. 
 
 When there is any doubt or uncertainty with 
 regard to the Political Nationality of an individual, 
 his personal status is determined by the laws of 
 his legal domicile (lex domicilii). In a Union 
 of States, the Law of the State, to which the 
 individual belongs, governs his personal status, 
 
 when there is no general law regulating the 
 
 Statuta Personalia for the whole Union.* 
 
 The persona] status of an individual being 
 subject to the control of I he legislature of his 
 Political Nationality, it follows that, by changing 
 his nationality, through naturalisation, he subjects 
 
 ♦ Resolution of tin' [nrtitul de Droil International, al their session, 
 li, ^i at Geneve in September, 1874, on tin' Reporl of Professor M \x- 
 cini (Italian) and Assbb (Dutch). Revue de Droii international, 
 
 .. \'m|. VII, i*7.v page 529, and Beq.
 
 run 11.] PERSONAL STATUS, [^ssii*" 151 
 
 his personal status to the control of the laws of 
 his new allegiance. All legal transactions, deeds 
 and acts are judged by the actual personal status 
 or legal capacity under which they were per- 
 formed. 
 
 ' The following are the legal features of the per- 
 sonal status or jural capacity : — 
 
 1st. Nationality or Citizenship. 
 
 2nd. Leoitimate or illegitimate birth, i.e. birth 
 from legally married or unmarried parents. In 
 the first instance the nationality of the father 
 decides the citizenship, in the latter that of the 
 mother. Foundlings follow the nationality of 
 those who adopt them. Personal status, with 
 regard to legitimate or illegitimate birth, decides 
 questions as to acquiring and transmitting the 
 right of inheritance of intestate property, that is, 
 when inheritance or transmitting of property ; s 
 regulated by affinity (success io abintestate). 
 The law which, at the time of the birth of a child, 
 governs the matrimonial status of the parects, is, 
 per se, the law which decides the legitimacy of 
 the birth. The legitimation of an illegitimate 
 child is regulated by the law o-overninii' the 
 father's Political Nationality at the time the 
 legitimation takes place.* 
 
 3rd. State of Minority or of Age. In the 
 former state the individual is under guardianship 
 until the legal age. When of age, the individual 
 has reached the term of life fixed by law for his 
 assuming responsibility in matter of civil acts 
 and transactions. 
 
 4th. The State of insanity or idiotism, also 
 requiring a guardian, regulated by Law. 
 
 5th. Marriage, the principal contract of Natu- 
 ral and Civil Law. 
 
 Vox SAVIGKY. § 338. et seqq. Asser. Sketch of Pr. Int. Law, 
 page 8t».
 
 152 Paetii.] private international law. 
 
 r Chapt. X. 
 
 §51. 
 
 6th. Divorce, the dissolution of the state of 
 
 marriage. 
 
 Personal status, with regard to citizenship and 
 capacity of civil acts and transactions, is also 
 applicable to corporations, which follow, in this 
 respect, the laws of the State under whose 
 jurisdiction they are originally established (§58). 
 
 Until the middle of the last century, the ex- 
 clusion of aliens from equal participation in the 
 rights of protection by the territorial laws, and 
 often at the bar of common justice, was predo- 
 minant in Europe. The aliens of every State 
 had to submit to all kinds of spoliation of their 
 property for the benefit of the lord of the soil, to 
 whose protection they had no established claim. 
 Relics of these legal means of subjecting aliens to 
 extortion, are still lingering in different forms, 
 though mostly obsolete, in a few European laws, 
 and serve the historian as examples to point out 
 the progress which civilization and justice have 
 made through the intercourse of Nations. The 
 following is a brief statement of a few of these 
 fiscal rights of the past, viz. : — 
 
 1st. The Droit cl ' Aubalne (jus albinagii) * 
 belongs to the fiscal laws of feudal system, which 
 ffave the Sovereign a right over all the moveable 
 and immoveable property of an alien after his 
 death, to the exclusion of the testamentary and 
 
 * 1>i- < Iakgb ( Oloss. Med. dSvi. voce Albinagium < t Albini) derives 
 the term from advance. Others derive il from alibinatus. Dining the 
 Kiddle Alts tlw Scots were called " Albani" in France, from the 
 Gothic term Albanach, which is still used in the highlands of Scot- 
 Land, just as, in the present time, the term "Francos" on "Francs" 
 i aged in the Levant, to designate other western nationalities as well 
 Bathe French. The term Albani may have been used on the Con- 
 tinent, in those times, to denote foreigners in general, as well us the 
 Scots, under which nationality probably all were classed who came 
 acroi from the British Islands. Wheaton. Blem. of intern. Law, 
 Ed. Dana. Vol. LI. § 82. Maktkxs. Precis de Droit Intern. Ed. 
 v.-i ■■'.'. Vol. [. | 164. Klubbb, Droit des Gens do I'Europe. Ed, 
 Ott.§82,etc
 
 i-akxII.] PERSONAL STATUS. [ C "§a'. X ' 153 
 
 conventional as well as the ab -intestate foreign 
 heirs. 
 
 2nd. The Droit de Detraction or Droit de 
 Eetraite (jus detractus), also sometimes called 
 Droit de Gabelle, was the right of levying a tax 
 of a certain percentage on moveable property of 
 foreigners leaving the country. 
 
 3rd. Another sort of so-called right, belonging 
 to the barbarous ages, was the Droit de Naufrage 
 or Droit d'Epave (Strcmdrecht, compendium 
 naufragiorum) by which, contrary to the natural 
 law of property, all goods which were cast on 
 the shores of a State, through shipwreck, jetison 
 of cargo, or any accident of nature, were taken 
 possession of by the inhabitants of the coast or 
 by the Government of the State. 
 
 With regard to the amelioration of the condi- rersonai status 
 tion of aliens in his time, Grotius gives the mm time 0/ 
 following statement in his work on Dutch Juris- 
 prudence : — 
 
 " From the place of birth comes the distinction 
 by which in this country (the Netherlands) some 
 are considered natives and others foreigners, 
 terms which require no elucidation. This dis- 
 tinction entailed, in former years, important 
 consequences, because the property of foreigners, 
 dying here, fell to the Crown. Foreigners were 
 not admitted as competent witnesses against 
 natives. In case of their murder or of other 
 injury being inflicted on them, a lesser punish- 
 ment was awarded than if the same had been 
 committed against a native. In like manner all 
 foreigners were by various edicts excluded from 
 offices or rank. But in course of time, these 
 countries having greatly advanced in trade and 
 commerce by the influx of foreigners, so wide a 
 distinction was found to be disadvantageous ;
 
 154 Taut 11.] PE I VATE INTERNATIONAL LAW. [ Ch §7i. X ' 
 
 consequently, foreigners at this day leave and 
 take an inheritance the same as the natives. 
 They have also in all legal processes the same right 
 as the inhabitants, nay, more ; they have the 
 stranger's plea, that is, when one of the litigants 
 is a stranger, not holding his domicile here, his 
 cause is more speedily entertained than a citizen's 
 plea." * 
 
 As these privileges were granted on the prin- 
 ciple of reciprocity, the above description gives 
 a fair idea of the progress of Comity among the 
 nations of Europe, from the Middle Ages to the 
 time of Grotius. 
 personal status At present the maxims of modern International 
 Foreigners ««<*«• Law admit no inequality in legal capacity between 
 
 the Dt'esfjit state ^^ 
 
 of international domiciled foreigners and citizens, that is in the 
 capacity to acquire all civil rights, with the excep- 
 tion of those directly emanating from the status 
 of Political Nationality, more specially called 
 Political Rights. The granting of this privilege 
 of equality of legal capacity to foreigners tem- 
 porarily residing in the State, however, is often 
 regarded as a special prerogative of the Law 
 Courts. 
 
 Domiciled Foreigners. The legal domicile of an 
 individual, as noted above, is the place of his 
 principal abode and chief seat of his affairs, 
 established with intention to remain there, where- 
 by he makes himself permanently subject to the 
 laws of the place from which he acquires the 
 Nationality of Domicile (§40). The definition 
 of what is understood by legal domicile in a case 
 of litigation belongs to the lev fori (^ 52). 
 
 Litigation between r p| )( . rilleS lllldei' which tllC tribunal of tllC 
 tempori . . „ 
 
 /;, (dents. btate will take cognisance, lor purposes ot 
 
 * Huso Gbotius, Introduction to Dutch Jurisprudence. Book I. 
 Chapter XIII, Sections I— III. Translation by Charles U rl 
 London, 1 J45, Page 52.
 
 Part 
 
 ii] PERSONAL STATUS. [ GHJ §5i. K ' 155 
 
 enforcement, protection or remedy, of the right?, 
 duties, acts and obligations of foreigners, per- 
 manently residing in the State, are the same as 
 those for the nationals or citizens. The lex fori 
 decides whether suits between foreigners, who 
 are but temporary residents, are maintainable 
 before its tribunals. Suits between non-domi- 
 ciled foreigners, which come before the tribunal 
 of a State, must be personal suits or connected 
 with contract obligations, to be executed, part- 
 ly or wholly, at the place where the parties 
 have entered into litigation. Thus a company 
 of travelling actors can have differences with 
 regard to their mutual contract obligations settled 
 before the competent tribunal of the foreign State 
 where they are temporarily residing, during their 
 professional tour, provided these differences have 
 regard to or are connected with the professional 
 or travelling clauses of the contract. In such 
 cases the Court will decide in comformity with 
 the lex loci contractus, where this is admissible. 
 
 The jurisdiction of a State cannot extend so as suitswm regard 
 
 O -. . _ . to properties 
 
 to absolutely bind property situated in a foreign okm* the mate. 
 country. For although the person may be within 
 the jurisdiction, says Story, "yet it is by no 
 means true that, in virtue thereof, every sort of 
 suit may be maintainable against him. A suit 
 cannot, for instance, be maintainable against 
 him so as to bind personal property situated 
 elsewhere and a fortiori neither to bind the rights 
 and titles to immovable property." 
 
 "The jurisdiction of a State over all real pro- 
 perty within its territory," says Halleck, ''results 
 as a necessary consequence of the rule relat- 
 ing to the application of the lex loci red sitce 
 (§54). As every thing relating to the tenure, 
 title, transfer, descent and testamentary disposi- 
 tion of real property is regulated by the local
 
 156 Part II.] PRIVATE INTERNATIONAL LAW. 
 
 rCnxpT. X. 
 
 $51. 
 
 law, so also all proceedings in Courts of Justice 
 relating to that species of property, such as the 
 rules of evidence, the forms of action and plead- 
 ings and rules of decision, must necessarily be 
 governed by the same law. This jurisdiction is 
 exclusive. Every attempt of a foreign tribunal 
 to found jurisdiction over it must, from the very 
 nature of the case, be utterly nugatory, and its 
 decrees incapable of execution in rem. It is true 
 that the ownership of property within a country 
 does not make the owner generally a subject of 
 the State where it is locally situated, but it sub- 
 jects him to its jurisdiction "secundum quid, et 
 aliquo modo" (comp. §§52, 54 & 60). 
 
 "Mixed actions, so far as they regard the 
 reality, are to be brought in the place rei sitae, 
 but if the personal damages or claims be separable 
 in their nature and character, they may be sued 
 for as personal actions." * 
 
 The result of these observations is this, that 
 personal actions may be brought in any place 
 where the defendant in the case can be found, 
 that real actions must be brought in the forum 
 rei sitae, and that mixed actions, which are deemed 
 local, are properly referrable to the same tribunals. 
 Pertonai status With regard to the law of the United States of 
 kreyners.in America, Timothy Walker says, " The law which 
 of Anw'ka. determines the capacity, state, and condition of 
 persons, is called personal law, as to which there 
 is no universal rule admitted by all nations. 
 But the rule prevailing in this country is, that, 
 as to acts done, rights acquired, and obligations 
 incurred in the place of domicile, the law of such 
 domicile will govern everywhere ; but, otherwise, 
 the law of the place of the transaction will govern. 
 This general rule will determine the capacities 
 
 * HALLECK.QInfem. Law. Edit. 1K78. Tol. T. p. 171. Stoby. 
 Conflicl of Laws. §§ 537- 555.
 
 Tart 
 
 h] personal status^ [ Cha § 7i. x ' 157 
 
 and incapacities, incident to infancy, coverture, 
 idiocy, and lunacy, and all other personal abilities 
 and disabilities, founded on the law of nature, 
 and not on derogation of common right. But 
 foreign Nations will not regard disqualifications 
 created by penal laws, unless there be some ex- 
 press compact on the subject, like that existing 
 between the States of this Union. Moreover, 
 each Nation may make an exception to the above 
 rule with respect to its own subjects ; for as to 
 them there can be no question of Comity, and, 
 therefore, they will not be permitted to evade 
 their own law, by resorting to countries where a 
 different law prevails." 
 
 " In the common acceptation, domicile means 
 the place where a person resides ; but in a legal 
 sense domicile means the place where a person 
 has his fixed and permanent home or establish- 
 ment. Two things must concur to constitute 
 domicile, namely, actual residence, and the in- 
 tention of remaining ; or, in case of temporary 
 absence, the intention of returning ; and as there 
 must be this concurrence of fact and intention, 
 the question of domicile is often a difficult one. 
 The most general rules on the subject are these. 
 The place where one is born is his domicile, if it 
 was the domicile of his parents ; if not, their 
 domicile is his, during minority, unless changed 
 by the parents. A married woman has the do- 
 micile of her husband. Residence is prima facie 
 evidence of domicile ; but no length of time is 
 essential ; and, therefore, if an adult person 
 removes to a new residence, with the intention of 
 remaining, it becomes his domicile immediately. 
 The place where the family of a married man 
 reside is considered his domicile, though he may 
 do business in another place ; and if the family 
 have different places of residence for different
 
 I"CHAPT. X. 
 
 158 Paiit II.] PRIVATE INTERNATIONAL LAW. [ $£ 
 
 periods of the year, that place will be the domicile 
 in which the head of the family exercises the 
 rights of citizenship ; but the domicile of a single 
 man is usually the place where he transacts his 
 permanent business. Every person must have a 
 domicile somewhere, and therefore, when a domi- 
 cile has once been acquired, it continues until a 
 new one is acquired. These are the leading rules 
 of local domicile, and they apply, for the most 
 part, to national domicile. When a person has 
 acquired a foreign domicile, and abandons it to 
 return to his native domicile, the latter is re- 
 acquired the moment the former is left. It 
 will thus be seen that domicile and citizenship 
 have no necessary connection. Our citizens may 
 have their domicile abroad ;, and aliens may have 
 their domicile here." * 
 
 III The Lex Fori 
 
 competency 0/ §52. The term lex fori comprehends the 
 cZ7s'! Law territorial laws as well as the rules of examina- 
 tion, instruction, proceeding and judgment of 
 judicial questions of the Court before which a 
 case is brought for adjudication. These rules, etc. 
 are divided into two categories, called judiciorum 
 ordinatoria and litis decisoria (the formes ordina- 
 toires and decisoires.) 
 
 The term Ordinatoria is applied strictly to 
 forms of procedure, i. e., the rules prescribed for 
 the proceedings to be taken in order to arrive at 
 the point where a legal decision may be given, 
 but which rules have no direct influence on the 
 matter at issue or the decision itself. Under the 
 category of Decisoria are classed all proceedings 
 and remedies which bear on the merits of the 
 case and which influence the final decision. 
 
 * Timothy Walker. Introduction to American Law. Edit. 
 1874. p. 753.
 
 PaktH.] THE LEX FORI. [ CHA §"i. X ' 159 
 
 The ordinatoria are regarded as inseparable 
 from the lex fori, being the rules of the Court 
 which must be followed, as on them depends the 
 legal competency of the Court, and they cannot, 
 in consequence, be governed by any foreign law, 
 whilst the decisoria are subject to Conflict of 
 Laws. In some cases it is, however, not easy 
 to decide when a certain proceeding belongs to 
 the Ordinatoria or the Decisoria class of rules. 
 This is particularly to be observed in case of 
 limitation and prescription, as will be noted 
 hereafter (§ 56). * 
 
 As under the appellation lex fori all enact- 
 ments and regulations, having legal force as 
 municipal laws of the State, are comprehended, 
 so also those International Treaties, sanctioned 
 by the respective legislatures, by which certain 
 rules with regard to jurisdiction are agreed on, 
 are likewise classed under lex fori. 
 
 The execution or effect of those treaty stipula- 
 tions which belong to the category of the lex 
 fori enter, without reserve, into the judicial at- 
 tributes ; like any other law points, they are subject 
 to the decision of the competent judge only, 
 without interference of any Administrative or 
 Political Power, f 
 
 The lex fori decides also when differences 
 arise in a case in litigation with regard to the 
 
 * For a clear distinction between the Ordinatoria and the Deci- 
 soria rules, see Masse, Le Droit Commercial da7is ses rapports avee 
 le droit des yens ft lc droit civil. II. j?. 33. See also the extensive 
 report submitted to the Institut de Droit "International by Prof. 
 Assee, a member of the Institut, with regard to Conflicts of Civil 
 Process Laws, published in the Revue dc Droit Internal. Vol. VII. 
 1875, p. 364 et seq. 
 
 f "Les regies de Droit International Prive' qui cntrent dans les 
 lois d'un pays (lex fori) par suite d'un traite international seront 
 appliques par les tribunaux, sans qu'il y ait une obligation interna- 
 tionale de la part du Gouvernement de veiller a cette application 
 par la voie administrative." Resolution of t/ie Institut de Droit 
 Int/m. The Hague, 1875, Annuaire 1877, p. 81-90. Asser. Sketch 
 of Priv. Intern. Law, T. I. p. 101. Idem. Revue de Droit Intern. 
 1869. p. 476.
 
 160 1-aktII.] PRIVATE INTERNATIONAL LAW. [^m. X " 
 
 legal domicile of wives, widows, minors, students, 
 lunatics, servants, public officers, military and 
 naval officers, ecclesiastics, prisoners, exiles, 
 immigrants, and corporations ; it decides also, if 
 a person has more than one domicile, which is the 
 principal legal one, in cases which have regard to 
 testaments, as distributions under intestacy, and 
 other particular rig] its. 
 
 Questions regarding the domicile of Ambas- 
 sadors, Consuls or other diplomatic or foreign 
 Agents, belong to the provision of the Public 
 International Law but are regarded in several 
 States as forming part of the lex fori. 
 
 In proceedings in rem, respecting personal 
 property (mobilia) within the territory of the 
 State, the foreign lex domicilii may furnish the 
 rule of decision, but the forms of process, the 
 rules of evidence and limitation or prescription, 
 are governed by the lex fori of the State. 
 
 IV Marriage and Divorce. 
 
 Marriage and §53. The validity of a Marriage is generally 
 reguactumx admitted to be decided by the laws and formali- 
 ties of the place where the marriage act is con- 
 cluded (lex loci regit actum), provided the rules of 
 the personal status of parties have not been 
 violated, that is to say, those provisions of the 
 laws of their respective native State which are 
 peremptory for the validity of marriage contracts, 
 viz. : consent of parents or guardians (in cases 
 of minors), capacity with regard to age and 
 degree of consanguinity of parties, the required 
 publication of banns, the solemnization of the 
 marriage before the required witnesses or other 
 publicity given to the act. 
 
 Most States in Europe and America have 
 recognized by their legislative acts the validity 
 of foreign marriages, acting on the principle of
 
 nun n.J MARRIAGE AND DIVORCE, [ Ch §^'. X ' 161 
 
 lex loci regit actum, but establishing at the same 
 time, the indispensable conditions on which alone 
 marriages under foreign jurisdiction are valid in 
 the native State. 
 
 More occasion for Conflict of Laws is presented-M^a* contracts. 
 by the nuptial contract, or rather by the conse- 
 quences of the contract of marriage with regard 
 to property situated in foreign States. The 
 general rule is that, while the personal capacity 
 for contracting marriage, such as age, consent of 
 parents, etc., is regulated by the laws of the 
 Political Nationality, and while the formalities 
 and validity of the contract are regulated by the 
 lex loci, the effect of the nuptial contract, in the 
 case of personal property, is governed by the lex 
 domicilii, but in the case of immovable property 
 (real property) situated in another State, the 
 effect of nuptial contract is governed by the law 
 of that State in which the property is situated, 
 on the principle of lex loci rei sitce (§ 54). * 
 
 Foreign divorces are now, in Europe and ^p Divorces. 
 America, generally recognized when obtained by 
 the laws of the place in which the parties were bond 
 fide permanently domiciled. But when the parties 
 expressly remove to another country, in order to 
 evade the laws of the State to which the parties 
 belong, either for causes not allowed by the laws 
 of their domicile or in cases where those laws do 
 not permit a divorce a vinculo for any cause 
 whatever, such action is regarded as fraudulent 
 and void, f 
 
 * Story. Conflict of Law. § 124. Redfield's Note. No. 5. 
 ■\Voolsey. Introd. Int. Law. § 74. Halleck. Int. Law. Vol. I, p. 
 157. Merlin. Repertoire. Tit. Loi. § G. 
 
 t Wheaton. Elem. of Intern. Law. Part II. §§ 92-151. Idem. 
 Dana's Note, No. 46 on § 81. C'ALVO. Droit Intern. Vol. I. § 247. 
 Halleck. Intern. Law. Vol. I. Chapt. VII. §§ 10-11. Philli. 
 more. Coram. Intern. Law. Vol. IV. Priv. Intern. Law. Edit. 1874. 
 Chapt. XIX-XXIII. FerCtTjson. On Marriage and Divorce. Vol. 
 I. § 18. Story. Conflict of Laws. §§ 108-230.
 
 162 run ii.] PRIVATE INTERNATIONAL LAW. [ Ch 
 
 §53. 
 
 Husband and Hush and and Wife. With reerard to marriage 
 and divorce in conformity with the law of the 
 United States of America, Timothy Walker makes 
 the following statements. "The general rule is, that 
 the validity of a marriage depends upon the law 
 of the place where it is celebrated. If valid there, 
 it is valid everywhere ; and if invalid there, it is 
 invalid everywhere. The reason of this rule is 
 found in the disastrous consequences which would 
 follow from any other doctrine ; and so strong is 
 this reason, that the rule prevails even when 
 persons have gone to a foreign country to marry, 
 for the express purpose of evading the domestic 
 law. The exceptions are with respect to incest- 
 uous marriages and polygamy ; which, though 
 lawful where they take place, are not recognized 
 elsewhere. Some Nations also expressly prohibit 
 their own subjects from marrying anywhere, 
 unless according to their own laws, and, therefore, 
 will not recognize other marriages. And the 
 necessity of the case sometimes requires a resort 
 to the law of the domicile, for want of a local law 
 suited to the condition of the parties; With 
 respect to the property acquired by marriage, the 
 rule, so far as any is settled, seems to be this. 
 When there is no chauge of domicile, the law of 
 the place of the marriage will determine the rights 
 of the parties as to personality everywhere; but 
 their rights as to realty will depend upon the law 
 of tht! place, where ii is situated. Whenthereis 
 a change of domicile! after marriage, the law of 
 the new domicile will govern future acquired 
 personalty everywhere, but realty will still depend 
 upon the law of the place. In either ease, how- 
 ever, if there he a special contracl on the subject 
 of property, that contracl will everywhere govern 
 personalty, and \n some extent, realty. Finally, 
 when parties marry in one place with the intcn-
 
 PAsxn.] PARENT AND CHILD. [^ft.*" 163 
 
 tion of immediately settling in another, the law 
 of the latter will govern their rights, because they 
 are presumed to marry with that understanding. 
 As to divorces, the rule is, that a divorce lawfully 
 obtained in the place where the parties were 
 married and had their domicile, will be valid 
 everywhere. It has also been held in this country, 
 that if the parties have changed their domicile 
 after marriage, a divorce granted in their new 
 domicile, for a cause occurring there, is valid 
 everywhere, even in States where that cause 
 would not have authorized a divorce. But when 
 a party goes to another State for the express 
 purpose of procuring a divorce, which he could 
 not procure at home, such divorce, being in fraud 
 of the law of the domicile, will not be recognized 
 there. Whether it would be recognized else- 
 where, is an unsettled question. It is also held 
 in this country, that, in determining what cause 
 shall be sufficient for a divorce, the law of the 
 forum and not of the marriage is to govern ; and 
 that one State will not grant a divorce for a cause 
 which occurred in another, unless there be express 
 legislation to that effect." * 
 
 Parent and Child. The only lmportant^w^^c^W' 
 question under this head is that of legitimacy, 
 which is generally determined by the law of the 
 place of the marriage. If by that law the issue 
 be legitimate, they will be held legitimate every- 
 where else, at least with respect to heirship. But 
 the converse is not always true, f 
 
 The purely personal relations between parent 
 and lawful children are to be ruled by the lex 
 domicilii of the parties, in the same way as the 
 personal relations of the spouses and under the 
 same limitation. 
 
 * Timothy Walker. Introduction to American Law, page 754 
 et scq. 
 t Idem. I.e.
 
 164 PartH.] PRIVATE INTERNATIONAL LAW. [ C "§53. X " 
 
 auardkm and Guardian and Ward. With regard to foreign 
 
 Ward ^ ^~* 
 
 guardian-ship, Mr. Gillespie, in his note on § 106 
 of Prof. Bar's work, gives the following clear and 
 all -comprehending statement. " The general 
 principles of International Law, which regulate the 
 recognition of the appointment and administra- 
 tion of foreign guardians, are identical, whether 
 the incapacity that gives rise to the guardianship 
 is due to incomplete age, mental weakness or 
 disease, or prodigality. These three kinds of 
 incapacity may be considered together, since the 
 incapax from any of the three causes tails into 
 the same legal position, and the rules of law in 
 different countries are the same in all of the three 
 cases." 
 
 " The principle that the interest of the incapax 
 is the first tiring to be considered has regulated 
 the practice as to the appointment of guardians 
 in America and Continental countries, and has 
 now been adopted in England also, except where 
 real estate is concerned. Thus, in France a 
 foreigner will not be excluded from the family 
 council, nor from the office of tutor, merely 
 because he is a foreigner, if he is otherwise suit- 
 able for the office ( Dunn v. Dupuis, 1st May, 
 1879, Trib. Civ. de A'ersailles); a foreign father 
 may be appointed tutor to his son, who is a 
 French subject, if that is most convenient for the 
 interests of the child (Bourcli)^ v. Antoine, Trib. 
 de Briey, 24th Jan. 1878); and a foreigner 
 resident in Louisiana has been nominated to be 
 the tutor of his children by the Courts of the 
 State (1874, Succession Guillemin, 2 A. 634). 
 The Belgian Courts have refused 1o appoint a 
 foreigner Id the office of tutor (Prince of IMicin- 
 a-Welbeck v. Comte de Berlaimont, Trib. de 
 Namur, 12th August 1872); but this decision is 
 pronounced by the reporter to be of doubtful
 
 PAn-rll.] GUARDIAN AND WARD. [ L ' H §53. X ' 165 
 
 soundness. The Scotch Courts have refused, on 
 grounds of expediency, to appoint persons out 
 of their jurisdiction to be tutors or curators; but 
 they will recognise the appointments of foreign 
 Courts to such offices, except where real estate 
 forms the subject which is to be administered." 
 
 "It is no doubt the influence of the maxim, 
 that the interest of the incapax must be the lead- 
 ing consideration for the Court, that has induced 
 the Courts of the Continent, — in countries where 
 nationality and not domicile is generally accepted 
 as founding jurisdiction, — to exercise a protective 
 jurisdiction, ratione domicilii, in cases of incapa- 
 city, and appoint guardians to persons who are 
 of foreign nationality, and have no more than a 
 domicile, or it may be in some cases merely a 
 residence, within the territory of the Court. 
 The French law allows a French citizen to change 
 his domicile without changing his nationality, 
 to the effect of submitting the tutory of his 
 children to a foreign law. So, too, a French- 
 woman who has been married to a foreigner, but 
 has on her widowhood returned to France and 
 recovered her French nationality, may be ap- 
 pointed tutrix to her children who are resident 
 with her in France, although their nationality 
 will be that of their father. The appointment 
 is made by the French Courts, and the rights 
 and duties of the tutrix on the one hand, and 
 the security given to the wards on the other, 
 over her estate, are those which the law of France 
 allows. This decision appears to proceed upon 
 considerations of social order and public mora- 
 lity (Sokolowski, Bourges, 4th August, 1874). 
 So, too, from similar considerations of the in- 
 terest of the wards, in a case where the father 
 of a family, himself a foreigner, was in jail in a 
 foreign country, and his children, who were with
 
 166 Part II.] PRIVATE INTERNATIONAL LAW. [ C "^l, X " 
 
 their mother in France, had been left unprotected 
 by her death, the French Courts appointed a 
 tutor, although no such step had been taken in 
 their own country (De Nau, 10th April, 1877, 
 Trib. Civ. de la Seine). The Courts of Belgium 
 will place a foreigner, who is resident in Belgium, 
 under curatory as a prodigal. ' The Court ex- 
 tends to foreigners the benefit of all the laws that 
 have in view the protection of person or of pro- 
 perty ' (Com* d'Appel de Bruxelles, 9th June, 
 1873). This same jurisdiction, in a case of pro- 
 digality, has been exercised by the Italian Courts 
 (Dulche v. Pirola, 1st July, 1872) ; and in the 
 case of Stocher Kirkhope, decided by the Court 
 of Appeal at Lucca, 1st , September, 1875, the 
 Court laid down that, in cases of incapacity in 
 persons who were domiciled or resident in Italy, 
 there was jurisdiction in the Italian Courts to 
 assume the administration of the affairs of the 
 incapax, but only if the Courts of his own country 
 could have exercised a similar jurisdiction in the 
 circumstances that had occurred. In the case of 
 interdiction on the ground of prodigality, the 
 French Courts have followed a similar rule, laying 
 down that a process of interdiction will be allowed 
 to proceed in France, if it is just and advantageous 
 for the interests of the incapax, thai it should do 
 so (May v. Sheppards, Cour de Caen, 20th Ja- 
 nuary, 1873)." ' 
 
 ''These were all eases where no competing 
 appointment had been made for the protection of 
 the incapax by 1 lie Court of any. other country, 
 and they have been cited for the purpose of 
 showing, that the interests of the incapax are of 
 such importance, thai the Courts of the country 
 where he LB found will not hesitate to exercise a 
 protective jurisdiction for his behoof. But on 
 •he Continent the status of guardianship once
 
 run ii.] GUARDIAN AND WARD. [ CH §S3'. X ' 167 
 
 validly constituted will be recognised, according 
 to the lex domicilii, wherever the ward may go 
 or wherever his property may be, and no dis- 
 tinction will be made between real and personal 
 property. In Austria, for instance, the Courts 
 have refused to sanction a sale of real property, 
 situated there, belonging to minors who were of 
 foreign nationality and domicile and under a 
 foreign guardianship. The necessary authority 
 must be obtained from the Court that is charged 
 with their guardianship ( Supreme Court of Aus- 
 tria, 4th January, 1870)." 
 
 "In so far as domicile is taken as the criterion 
 of jurisdiction, the law of England and Scotland 
 is in conformity with these cases, for domicile 
 and not nationality is in all cases taken by it as 
 founding jurisdiction. But the Courts of Eng- 
 land and America stand alone in this, that they 
 hold that if any person, being mcapax, comes 
 within their jurisdiction, they have power to take 
 up the care of his person and the management 
 of his affairs, although a foreign guardian has 
 been already validly appointed. That they should 
 have power, in cases of necessity, to interfere, 
 on the ground of residence, without requiring 
 a full domicile, is reasonable, and is sanctioned 
 by the principles of the Continental decisions 
 cited above, and the Courts of Scotland would, 
 in pressing cases, hardly hesitate to make such an 
 appointment ad interim. But the law of Scot- 
 land recognises, in so far as the custody of the 
 person and the management of the personal 
 estate are concerned, the appointment by a foreign 
 Court, without requiring any new appoint- 
 ment to be made or the old one to be confirmed. 
 In England, however, and in America the Courts 
 maintain their rights of jurisdiction over all such 
 persons within their territory, and have exercised
 
 168 I'aktII.] PRITATE INTERNATIONAL LAW. [^s'.*' 
 
 them in. such cases as Johnstone v. Beathe, 10 
 CI. and Fin. 42. But in more recent times, the 
 Courts of England have receded from this ex- 
 treme position, and their attitude as described 
 by Mr. Westlake is this: — "As regards the 
 custody of the person of an incapax, now at 
 last the English Court, in appointing a guar- 
 dian or committee of the person, will support the 
 authority of the guardian or committee existing 
 under the personal law or jurisdiction, and not 
 defeat it unless it should be abused." He refers 
 to cases in point (cf. also Wharton, § 263 et 
 seq. ) "As regards the estate, the foreign guardian 
 can sue and give receipts for personal property 
 belonoinu' to his ward, and it will therefore 
 seldom be necessary to appeal to the English 
 Courts to make a new appointment for such 
 purposes. The Courts of Scotland, in the case 
 of lunatics as well as minors, will refuse to make 
 any appointment in the face of one already made 
 by a foreign Court, to control the person or the 
 personal property (cf. Fraser, on Parent and 
 Child, pp. 002 and 609)." 
 
 " In England, as in America, where real 
 property is in question, the appointment will be 
 made by the Court of the country, and the 
 administration of that estate will be regulated 
 by the law of the country where the real estate 
 is situated. There is no question whatsoever, 
 that, according to the doctrine of the common 
 law. the rights of foreign guardians are not 
 admitted over immovable property situated in 
 other countries. These rights arc deemed to be 
 strictly temtorial 5 and arc not recognized as 
 having any influence upon such property in 
 other countries whose systems of jurisprudence 
 embrace differenl regulations and require different 
 duties and arrangements (Story, §504)."
 
 pastil] GUABDIAN AND WARD. [ C *K X 169 
 
 " On the Continent, the lex domicilii will regu- 
 late the guardianship over immovables just as 
 over movables." 
 
 u In Scotland the law is thus stated by Lord 
 Fraser (p. 605). The practice in Scotch Courts 
 has been, for some time, to appoint a special 
 guardian to Scotch heritage belonging to foreign 
 wards ; and the person so appointed will always 
 be a Scotchman within the jurisdiction of the 
 Court. In special circumstances the Courts have 
 allowed a minor to nominate as his curator a 
 person out of their jurisdiction, taking all possi- 
 ble precautions and exacting undertakings that 
 the curator shall, in the matters of the curatory, 
 submit to their jurisdiction; but very special 
 circumstances require to be shown. Contrast 
 the cases of Lord Macdonald (June 11, 1864, 
 2 M. 1194), where it was sanctioned, and Fer- 
 guson (January 25,1870. 8 M. 426),. where it 
 Was refused. But in regard to the administra- 
 tion of guardians for lunatics, as well as that of 
 guardians for minors, the question is yet undi- 
 cided whether the lex domicilii will be recognised 
 as the law to which the guardian is bound to 
 conform in his dealings with property situated 
 in Scotland, belonging to a ward having a foreign 
 domicile" (Fraser. Parent and Child p. 609). 
 There are indications that the lex domicilii of the 
 ward would be held to regulate these (Lamb, 
 20th July, 1858, 20 D. 1323) ; but on the other 
 hand, it is difficult to suppose that an officer 
 appointed by the Courts of Scotland should have 
 wider or narrower powers, according as the ward 
 was, by domicile, a foreigner of this or that 
 country or domicile.' 
 
 " * 
 
 * G. R. Gillebpie. Note R. on § 106, Translation of Prof, von 
 Bar's Internationales Privat-ioul StrafreeM. Edit. 1883, page 440 
 et seq.
 
 170 Pake II.] PRIVATE INTERNATIONAL LAW. 
 
 rcnArT. x. 
 i. 
 
 V. — Real and Movable Property. 
 
 Rmi Property. § 54. As real or immovable property forms an 
 integral part of the territory of the State, all 
 transactions with regard to the acquisition and 
 alienation of this class of property are regulated 
 by the laws of the State wherein the- property is 
 situated, according to the lex loci rei sitce, which 
 governs the status of real property, exclusive of 
 any foreign law or disposition among individuals, 
 as to the tenure, the title and descent of such 
 property. 
 
 Thus, with regard to the transfer of real pro- 
 perty inter vivos, it is generally understood 
 among Law Courts and Jurists, that the lex loci 
 rei sitce must determine the following points : — 
 
 1st. The conditions of the disposition of im- 
 movable property (real estate). 
 
 2nd. The personal capacity to take or convey 
 immovable property. 
 
 3rd. The formalities of transferring titles. 
 
 4th. The extent of the dominion over immov- 
 able property. 
 
 5th. The question what is and what is not 
 real estate (§38). * 
 Persona Property Movable goods, called personal property, are 
 now in most cases regarded as following (he 
 same rule as real property, that is, the law of 
 the place where these goods arc in actual use, 
 deposited or registered, in conservation, pawned 
 or in l(";:il custody. However, the rule of fee 
 rei sitce 1ms. with resped to movable property, 
 many exceptions, when (bis property is regarded 
 as attached to the person of the owner, and, 
 
 in. oiii. i. i.'s edition of Story'a Conflicts of Laws. Ohapt. X. 
 §§424-454.
 
 Past II.] REAL AND MOVABLE PROPERTY. f "™.*' 171 
 
 when thus viewed, the rule that movable pro- 
 perty follows the law of the owner's domicile 
 (mobilia sequuntur personam) is yet often applied, instruments 
 
 * li i ' ..i 1 j ,i • i n relating to per- 
 
 Acts and deeds, with regard to this class ot sonaipw r erty 
 
 , ii;ii r ,i i • 'i are governed by 
 
 goods, are governed by the law ot the domicile the iex domicilii. 
 of the owner, (lex domicilii). 
 
 Thus the law of the place where the owner 
 was domiciled at the time of his decease, governs 
 the succession ab intestato as to his personal 
 effects, wherever they may be situated (Com. 
 §52). 
 
 In the same way the law of the place where any 
 instrument, relating to movable (personal) pro- 
 perty is made, by a part)* domiciled in that place, 
 prevails with regard to external form, and with 
 regard to the interpretation and the effect of the 
 instrument (locus regit actum). Thus a testament 
 of personal property, if in accordance with the 
 formalities required by the laws of the place 
 where it is made, and where the party making it 
 was domiciled at the time, is valid in every other 
 country, and it is to be interpreted and given 
 effect to according to the lex loci ( Wheaton. Edit. 
 Dana. §83). 
 
 The term movable property is not always 
 applied in the same sense by all legislatures. 
 Such is the case with regard to vessels of the 
 sea-going class, rents, Government debts, shares 
 of public banks, canals, mines, rail roads, etc. To 
 all these sorts of movable properties the character 
 of real property is sometimes given by Municipal 
 Laws, with permanent or personal or with trans- 
 ferable title-deeds attached, which then, by 
 succession or alienation, mast follow the respective 
 Municipal regulations, i. e. the lex loci rei sitce. 
 
 Litigation with regard to properties (real ov^rdtfro- 
 personal) situated in a foreign country, has been^XTS- 
 noted in § 51, page 155. £2$V! , ** P "*"
 
 Hon 
 
 172 PaetH.] private international law. [ c "*';,'. x ' 
 
 VI. — Legal Obligations and Contracts. 
 
 legal obiiga- § 55. The term obligation includes every moral 
 or legal tie, which imposes the necessity of doing 
 or abstaining from doing any act. Hence the 
 distinction between moral or natural obligations 
 (sometimes called imperfect obligations), which, 
 although they have a definite object and are 
 binding as a matter of conscience, cannot be 
 enforced by legal remedy, and legal obligations 
 which are the liabilities regulated by legislation. 
 
 Moral obligations, their origin and principal 
 features, as forming the basis of International 
 Law, have been treated in the first part of this 
 work. The present observations have regard to 
 leo-al obligations. 
 
 There are two sorts or classes of legal liability. 
 viz., the responsibility which results from the 
 voluntary undertaking of one individual in com- 
 pact with another and is more particularly called 
 Contract (obligationes ex contractu), and the legal 
 liability which originates from the personal acts 
 of the individual, but unconnected with agree- 
 ment, as being imposed by law (obligationes ex 
 lege). The latter may be of two kinds, lawful or 
 unlawful, viz., from the personal lawful act flow 
 the obligations called quasi-contracts ((/nasi ex 
 contractu) ; from the unlawful but unintentional 
 act (quasi ex delicto) flow the obligations of re- 
 pairing the injury, and from the unlawful and 
 intentional act (ex delicto) How the obligations of 
 the wrong-doer to repair the injury, besides 
 undergoing punishment for the delict.* 
 
 The obligations which are imposed by the law 
 (obligationes ex lege, quasi ex contractu, quasi ex 
 
 * Phillimobb. Com. upon Intern. Law. Vol. IV. Ch. XXXII. 
 • iiitty. (Jun), On Contracts. Ed. i< s "'7. p, I.
 
 Part 
 
 n] LEGAL OBLIGATIONS. [°*$m. *' 173 
 
 delicto and ex-delicto) seldom give occasion for 
 Conflict of Law. They are subject to the law of 
 the State, within whose jurisdiction the act 
 (lawful or unlawful), which constitutes the primi- 
 tive cause of the liability and entailed the obliga- 
 tion, has been committed or the situation which 
 gave birth to the obliqatio ex lege is created 
 (§87).* 
 
 The following rules have regard to contracts The Law of 
 (obligationes ex contractu) as the results of volun- 
 tary agreements, whereby one party binds himself 
 or becomes bound, expressly or implicitly, to 
 another, to do, or omit doing a certain definite 
 act or to pay a sum of money. In these rules the 
 intention of the contracting parties, expressed or 
 presumed, serves to indicate which law is ap- 
 plicable in cases of conflicts of law. 
 
 1°. The place in which a contract is made is 
 always presumed to be the place in which it is to 
 be performed, unless some other place is named. 
 
 2°. Contracts made in conformity with the ex- 
 isting laws of a State are valid in other States, on 
 the principle that an act valid by the law of the 
 place where it is performed is valid every where 
 else (lex loci regit actum), that is, the law of that 
 place decides in every thing respecting the form, 
 interpretation, obligation and effect of the contract, 
 wherever the authority, rights and interests of 
 other States and their citizens are not thereby 
 prejudiced. On the other hand, contracts, con- 
 cluded in violation of the laws of the State where 
 they are concluded, are, on the same principle, 
 null and void in any other State. 
 
 3°. Contracts are not only void when they in- 
 fringe upon the laws of the State where the agree- 
 
 * Bar. Das Internationale Privat unci Strafrecht. §§ 87 & 88. 
 Phillimore. Corn. Int. Law. Vol. IV. Asser. Sketch of Private 
 Int. Law. p. 64.
 
 17 4 Tart II.] PRIVATE INTERNATIONAL LAAV. 
 
 Chapt. X. 
 
 555. 
 
 ment is made, but they are also held invalid, 
 when called in question in a neutral Law Court, 
 if made with a view to excite war or insurrection 
 in a friendly State or to furnish military supplies, 
 in violation of the obligations of the neutrality 
 of the State where the contract is made ; so also 
 of a contract made in one State, contemplating a 
 violation of the laws for the preservation of 
 health, morals, and the credit of another State, 
 and especially for those misdemeanors to the 
 prejudice of a foreign State as can give rise to 
 demand for extradition, in conformity with 
 treaty rights. Obligations are not only void 
 when anything is promised which is forbidden 
 by the Municipal Law of the State where the con- 
 tract is made, but also when anything is promised 
 which is considered as disreputable by Natural 
 Law, as being repugnant to morality or justice. * 
 
 4°. The law of the place where a contract is 
 made (lex loci contract us) decides the intrinsic 
 validity of the obligation or will, and the inter- 
 pretation, but when it comes to the execution of 
 the contract or will, it is the lex fori which decides 
 the question, which may arise in the enforcement 
 of the obligation. 
 
 The rule that the validity of a contract is to 
 be decided by the law of the place where it is 
 made (lex loci contractus), called the law of Con- 
 tracts, which governs every thing respecting the 
 form, interpretation, obligation and effect of the 
 contract, is founded on the necessity under which 
 nations are to facilitate the carrying on of com- 
 mercial intercourse with each other, Cor the 
 whole system of agencies, purchases and sales, 
 credit and negociable instruments, bills ofex- 
 
 * Story, ('mill, of Law. §267. Westlakb. Priv. frit. Law- 
 §199. IIi:rrn;i{. tfiarop. V'Slker Etecht, §§ 86-89. Phillimobe. 
 Com. on Jut. Law. Vol, IV. Ed. 1874. Chap. XXXII,
 
 part ii.] CONTRACTS. [ Clu §w. X ' 175 
 
 change etc., rests on the admittance of the validi- 
 ty of contracts made in a foreign State, with 
 such exceptions only as are rendered necessary 
 for the purpose of proper adjudication. 
 
 5°. Real acts are subject to the laws of the State 
 in which the immovable property is situated ; 
 personal acts follow the same principle, with the 
 exceptions stated above, and obligations are 
 subject to the laws of the place where the contract 
 is concluded, or where it is to be carried into effect, 
 according to the intention of the parties interested. 
 (Comp. § 51, page 155 ). 
 
 The principle of leas loci contractus is departed Exceptions from 
 
 X> ■ ,-t n n • • , the rule of lex loci 
 
 trom m the following instances : — contractus. 
 
 1st. There is a distinction to be made between 
 what relates to the validity, the interpretation and 
 the execution of a contract. 
 
 The validity of a contract is determined by the 
 legal capacity of the parties to enter into agree- 
 ments and by the legality of the formalities observ- 
 ed. These have regard to ike personal status and to 
 the principle of locus regit actum. The interpre- 
 tation of a contract has regard to its obligation 
 and consequences, and must be explained by the 
 leas loci contractus, as it is understood that parties 
 have submitted to the law of the place where the 
 contract is made. When no express condition is 
 made on this head, the execution is always 
 governed by the lex fori of the place where the 
 contract is to have effect. * 
 
 Whatever concerns the accomplishment of the 
 engagements entered into by a contract, and its 
 execution or remission, which proceedings are 
 all subsequent to the passing of the document, 
 all that is to be governed by the law of the place 
 where the fulfilment of the contract, or the pay- 
 ment, is to take place. This law (the lex fori) de- 
 
 * P. Fiori. Dir. Int. Priv. p. 333 & 399.
 
 176 part ii. J PRIVATE INTERNATIONAL LAW. [° H j"; Xl 
 
 termines the formalities of execution, deliverance 
 and payment, the measurement of lands and 
 movable objects conveyed, the sort and rate of 
 exchange of the money in which the payment is 
 to be effected, discharge for the payment, delay 
 on protest, respite, prescription, damage, cost and 
 interest of the same, in case of non-compliance, 
 and all local regulations. * Thus the obligations 
 of a contract are to be determined by the lex loci 
 contractus, but the proceeding or remedy for en- 
 forcing it by the lev fori. 
 
 2nd. Contracts which are against a'ood morals 
 or public rights or against the laws or interest of 
 the country in which the contract is to take effect, 
 or against the private bond fide claims of any of 
 its domiciled subjects or citizens, cannot be pro- 
 tected by the lex loci contractus. Nor does the 
 latter apply when the contract entails proceed- 
 ings against the safety or internal order of a 
 friendly State, which w r ould compromise the 
 neutral country or the good harmony between the 
 respective Governments. 
 
 3rd. When one of the parties refuses to comply 
 with the contract, on the plea of prescription or 
 by any dilatory exceptions, this must be judged 
 by the lex fori, as the laws of the State, and the 
 tribunal where the affair is brought forward, 
 govern legal prescriptions and dilatory exceptions 
 with regard to conventional engagements con- 
 cluded in a foreign country. Of course, in such 
 a case, it devolves on the lex fori to decide whether 
 ;m exception is dilatory and thus affects the ex- 
 ecution of the contract, or whether it is a perem- 
 ptory one, disputing the validity of the contract ; 
 which latter case must be judged in conformity 
 with the laws of the place of the origin of the 
 contract, on the principle of locus regit actum., 
 
 * Fcelix. Traitc dc Droit Int. I'riv. Vol. I. p. 231-24-1.
 
 Pari n.] LIMITATION AND PRESCRIPTION. [ C "|5g'. X ' 177 
 
 for a contract, being void by the law of the place 
 where it is made, is void ab initio and cannot be 
 carried into effect in any other State (Comp. § 56). 
 
 4th. When the contract is made between parties 
 of the same Nationality of Domicile in a foreign 
 country where they have no domicile, the whole 
 transaction must be judged by the law of their 
 domicile, unless otherwise stipulated. 
 
 5th. Contracts between absentees, through 
 writing or by telegraphic communications, must 
 comply with the laws or usages of the respective 
 places where the parties were residing at the time 
 of the compact. If the contracts is couched in 
 writing, the law of the place where the deed is 
 dated, governs the action. If two or more places, 
 with different laws, are concerned in the trans- 
 action, or in cases where there is no written 
 contract, but simply a correspondence by letters 
 between parties, then the law which gives the 
 completest validity and legality to the transaction, 
 must govern the contract. 
 
 6th. Contracts made in a foreign country by 
 non-domiciled parties, with the object of eluding 
 the laws of the Courts to which they are subject, 
 are null and void, on the general principle that, 
 when the primitive cause of an act is illegal or 
 immoral, all agreements based thereon, or directly 
 originating; from the same, are illegal or founded 
 on moral turpitude, and the contract appertaining 
 thereto is consequently without validity. * 
 
 VII. — Limitation and Prescription. Legal 
 Remedies. 
 
 §56. Prescription is a rule of law by which Limitation and 
 
 , A , L , , , . , „ •> , . Prescription. 
 
 obligations are ended, and titles ot ownership Legal Remedies. 
 
 * BAR. § 37. 72 & 73. Asser, Sketch of Priv. Int. Law. Page 
 40, etc. Fcelix. § 97, et seq. Westlake. Ch. 6 & 7. Halleck, 
 Edit. Sherston Baker. Vol. I. Ch. 7. § 5. Story. Conflict of Laws. 
 § 245-2-18. 280. 299. 301. CALVO. I. § 240.
 
 178 pabth.] private international law. [ c, ^'': x ' 
 
 created. It is therefore viewed in two different 
 aspects, which are distinguished by the terms 
 limitation and prescription. 
 
 The distinction between limitation and pre- 
 scription consists in this, that the former is the 
 rule limiting' the time within which proceedings 
 at law may be commenced, in order to enforce 
 the performance of an act or the fulfilment of an 
 obligation, while prescription, properly called 
 extentive prescription, relates directly to the nature 
 of the question. The one belongs to the rules of 
 judicial proceedings as a question of procedure, 
 relating to the remedy and not to the nature of 
 the obligation, what is called jiidiciormn ordwa- 
 toria (formes ordinatoires) ; whilst the other 
 belongs to the litis cleci-oria (formes decisoires) 
 which define the mutual juridical position of 
 parties and relate to the decision of the question 
 concerning the intrinsic validity by which the 
 claim is upheld or extinguishnl. as noted above 
 under the head of lex fori (§ 52). 
 
 Hence prescription is not only defensive like 
 limitation, but also creative, as it can establish 
 titles of Ownership through recognizing possession, 
 uninterruptedly continued for a certain time, as 
 creative of title. (Comp. § 32). 
 
 •• Limitation," says Mr. Bell (Commentaries on 
 Scotch haws),- is a denial of action <>n aninstru- 
 menl ordocumenl of debt after the lapse of a co-tain 
 time, witliinii regard to the actual subsistence of 
 
 the debt. Tims barring the remedy without 
 extinguishing the claim. Prescription, is a legal 
 presumption of payment or abandonment of the 
 debt. Limitation is either by convention, or by 
 3ta1 ute : I he former being the condition in the 
 obligation, the latter established on grounds of 
 public expediency.'
 
 I'aht li.] LIMITATION AND PRESCRIPTION. [f"^;. X ' 179 
 
 Mr. Dana makes the following remarks, in 
 his note No. 92, on § 143 of Wheaton's Elements 
 of International Law. "It is true that a statute 
 of limitation indirectly operates upon title to pro- 
 perty, and has the same effect in aid of the party 
 such as a defensive prescription, and so it may be 
 argued that they belong to the laws of property 
 and not of mere remedy; but it is impossible in In- 
 ternational Law to be governed by these indirect 
 operations. The tribunal may simply decline to 
 lend its aid to the plaintiff or actor, on the ground 
 of domestic policy of repose prescribed by the 
 Sovereign Power, and other nations cannot com- 
 plain if no discrimination is made against their 
 citizens. It has sometimes been said that the 
 continental writers treat statutes of limitations as 
 part of the law of property and obligations, and 
 therefore not necessarily to be governed by the 
 lex fori. Savigni and Foelix have been adduced as 
 instances. But any language that may be cited 
 to that effect will be found to relate to prescription 
 and not to mere rules of limitation. Rules of 
 prescription relate directly to ownership or title 
 in a tiling and are part of the law of property." 
 
 "As all personal rights in things may be said 
 to originate in occupancy, the Roman Law has 
 recognized a possession, begun in a certain manner 
 and continued for a certain time, as creative of a 
 positive title. Such possession does not merely 
 afford presumption of some act necessarily to 
 create a title, as of original occupation of a thing 
 unoccupied, or of a transfer from the previous 
 owner, but it is itself a prescribed mode of lawful 
 acquisition. For this reason, it was required to 
 originate bond fide and justo titulo, that is to say, 
 tiie possession must have been begun in an honest 
 belief of a right, justified by apparently regular 
 proceeding." (Comp. § 32).
 
 CiliPT. X. 
 
 180 Pastil] private INTERNATIONAL LAW. [ Cu 55; 
 
 Limitation, when considered as a law-remedy, 
 belonging to the rules of judicial proceeding, or 
 as a beneficium fori, must naturally be subject to 
 the lex fori. But when viewed in the light of a 
 material right of the debtor, which could as well 
 have been considered at the outset of the trans- 
 action, and thus enter, as such, tacitly into the 
 nature of the agreement or contract, it ought, of 
 course, to be determined by the lex loci contractus, 
 as it could be presumed that parties have sub- 
 mitted to the rules of limitation of the law under 
 which the agreement was entered into, that is, 
 the law of the place where the contract has been 
 signed. 
 
 Prescription, which relates to acquisition of 
 title and ownership, is governed by the law of 
 the place where the thing is situated or the right 
 acquired, the lex rei sitae or the lex domicilii. * 
 
 VIII Wills and Succession. 
 
 with * intestacy. §57. Whilst contracts or other deeds with 
 regard to the disposal of property during life 
 time (donationes inter vivos), are generally 
 acknowledged by foreign Law Courts, on the 
 principle that every individual, with the proper 
 jural capacity, has the right to dispose freely of 
 his goods for any purpose he thinks fit (jus, 
 disponendi), the acts of a last will, that is, the 
 manifestation of what a person wishes should be 
 done concerning his estate after his death, some- 
 times suffer many difficulties in being recognized 
 in foreign Courts. This is partly a consequence 
 of the fact that testaments belong as well to the 
 
 * Pim.uMoKK. Com. on Int. Law. Vol. IV. Edit. 1874. Chap. 
 XL. p. 6l3,e1 Beq. Wheaton. Elem. Int. Law. Edit. Pana. § 143. 
 164 & LG5. Stokv. Conflict nf L;uvs. §576-581. Wksti.ak i:. 
 l'riv. Int. Law. §260-252. Bell. Comment, on Scotch Laws. KM it. 
 Shaw, p. 76,etseq. Asskh. Sketch of Private Int. Law. Fcelix. 
 Trait.'- de Droit [nt. Friv. Vol. I. p. 241. Von Savigni. System dea 
 bentigen Romischen Rechts, Liv. VII §248.
 
 Part II.] WILLS AND SUCCESSION. [ Ch §m. *" 181 
 
 domain of civil and local laws as to that of 
 personal status, and partly also it arises from the 
 differences which formerly existed in the solution 
 of the following questions. Is succession by 
 testament based on Natural Law? Is testa- 
 mentary acquisition of jus possessionis possible 
 after the death of the owner, when by death all 
 rights are extinct, the goods being really inalienat- 
 ed at the time of the death? The modern theory, 
 however, that of Grotius, Puffendorf and Wolff 
 prevails, namely, that where the right of disposing 
 of one's property (jus disponendi) exists, there 
 also exists the right to dispose of it by testament.* 
 
 With regard to wills which entail succession 
 to property, the most generally adopted rules are 
 the following. The lex loci rei sitce decides the 
 following points : — 
 
 1st. The validity of the bequest, that is the 
 extent of the testator's power to dispose of the 
 property (jus disponendi). 
 
 2nd. The forms and solemnities necessary to 
 give the will its due attestation and effect. 
 
 * Grotius expresses bis opinion on the right to bequeath property 
 by last will in the following terms. " This right, having been con- 
 firmed by the laws of many nations, is not at variance with Natural 
 Law, but on the contrary is altogether consistent with natural reason. 
 For, as every one may. by deed, (inter vivos,) dispose of bis property at 
 his pleasure, either absolutely or conditionally, and the jus dominii 
 being thus transferred, is valid even after the death of the party who 
 transfers, so, in the course of time, it has become the practice for the 
 proprietor to transfer some part of his property to another, reserving 
 to himself the possession and use thereof, during his own life, or even 
 to give over the possession, stipulating to reclaim the jus dominii at 
 pleasure, during his own life, which is called donatio mortis causa. 
 Thus subsequently and previously, it has been considered not unrea- 
 sonable, that a person, who retains his own property for his own use 
 during his life, should nominate whom he wishes to be owner of the 
 same after his decease. But as this is very comprehensive, Municipal 
 or Civil Law has strictly limited the powers of the citizens as well 
 in favour of the nearest kin, especially the Children and Parents ; 
 and also provided against all fickleness of disposition and all fraud 
 and cunning which could possibly be pratised contrary to a man's 
 inclination. Grotius. Introd. to Dutch Jurisprudence. Book II. 
 Chap. XIV. Sec. II. Idem. De Jure Belli ac Pads. Vol. I. Book II, 
 Chap. VI. Section XIV.
 
 182 PARxn.] PRIVATE INTERNATIONAL LAW. [ Ch §m. X 
 
 The Law of the testator's domicile (lex domi- 
 cilii) governs the following points. 
 
 1st. The question of his legal capacity to make 
 a will : — 
 
 2nd. The construction of the will, as to whe- 
 ther it does pass real estate. 
 
 3rd. What is real estate when the will purports 
 to pass it. 
 
 4th. The quantity or nature of estate in laud. 
 
 5th. The designatio personarum. 
 
 6th. The import of ambiguous terms, that is, 
 the interpretation of the will. Movable or 
 personal property follows the lex domicilii of the 
 last legal domicile of the testator, that is, the 
 place where the estate is to be settled as having 
 been the centre of the testator's business when 
 alive. Real and immovable property follows the 
 lex rei sitae (§54). 
 
 As to the form of the will, the testator has the 
 option to adopt either the law of the place where 
 the will is to be executed, i. e., the lex domicilii, 
 or the laws of the place where the deed is made, 
 the lex loci actus. The general maxim, however, 
 remains that locus regit actum. * 
 succession. Succession is either testamentary or ab inte- 
 
 state. In the former case the heir succeeds to the 
 deceased by his express will recorded in a testa- 
 ment (testatio mentis), in the latter case the 
 succession takes place by absence or illegality of 
 the testament, in conformity with fixed rules 
 of law. 
 
 The question,as to which law governs succession, 
 must be answered in connection with the system 
 or principle by which succession is regarded. 
 If succession is treated according to the principles 
 of the Roman Law, which is generally accepted 
 
 * Dana. .Note No. 46, on § 81, of Wheaton. Phillimoke. Voh 
 [V, 1874. Chap. -\l. ill. Vox Savigtoi. Vol. vili. § 381.
 
 Pam II.] WILLS AND SUCCESSION. [' "^ X ' 183 
 
 in most modern codes, succession is a continua- 
 tion of the rights and obligations of the testator, 
 by which the heir represents his predecessor in 
 all legal questions relating to the estate, which 
 is termed sucessio per universitatem. In this case 
 the transmission of the legal person of the 
 predecessor to the heir cannot take place, except 
 according to the laws of succession prevailing at 
 the domicile of the predecessor, where the settle- 
 ment of the estate of the deceased takes place. 
 But when succession is simply regarded as a 
 mode of acquisition, and the law of succession is 
 treated merely as a variety of the law of acquiring 
 property, or when it is only the question of a 
 legacy, then the lex rei sitcv must rule the con- 
 veyance of the property to the heir. 
 
 The form and validity of foreign wills of per- 
 sonal property, and foreign succession ab intestate, 
 are decided through the lex domicilii, but the lex 
 fori determines the formalities and proceedings 
 to probate or homologate the will and the power 
 of the foreign executor, or the authority of 
 the administrator of a succession ab intestate, 
 appointed ex-officio under foreign laws, to deal 
 with the personal property of the succession, 
 which, as a general rule, is to be distributed 
 according to the lex domicilii of the deceased. 
 This is the case, however, when no claims are 
 brought against the estate by citizens of the 
 country where the property is situated, for, when 
 such claims are preferred, the distribution is made 
 in conformity with the respective lex fori. * 
 
 Where Consular officers act as executors or 
 administrators ex-officio of successions, the stipu- 
 lations of the respective Consular Convention 
 govern proceedings under this head. 
 
 * Wheatox. Elem. Int. Law. Edit. Dana. §§ 135-137.
 
 181 Part n.] PRIVATE INTERNATIONAL LAW. 
 
 American Laws. With regard to American Laws concerning 
 foreign executors and administrators of wills, Ti- 
 mothy Walker makes the following statements. 
 "By our statutes, authenticated copies of wills made 
 and proved in any part of the world, according 
 to the law of the place, are admitted to record 
 here, and have the same effect as if made here. 
 If a person die intestate out of this State (Ohio), 
 leaving rights or credits here, administration may 
 be granted here. If an executor or administrator 
 be duly appointed within the United States, he 
 may sue here, and may sell real estate here, in 
 the same manner as if appointed here. But these 
 latter provisions do not extend to foreign Nations ; 
 and, therefore, no foreign executor or adminis- 
 trator can sue or be sued, or otherwise judicially 
 recognized here, by reason of this foreign appoint- 
 ment. New letters of administration must be 
 taken out here according to our laws, and a 
 settlement must be made of the assets found 
 here ; and all debts or legacies due here must be 
 paid out of such assets, before anything is trans- 
 mitted abroad, even though the estate were 
 insolvent there. But the better opinion is, that 
 he is not liable to be sued here for assets received 
 abroad. 
 
 The next question relates to descent and distri- 
 bution. With respect to real property, the 
 rule is that the rights of dower, curtesy, and 
 descent, depend exclusively upon the law of the 
 place where it is situated. But with respect to 
 personal property, the rule is, that it is to be 
 distributed according to the law of the intestate's 
 domicile, at the time of his death, wherever such 
 property be situated. With respect to a will of 
 personalty, the rule is, that, if made according 
 to the law of the testator's actual domicile, it 
 will pass personalty wherever it may be ; but if
 
 Paiit II 
 
 ,] LEX MERCATOKIA. [ C ' H §Si. X ' 185 
 
 not made according to the law of the domicile, 
 it is not valid anywhere. With respect to a will 
 of realty, its validity and effect must depend 
 wholly upon the law of the place where the 
 property is." * 
 
 IX. — The Lex Mercatoria. 
 
 §58. The established usages and customs o&ommeniai Lam 
 trade, collectively called lex mercatoria (Droit de™* M i%T"' ia ' 
 Commerce, Handelsrecht). forming what is more J/m/ """' 
 commonly known by the term Mercantile Law 
 (the Law- Merchant), is founded on the necessities 
 of commerce and the natural rights and obliira- 
 tions, which, independently of Municipal Law, 
 grow out of commercial intercourse. These are 
 the materials from which arc built up the various 
 systems of Commercial Legislation, such as are 
 embodied in the Commercial Codes of different 
 States, in the British Merchant Shipping Act of 
 1854 and its Amendments by the Act of 1855 
 and by that of 1862, j in the Statutory Law on 
 Joint Stock Companies, on Bankruptcy, and in 
 other Commercial Common and Statute Law 
 and j udge-made law in commercial cases. J 
 
 These are the laws regarding traders and 
 commercial acts, on traders' books, on commercial 
 partnerships and companies, on commercial ex- 
 changes, brokers and bankers, on commission 
 agents and forwarding agents (ej'pediteurs), on 
 carriers and bargemen navigating inland rivers 
 and canals ; on bills of exchange ; on engage- 
 ments to pay ; on promissory notes to order ; on 
 assignations and cheques ; on negociable papers 
 in commerce, banker's notes and paper payable 
 at sight to bearer ; on purchase and sale, and 
 
 * Timothy Walker. Introd. to American Law. Edit. Bryant 
 Walker. Is74. \>. 7:»<;. 
 t J7 ,v is Vict. c. 131 ; 18 & lit Vict. c. 01. and 25 vV 26 Vict. c. 91. 
 \ Llomj Levi, [aternatioual Commercial Laws. C&apt. I,
 
 86 jmm u.J PRIVATE INTERNATIONAL LAW. 
 
 CilAFT. X. 
 §58. 
 
 reclaiming: or revendication in matter of com- 
 merce (stoppage in transitu) ; on insurance; on 
 rights and obligations resulting from navigation 
 (Shipping Laws), viz., of sea-going vessels, of 
 owners and managers, of ship's masters, of ship's 
 officers and seamen, of affreighting and charter- 
 ing of ships ; on charter-parties and bills of lad- 
 ing ; on passengers ; on collision and fouling ; 
 on salvage, shipwreck, stranding and flotson ; 
 on jettison ; on bottomry; on insurance against 
 the dangers of sea ; on abandonment ; on aver- 
 ages ; on prescription of contracts in maritime 
 commerce ; on bankruptcy and surcease of pay- 
 ment ; on assignees or curators in bankruptcy. 
 By this it is obvious that the lex mercatoria is the 
 most important branch of Private International 
 Law. 
 
 Positive Civil Law (§37) is applicable to 
 commercial matters in so far as it is not deviated 
 from by special Commercial Laws. Usages and 
 customs of trade, being ingrafted upon Civil Law 
 and made part of it, are allowed, for the benefit 
 of trade, to be of prominent validity in all com- 
 mercial transactions. * 
 
 In this and the following sections there will be 
 noted some rules for the different circumstances 
 in which the lex mercatoria is applicable. As 
 every nationality, however, has its own lex mer- 
 catoria, though agreeing with those of other 
 Commercial Nations on the main principles of 
 general commercial usages, the rules given in 
 §§ 59-84 of this chapter are to be regarded (as 
 stated already in § 50), as mere indications how 
 some instances of the lex mercatoria may Ik; viewed 
 in cases of Concurrent Jurisdiction (§49). 
 
 * Blackstone'S. Co tent. I. Introd. § 3. Phillimore. Com- 
 ment, "ii Intern. I.:iv\ . Vol. [V, < 'hnpl. X 1,1.
 
 PABT I! 
 
 LEX MERCATORIA, [ Cn f?i X " IS? 
 
 Traders are the subjects of the lex mercatoria, 
 and Acts of Commerce are its objects. 
 
 Traders. The lex mercatoria considers those Traders and Acts 
 as traders who perform acts of commerce and 0/ Comme, ' ce ' 
 whose habitual profession is trade. In the obli- 
 gations of traders in general are included those 
 of bankers, brokers, commission agents and other 
 agents, also all sorts ofpartnerships and transac- 
 tions on joint account, and all trading companies, 
 sailing or steam-ship companies and mail compa- 
 nies, also joint proprietorship in vessels etc. 
 Under the term Acts of Commerce we comprehend 
 all acts done in connection with the purchase of 
 goods for the purpose of reselling the same, either 
 wholesale or by retail, either in their natural or 
 in a manufactured state, or merely for the purpose 
 of letting the same for hire. 
 
 The lex mercatoria likewise includes, under the objects a 'the ?« 
 denomination of Acts of Commerce, besides ^\ le me ' cat0 " 1 '- 
 acts of traders or merchants in general, the 
 following transactions, viz.: — 
 
 The acts of brokers and administrators of 
 public stocks and public companies ; further, all 
 commission business and banking operations and 
 whatever relates to exchange transactions, with- 
 out distinction as to the person concerned, and 
 Avhatever relates to notes payable to order, with 
 regard to traders only. Under the same denomi- 
 nation is comprehended whataver relates to 
 contracts made for the building, repairing or 
 fitting out of vessels and the purchase or sale of 
 vessels for inland or foreign navigation ; all 
 forwarding and conveyance of merchandise ; the 
 purchase and sale of shipstores and provisions ; 
 all shipowning, freighting or chartering of vessels, 
 as also bottomry and other agreements relative 
 to shipping ; the hiring of masters, mates and
 
 Ciiapt. X. 
 
 188 Part II.] PRIVATE INTERNATIONAL LAW. ["';'^. 
 
 mariners and their engagements in the mercantile 
 marine; the acts of managers, shipbrokers, cus- 
 tom-house agents and book-keepers and other 
 merchant clerks in the business of their em- 
 ployers ; all insurances. 
 
 Objects of the lex mercatoria are also the obli- 
 gations which originate from collision, drifting, 
 fouling or running down of vessels; also from 
 salvage, shipwreck, stranding, flotson. jettison 
 and averauv. 
 partmrthip and Partnerships and Corporations. There are 
 
 Corporations. , 1 • -i /. • i 1' 
 
 three kinds of commercial partnerships, viz.: — 
 a. Partnership contracted by two or more 
 persons for the purpose of trade under a 
 social firm, called general partnership 
 (societe en nom collect > If). 
 t>. Partnership contracted by one or more 
 persons, responsible to the whole extent 
 of their property, in combination with 
 one or more persons who simply invest 
 in the partnership a certain amount of 
 money, called commandite partnership 
 (societe en commandite). Such partner- 
 ship is carried on under a social firm, 
 which must include one or more of the 
 responsible partners. 
 c. Trading companies or corporations which 
 are not carried on under a social firm 
 or under the names of any of the part- 
 ners, but under the name of the under- 
 taking (Societe Anonyme) managed by 
 agents (partners or non-partners). 
 The above mentioned distinctions are those 
 followed by the European Continental Codes. 
 " British Law," says Leone Levy, J' recognizes 
 only two kinds of partnerships, viz., private 
 partnership with no more than seven partners.
 
 Part 
 
 "■] PARTNERSHIP. [ CH ?S8. X ' 189 
 
 and imblic partnerships or corporations, composed 
 of any number of partners, with limited or un- 
 limited liability." 
 
 "The English law does not provide for the 
 formation of partnerships consisting of partners, 
 some with a limited and some with an unlimited 
 liability, on the principle of the commandite 
 partnerships of France and other States. The 
 English law allows limited liability to companies 
 of seven members and upwards, but all the 
 members have an equal liability, whether limited 
 or unlimited. Yet it is submitted, that the 
 combination of limited and unlimited liability is 
 founded upon sound principles. It is just and 
 reasonable that those who appear before the 
 world as partners, who manage the affairs of the 
 concern, and who, by their names or by their 
 acts, either as directors or managers, whether of 
 a private partnership or a public company, lead 
 others to trust the firm, should be liable, to the 
 full extent of their property, for any debts which 
 that partnership or company may have contracted. 
 But it seems also just and reasonable that a 
 partner or shareholder who takes no part in the 
 management and whose name never appears, and 
 who is not likely to deceive third parties in the 
 belief that he is a partner in the concern, should 
 be liable only for the amount he had invested in 
 the concern. This union of limited and unlimite* I 
 partners is the distinctive principle of comman- 
 dite partnership (societi en commandite)^ as con- 
 trasted with general partnership and with com- 
 panies with limited or unlimited liability of the 
 English law." * 
 
 Public Companies and Corporation*. With American Lam. 
 regard to the laws of the United States of 
 
 * Leone Levi. International Commercial Law. Vol. I. Cbapt. 
 
 III. IV
 
 190 PartIl] private international law. [ c ")™. v 
 
 America, Timothy Walker makes the following- 
 remarks. "The stockholders of a corporation 
 (societe anonyme), unless the contrary is provided 
 in the charter, are not personally liable for the 
 debts or undertakings of the corporation beyond 
 the amount of their shares in the capital stock ; 
 but the reverse prevails with respect to partnership. 
 By the Common Law there is no such limited res- 
 ponsibility, and each partner is personally liable for 
 all the partnership debts and undertakings. To 
 limit this liability a special statute is necessary. 
 In some of the States, such provision has been made 
 and limited partnerships (societe en commandite) 
 are permitted, whereby a partner may put into 
 the concern a given amount of capital and by 
 making public record of the fact, may exempt 
 himself from liability beyond that amount. Such 
 provisions are deemed highly beneficial, because 
 they take away the fear which often withholds 
 
 capitalists from employing their means in this 
 
 n 
 way. 
 
 With respect to Private International Law the 
 
 above quoted author makes the following remarks. 
 
 • " The general rule is that the existence of foreign 
 
 corporations is recognized for all purposes and in 
 
 all respects except those specially prohibited by 
 
 the domestic laws. Subject to this exception, 
 
 they can make contracts, sue and be sued, establish 
 
 agencies and do any other acts to which they 
 
 would be competent in the place of their domicile. 
 
 They must dwell in the place of their creation 
 
 and cannot migrate elsewhere; bul this docs not 
 
 hinder their rights from being recognized and 
 
 protected elsewhere." * 
 
 /.,„/.„ This is also the opinion of Professor vod Bar, 
 
 ""'''•■i'" • as will be seen from the following quotation. 
 
 * Timotio WALKEB I.I,. I». In reduction t" American l.uw. 
 Edit. Bryanl Walker. 1874. page 240 .v 754. Dr. «'. L. von BAB, 
 I),-. Internationale Private tmd Btrafrecht,
 
 pahth.] public Companies. [ Ch §58. x ' 191 
 
 " The natural persons belonging to a State are 
 recognized as persons in every other State. This 
 undoubted rule is a consequence of the equality 
 of natives and foreigners, admitted by modern 
 International Law. But by custom it is just as 
 fully recognised that legal persons belonging to 
 another State must also be so regarded. As 
 regards burghs, parishes and churches, this is 
 obvious, but it is just as true of other legal persons. 
 For, although the authority of the foreign State, 
 by which legal personalities are either directly 
 created or their creation by private persons 
 tolerated, has no weight in one State for itself, 
 yet modern international intercourse requires the 
 same recognition to be extended even to the legal 
 personalities which maybe capriciously created." * 
 
 i: For instance, without such recognition com- 
 panies constituted by shares could have no interna- 
 tional dealings. It is no doubt conceivable, that we 
 might escape from the difficulty by requiring all 
 such institutions to obtain special State recogni- 
 tion from the proper authority in every State in 
 which they might happen to deal or sue. But it 
 might often be that the different States would 
 impose contradictory conditions. The legal per- 
 sonality woidd, besides, have to be recognised by 
 the Governments of almost all civilized States, 
 so that the extended enterprises of trade might 
 go on smoothly. That would lead to inexpressible 
 difficulties and uncertainties. The only exception 
 we recognise is when the foreign association 
 pursues some object which is forbidden by our 
 laws." f 
 
 * Judgment of the Supreme Court at Berlin, 8th Oct. 1849 {Dec, 
 20, p. 326). '-The recognition of legal persons requires, of course, 
 that the laws that prevail at the seat of the same as to the 
 constitution and minor arrangements of the company, shall rule.'" 
 
 t Guntheb. page 279. Fcelix. page 65. Wachter. II, page 
 181-2.
 
 192 iakt ii.] PRIVATE INTERNATIONAL LAW. [ C "^. 
 
 \. 
 
 " Conversely, an association which has no 
 validity in its own country, cannot claim the 
 rights of legal personality in another State. 
 Legal personality, so far as private law is con- 
 cerned, has no other end than to make it perma- 
 nently possible to divide, according to certain 
 conditions previously laid down, certain estates 
 among actual individual persons, or to ensure 
 the enjoyment and advantages of a particular 
 thing or undertaking to an indefinite number of 
 individuals." 
 
 " As regards the legal persons of the first kind, 
 the division of the estate in the eye of the law 
 takes place at the seat of the company; but if 
 the law of that place does not recognise operations 
 such as the company proposes to carry on, then 
 the object of the association cannot in the eye of 
 the law be attained at all. But with respect to 
 the second class, it is just as plain, that, if the 
 State in which it is proposed to establish the 
 undertaking will not permit it to be established, 
 the object of the association, as a matter of fact, 
 can never be attained. A foreign State which 
 should recognise as a legal person what was not so 
 recognised in its own State, would be treating as 
 valid legal facts directed to ends, that are either 
 legally or actually impossible, a result at variance 
 with general logical principles." * 
 
 " Rights which are generally conceded in our 
 State to legal persons of the kind referred to, 
 cannot be refused to legal persons of foreign 
 States which have been recognised by us, since 
 
 * -'It is easy to prove that the position of a company in its 
 international relations is dependent closely upon its native legislation 
 and its actual treatment there. An association, which has no legal 
 existence in its own country, does not exist for foreign States; cir- 
 cumstances abroad cannot' put any other face on it than it really 
 possesses at home." Mohl. Staatsrecht Vblkerrecht nnd Politik. 
 Vol. I. p. 021.
 
 pakth.] public companies. [ <h ^8. v 193 
 
 this is what the general principle of legal equality 
 between foreigners and natives requires. * But 
 on the other hand, foreign institutions and asso- 
 ciations cannot make available in our State pri- 
 vileges which are only conceded to them in their 
 own, and rights which native legal persons must 
 specially acquire, e.g., the privilege of holding 
 real property cannot be conceded to a foreign per- 
 son except by the special indulgence of our State. 
 The opposite view would place our own subjects 
 at a disadvantage with foreigners. It is also an 
 obvious exception to the rule that foreign insti- 
 tutions and associations are to be treated by the 
 law just as our own, if the rights in question are, 
 by special provision or by implication from native 
 laws, applicable exclusively to native juristic 
 persons. The latter is the ease, for example, 
 with reference to the special privileges of the 
 public purse, f One cannot imagine that our 
 subjects should be placed at a disadvantage in 
 questions with a foreign treasury. On the other 
 hand, charitable institutions, unless they have 
 some exclusive object confined to their own State 
 {e.g.. an hospital admitting only subjects of its 
 own nationality), can lay claim to all rights which 
 we concede to charitable institutions in our own 
 country." J 
 
 To this Mr. Gillespie, the translator of Prof, 
 von Bar's work, added the following note. "It 
 is an established rule of Private International Law 
 that a corporation duly created according to the 
 laws of one State may sue and be sued in its 
 corporate name in the Courts of other States." 
 
 * Wachter Vol. II. p. 182. '-The practice of the Supreme Court 
 of Wurttemberg allows to charitable institutions of foreign countries 
 the privilege of the forty years' prescription.'' 
 
 f Wachter. II. page 181. 
 
 % Prof, vox Bar. Das Internationale Privat-imd Strafrecht. Part 
 1TI. § 11.
 
 194 PabtH.] private INTERNATIONAL LAW. [ l '"Vss. x ' 
 
 '• But as regards procedure and parties to 
 actions, the law of the country in which the 
 action is brought prevails." * 
 
 "The powers of the corporation, the limits 
 of its legal capacity, e. </.. its capacity to hold 
 land, must of course be determined by the law 
 of the country where it proposes to exercise its 
 powers or capacity ; the law of its domicile will 
 determine whether it has been validly incor- 
 porated, but it will not be allowed to trade at 
 the expense and to the disadvantage of foreign 
 corporations, because, in the country of its own 
 domicile, legal persons are free from the restraints 
 which the foreign law imposes upon them. The 
 extent of the mutual recognition is expressed in 
 the conventions concluded between England and 
 France. 15th May 1862.; England and Belgium, 
 8th December 1862; England and Italy, 26th 
 November 1867; and England and Germany, 
 27th March 1874. The operative clauses in 
 these conventions, which are valid in Ireland 
 and Scotland as well as in England, are in nearly 
 the same terms. The most recent runs thus. 
 Joint-stock companies and other associations, 
 commercial, industrial and financial, constituted 
 and authorised in conformity with the laws in 
 force in either of the two countries, may freely 
 exercise in the dominions of the other all their 
 rights, including thai of appearing before tri- 
 bunals, whether for the purpose of bringing an 
 
 ion or Tor defending themselves, in conformity 
 however, with the laws and customs in force in 
 the said countries Such companies or asso- 
 ciation.-, authorised in either of the two countries, 
 shall only be admitted to the exercise of their 
 business or trade in the dominions of ilie other 
 
 l.i\m.i;v o,i Partnership. App. papn 1 1RS. Wkstlake.
 
 PabtH.] PUBLiq COMPANIES.. J-Oi.ui x ]<);, 
 
 country, if found to be in compliance with the 
 conditions prescribed by the laws of that conn- 
 try." 
 
 " It has been thought that a company incor- 
 porated in one country cannot carry on business 
 in another country, so as to acquire a right to 
 sen on contracts entered into there ; it is said 
 that such a company is trading beyond the 
 limits under which it is constituted, and that a 
 company, belonging to a country where the con- 
 ditions of incorporation are less rigid, may have 
 advantages over others constituted in countries 
 where the law repuires certain formalities and 
 conditions to be observed, so as to ensure fair- 
 trading, or, it may be, for fiscal purposes." 
 
 "The Canadian Courts have countenanced this 
 view; but the English Courts, although they 
 have never been called upon to decide the ques- 
 tion, have assumed the contrary. The high 
 authority of Mr. Justice Lindley (page 1484), 
 is to this effect. It is conceived that a foreign 
 corporation can sue in this country on all con- 
 tracts entered into with it in this country, 
 provided such contracts are warranted by the 
 constitution of the corporation, and are not 
 illegal by English law.'' 
 
 t; Ifthe law were otherwise, every company 
 desiring: to trade in a foreign country would 
 require to be incorporated anew, and it might 
 be on a totally new footing. The recognition 
 of the incorporation of a company which has been 
 validly formed under the provisions of a foreign 
 law is demanded by the first principles of Inter- 
 national Law, which assume that in all civilised 
 countries safeguards of the same kind, although, 
 differing infinitely in detail, will be adopted to 
 ensure honest dealing and the administration of 
 justice; and finally, the language of the conven-
 
 19(3 Pun II.] PRIVATE INTERNATIONAL LAW. [ C "<!> 
 
 x. 
 
 8. 
 
 tions, quoted above, oeems at once to coincide 
 with theories expressed in the text, and to show 
 what the common experience of nations lias 
 found necessary and advantageous. If the doubts 
 of the Canadian Courts were well founded, the 
 recognition of foreign corporations and their 
 rights would be so limited as to be illusory." * 
 
 "Following out the same principles, the Ger- 
 man Courts have recognised and allowed to a 
 foreign company, validly formed according to 
 foreign law, a right of action against German 
 subjects, although the principles of its constitu- 
 tion are forbidden in Germany, and companies 
 so constituted are declared null (Holthausen & 
 Co., v. Comptoir d'Escompte de Paris, App. 
 Ger. Coin. 28 April 1877). The grounds of 
 this decision are precisely the same as those on 
 which Mr. Justice Lindley defends his doctrine, 
 as stated above." 
 
 "It may of course happen, that a company 
 which has its principal office abroad, may have 
 established it there with express purpose of 
 engaging in some trade not permitted in the 
 country to which it truly belongs, and of escaping 
 some restrictions upon the constitution of com- 
 panies which are imposed by the law of the 
 country to which it truly belongs, i. e., where 
 its directors or managers reside, where its trade 
 truly lies, and where its shares are held ; such 
 an illusory establishment will certainly not be 
 recognised so as to oust the penal jurisdiction 
 of the country to which the directors belong, or 
 to .dispense with the formalities required by its 
 law (uompagnie de Chemin de Fer.du Nord et de 
 Catalof/ne, C. de Paris, "2nd duly, 1877J. But a 
 
 * On these principles ;i Contention was concluded between the 
 Netherlands and [taly, on the lltli April 1868 (Staatsblad, 1869. No. 
 71), '.villi regard to mutual recognitions of Sooiitis Inonyuws,
 
 PabtH.] PUBLIC COMPANIES. [ C ""jn«. *" 197 
 
 mere agency or a subsidiary establishment in 
 France, coupled with the fact that the shares are 
 to a large extent held by Frenchmen, will not 
 make a company amenable to French law, so that 
 any neglect in its constitution of the requirements 
 of French law, which in the case of a French 
 company would involve its directors in criminal 
 responsibility, can be charged against them in a 
 French Court, if the meetings of shareholders have 
 always been held abroad, the capital largely em- 
 ployed abroad, and the chief office situated abroad, 
 the company having been originated and incor- 
 porated abroad, (Chandora v. Banque Europeenne, 
 10th February 1881, Trib. Comm. de la Seine). 
 Nor will the establishment of an agency in 
 France give a company the same status as an 
 individual acquires by residence, accompanied by 
 Government licence to reside — viz., a title to 
 bring actions against a foreigner in a French 
 Court (Rubaitino v. Kundz § Werder, 25th 
 February 1876, Trib. Comm. de Marseilles). 
 This latter decision is not in conflict with what 
 has been above taken to be the law of England ; 
 a company is treated like an individual, and its 
 right to sue is regulated according to its true 
 nationality, — domicile does not, as with us, give 
 a title to pursue an action in France against a 
 foreigner upon a contract ; it is a principle of 
 French law that the right to sue, being a droit 
 civil, does not belong to foreigners ; hence a 
 mere trading domicile does not give a right 
 to sue in France, where the defender is also a 
 foreigner, but a foreign company, just like a 
 foreign individual, may sue a French debtor 
 in France, while the constitution of a foreign 
 company will be recognised just as the majority 
 of an individual, and no French shareholder will 
 appeal successfully to the Courts of his own
 
 l\)8> PabiH.] private international law. [ c "<\'£ x ' 
 
 country to protect him against resolutions passed 
 by the shareholders of a foreign company, to 
 which he belongs, in conformity with the require- 
 ments of the law of the country to which the 
 company belongs (Buisson v. Ch. de Fer Seville 
 Xeres, Cadiz. Trib. de Coram, de la Seine. 25th 
 June 1875) ; just as no French creditor can 
 appeal to the courts of his own country to give 
 him redress against a resolution passed in the 
 course of the liquidation of a foreign company 
 abroad by the statutory majority of creditors 
 (Dubois de Lachet v. Cie de ( 'hemin de Fer du 
 Nord de TEspagne. C. de Cass., Paris, 18th 
 January 1876). But again, just as an individual, 
 residing or trading in France, may be sued there 
 by a French creditor, although he is not by birth 
 or naturalisation a French subject, because it is, 
 according to the French law, the first object of 
 the legislator to protect his own citizens, so a 
 foreign company which has an agent in France 
 may be sued there, upon contracts made in 
 France by their agent (Duche et Fils v. Raymond 
 et Cie., C. de Cass., Paris, 18th August 1875)," 
 
 ''The Italian Courts have drawn a distinction, 
 which, to a certain extent, accords with the 
 distinctions noted above as existing in France, 
 between the relations subsisting between the 
 company and its shareholders on the one hand. 
 and the relation between the company and third 
 parties, on the other. The shareholders are, by 
 a quasi contract, bound to submit (heir relations 
 with the company to the law in force at its 
 statutory seat; debtors or creditors are entitled 
 to rely upon the law of their own country, if 
 that be the real scat of that branch of the 
 
 company's trade with which they have had todo 
 (Florence Laud Company i\ Guarducci; Appeal 
 Court of Lucca, 9th April 1880)."
 
 I'unii.] merchant's books. [ Cn §M: x " 199 
 
 '•In England and Scotland, the possession of 
 an agency by a foreign company will give 
 jurisdiction to the English or Scotch Courts, 
 in matters arising out of contracts made in 
 the course of the business carried on by these 
 agencies or connected with them (Lindley, page 
 14^5 ; Mackay, Practice of the Court of Session, 
 Vol. I.p.182)." * 
 
 Merchant's Boohs. In order to participate in Merchants 
 the privileges of the lex mercatoria, the trader is 
 bound to keep proper books, of which the principal 
 is the journal. In this must be entered, day by 
 day, in order of date and without interpolation 
 of blank spaces or marginal notes, his claims or 
 assets and debts, his commercial transactions, 
 drafts, acceptances, his engagements and gener- 
 ally all he receives and pays, without exception. 
 The above is required independently of such 
 other books as are customary in trade, though 
 not explicitly required by the respective Mu- 
 nicipal Law. The trader is also bound to 
 preserve the letters he receives and to keep a 
 copybook of those he despatches. He is bound, 
 to draw up annually, in a separate register, to 
 be kept for that purpose, a balance sheet and 
 statement of the position of his affairs and to 
 affix his signature thereto. 
 
 The keeping of proper books is of the utmost Merchant's 
 
 10 L , A a 1 -. ..-, Hooks as evidences 
 
 importance to a trader, lor by general principle in lw courts. 
 of the lex mercatoria, whenever a transaction 
 is not absolutely denied or when its existence 
 is generally established, commercial books, 
 regularly kept and confirmed by oath, or in case 
 of demise of the trader, furnish proof between 
 traders, with regard to their commercial deal- 
 ings, as to the date or time of the transaction 
 
 * Note by G. R, Gillespie on § 41 of Prof, von Bar's work, above 
 cited, page I5(J.
 
 200 PakiII.] PRIVATE INTERNATIONAL LAW. [ CH }m. *" 
 
 and the delivery, the quality, quantity and price 
 of the goods. Copy-books of letters, properly 
 kept, are likewise admitted in evidence in com- 
 mercial suits. 
 
 With regard to the judicial exhibition of 
 mercantile books, the following rules are generally 
 observed by Law Courts. 
 
 1°. No one can be compelled to exhibit his 
 books, balance sheets or other papers relative 
 thereto, except on behalf of persons immediately 
 interested, either as heirs or as concerned in a 
 mutual transaction, as partners or as the party 
 appointing administrators or managers, and lastly 
 in case of bankruptcy. 
 
 2°. In the course of a law-suit, the j udge, at 
 the request of one of the parties, or ex officio, may 
 order the books to be exhibited, that he may 
 cause the same to be inspected or extracts to be 
 made therefrom, respecting the contested points. 
 
 3°. Should such books be kept at another 
 place than that where the Court, before which the 
 case is pending, holds its sittings, such Court is 
 at liberty to rule that the party concerned shall 
 procure, within a fixed limit of time, a judicial 
 inspection and report of the points in litigation 
 out of the respective books, through the proper 
 legal authority at the place where those books 
 etc., are kept. 
 
 4°. The party who either neglects to comply 
 with this order of the judge and fails to prove the 
 impossibility to get access to his commercial 
 books and papers, and thus fails to exhibit his 
 books, or refuses to do so, when his adversary is 
 willing, on his side, to comply with the demand 
 on his books and papers, prejudices his own cause, 
 ;is the judge may accept the adversary's sworn 
 testimony as conclusive evidence.
 
 pabt 11. J merchant's books. [ Cu §58. x * 201 
 
 The question whether a transaction is or is not whkhum&e- 
 
 - i , „ -. . cutes irhat are 
 
 to be classed as an act ot commerce, subiect to acts of com- 
 
 mevee ' the 
 
 the rules of the lex mercatoria, with all its peculiar qualification of 
 
 -, ••! 1 i • i i i Traders, t/ieir 
 
 requirements and privileges, must be decided by imi capacity 
 
 t 7 7 • * i • an( * competenot, 
 
 the- lex loci confraclus. As to the question con- «»<* «« <*%«- 
 cernmg the respective mode ot procedure, emanat- merchant's books. 
 ing from the lex mercatoria. the legal remedies, 
 especially with regard to the principle of sworn 
 evidence based on the books of the merchant 
 concerned, the decision depends upon the lex fori. 
 The decision of the question whether certain pro- 
 fessions qualify the titularies as members of the 
 mercantile community i. e. as traders, and their 
 legal capacity and competency, is governed by the 
 lex domicilii, which decides also with regard to 
 the local obligation of keeping proper mercantile 
 books and their forms. 
 
 The special rules of the lex mercatoria,) with Legal interest. 
 regard to legal interests in commercial transactions 
 are decided by the lex loci executionis. 
 
 We remarked above (§38) that the enact- 
 ments of commercial and shipping legislation 
 cover the principal ground of international trans- 
 actions. We will now proceed to note the rules 
 which govern the conditions and relations of the 
 principal of these objects of the lex mercatoria, in 
 the following order, viz.: — 
 
 1°. Bills of exchange ; 2°. Revendication in 
 matter of commerce (stoppage in transitu). 
 o°. Insurance ; 4°. Average ; 5°. Abandonment ; 
 6°. Shipping; 7°. Shipmasters, officers and crew ; 
 8°. Freighting and chartering ; 9°. Passengers ; 
 10°. Bottomry; 11°. Prescription of marine con- 
 tracts; 12°. Collision; 13°. Salvage, shipwreck, 
 stranding and flotson ; 14°. Bankruptcy; 15°. 
 Surcease of payment granted to traders. The
 
 202 Paw 1I-] PRIVATE INTERNATIONAL LAW. [ Cu JS; X ' 
 
 foregoing points will be discussed in paragraphs 
 59-84. * 
 
 X. — Bills of Exchange. 
 
 § 59. A Bill of Exchange is a document, dated 
 from a place at which the subscriber called the 
 drawer ^ charges some person called the drawee, to 
 pay. in the same or in another place, at or after 
 sight, or at a stipulated time, to a designated 
 person, called the payee, or to his order, a sum of 
 money therein expressed, with acknowledgment 
 of value received or value in account. A bill of 
 exchange may also be drawn : a. to the order of 
 the drawer, b. on a certain individual and payable 
 at the residence of a third party, c. for account 
 of a third party. A bill of exchange may be 
 drawn singly, or in duplicate or in triplicate etc., 
 but any one copy of a set avails lor any other of 
 the same set or for the whole set. 
 
 ■• The object of all traffic in bills," says Bar, 
 "is that the creditor shall receive a certain sum 
 of money at a certain time, and generally at a 
 certain place. But since the creditor may find 
 it more profitable to receive this sum, or more 
 correctly speaking its equivalent, at some other 
 place or some other time, he has the privilege 
 given him of transferring his right in tin 1 bill 
 absolutely to some other party and getting his 
 equivalent out of tee consideration paid him. 
 To attain these objects, (which are not identical 
 with those of a true paper currency, although 
 they resemble them), the obligation in a bill 
 consists of an accurately framed undertaking to 
 pay a particular sum; and this undertaking, in 
 contraBl with the other legal relations which 
 
 I,, statin th( various Continental Commercial 
 
 Codi we follow the official English translation of the Netherlands 
 Code, edited by the department of Foreign Affairs al Hi" Hague in
 
 Pabt II,] BILLS OF EXCHANGE. [ C " A ":'.. X ' 
 
 arise between tlie holder of a bill and the debtor, 
 is visibly expressed in a written declaration of 
 intention, and is governed by this expression of 
 intention alone; but, at the same time, just 
 because the obligation of the debtor is so exactly 
 defined, there is" laid upon the holder, in order 
 to uphold the system, and to avoid loss, a series 
 of obligations as to the diligence which is coin- 
 petent to him. And lastly to insure the object 
 of prompt payment, there is given to the holder 
 an exceptionally summary process against the 
 debtor and, in many systems of law, a special 
 kind of execution against his person." 
 
 . " From these principles we may deduce, with 
 the help of the general principles which regulate 
 the law of contracts, what territorial law is to 
 determine the particular obligations, rights and 
 transactions that are to be found in the law of 
 bills." * 
 
 A bill is, in the technical phrase, said to be 
 honoured when it is duly accepted ; when it 
 becomes payable by lapse of time, it is said to 
 have arrived at maturity^ and when acceptance 
 or payment thereof is refused, it is said to be 
 dishonoured. By the nature of the bill-contract, 
 the drawer holds himself liable for the re-imbur- 
 sement or re-exchange of the bill in case of its 
 non-acceptance by the drawee, provided the holder 
 has instituted, in due time, a formal protest 
 against this non-acceptance or dishonouring of 
 the bill. The time granted for this protest of 
 non-acceptance is regulated by the lex mercatona 
 of the place where the bill is due, viz.. the lex 
 loci executionis. 
 
 If the bill be drawn for account of a third 
 party, he alone is liable to the acceptor in respect 
 
 * Dr. L. vox Bar. Das Internationale Prival raid Strafrecht, 
 Translation of G. R. Gillespie. (1883), page 339.
 
 204 Part ii.] PRITATE INTERNATIONAL LAW. [ L '"fZ 
 
 X. 
 1'. 
 
 thereof. The drawer is held to have drawn for 
 his own account, if it does not appear, by the 
 tenor of the bill, or by the letter of advice, for 
 whose account the draft was made. All who 
 have signed, accepted or endorsed a bill of ex- 
 change, are individually answerable to the holder 
 for the entire amount. 
 
 Rills of exchange containing fictitious names 
 or false indications of domicile or place of drawing 
 or payment, are only effective as a simple acknow- 
 ledgement of debt, provided the other requisites 
 for that purpose be not wanting. Those who 
 have been aware of such hctitiousness, cannot 
 adduce the same in evidence against third parties 
 who were ignorant of the fact. 
 i.egai aspects of The lex mercatoria of each State regulates the 
 
 tht bill of ex* 
 
 change. different legal aspects of the bill of exchange, 
 
 viz., the engagement between the drawer and 
 taker or payee of the bill, the accepting of bills 
 of exchange and the guarantee called aval, the 
 endorsement of bills of exchange, the engagements 
 between the drawer and the acceptor, between 
 the holder and the acceptor, and between the 
 holder and the endorsers, the falling due and 
 payment of bills of exchange, the rights and 
 obligations of the holder in case of non-ac- 
 ceptance or non-paymenl of a bill and the, 
 extinction of the debt in mailer of exchange. 
 
 Re-exchange. Re-exchange is the redrawing, by the holder of 
 a bill of exchange, on the drawer, or on the 
 endorsers, for (lie principal of a protested bill and 
 the charges, ;ii the rate of exchange of the time 
 oft his redrawing. Such redrawing does not, — 
 in case of uon-payment, prejudice the holders 
 right lo sue ot her liable parties. 
 
 A hill of exchange being, in its simplest aspect, 
 regarded as constituting an act of mandate be- 
 tween l he drawer and the acceptor, wherehy the
 
 paetil] bills of exchange. [ Ch 57o'. x ' 205 
 
 latter engages himself to pay a certain amount 
 to the holder at its maturity, it is a generally 
 accepted rule that, with respect to the drawer, 
 the re-exchange is regulated by the rate of 
 exchange of the place, where the bill ought to 
 have been paid, on the place from which it is 
 drawn. With regard to the endorsers, the re- 
 exchange is regulated by the rate of exchange of 
 the place, whither it has been remitted or nego- 
 ciated by them on the place where the re-imbur- 
 sement is effected. Where no direct rate of 
 exchange exists between the different places, the 
 re-exchange is regulated by that of the two places 
 nearest the same. 
 
 The contract of a bill of exchange, engagements conflict of iam 
 
 O i °.~ with regard to 
 
 to pay on promissory notes to order, assignations f r e J™!™ ctof 
 and cheques, banker's or cashier's notes and other 
 paper payable to bearer, are contracts which, like 
 the contracts of Civil Law, must be considered, 
 with regard to questions of Conflict of Laws, in 
 the following aspects, viz., the law which governs 
 the personal capacity to contract (lex domicilii). 
 the lex loci contractus, the led' loci solutionis and 
 the lev fori. * 
 
 Although the bill of exchange is universally JpnJj^ 
 acknowledged to be a matter of general inter- svstems - 
 national use and utility, there exists neverthe- 
 less, as regards most of the above mentioned 
 aspects, much diversity of legislation in the 
 positive laws of civilized States, both in Europe 
 and in America. These are divided into two 
 main groups, of which one follows the French 
 Commercial Code of 1807 and the other follows, 
 in matters of bills of exchange and commercial 
 papers of this class, the German lex mercatoria, 
 
 ;: PHILMMORE. Comment, on Intern. Law. Vol. IV. Oh. XLII. 
 
 man and
 
 20G Pam ii.] PRIVATE INTERNATIONAL LAW. [ Ch §££ Xi 
 
 the principles of which are laid down in the 
 German Commercial Code of 1861. * 
 
 To the first named category belong Egypt, 
 Belgium, St. Domingo, Greece, Haiti, the Ne- 
 therlands and her Colonies, British Canada, Malta, 
 Mauritius, Italy, Monaco, Roumania, Polish 
 Russia, the French Cantons of Switzerland, Servia, 
 Turkey, Spain and her Colonies, Portugal and 
 her Colonies, Mexico, Brazil, Peru, and the 
 Spanish J speaking Republics of South America. 
 The principles of the German Commercial Code 
 are generally admitted, outside the Empire, with 
 regard to bills of exchange (Law of 1848), by 
 Austria, by Russia for Finland, by Sweden and the 
 German Cantons of Switzerland. Great Britain 
 and her Possessions, (with the exception of those 
 named above), have special laws and usages with 
 regard to bills of exchange ; this is also the case 
 with the United States of America. Russia has 
 her own special Code of Commerce. Special laws 
 regarding bills of exchange exist also in Denmark, 
 in some Swiss Cantons, in Norwegia and Hungary. 
 The old ordinance of Bilbao is yet observed in 
 the American Republics of Guatemala, Honduras 
 and Paraguay, f 
 
 The different enactments of positive legislation 
 in matters of bills of exchange are thus divided 
 into two camps of nearly equal strength. The 
 difference consists partly in a divergence of 
 opinion concerning the character and nature of a 
 bill of exchange, partly in certain rules prescribed 
 
 * On the German leer mereatoria, see : Goldschmidt Bandbuch 
 des Handelsrechl . Erlangen. L864. The Conflict of Laws with 
 regard t<> bills is deall with ;ii Length bj BeackenhOfpt, in his 
 Axchiv Eur Deuteches Wechselrecht, Vol [I, pp. L29 1(52,278 301. See 
 
 also Hoffmann's Ansfuhrl. Erlauterung der Allgemei Dcutgchen 
 
 VPcchselordnung, pp. B97-61 1. 
 f BoBOHAEDT, V-H tandige Sammlang der geltenden Wechsel 
 id Handel sgesetzc alii i I inder, Berlin L871. Voi
 
 Past II.] BILLS OF EXCHANGE. ['"§5:1. V 2l>7 
 
 concerning minor particulars connected with this 
 commercial transaction. 
 
 The rule locus regit actum is generally under- muxiMi am- 
 
 stood to govern the form of the bill of exchange Ka™»« 
 at its first issue, but with regard to the applica-S£7£* 
 tion of this rule to the forms of the endorsements c!,c "" je ' 
 on the bill, there are two different systems in 
 vogue. The application of the rule locus regit actum 
 is in all instances governed by the principle of 
 the control de change of the French Code, by 
 which the formalities of every declaration made 
 on a bill of exchange, viz., that of the drawer, of 
 the endorsers, of the acceptor etc., must be in 
 conformity with the respective laws of the different 
 States in which the bill is negotiated. All en- 
 dorsements, therefore, made subsequent to any 
 one conflicting with the law of the respective 
 place where it is placed on the bill, and which is 
 consequently void by that law, are all to be re- 
 garded as void also, though being, intrinsically, 
 in conformity with the law which governs them 
 individually. The modern or German system, 
 however, deviates from the foregoing rule, and 
 considers a bill of exchange more in its absolute 
 character of a mandate to pay under certain 
 special conditions. At the outset, of course, this 
 mandate must be in conformity with the law of 
 the place whence it originally issues, but the 
 obligation incurred by the acceptance or making 
 of a bill is considered to be determined by the 
 law of the place where it is payable (lex loci 
 solutionis). Under this system, accordingly, irre- 
 gularities attaching to endorsements under their 
 respective foreign laws, are not taken into con- 
 sideration, provided the endorsement in question 
 is in harmony with the forms of the lex fori or 
 with the lex loci solutionis. 
 
 In the case of the French system, the rule lex
 
 208 Paet il] PRIVATE INTERNATIONAL LAW. 
 
 Cfl in. X. 
 §59. 
 
 loci contractus has the preponderating influence, 
 while in the case of the German system the lex 
 loci solutionis is the principal guide. 
 
 With regard to the English laws under this 
 head, it lias been established as a general principle 
 in the English Courts, that the liabilities of the 
 drawer, the acceptor and endorser, must be gov- 
 erned by the laws of the countries in which the 
 drawing, acceptance and endorsement respectively 
 took place (lex loci contractus). Under this system 
 an acceptance or endorsement, void by the law of 
 the country where it is made, is not binding 
 whore English Law prevails. * 
 
 With regard to the laws of the Unites States 
 of America, under the head of lex loci con- 
 tractus. Story observes that " by the general 
 commercial law, in order to entitle the indorsee 
 to recover against any antecedent indorser upon 
 a negotiable note, it is only necessary that 
 due demand should be made upon the maker of 
 the note at its maturity, and due notice of the 
 dishonour given to the endorser. But, b}?- the 
 laws of some of the American Stales, it is re- 
 quired, in order to charge an antecedent endorser, 
 not only that due demand should be made and 
 due notice given, but that a suit should be pre- 
 viously commenced against the maker, and pro- 
 secuted with effect in the country where he 
 resides, and then, if payment cannot be obtained 
 from him under the judgment, the endorsee may 
 have recourse to the endorser." In such a case, 
 
 it might be inferred, as :i matter of principle, 
 i hat the endorsemenl . ;is far as its legal effect and 
 obligation and the duties of the holder are con- 
 cerned, must !)«■ governed by the Law of the place 
 where the endorsemenl is made, f 
 
 * Wksti.akk. Private Intern. Law, p. 248 et acq. PhillimobB, 
 
 ini'i ii. Law. Vol. IV. i inapt, .'-. I.I I. 
 i Bt< ,. . On bill . • L56 and 167.
 
 km 11] BILLS OF EXCHANGE. [ CH §5!)'. *" 20D 
 
 Tlie following opinion, in the matter of bills 
 of exchange, delivered by Judge Lewis of the 
 Supreme Court of Pennsylvania, 16th May 
 1854, in the case Lenning v. Ralston, and 
 cited by Sir Robert Phillimore, in a note on 
 Chapter XLII of Vol. IV of his Commen- 
 tary on International Law, will give some in- 
 sight into the American Law concerning this 
 branch of the lex mercatoria and, at the same time, 
 illustrate the different and occasionally compli- 
 cated aspects of the transactions entailed in certain 
 cases by bills of exchange. The opinion given 
 by the Judge in the above mentioned case runs 
 as follows. " This suit is brought for the benefit 
 of the Commercial Bank of London, upon an 
 instrument, which bears upon its face every mark 
 of a foreign bill of exchange, drawn in Philadel- 
 phia, upon a house in London, and accepted by 
 the latter. It is true that the bill was not actu- 
 ally negotiated in this State, so that it is not, 
 within the letter of the Statute of 1821, a bill 
 drawn in Pennsylvania. The drawers had a mer- 
 cantile house in Philadelphia, and they placed 
 ' Philadelphia ' at the head of the bill as the place 
 at which it was to bear date, leaving blanks for 
 the day of the month, and the year. They fixed 
 the amount of it and signed it, leaving blanks 
 also for the period which the bill had to run 
 before maturity, and for the names of the payee 
 and acceptors. All this was done by the defend- 
 ants here. The instrument Avas then sent, in 
 this imperfect condition, to their partner in London. 
 They authorised him to fill the blanks and nego- 
 tiate it in London, and he did so. It was pur- 
 chased by the Bank without any notice of the 
 manner in which it originated, or of the fact that 
 it was issued in that city and not in Philadelphia. 
 When that institution became the holder, it bore
 
 210 part li.] PRIVATE INTERNATIONAL LAW. [ C "^. X ' 
 
 the dress of a bill of exchange drawn in Pennsyl- 
 vania, and, upon the principle that every one is 
 presumed to intend to produce all the conse- 
 quences to which his acts naturally and necessarily 
 lead, the presumption is that the defendants 
 intended that the purchasers of it should receive 
 it under the belief that it was a bill drawn in 
 Philadelphia in the usual course of business. 
 The question is whether they shall be compelled to 
 perform their contract in the sense in which they 
 intended the opposite party to understand it, or in a 
 sense contemplated only by themselves and entirely 
 excluded by the terms of the instrument itself It 
 is very material to the parties that this question 
 should be properly decided. The bill was drawn 
 on July 3, 1850. The Act of May 13, 1850, 
 reducing the damages on dishonoured foreign bills 
 of exchange to 10 per cent., contains a provision 
 limiting its operation to bills drawn after the 1st 
 of August 1850. So that, if the bill in question 
 is to be enforced according to its terms, the 
 Act of 30th March 1821, giving 20 per cent. 
 damages for its dishonour, furnishes the rule of 
 decision." 
 
 "All writers of authority on questions of morals 
 agree, that promises are binding in the sense in 
 which the promissors intended at the time that 
 the promisees should receive them ( Paley. Chapi 
 Y.; Wailand. Chap. II.; Adams. Part III. Chap. 
 V). Upon this principle, it was deemed a gross 
 violation of contract, when Mahomet, after pro- 
 mising to 'spare a man's head,' ordered his body 
 to be CUt through the middle. When Tamerlane, 
 
 at the capitulation of Sabasta, promised to 'spill 
 no blood,' ii was an Infraction of the treaty to 
 'bury the inhabitants alive,' These monstrous 
 constructions of contracts were condemned by 
 the civilized world as cross violations of the es-
 
 paexil] bills of exchange. [ UI t7». x * 211 
 
 tablished rule of construction already indicated 
 ( Vattel Lib. II. Chap. XVII. § 274). There can 
 be no plainer principle of equity, than that which 
 requires every one to speak the truth, if he chooses 
 to speak at all, in matters which affect the interests 
 of others. He that knowingly misrepresents a 
 fact for the purpose of inducing another to part 
 with his money or goods, is held to his represent- 
 ation in favour of the party who confided in it. 
 It is upon this principle, that the maker of a 
 negotiable instrument is not allowed to impair 
 its value in the hands of a bond fide holder, by 
 denying the existence of a consideration, or by 
 otherwise showing that it is not what it purports 
 to be(Chitty. On Bills. 9; 7 C. & P. 633. Byles. . 
 On Bills. 65)." 
 
 "On the same principle, a man who procures 
 credit for an insolvent person, by knowingly mis- 
 representing him a man of ability, is bound to 
 answer in damages for the injury thereby pro- 
 duced. In truth, the merchant law is a system 
 founded on the rules of equity, and governed in 
 all its parts by plain justice and good faith." 
 (Master v. Miller, 4 T. R. 342). 
 
 " When this bill was dressed in the costume ot 
 a Pennsylvania bill, it thereby gained a credit in 
 the foreign market which it would not otherwise 
 have received. The Act of 1 8 2 1 , providing ample 
 damages in case of the dishonour of bills drawn 
 in Pennsylvania, contributed to give it that credit. 
 That Act must be considered as operating on the 
 minds of those who purchased it. In Ripka v. 
 Gaddis (Philad., March 1851), it was declared 
 by this Court, after a careful examination of the 
 authorities, that Hi had been long established in 
 the ease of negotiable paper of every hind, that it 
 is construed and governed, as to the obligation of the 
 drawer or maker, by the law of the country where it
 
 212 Part II.] PRIVATE INTERNATIONAL LAW. [^fs^ 
 
 was drawn or made; as to that of the acceptor, by 
 the law of the country where he accepts ; and as to 
 that of the endorser, by the laic of the country where 
 lie endorsed' In Hazelhurst c. Kean (4. Dal. 20), 
 it was affirmed that ' the parties in the purchase of 
 a bill of 'exchange must be supposed to have in con- 
 templation the law of the place where die contract was 
 made, and it — that is die law of the place where the 
 bill was drawn * — necessarily forms part of the 
 contract.' In Allen v. the Bank (5 Wliar. 425), the 
 same principle was re-asserted. From this rule, 
 thus repeatedly recognised and well established, 
 it follows : that the Bank, in the purchase of this 
 bill, must be supposed to have had in contempla- 
 tion the law of Pennsylvania, providing indemnity 
 for its dishonour. The law of this State was 
 therefore a part of the contract of purchase, and 
 we have no right to impair its obligation." 
 
 " There is no reason why the Statute of 1821 
 should not receive a liberal construction. It has 
 been held that it is not penal, but. on the coutraiy , 
 it is a remedial Act; that the damages given are 
 not for punishment, but are intended as compen- 
 sation; that its provisions are just and equitable, 
 and highly necessary in a commercial community, 
 to guard the interests of innocent individuals, and 
 to secure good faith in " commercial transactions 
 (5 Wharton, 425 ). No one can foresee the extent 
 of the injury which tin; holder of a foreign bill of 
 exchange may suffer from its dishonour. It is 
 not like a domestic obligation, the breach of which 
 can, in general, be repaired by the presence and 
 credit of i hie holder. Bui the dishonour of foreign 
 bills may occur, and usually does occur, al points 
 where the holders cannot supervise the result, 
 and where they have neither means nor credil to 
 
 The lex loci contractu*.
 
 APT. X. 
 
 part ii.] BILLS OF EXCHANGE. [ C %7n 
 
 provide against the injury. These instruments 
 are generally procured at a premium by the 
 holders, for the purpose of making their purchases 
 iu the country where they are payable, or as the 
 means of pursuing their travels, or maintaining 
 their credit abroad. The great distance between 
 the residence of the drawers and that of the 
 acceptors, must necessarily cause great delay in 
 procuring indemnity from the former. In the 
 meantime the loss to the holders, if they rely ex- 
 clusively upon the bills to maintain their credit, 
 and carry on their business, might be irreparable. 
 Under such circumstances the recovery of the face 
 of the bill only, with the usual interest, re-exchange, 
 and costs, would be but a cold and inadequate 
 remedy for so great an injury. The Act of 1821 
 was deemed necessary, in order to do justice in 
 such cases, and for the purpose of maintaining 
 our commercial credit in other countries. It 
 should receive such a construction as will best 
 promote the intentions of the legislature in these 
 respects. Upon the whole, we are of opinion, 
 that the bill should be met by the drawers in the 
 same sense in which they manifestly intended 
 that it should be received by the holder, and we 
 think that the District Court was in error in 
 adopting a different rule." 
 
 "Judgment reversed, and judgment for the 
 plaintiff in error for 1,^53 dols. 31 c, with interest 
 from the 18th May 1852, and costs of suit." * 
 
 In the particular circumstances of war or Protest of buis 
 general calamity, in which, for the temporary wM a r%ar7to 
 protection of traders, it is deemed necessary by change. 
 the Municipal Legislature of the country thus 
 situated, to extend the usual time within which 
 dishonoured bills must be protested, — what is in 
 
 * Lennig v. Ralston. 23 Perm. State Dep. p. 137. Daily News 
 of Wednesday. June 7, 1854,
 
 214 pahth.J private international law. [ Ch '^,'. x 
 
 legal phraseology called moratoria, — the foreign 
 drawer and endorsers ought to be subjected to 
 this law of necessity, and indeed on the general 
 principle, that the obligation of the acceptor is 
 governed by the law of the place of acceptance 
 and of the place where the payment is to be 
 effected (lex loci solutionis), which also rules 
 all questions arising with regard to the maturity 
 of the bill, the manner of payment, etc. 
 
 The moratorium, however, created by the 
 French Law of 13th August 1870, during the 
 Franco-German war of 1870-1871, with a view 
 to give temporary facilities to acceptors, to com- 
 ply with their obligations, through extending 
 the limit of the time of protest to a month after 
 the maturity of bills of exchange, was not gene- 
 rally acknowledged by the German Courts. The 
 German Reichs-Oberhandelsgericht at Leipzig, 
 by judgment of Zlst February 1871, decided 
 against plaintiffs, in the action for re-exchange 
 against a German drawer, on the plea that the 
 protest for non-acceptance of the bill (payable in 
 France) was not timely executed in France, but 
 a month after the bill had arrived al maturity, 
 although this was in conformity with the then 
 existing moratorium of the French law. * 
 
 Rules uithregard ^'ith regard to Protest of l>i//s and re-exehange 
 
 SdLwe'Prof. von Bar gives the following rules. The 
 
 T'i'^'n iiiu'. conditions of recourse are to be ruled by the law 
 
 which determines the liability of thai obligant in 
 
 I it the arguments pro and contra Hub principle, Bee Professor 
 I'k ;.. ■• i i ber internationales Wecbselrecbf in Bezicbun 
 l. timmungen, inb ondere die Eranzosische Wechscl-Moratoriuma 
 (,, etze und Decrete, published first in the Ccntral-oi an fur dcut- 
 Bandelarecht, VII. p. 167, and also separatclj al Elberfeld, 
 L872. The consultation beld al Berne, L2 March L871, bj Prof. Mun- 
 ZINGEB and NlGGELER, " Rechl u1 treffend die durch die 
 
 prorogirenden Ge etze und Dekretc dor Eranzbaisoben Bob 
 I,,., ,. n," $ 98. Chables Brochkb. I 
 
 but la lettre de chan tc. i ; - m ,; " Droil tntern. 1874 p, 210
 
 past n.] BILLS OF EXCHANGE. [ GhA §5». X ' 215 
 
 the bill against whom recourse is desired to be had, 
 and, therefore, as a general rule, by the law of the 
 place from which the indorsation, or the bill 
 itself, as the case may be, is dated ; the rule, that 
 the holder is entitled to rely upon the litera 
 scr'qita being applicable in this case also. For 
 the obligant has bound himself ultimately to pay 
 the contents of the bill, if the conditions required 
 by his own law are fulfilled : we refer especially 
 to the requirement of a protest or notification. 
 Many authors are, however, of a different opinion. 
 The opinion which makes the law of the place 
 of the action the rule, unless it proceeds on the 
 principle that the lex fori is always applicable, 
 if that law does not itself command the applica- 
 cation of some other, does not require further 
 discussion, and we need only note, that, as the 
 place of action and the domicile of the obligant 
 will, as a general rule, be the same, the result of 
 that theory will generally coincide with the 
 result of our own. But if it is to be contended 
 against us from another point of view, that, in 
 this matter, all the parties to the bill have sub- 
 jected themselves to the law of the place of 
 payment, and that it is imperatively necessary, 
 in judging of a right of recourse which affects 
 several parties, that one and the same law should 
 rule all the various claims of recourse, because 
 any obligant who pays must have it in his power 
 to recover from the obligant who is prior to 
 him ; — we must take exception to the former of 
 these arguments by pleading that the importance 
 of the solemnities required to found a right of 
 recourse lies in reality in this, that the person 
 against whom recourse is to be had, need only 
 pay, if he is provided with summary evidence 
 and immediate intimation of the fact that the 
 contents of the bill have been demanded in vain
 
 216 pabtil] private international law. [ Ch §^: Xi 
 
 from the principal debtor and that therefore the 
 solemnities in discussion here are of no import- 
 ance with reference to the obligation against the 
 drawee (or, as it may be in some bills, the 
 maker), and can consequently have no connec- 
 tion with the law of his domicile." 
 
 "The weight of the second argument is les- 
 sened by the consideration, that the form, the 
 place, * and the time appropriate for taking a 
 protest are ruled by the law of the land where 
 this protest is to be taken ( and so, as a general 
 rule, by the law of the place of payment)." 
 
 " It follows from the fact that a protest upon 
 a bill is a public instrument, aud that this 
 instrument obtains faith with the public by being 
 executed by some official or notary under the 
 rules of his own law exclusively, as the rule 
 Hocus regit actum'' requires, that the form of the 
 protest must be determined by the law of the 
 place where it is taken. As the protest shows 
 that payment has been demanded at the proper 
 place from the principal obligant, — that is, the 
 acceptor, or in certain circumstances the maker, 
 of a bill, — it follows that the law of the place 
 where the protest must be made, determines the 
 particular locality where it is to be made. But 
 thai Law, by which parties intended that pay- 
 ment should be regulated, is the only law that 
 can determine whether application for payment 
 was made to the principal debtor opportuno loco. 
 Lastly, the period within which a, protest must 
 be taken is dependent upon the law recognised 
 ;ii the place where il is taken, because the prin- 
 cipal debtor undertakes his obligation, and the 
 other obligants intend that he shall undertake 
 the obligation only in conformity with his own 
 
 ■'■ By "ill:!''' i meanl here the particular locality, i. e. the 
 dwi tlinghousc or place of business <>r the debtor,
 
 qxii/e in 
 ansitu. 
 
 f art II.] STOPPAGE IN TRANSITU. [^fS.f" 217 
 
 law, and the protest is meant to supply evidence 
 that he has not fulfilled his obligation or has 
 failed to undertake it." * 
 
 XL — Stoppage in transitu. 
 
 §60. If goods or merchandise have been.%>/ 
 sold and delivered and not been fully paid for, ' 
 the vendor is entitled, on failure of the vendee 
 to reclaim the same under certain regulations as 
 stipulated in the respective lex mercatoria. This 
 revendication in matter of commerce is termed 
 stoppage in transitu. Regulations concerning 
 revendication are generally based on the follow- 
 ing principles. 
 
 1°. For the exercising of the right of reven- 
 dication, it is requisite that the goods or merchan- 
 dise, unmixed with others, be identically the 
 same which have been sold and delivered ; this 
 is termed " in natural 
 
 Proofs of the identity are often admitted even 
 if the goods should be unpacked, repacked or 
 diminished. 
 
 2°. Merchandise, sold, either on a fixed term 
 or not, can be reclaimed while it is still on its 
 way, whether by land or water, or when it exists 
 " in naturd " in the hands of the insolvent vendee 
 or in the custody of a third party who keeps the 
 merchandise for him. 
 
 In both cases the reclaim can only be effected 
 within a certain space of time, as stipulated by 
 the respective, lex mercatoria, from the day on 
 which the merchandise has been stored under 
 the insolvent vendee, or the third party. 
 
 3°. If part of the price of the goods has been 
 paid by the vendee, the vendor, on reclaiming 
 the whole of them, is obliged to return to the 
 
 * Von Bar. Das Intern. Private unci Strafrccht. Translation of 
 G. K. Gillespie, page 340 et seq>
 
 218 I'Ain ll.] PRIVATE INTERNATIONAL LAW. [°'| 
 
 PT. X. 
 
 60. 
 
 estate the money lie has already received on 
 account. 
 
 4°. Where only a part of the merchandise sold 
 is found in the estate, the money to he returned 
 by the vendor shall he according to the proportion 
 which the amount of goods recovered hears to 
 the total amount sold. 
 
 5°. The vendor who recovers his merchandise, 
 is obliged to indemnify the insolvent estate of 
 the vendee for all that has already been paid or 
 is due. for freight, commission, insurance, gene- 
 ral average, and whatever else may have been 
 expended for the preservation of the merchandise. 
 
 6°. Where the vendee has acccepted a hill of 
 exchange or other commercial paper, for the full 
 amount of the merchandise sold and delivered, 
 no reclaim takes place. 
 
 Where accepted bills cover only part of the 
 amount due, the reclaim can take place, provided 
 security be given to the insolvent buyer's estate, 
 for what may be claimed from it on account of 
 such acceptance. 
 
 7°. If the merchandise has been bond fide taken 
 by a third party as security for a loan, the vendor 
 still has the right to reclaim it. but is bound to 
 repay to the lender the amount lent thereon, 
 together with the interest and charges due. 
 
 8°. The reclaim of (lie goods becomes void, 
 when they have been bond fide boughl by a third 
 party, OD invoice and on bills of lading or carriage- 
 notes, during the voyage. 
 
 The original vendor is nevertheless entitled, in 
 that case, to recover die purchase-money from 
 the buyer to the amounl due to him. as long as 
 this has noi been paid ; and he is privileged for 
 that amount, which may not he included in the 
 'Kent V estate.
 
 I'artII.] STOPPAGE IN TRANSITU. [^fio. X ' 219 
 
 This may also be applicable in case the goods, 
 — after having been in the possession of the 
 insolvent debtor or of some one on his behalf, — 
 have, by regular purchase and delivery, become 
 the bond fide property of another party. 
 
 9°. The managers of an insolvent estate are at 
 liberty to retain the reclaimed merchandise for 
 the estate, provided they pay to the vendor the 
 price, which he had. agreed on with the insolvent 
 vendee. 
 
 10°. As long as goods or merchandise, con- 
 signed on commission, remain in naturd in the 
 custody of the insolvent agent, or of a third party 
 who possesses or keeps the same for him, the} r 
 can be reclaimed by the consignor under the 
 liability noted in sub-section 5°. 
 
 The same right of reclaim holds o-ood as to the 
 purchase-money of goods, consigned on commis- 
 sion, where these have been sold and delivered 
 by the agent. The consignor may reclaim as 
 much of the purchase-money as has not been 
 paid before the failure of the agent, even if the 
 agent should have charged for his guarantee 
 of the buyer, or under the usual denomination 
 of " del credere." 
 
 11°. In case the consigned goods have been, 
 bond fide, taken by a third party, as security for 
 a loan, sub-section 7°. is applicable. 
 
 12°. If in an insolvent estate there be found 
 bills of exchange not yet due, or due and not yet 
 paid, or commercial or other papers, placed in 
 the hands of the insolvent, either with orders 
 only to procure payment thereof and hold the 
 amount at the disposal of the sender, to effect 
 payments specially indicated therewith, or design- * 
 edly intended to cover bills of exchange drawn 
 on and accepted by the insolvent or notes made
 
 ClIAPT. X. 
 
 60. 
 
 220 Vakt ii.] PRIVATE INTERNATIONAL LAW. 
 
 payable at his domicile ; then all such bills of 
 exchange, commercial or other papers, can be 
 reclaimed as long as they exist, in natur'd, in the 
 hands of the insolvent or of a third person who 
 holds or keeps them for him. All this is, how- 
 ever, without prejudice to the right of the estate, 
 to require security in return for what can be 
 claimed from it, in consequence of the insolvent's 
 .acceptances. 
 
 13°. In the absence also of the appropriation or 
 acceptance, mentioned in sub-section 12°., bills of 
 exchange, commercial or other papers, remitted to 
 the insolvent, can equally be reclaimed, even if 
 the same should be brought in account-current, 
 provided the sender has not, at the time of remit- 
 ting or since, been indebted to the insolvent for 
 any sum whatever, the charges on the remittances 
 excepted. 
 
 14°. In cases other than failure, any merchandise 
 sold without term of payment, and unpaid, can 
 be reclaimed in accordance with rules laid down 
 in the respective Civil Law, with regard to res- 
 cinding of contracts of sale. 
 
 The faculty of reclaiming such merchandise 
 is defeated when the same, after having been 
 in possession of the original buyer or of some 
 one on his behalf, has been, bond fide, sold and 
 delivered to a, third party. 
 
 If, however, the purchase-money lias not been 
 paid by such third party, the original vendor can 
 claim the amount of his bill or invoice out of the 
 same, provided this be done by him within the 
 term fixed by the respective lex mercatoria (usu- 
 ally 30 days) after the original delivery. 
 sirRd With regard to the right of stoppage in tran- 
 
 **;";::;;;:':,, situ, Sir Roberl Phillimore makes the following 
 
 Stoppage in 
 
 trantllu. statements.
 
 PahtII.] STOPPAGE IN TRANSITU. [ Ch §m. X ' 221 
 
 " According to the Roman Law, a contract of 
 sale worked a jus ad rem, but did not,, by the 
 mere effect of consent, as in England, work &jus 
 in re, a transference of the property (dominium) 
 in the thing sold : ' qui rem nondum emptori tra- 
 didit adhuc ipse dominus est. 7 * And again, l tra~ 
 ditionibus et nan nudis pactis dominia rerum trans- 
 feruntur. 1 It was a necessary result of this 
 maxim, that either party might withold perform- 
 ance of his obligation on the other becoming 
 unable to perform his part." 
 
 " The Law of Continental Europe adopted, 
 pretty generally, the rule that a seller was enti- 
 tled, in all cases, and even after actual delivery, 
 to have restitution of his goods, if unchanged in 
 form, and capable of being distinguished from the 
 stock of the buyer. The Scotch Law allowed 
 restitution to the seller, on the ground of pre- 
 sumptive fraud, within three days of the bank- 
 ruptcy of the buyer. This right of the seller, 
 according to Continental Law, was called the 
 right of revendication." 
 
 " A right closely analagous to that of reven- 
 dication was introduced, by the reason of the 
 thing and the exigencies of commerce, into the 
 English Law at the end of the seventeenth cen- 
 tury, and into Scotland at the end of the eigh- 
 teenth century, it was called, and is now univer- 
 sally known as the right of stoppage in transitu. 
 It has been adopted by France in her Code de 
 Commerce, in the place of the -old revendication." 
 
 "The Law" (Lord Wensleydale observed, in 
 a leading case on this subject) "is clearly settled, 
 " that the unpaid vendor has a right to retake the 
 " goods before they have arrived at the destina- 
 " tion, originally contemplated by the purchaser, 
 
 * Instit. III. T, XIV. 3.
 
 222 pauth.] private international law. [ ( "n'7 x 
 
 " unless in the meantime they have come to the 
 " actual or constructive possession of the vendee. 
 " If the vendee take them out of the posses- 
 " sion of the carrier into his own before their 
 "arrival, with or without the consent of the 
 "carrier, there seems to be no doubt that the 
 t; transit would be at an end; though, in the case 
 " of the absence of the carrier's consent, it may be 
 " a wrong to him, for which he would have a 
 "right of action. This is a case of actual pos- 
 " session, which certainly did not occur in the 
 " present instance. A case of constructive pos- 
 " session is, where the carrier enters expressly, or 
 "by implication, into a new agreement, distinct 
 " from the original contract for carriage, to hold 
 "the goods for the consignee as his agent, not 
 " for the purpose of expediting them to the place 
 " of original destination, pursuant to that contract, 
 " but in a new character, for the purpose of 
 " custody on his account, and subject to some 
 " new or further order to be given to him." 
 
 "The right of stoppage in transitu is, Lord 
 Stowell observed, 'not only the doctrine of the 
 Law of England but the general expression of 
 the Mercantile Law on the subject.' The con- 
 signor has what Lord Mansfield called v a pro- 
 prietary lien' upon goods in transitu for which 
 payment has not been received. This doctrine 
 was transplanted from the lex mercatoria into the 
 Common Law of England. Great doubl and 
 dispute have prevailed, and, perhaps, still do 
 prevail, as to whether this right of stoppage 
 amounts to a rescinding of the contract, or to a 
 mere extentioD of the doctrine of the seller's lien 
 upon the thing sold.' 1 
 iDuMont. l -|i iiwiy be well to st;it r that Hie English 
 derisions appear to have established (lie following 
 propositions as incident to tliis right.'
 
 I'akt ii.] STOPPAGE IN TRANSITU. [ C "fou. X J 223 
 
 "1°. The right of stoppage in transitu can 
 only be exercised by a seller or person standing 
 in the position of a seller of goods," (that is a 
 trader, § 58). 
 
 " 2°. The right is limited to cases in which 
 the bankruptcy or insolvency of the vendee has 
 taken place. A partial payment by the vendee 
 does not prevent the exercise of this right." 
 
 " 3°. As a general rule the transitus is not at 
 an end until the goods arrive at the actual or 
 constructive possession of the consignee ; during 
 this period, as well as while they are in the 
 vendor's possession, the vendor's right of stoppage 
 remains." 
 
 " 4°. Notice on the part of the vendor, by 
 himself or agent, to the carrier not to deliver the 
 goods, suffices to cause the right of stoppage to 
 attach." 
 
 " 5°. The better opinion seems to be that the 
 effect of the exercise of the right is merely to 
 replace the seller in the same position as if he had 
 not parted with the possession of the goods, and 
 not to rescind the contract; but the point cannot 
 be said to have been decided." 
 
 " 6°. The right of stoppage is defeated when 
 a bill of lading has been indorsed to a bond fide 
 purchaser, without notice, for valuable considera- 
 tion, and with the authority of the original 
 seller." 
 
 "What Law is to decide as to whether this W!ia( L «f . ,, 
 
 . , „ . o mi 7 / ■ governs the right 
 
 riimt oi stoppage exists or not r Ihe lex loci con- °f *pppw m 
 
 ti r I » Ife 1 ■ /^ • _L tranSitu - 
 
 tractus, Mr. Lurge says, * relying on L-asaregis j 
 and on English and North American United 
 States decisions. It is a lien, Story says, which 
 has rightfully attached in rem, and ought not to 
 
 * 3 Burge, 770. 
 
 t Disc, l~i'o N, 53-55.
 
 r Chapt. X. 
 
 224 Pari li.] PRIVATE INTERNATIONAL LAW. f "'^'. 
 
 be locally displaced by the mere change of the 
 local situation of the property. The reason of 
 things seems to be in favour of these opinions. 
 In a recent case, determined by the tribunal of the 
 German decision. German Empire, merchandise sent from Bohemia 
 to London fell into the hands of an agent for 
 transmission (exnediteur de Hamburg) at Hamburg 
 at the moment when the consignee (le destinataire 
 de Londres) became bankrupt. The consigner 
 therefore claimed (une demande en revendication) 
 a right of stoppage in transitu against the trans- 
 mission-ao'ent at Hamburg. The latter main- 
 tained that he had a right of detention as a set-off 
 ao-ainst debts due to him from the London con- 
 signee. The tribunal, taking the laws of Hamburg 
 as its basis, decides against the Hamburg claim- 
 ant." * 
 stoppage™ The right of stopple in transitu is in the 
 
 buyer. seller, not in the buyer. The buyer may coun- 
 
 termand the order, if in time, and with the 
 consent of the seller he may rescind the sale; but 
 if in insolvent circumstances, he cannot stop the 
 goods in transitu without committing an act of 
 improper preference to the vendor to the prejudice 
 of other creditors (§ 79). f 
 
 XII. — Of Insurance. 
 
 PrlSliet. §61. Insurance is an agreement whereby the 
 
 insurer bind shimself to the assured, in consider- 
 ation of a premium, to indemnify him for loss, 
 damage, or the missing of an expected profit, 
 which he may have to sustain in consequence of 
 an uncertain event. 
 
 Cette dioition fortement motivie, est d une importance toutepaT' 
 tieuliere en raison efat oaracten international du Right of Stoppage. 
 
 Journal tin Droit Intern. I'rirr. V. III. N. I .'{] . SlB ROBERT PHIL* 
 
 limobe. Comm, on [nt. Law. Vol, IV. Priv. Int. Law p. 643 el Beq. 
 ■)■ Leone Levi. International Commercial Law. Voll. Chapt, X' 
 Sect. G.
 
 1'AkT II 
 
 .] tNSUKANCB. [*"?£. *' 225 
 
 Subjects of insurance may, amongst other suqkcts of 
 
 , . ' i , i /• n • , • • • n Insurance. 
 
 things be the following contingencies, viz., danger 
 of fire; damages to which growing crops are ex- 
 posed; the life of one or more persons; dangers of 
 the sea (in which case insurance is called marine 
 insurance) ; dangers of conveyance by land, or by 
 rivers and inland waters. 
 
 Marine insurance is specially treated in the 
 next section. 
 
 The rules of the lex mercatoria, generally General Rules. 
 adopted with regard to insurances, are as follow. 
 
 1°. The insurer is in no case liable for damage 
 or loss directly occasioned by any defect or dete- 
 rioration peculiar to the species or nature of the 
 thing insured, unless the risk thereof be explicitly 
 included in the insurance. 
 
 2°. The insurer is not bound to indemnify, if 
 he, who had insurance made on his own behalf, or 
 for whose account insurance has been effected by 
 another, has no interest in the subject-matter 
 insured at the time of insuring. 
 
 o°. The insurance is made null and void by 
 every wrong or untrue statement, or by reticence 
 regarding circumstances known to the assured, 
 even when bond fide committed on his part, 
 provided such misstatement or reticence be of such 
 a nature that the agreement would not have 
 taken place, or would not have been entered into 
 on the same conditions, if the insurer had been 
 acquainted with the real state of things. 
 
 4°. As a general rule, no second insurance may 
 be made for the same time and the same risk on 
 things already insured to their full value, on 
 pain of nullitv of such second insurance (see 
 rule 20).
 
 226 iAia u] PRIVATE INTERNATIONAL LAW. [° & §7i. V 
 
 5°. Insurance effected beyond the amount of 
 the value or real interest, is valid only to that 
 amount. Where the full value has not been 
 insured, the insurer is, in case of damage, liable 
 only in proportion of the part insured to the 
 part uncovered. It may, however, be explicity 
 stipulated between the parties, that, notwith- 
 standing the greater value of the subject, damage 
 to the same shall be made good to the full 
 amount of the sum insured. 
 
 6°. The insurance becomes null and void if, at 
 the time of effecting the insurance or during the 
 time covered by it, any deviation occurs from 
 what the respective law requires to constitute the 
 agreement, or if stipulations are included in the 
 agreement requiring anything to be done which 
 is expressly forbidden by law. 
 coniractof 7°. Insurances must be contracted by an in- 
 
 Thu'onry. strument in writing which is called a policy. All 
 policies, (with the exception of those of life-insur- 
 ance, which are subject to particular rules), 
 must state the following particulars : — 
 
 a. The day on which the insurance has been 
 
 made. 
 
 b. The name of him who makes the insur- 
 
 ance for his own account or for that of 
 a third party. 
 
 c. A sufficiently clear description of the 
 
 subject matter insured. 
 
 (I. The amount of the sum insured. 
 
 e. Tlic dangers and perils which the insurer 
 undertakes on his account. 
 
 /'. The time at which the risk begins to run 
 Oil account of the insurer, and when it 
 ends. 
 
 v. The premium of insurance.
 
 turn and end of 
 
 part it.] INSURANCE. [ Cu Tni. X 227 
 
 h. Generally all circumstances, the know- 
 ledge of which can be of real interest to 
 the insurer ; and all other conditions 
 agreed upon between the parties and 
 the insured. The policy must be 
 signed by the insurer. 
 8°. The contract of insurance exists as soon Begining dura- 
 as it has been closed, and the respective rights tnefuk. 
 and obligations of the insurer and the assured 
 are from that moment established, even before 
 the policy has been signed. The closing of the 
 contract obliges the insurer to sign the policy 
 within the appointed time, and to deliver it to 
 the assured. 
 
 9°. Written evidence is required to prove the 
 closing of the contract ; all other evidence shall, 
 however, be admitted, if in the first instance any 
 written evidence exists. The special clauses and 
 conditions of the contract can, nevertheless, be 
 proved by any kind of evidence admissible in 
 matters of commerce, if any difference arises about 
 the same between the time of closing the contract 
 and delivering the policy ; provided, however, 
 that written evidence be adduced of those par- 
 ticulars, the explicit mention of which in the 
 policy is required by law, on pain of nullity, for 
 some kinds of insurances. 
 
 1 0°. If the policy does not mention that the 
 insurance has been made for account of a third 
 party, the assured is held to have effected it on 
 his own. 
 
 11°. The subject-matter of an insurance may 
 be any interest appreciable in money, liable to 
 danger, and not excluded by the lex loci contractus 
 (§62, No. 8.) 
 
 12°. Insurance effected on any interest what- 
 ever, to which any damage included in the risk
 
 228 PaktH.] private international law. 
 
 Chapt. X. 
 §61. 
 
 had already accrued at the moment at which the 
 contract was closed, becomes null and void, if 
 the assured, or he who, with or without charge, 
 procured insurance, was aware of the damage 
 existing. Presumption that the damage was 
 known, exists where it appears that, all circum- 
 stances considered, sufficient time had elapsed, 
 since the occurrence of the damage, for the insured 
 to be acquainted therewith. In case of doubt, 
 the proof on oath is admitted, if this is in con- 
 formity with the rules of the lex fori (§62, G°.) 
 
 13°. The insurer can always have the risk. 
 which he has undertaken, reassured. 
 
 1-1°. When the assured lias, by a formal act, 
 liberated the insurer from his subsequent obliga- 
 tions, he may have his interest insured anew for 
 the same period and the same risk. In such a 
 ense mention must be made in the neAV policy, 
 on pain of nullity, of the previous insurance, and 
 renunciation. 
 
 15°. When the value of the subjects insured 
 lias not been stated by the parties in the policy, 
 it may be established by any kind of proof. If 
 the value is stated in the policy, the Judge is 
 qualified, nevertheless, to enjoin the assured to 
 justify the expressed valuation more particularly 
 where reasons, alleged by the insurer, afford 
 good grounds to presume it to be over-rated. 
 The insurer is al liberty, in all instances, to 
 prove judicially that the valuation is overrated. 
 When the suhjeet insured, however, has been 
 previously valued and such valuation 1ms been 
 duly sworn to by competent persons, named by 
 the partie . the insurer cannot raise objections 
 I hereto except in ense of fraud. This rule applies 
 generally apart from the special exceptions 
 made by tin- respect ive laws.
 
 Part 
 
 . it-] INSURANCE. [ C, 'Vi;i. V 229 
 
 16°. No damages or loss, caused by an assured 
 person's own fault, can he charged against the 
 insurer. He may even retain or claim the pre- 
 mium, if he has already begun to run any risk. 
 
 17°. Where several insurances have, bond fide, 
 been made on the same subject, and its full value 
 has been covered by the first of them, this first 
 alone is valid, and the subsequent insurers arc 
 released. If the whole value has not been covered 
 by the first insurance, the subsequent insurers 
 are accountable for the part deficient, in order of 
 the time at which the later insurances have been 
 closed. 
 
 18°. When more than the value has been in- 
 sured on the same policy, by different under- 
 writers, even at different dates, they are only 
 chargeable collectively, for the exact value insur- 
 ed, in proportion to the sum for which each of 
 them respectively subscribed. The same rule 
 applies where several insurances have been made 
 on the same subject on the same day. 
 
 19°. In the cases mentioned in the two preced- 
 ing rules, the assured may not annul previous 
 insurances with a view to bind subsequent in- 
 surers. If he releases previous insurers, he is 
 held to have assumed their places respectively, as 
 insurer for the same sum, and in the same rank. 
 If he re-assures, the re-assurers take his place in 
 the same order. 
 
 20°. It is not deemed an unlawful contract 
 when, after having insured a thing for its full 
 value, the person interested insures it a second 
 time afterwards, with the special clause that he 
 shall only have a right of claim on the new in- 
 surers, if, and for as much as he shall not be 
 able to recover the loss from the first. In case 
 of such contract, those previously closed must, 
 on pain of nullity (see rule 4°.). be duly detailed.
 
 230 Part il] PRIVATE INTERNATIONAL LAW. [ Cha £[; x> 
 
 and the stipulations of the 17th and 18th rules 
 will be applicable thereto. 
 
 21°. Whenever the contract of insurance is 
 wholly or partially superseded or becomes void, 
 and provided the assured has dealt faithfully, 
 the insurer must return the premium, either 
 wholly or the equivalent of that part for which 
 he did not incur auy risk. 
 
 22°. Where the nullity of the contract is 
 caused by craft, deceit, or villany of the assured, 
 the insurer receives the premium, without preju- 
 dice to any judicial action for which grounds 
 may appear. 
 
 23°. Under reservations made by special clauses 
 enacted with respect to some particular kinds of 
 insurances, the assured is bound to use every 
 endeavour and diligence to prevent or lessen the 
 damage or loss, and to give immediate notice 
 thereof to the insurer on its occurring; all this 
 on pain of costs, damages, and interest, when 
 grounds for such appear. 
 
 24°. The disbursements made by the assured 
 to prevent or lessen the loss, will be charged on 
 to the insurer, even when, added to the loss, they 
 exceed the amount insured, or the endeavours 
 prove fruitless. 
 
 25°. The insurer who has paid the indemnity 
 for damage on the thing insured, acquires thereby 
 all such right as the assured may have against 
 third parties on account of that damage, and the 
 assured is answerable for every act which may 
 prejudice the rights of the insurer against them. 
 
 2G°. If during the continuance of an insurance 
 the insurer is declared to be in a slate of bank- 
 ruptcy, the assured is qualified 1<> require either 
 ihe annulling of I he contract , or sufficienl security 
 that all the obligations of the insurer shall he 
 
 completely fulfilled by the estate,
 
 Pari il ] MARINE INSURANCE. [ CH §e£ X " 231 
 
 27°. Reciprocal or mutual insurance companies 
 are bound by their covenants and statutes, and, 
 in case of incompleteness of these, by the princi- 
 ples of the respective Municipal Laws. 
 
 § $2. The general principles of Marine Insur- Murine 
 ance may be stated in the following terms. 
 
 1°. Besides the requisites mentioned in the 
 [(receding section, under sub-section 7. the policy 
 of insurance against perils of the sea must state 
 the following particulars : — 
 
 a. The name of the master and that of the 
 
 shin, with designation of her kind, and 
 in case of insurance on the ship, whe- 
 ther she is built of pine, teak or iron, 
 or the declaration that the -insured is 
 not acquainted with these details. 
 
 b. The place where the goods have been or 
 
 are to be shipped. 
 
 c. The port from which the ship departed 
 
 or is to depart. 
 (/. The ports or roads where she is to load 
 
 or unload. 
 e. The ports which she is to enter. 
 /. The place from which the risk begins to 
 
 run for account of the insurer. 
 g. The value of the ship insured. 
 All this holds good, apart from the exceptions 
 which originate in further stipulations as detailed 
 in this section. 
 
 2°. Fit subjects of Marine Insurance are espe- 
 cially the following. The hull or body of the 
 ship, termed the keel, empty or loaded, armed or 
 not, sailing alone, or in company with others, or 
 with convoy ; the tackle and apparel ; imple- 
 ments of war ; provisions and outfit and, in ge- 
 neral, all that has been expended on the ship for
 
 232 l-AKj ii.] PRIVATE INTERNATIONAL LAW [ CH §"»; X " 
 
 making her seaworthy ; bottomry or respondentia 
 interest ; goods shipped on board ; expected pro- 
 fits ; the freight to be earned. 
 
 Insurance can be made on the whole or on a 
 part of the above combined or separate ; in time 
 of peace, or of war, before, or during the voyage 
 of the ship ; for the voyage out and home, or 
 either of them ; for part or the whole of the voy- 
 age, or, for the time it is likely to cover, against 
 all perils of the sea, collision etc., on good and 
 bad news (lost or not lost). * 
 
 3°. In case of insurance on the ship, (which 
 term means, in the policy, all kinds of sea-going 
 vessels), without further specification, it is under- 
 stood that the insurance covers the hull, body or 
 keel, the tackle and riggings, the machinery (when 
 a steamship), apparel, ordnance, munition, artil- 
 lery, boats and other furniture and outfit. Un- 
 der the terms furniture and outfit are compre- 
 hended the provisions put on board the ship, for 
 the use of the crew on the voyage ; the under- 
 writers are, however, not liable for the consump- 
 tion of such provisions, while the ship is detained 
 by an embargo or other force majeure. \\\ whal- 
 ing voyages are comprehended under the term 
 outfit, the fishing implements of the whaler, as 
 harpoons, lances, spears, whale-lines etc., and the 
 casks, cisterns, boilers etc., for the purpose of 
 catching whales and seals and for preparing and 
 containing the oil and blubber. In policies on 
 whalers it is qoI unusual to describe the different 
 interests insured in a fishing voyage, f 
 
 I . When the ;issure«l does nol know ill what 
 
 ship goods expected from abroad will be Laden, 
 
 the mention of the muster or ship shall not, be 
 
 \i;\ori.i). .Murine Insurance. Edit. David Maclachlan. 1877. 
 • chapt. M. Merchanl Shipp. Act. 1862, Sect. 54 & •"-■"». 
 
 ; Ai.\"i 1. 1.. Marine fa uraucc, Chapt. LI. Edit. 1877. p, IS ol
 
 Part II.] MARINE INSURANCE. [ C,,A §62. X " 233 
 
 required, provided it be declared in the policy 
 that the assured is ignorant thereof, with notifica- 
 tion of the date and the person who signed the 
 last advice or letter of order. The interest is 
 then declared in the Policy to be "by ship or 
 ships." 
 
 5°. When the assured is ignorant of the kind of 
 goods, to be sent or consigned to him, he may have 
 them insured under the general denomination of 
 < foods or merchandise. Such insurance does not 
 include gold or silver coin, bars of gold or silver, 
 jewels, pearls or valuables, nor implements of war. 
 Goods carried on deck, as they are exposed to a 
 'greater hazard than goods carried in the ordinary 
 way, are not covered by a general insurance, in the 
 common form for goods and merchandise, and, in 
 case of loss, would not be recoverable under a 
 policy on goods in a general form; unless it be in 
 virtue of a general custom of the particular trade, 
 in which case the underwriter is presumed to be 
 acquainted with the custom and to have under- 
 taken the additional risk. It is, however, a 
 generally adopted rule that such goods be speci- 
 fically described in the policy, at all events, to 
 apprise the underwriter of the extra risk he 
 runs. * 
 
 6°. If insurance has been made on ships or 
 goods, which had already arrived safely at the 
 place of destination, at the time the agreement 
 was closed, or on any interest which, at that time, 
 had already sustained the damage against which 
 it is insured, the general rule on insurance 
 noted in the preceding section, sub-section 12°. 
 is applicable to such cases, if, it be proved or 
 presumption exists, that the underwriter was 
 aware of the safe arrival, or the assured or his 
 
 * Arkould. Marine Insurance. Part I, C'bapt. II. Edit, 1877, p. 27,
 
 11APT. X. 
 
 234 Part II] PRIVATE INTERNATIONAL LAW. [^fli. 
 
 mandatary acquainted with the damage, when the 
 agreement was made. 
 
 7°. The presumption alluded to above does not 
 exist with regard to the assured, if the insurance 
 has been made on good or bad news, provided, in 
 that case, the last intelligence received by the assur- 
 ed about the object insured be mentioned to the 
 underwriter, and that, if the insurance has been 
 made for account of a third party, due evidence be 
 shown, in case of damage, of the date of the order 
 received by the mandatary to eifect insurance. 
 Insurance, with that condition, can only then be 
 annulled when it is proved that the assured or his 
 mandatary was aware of the damage, at the time 
 the agreement was made. 
 
 8°. By several laws on Marine Insurance it is 
 enacted that insurance on the pay or wages of 
 the crew is void. * 
 
 Insurances are void if made — 
 
 a. On ships or goods, the full value of which 
 
 has been previously advanced on bot- 
 tomry. 
 
 b. On goods the trade in which is prohibited 
 
 by the respective laws and regulations. 
 
 c. On ships, which are engaged in carrying 
 
 on an illegal commerce. 
 
 9°. In the case of ships or goods, on which 
 only a portion of the full value has been advanced 
 on bottomry or respondentia, the surplus value 
 alone may be insured, together with what would 
 have to be paid as contribution to an average, on 
 :heir safe arrival. 
 
 10°. When insurance has been taken on goods, 
 partly charged with bottomry or respondentia, 
 for the remainder of their value, the proceeds of 
 the goods saved are. in ease of abandonment, 
 
 Bee, -■'<'■' regard to this principle, Arnould. Marine Insurance, 
 Edit. Maclachlan, i s 77. p, L3 el
 
 Pakt ii.] MARINE INSURANCE. [ CB fu. *' 235 
 
 divided between the money-lender on bottomry 
 or respondentia and the underwriter, in propor- 
 tion to their respective interests. If however, 
 in such case, the bottomry has been taken out. 
 as a matter of necessity, it has the preference 
 before the insurance. 
 
 11°. Insurance can be taken on the hull of the 
 ship, for the full value of the ship and all her 
 appurtenances, as stated in sub-section 3, and 
 including all charges incurred untill she is at sea. 
 
 12°. Insurance may be effected on ships and 
 goods, which have already departed or removed 
 from the place from which the risk would begin 
 to run for account of the underwriters, provided 
 the policy expresses either the exact time of the 
 departure or forwarding of the ship or goods, or 
 that the assured is not acquainted therewith. In 
 all cases, on pain of nullity, the last intelligence 
 which the assured has received respecting the ship 
 or goods must be mentioned to the insurer, and, 
 if the insurance is made for account of a third 
 party, the date of the letter of order or advice, or 
 the positive mention that the insurance takes 
 place without order from the concerned. 
 
 13°. If the assured makes in the policy the 
 declaration of ignorance, as required by sub-section 
 12°., and it appears afterwards that the insurance 
 was made after the departure of the ship from the 
 place from which the risk of the underwriter 
 would begin to run, the assured must, in case of 
 damage, at the demand of the underwriter, con- 
 firm upon oath his declaration of ignorance. 
 
 14°. If no mention is made in the policy of 
 either the departure of the ship, or ignorance 
 thereof, this is held to intimate, as acknowledged, 
 that the ship was still lying at the port from 
 which it was to proceed, when the last mail that 
 arrived before the making of the policy left there,
 
 236 Part II.] PRIVATE INTERNATIONAL LAW. 
 
 rciiAPT. x. 
 
 J 62. 
 
 or, if no regular postal commuication exists, 
 then at the time when the last suitable opportu- 
 nity of communication occured. 
 
 15°. If the insurance has been made on ships 
 not yet arrived at the place from whence the risk 
 must begin, or which are not yet ready to enter 
 upon the voyage, or to take in the cargo, — or on 
 goods not yet ready for immediate shipment, — 
 mention of this circumstance should be made to 
 the insurer, or of theassured's ignorance thereof, 
 with notice of the advice or letter of order, or 
 the declaration that none exists; besides, mention 
 of the date of the latest accounts he has received 
 concerning the ship or goods. The assured and 
 his mandatary are bound, in the case of damage, 
 to confirm by oath this declaration of ignorance, 
 at the demand of the underwriter. 
 
 insurance on 16°. Bottomry is a loan upon the ship ; if the 
 
 Bottomry and . . . , ill i T ■ 1 
 
 Reipomuntia. ship be lost, the lender loses Ins money, but 
 if the ship arrives in safety, then he receives back 
 his principal and also the premium or maritime 
 interest agreed upon. Respondentia is a loan 
 upon the goods, to be repaid to the lender together 
 with maritime interest if the goods arrive, but not 
 to be paid if they are lost. The insurable interest 
 therefore of the lender on respondentia, stands on 
 the same ground with that of the lender on 
 bottomry, viz.: that he has a direct interest in the 
 arrival of the goods (§75).* Loans on bot- 
 tomry and respondentia, though themselves a 
 species of insurance, may yel be the subjects of 
 insurance, in as much as they are an interest 
 
 exposed (o risk from the perils ofthe sea. 
 
 In an insurance Oil bottomry and respondentia 
 the amount ofthe capital Lent and that of the 
 
 • Arnould. Marine Insurance. Edit. 1877. Pari II. Chapt. II., 
 pp. (0 A 86.
 
 Part II.] MARINE INSURANCE. [ CHA /e2. X ' 237 
 
 premium (Maritime Interest) must be mentioned, 
 each separately, in the policy ; if this has been 
 omitted, the premium is held not to be insured. 
 Policies of Insurance on bottomry should 
 contain the following particulars: — 
 
 a. The name of the borrower, even if he be 
 
 the master. 
 
 b. The name of the ship by which the voy- 
 
 age is to be performed, and that of the 
 master. 
 
 c. The voyage and place of destination. 
 
 d. Statement whether the money has been 
 
 furnished at a place of loading, or in a 
 port of shelter, for repairs required or 
 for other necessary expenses. 
 
 17°. If the master is, on the vo}^age, under 
 the necessity of taking up money on bottomry, 
 the money-lender can have such bottomry insured 
 even if an insurance has previously been made on 
 the thing hypothecated. 
 
 18°. If a ship or goods, already insured, are 
 engaged for bottomry or respondentia, without 
 necessity and only in the interest of the bor- 
 rower, * the money-lender acquires the rights 
 (insurable interest) which the borrower would 
 have had against the underwriter to the amount 
 of the sum advanced. If, however, the money- 
 lender has not had any knowledge of the insur- 
 ance, and affirms this by oath, the underwriters 
 on the bottomry or respondentia are not re- 
 leased, but the assured money-lender is bound, 
 in case of damage, to cede to them the rights he 
 would have on the insurers of the ship or goods, 
 by virtue of legal subrogation. In case the 
 money-lender directly sues the underwriters on 
 the ship or cargo, the underwriters on the bot- 
 
 * See §§ 69 & 75.
 
 238 Part II.] PRIVATE INTERNATIONAL LAW. [**%%. *" 
 
 tomry will be released with the restitution of the 
 premium of insurance. 
 
 With regard to insurance on bottomry and 
 respondentia, Arnould gives the following- 
 opinion. " The lender only, as appears by 
 the nature of the contract, can insure the sum 
 advanced. The condition of a bottomry bond is, 
 that if the ship perishes the borrower pays him 
 nothing ; if it arrives safely, or perishes during 
 or after deviation, or is sold or broken up at an 
 intermediate port, he pays the capital and the 
 maritime interest ; the lender's capital and inter- 
 est, therefore, being exposed to risk, are conse- 
 quently insurable. It is otherwise if the terms 
 of the loan make the money repayable in any 
 event, it is then not insurable since there is no 
 sea risk ; but iu that case it also ceases to be 
 bottomry." 
 
 "The borrower clearly cannot insure the sum 
 advanced, for the risk is upon the lender and not 
 upon him ; and as in case of loss he has nothing 
 to pay, were lie to receive the whole sum from 
 the underwriters, he would have a direct interest 
 in the destruction of the vessel. Of course, if 
 the value of the whole interest of the assured in 
 the adventure exceeds the amount of the sum 
 which he has borrowed in bottomry, he may 
 insure this surplus, though nor as bottomry." 
 
 "Agreeably to the principles which guide 
 
 them in the case of future freight and expected 
 profit, the French writers and the French Legis- 
 lature declare that, though the capital lenl on 
 bottomry may be insured, yet the maritime 
 interest, which the lender on bottomry is to 
 receive on the prosperous termination of the 
 voyage, cannot be insured ; because, as Pothier 
 expresses it. Buch interest is a gain, which the
 
 r.uu- n,J MARINE INSURANCE. [ U ' A § "'. X ' 239 
 
 lender will fail to make if the ship perishes, and 
 not a loss by the perils of the sea. * 
 
 " In this country (England) and also in the 
 United States, a more liberal practice has pre- 
 vailed, and both bottomry and respondentia 
 interests may be the subjects of insurance." 
 
 "Respondentia and bottomry loans are not 
 covered under the general denomination of goods 
 and merchandise; they must be specifically 
 named. Lord Mansfield put this on the ground 
 that by the custom of merchants, respondentia 
 is insured under a special denomination ; but 
 Kent, J., has also suggested, as a reason for the 
 rule, that the risk is peculiar, as there is neither 
 average nor salvage ; and a capture does not 
 mean a temporary taking only, but one that 
 occasions a total loss." 
 
 "Yet, if it can be shown to be the usage in 
 any particular trade to insure these interests 
 under general words, they may be recovered 
 under a policy containing such words only. On 
 the ground of such a custom in the East India 
 trade, 'a captain was permitted to recover, at 
 respondentia interest, money he had laid out for 
 the use of the ship, — under the general words 
 goods, specie, and effects on board." 
 
 " Of course if the instrument of hypothecation 
 be not in law what it is described in the policy 
 to be, the policy is invalid. The Court of Com- 
 mon Pleas, therefore, upon the construction of 
 such an instrument, being of opinion that it was 
 not in law a bottomry bond, because it made the 
 lender's claim under it depend, not on the arrival 
 of the ship, but on the arrival of the master, held 
 
 * Pothier. D'Assur. Ed. Estrangin No. 32, p. 40. In Hamburg 
 such insurance is permitted, both by the Ordinance of 1731 and the 
 Regulations of 1847. The same is the case in Prussia and in Holland. 
 Spain and Sardinia follow the French rule. See the foreign law 
 collected in Nolte's Beneckc I, 295 and 296.
 
 240 Pam ii.] PRIVATE INTERNATIONAL LAW. [ Ca )"i *" 
 
 that the lender could not recover under a policy 
 ' on bottomry.' The Court of King's Bench, 
 sitting in appeal, admitted that, had the Court 
 of Common Pleas been correct in their construc- 
 tion of the instrument, the policy as framed 
 would not have covered the interest of the lenders. 
 Accordingly, where the money borrowed was 
 secured by bills on the owner, and by an instru- 
 ment which purported to be an hypothecation of 
 ship, cargo, and freight, but, in effect, was an 
 unauthorized mortgage of these interests, the 
 Court held, that the lender had no insurable 
 interest in the ship." * 
 
 valuation of 19°. Goods may be insured for the full value 
 
 qoods including •/ , . 
 
 'insurance, they have at the time and place of shipment, with 
 
 premium and -i-i i ,,, i • i t i • 
 
 customs duties, all charges till on board, including the premium 
 of insurance. No separate valuation of each 
 thing insured can be demanded. The actual 
 value of the goods insured may also be augmented 
 with freight, import-duties and other charges, 
 which must necessarily be paid on their safe 
 arrival, provided this be mentioned in the policy. 
 If the thing thus insured, does not arrive at its 
 destination, this augmentation is not binding, in 
 so far as the payment of freight, the import-duties 
 and other charges are then entirely or partly 
 obviated. But if the freight has had to be paid 
 in advance, according to the agreement made with 
 the master before his departure, the insurance 
 holds good with respect thereto. In case of dis- 
 aster or damage, the fact of payment in advance 
 must be proved. 
 
 romance of 20°. With regard to expected profit and com- 
 
 expeckd profits #m o l I 
 
 and commissions, mission, as subjects of insurance, A mould makes 
 the following statements. " The same reason 
 which led to the prohibition of insurance in France 
 
 * Arnould. Marine Insurance. Edit. Maelachlan, 1877. p. 40ctseq.
 
 Part II.] MARINE INSURANCE. [' '7,';l\ V 241 
 
 on freight (infra No. 25) led to the prohibition 
 of insurance there on expected profit." * 
 
 "In Hamburg, in Holland, in Sweden, in 
 Portugal, in Italy, in the United States and in 
 England insurances on expected profits are law- 
 ful. The grounds on which they are so considered 
 are expressed, with admirable force and clearness, 
 in the following passage taken from the judgment 
 of Lawrence Jr., in the case of Barclay v. Cousins. 
 As insurance is a contract of indemnity, it can- 
 not be said to be extended beyond what the 
 design of such species of contract will embrace, 
 if it be applied to protect men from those losses 
 and disadvantages which, but for the perils in- 
 sured against, the assured would not suffer ; and 
 in every maritime adventure, the adventurer 
 is liable to be deprived, not only of the things 
 immediately subjected to the perils insured against, 
 but also of the advantages to be derived from the 
 arrival of those things at their destined port. If 
 they do not arrive, his loss is not merely that of 
 his goods, but of the benefits which he might 
 obtain, were his money employed in an under- 
 taking not subject to the perils. If it be allowable 
 for the merchant to protect capital, subject to the 
 risk of maritime commerce, by insuring it, why 
 may he not protect those advantages lie is in 
 danger of losing by their being exposed to the 
 same risks ? It is surely not an improper en- 
 couragement of trade to provide, that merchants, 
 in case of adverse fortune, should not only not 
 
 * See EMERIGON I, Ch. VIII. § '.». pp. 23(5-239. and the commentary 
 of Boulay-Paty. See also Orel, de la Marine. Liv. III. T. o\ Art. 15. 
 Code de Commerce. Art. 347. Spain and Sardinia followed the 
 French Code in entirely prohibiting insurance on profits. Such 
 insurance is also illegal in Denmark. In Holland, insurance on profits 
 lias long been practised, and is now permitted by law. on condition 
 that the expected profits are separately valued iii the policy and the 
 
 ■■ h Is specified, out of which they arc to be derived. Nulte's Benecke, 
 I. 301 and 302.
 
 242 Paj.t ii. ] PRIVATE INTERNATIONAL LAW. [ Cn §M. *' 
 
 lose the principal adventure, but that the principal 
 should not, in consequence of such had fortune, 
 be totally unproductive; and that men of small 
 fortunes should be encouraged to enowe in com- 
 merce, by their having the means of preserving 
 their capitals entire.'' 
 
 '• Such are the principles upon which insurances 
 on expected profits are allowed in England. 
 Profits may be insured equally by valued and by 
 open policies. But, whether insured by one or 
 the other, it is the law of this country, that the 
 assured cannot recover unless he prove that, but 
 for the intervention of the perils insured against, 
 some profit would in fact have been realized by 
 the sale of his goods on arrival. Me must also 
 prove that the goods, from the sale of which the 
 profits were expected, have at one time or other, 
 during the period covered by the policy, been 
 actually exposed to the perils insured against. 
 and also that he was legally interested in them 
 .it the time of the loss. The foundation of the 
 insurance is not a bare expectation of interest 
 in a subject with which, at the time of effecting 
 the insurance, the assured Avas not connected, 
 but ;ui expectation of profits on goods, at that 
 time his." 
 
 • ; A party may also insure the sums which he 
 is in receive by way of commission on the sale of 
 merchandise; and, if the merchandise, on which 
 I he commissions were to arise, was only prevented 
 from arriving by the perils insured against, the 
 assured may recover to the extent of his loss. 
 provided it appear thai the goods were actually 
 on board at the lime of the loss. 
 
 •■ Profits or commissions are not covered by a 
 policy oil goods or merchandise; they musl be 
 specifically named. This rule i- absolute in 

 
 Part II.] MARINE INSURANCE. [' "t7j. *' 243 
 
 England. In the United States it appears to 
 have been held, that a right to a certain percent- 
 age, proportion or share of a cargo as commissions 
 on profits, is covered by a policy on property." 
 
 '• Lloyd's form of policy is adapted, as usual, 
 by insertion of the words profits or commissions 
 in the margin ; or in the valuation clause, adopt- 
 ing or adapting the language of the clause, ac- 
 cording as the subject of the policy is valued or 
 not. " 
 
 21°. Thus insurance on expected profits and l:' 7 '""";"/, 
 
 i i Expected ProJUs. 
 
 commission must be separately valued in the 
 policy with special designation of the goods on 
 which it is made. Where the general value of 
 the things insured has been expressed in the 
 policy, with the positive stipulation that any 
 excess of the value of the goods shall be 
 considered as expected profit, the insurance is 
 valid for the value of the things insured ; the 
 remainder, however, shall be reduced to the 
 provable extent of the profit expected, estimate* I 
 according to the rule mentioned in sub-sections 
 22 and 23. 
 
 22°. Expected profits may be proved by ack- 
 nowledged price-currents, or in the absence of 
 these, by a val nation made by competent persons 
 showing the profits which the insured goods 
 could rationally have been expected to yield on 
 their safe arrival at the place of destination after 
 an ordinary voyage. 
 
 23°. If it appears by the price-currents or by 
 the valuation made by competent persons, that. 
 in case of safe arrival, the profit would have been 
 less than the sum which the assured had stated 
 in the policy, it may suffice that the underwriter 
 should pay that reduced amount. Nothing is 
 
 *Aknotti/d. Marine Insurance. Edit, Maclachlan. 1877. p. 38 el - -
 
 Freight. 
 
 244 Part II.] PRIVATE INTERNATIONAL LAW. [ CH §&; X " 
 
 due by him, if the things insured would not have 
 yielded any profit at all. 
 Lmn-ance of 24°. Freight may be insured for its full amount . 
 
 In the event of the ship being- lost or stranded, 
 the insurance may be reduced as regards the 
 amount of wages of the ship's crew and other 
 charges, which the master or owner would have 
 had to pay on her safe arrival and which are not 
 or only partly due by him in consequence of the 
 disaster. 
 
 The amount of freight may be proved by 
 the charter-party or by the bills of lading. In 
 default of a charter-party and bills of lading, or 
 if the goods belong to the owners of the ship, the 
 amount of freight may be estimated by competent 
 persons. 
 
 25°. The valuation of things insured, the com- 
 mencement and termination of the risk, and the 
 rights and obligations of the underwriter and the 
 assured are governed by the lex loci contractus. 
 
 With regard to insurance on freight. Arnould's 
 work on Marine Insurance contains the following 
 remarks. "According to the general law of 
 shipping, freight, as between the ship-owner and 
 shipper, is, strictly speaking, the price to be paid 
 by the latter to the former for the carriage of 
 goods by ship, and is not earned or payable till 
 the arrival and delivery of the goods at their port 
 of destination." 
 
 "In the law of Marine Insurance it has a far 
 wider signification, comprising all that is implied 
 in the benefit derived by the ship-owner from tin' 
 employment of his ship.' 
 
 ''In this sense, therefore, it includes not only 
 freight properly SO-called as above defined, but 
 likewise that which is often called freight, being 
 the chartered hire of the ship or part n\' her. ana
 
 Part II.] MARINE INSURANCE. [ Ch jw. " V " 245 
 
 also, thirdly, the benefit accruing to the ship- 
 owner from the carriage of his goods by his own 
 ship, in the shape of their increased value to him 
 at the port of delivery. As Lord Tenterden 
 observes, — If the term freight, as used in policies 
 of insurance, imports the benefit derived from the 
 employment of the ship, it is the same thing to 
 the ship-owner whether he receives that benefit of 
 the use of his ship, (1st) by a money payment 
 from one person, who charters the whole ship; 
 or (2nd) from various persons who put specific 
 quantities of goods on board; or (3rd) from 
 persons who pay him the value of his own goods 
 at the port of delivery, increased by their carriage 
 in his own ship." 
 
 " In whichever of these three senses the word 
 is used, it is a clearly established principle in this 
 country, that expected freight is a lawful subject 
 of Marine Insurance. 'It would, indeed, be 
 extraordinary,' says Chamber, J. (in the case 
 of Lucena v. Craufurd), if freight could not be 
 made the subject of protection by an instrument, 
 which had its origin in commerce, and was in- 
 troduced for the very purpose of giving security 
 to mercantile transactions; it is a solid substantial 
 interest ascertained by contract, and arising out 
 of labour and capital employed for the purposes 
 of commerce. 1 ' 
 
 " The assured on freight must have an inchoate 
 right to it, iu order to entitle him so to insure ; 
 in other words, he must be in such a position 
 with regard to the expected freight, that nothing 
 could prevent him from ultimately having a 
 perfect right to it but the intervention of the 
 perils insured against." 
 
 ' ' When freight is the price to be paid for the 
 hire of the ship under a charter-party, the ship-
 
 246 Pastil] PRIVATE INTERNATIONAL LAW. [ C "^''-'.' V 
 
 owner has this inchoate right, directly there is an 
 inception of performance by the ship under the 
 charter-party. AVhen it is the price to be paid 
 for the carriage of goods in the ship, then this 
 inchoate right accrues directly the goods of the 
 merchant are actually put on board, or are even 
 contracted for and ready to be put on board, and 
 the ship is ready to receive them. In either 
 case the ship-owner has put himself in a condition 
 to earn freight, and he will earn it. provided 
 either the ship, which he. has thus let out to the 
 freighter, or the goods, which he has thus 
 engaged to transport for the merchant, arrive 
 safely at their destination. If, by the perils of 
 the sea, they are prevented from thus arriving, 
 the ship-owner has no claim to freight from the 
 merchant, in other words, he is prevented, in 
 that case, by the perils of the sea, from realizing 
 that which, but for the intervention of those 
 perils, he would certainly have earned. It is 
 but fair and reasonable, therefore, that he should 
 have the means of protecting himself, by a policy 
 of Marine Insurance, against the loss lie is thus 
 exposed to." 
 
 " Such are the general principles upon which, 
 in England, in America, and in many of the 
 Continental States, the ship-owner is allowed to 
 effect an insurance on that freight which he ex- 
 pects to earn, and which he is only prevented 
 from earning by the perils insured against." 
 
 "But the French Legislature, proceeding rather 
 on scholastic refinements than mercantile con- 
 siderations, have prohibited nil insurance of ex- 
 pected or future freight * on the ground that 
 expected freight is o mere contingency in which 
 there is no presenl existing interest ; that it is 
 
 Fret A/aire. Ord. de la Marine, Li v. III. Til. VI. Art. L"i. Frri 
 
 ,/ 1,1/ irii, i nrfixi -x i .rix/n Hi ii imril. Code de C'nmm, Art, '07.
 
 Pari n 
 
 MARINE INSURANCE. [ Cn ^; * 247 
 
 but a gain which the assured may miss making, 
 not a property which he can risk losing." 
 
 " But, although the prohibition is absolute 
 against the insurance of expected freight (fret a 
 faire), yet the French- Legislature permits the 
 insurance of freight actually earned (fret acquis). 
 The French jurists have refined much in explain- 
 ing the meaning of this term ; but upon the 
 whole, by fret acquis may, it seems, be under- 
 stood, cither sums paid in advance by the 
 charterer or his agents as a part of the freight ; 
 or freight which, by the terms of the charter- 
 party, is payable in all events. * But in these 
 cases the charterer, and not the ship-owner, can 
 alone insure, as he alone runs the risk of loss. 
 The term appears also to extend to freight actu- 
 ally earned by the unloading of a portion of the 
 cargo at a port of delivery, short of the port of 
 ultimate destination." 
 
 " There can be no doubt that sums paid by 
 the charterer or his agent, as an advance of part 
 of the freight, are also insurable by him in this 
 country. The only question is, whether he can 
 insure them under the general term freight, or 
 must describe them specifically in the policy, 
 and this depends on the particular terms of the 
 charter-party." 
 
 " It was laid down by Lord Kenyon, at Nisi 
 Prius, that freight could not be insured for part 
 of the intended voyage ; but this position, un- 
 justified by principle, was subsequently over- 
 ruled by Lord Ellenborough and the Court of 
 King's Bench, and it is now quite clear that 
 freight, like any other subject, may be insured 
 either for part or the whole of the voyage or of 
 the time over which it is likely to extend." 
 
 •The •• Freight due to the ship, ship lost or not lost'' clause,
 
 2-18 Pun 11. ] PRIVATE INTERNATIONAL LAW. 
 
 L'liAI'l \. 
 
 §62. 
 
 " Freight must be insured eo nomine in the 
 policy, either by inserting the words ' on freight ' 
 in the margin, or appending them at the foot of 
 the instrument. Such a policy would cover not 
 only freight in its strictest acceptation, but the 
 chartered hire of the vessel, the increased value 
 to the owner from carriage of his goods in his 
 own ship, and, we have very little doubt, pay- 
 ments made in advance on account of either the 
 first or the second of these classes of freight." 
 
 " It has been doubted in the United States 
 whether a charterer who hires a vessel for a 
 voyage at a certain rate per month, payable on 
 completion of the voyage, can insure the benetit 
 he derives by the employment of the ship in 
 carrying the goods of other persons on freight, 
 under a general policy on freight ; it has also 
 been there doubted, whether such general policy 
 will cover the interest of a party who Las sold 
 his vessel, reserving to himself a right to receive 
 the freight for the voyage insured. The ground 
 of this doubt is the same in both cases ; that in 
 neither has the assured the same stake in the 
 safety of the ship as though he were owner ; and 
 that, therefore, his effecting a general insurance 
 on freight is an imposition on the underwriters, 
 who, when they are asked to insure freight gene- 
 rally, must presume that they are dealing with 
 the owner of the ship." 
 
 " The objection, however, does not appear to 
 be well founded; for the interest of the assured 
 in both the eases supposed seems, as far as the 
 freighl is concerned, to be precisely equivalent 
 to that of the owner: in fact, charterers so cir- 
 cumstanced must be regarded as owners pro hdc 
 vice, having, at least, as much interest in the 
 ship arriving so as to earn freight, as the owners 
 would have, if insured to the full value of the
 
 PA«ii.] AVERAGE. [ CHA 5 73. X " 249 
 
 freight to be earned. No doubt, as Mr. Phillips 
 has observed, when the charterer is bound to 
 pay a fixed or lump sum to the owner, and is 
 himself entitled to receive freight from the ship- 
 pers of goods by the chartered vessel, the 
 amount of his insurable interest in freight would 
 only be the difference between what he has to 
 pay and what he has to receive, i. <?., in case both 
 sums are subject to the same contingency." * 
 
 XIII. — Average, f 
 ^ 63. Under the term Average are included all ^ encnt ' 
 
 j t J Principles. 
 
 extraordinary expenses incurred for the good of 
 the ship and the cargo together or separately, and 
 all damage caused to the ship or goods, during 
 the time fixed for the beginning and ending of 
 the voyage or during the term covered by an 
 insurance policy. 
 
 If not otherwise agreed upon between parties, 
 average may be adjusted according to the follow- 
 ing rules. 
 
 1°. There are two kinds of average: Gross 
 or General Average, and Simple or Particular 
 Average. General Average is assessed on the 
 ship, the freight and the cargo, and contributed, 
 pro ratd, according to the respective values of the 
 associated interests, forming a common marine 
 adventure, "in order that no particular individual 
 .amongst them, who may have been forced to 
 make a sacrifice for the preservation of the ship 
 or cargo, or both, should lose more than his own 
 share." J 
 
 * Arnould. Marine Insurance, Edit. Maclachlan, 1877, p. 31 et scq. 
 
 f Regarding the origin, meaning and history of the term Average, 
 as used in Maritime Law, see the excellent note of David Maclachlan 
 of the Middle Temple, Barrister-at-law, Editor of Arnould's Law of 
 Marine Insurance, in the edition of 1877, p. 880 et seq. 
 
 X Leone Levi. Intern. Comm. Law. Edit. 1863. Vol. II. p. 870,
 
 250 part li.] " PRIVATE INTERNATIONAL LAW. [ c "jS x 
 
 Particular Average falls entirely upon the par- 
 ticular owner of the property lost or deteriorated 
 by the damage or benefited by the expenditure, 
 and such owner, if insured, has a claim against 
 the underwriter in proportion as stated in sub- 
 section 12. * 
 General Average. 2 . General Average includes the following 
 contingencies : — 
 
 a. Whatever has been given to the enemy, 
 
 or to pirates, for the release or ransom 
 of ship and cargo. In case of doubt, 
 the ransoming is always held to have 
 taken place for the benefit of both ship 
 and cargo. 
 
 b. What has had to be jettisoned for the 
 
 preservation or the common good of 
 ship and cargo. 
 
 c. Cables, masts, sails, and other stores, 
 
 which have been cut or broken, for the 
 same purpose. 
 
 d. Anchors, cordage and other articles which, 
 
 for the same purpose, it was necessary 
 to slip, or part with. 
 
 e. The damage cans <1. by the jettison, to the 
 
 goods remaining on board. 
 
 /. The damage purposely done to the body 
 of the ship, to facilitate the jettison and 
 Lighterage or saving of the goods, or to 
 promote the getting rid of water, and 
 i lie damage then caused to the cargo 
 by such acts. 
 
 7. The attendance, cure and maintenance 
 and t he indemnification of all persona 
 • on board, who have been \\ ounded or 
 maimed in defending the ship. 
 
 I., 03 i. I.:.\ i. Vol. II. |)
 
 l'AKT II 
 
 ] AVERAGE. [ <M ^. X - 251 
 
 h. The indemnification or the ransom of 
 those who, having been sent out to sea 
 or sent on shore for the service of the 
 ship or cargo, have been captured, kept 
 prisoners or enslaved. 
 
 i. According to several Codes, the wages 
 and maintenance of the crew, during 
 the time the ship has been obliged to 
 stop in a port of shelter. * 
 
 j. The pilotage and other harbour dues to 
 be paid on entering and leaving a port 
 of shelter. 
 
 k. The rent of the warehouses and stores, in 
 which those goods had been deposited 
 which could not be kept in the ship 
 whilst the repairs in a port of shelter 
 were being executed. 
 
 /. The charges of reclaiming, if the ship and 
 cargo are detained or brought up and 
 both are reclaimed by the master. 
 
 m. The wages and maintenance of the crew 
 during such reclaiming, if ship and 
 cargo are released, j 
 
 n. The charges of unloading and lighterage, 
 together with those of bringing the ship 
 into a port or river, when she is com- 
 pelled to put in by storm, pursuit by 
 enemies or pirates, or through any other 
 cause, to save ship and cargo ; and also 
 the loss or damage sustained by goods 
 through their being discharged and re- 
 loaded, in case of need, in lighters or 
 boats, and their reloading in the ship. 
 
 * See on this Arnould's Marine Insurance. Edit. Maclachlan. 
 1877. p. 842. 
 
 f ARNOULD. Idem. p. 814.
 
 252 Part II.] PRIVATE INTERNATIONAL LAW. [ C ™ V 
 
 voiun'ary o. The damage caused to the ship or to the 
 
 straa in9 ' cargo, or to both, if the ship has been 
 
 purposely run on shore, in order to 
 prevent her capture or perishing, and 
 equally so, if this has taken place under 
 any other threatening danger, to snve 
 ship and cargo. * 
 p. The charges and cost of assistance to feet 
 the stranded ship afloat again, in the 
 case above alluded to, and remuneration 
 for all special services rendered to 
 prevent the loss or capture of the ship. 
 q. The loss or damage sustained by the 
 goods, which, in case of distress, have 
 been put in lighters or boats, including 
 the share in the general average due by 
 the goods to such lighters or boats, and, 
 reciprocally, the loss or damage caused 
 to goods which have remained in the 
 orignal ship, and to the ship herself after 
 the lighterage, for as much of such 
 damage or loss as belongs to general 
 average. 
 r. The wages and maintenance of the crew, 
 if, after the beginning of the voyage. 
 the ship is detained by a foreign power, 
 or by the breaking out of a war, as long- 
 as ship and cargo are not released from 
 . all reciprocal engagements, f 
 s. The bottomry premium (maritime inter- 
 est ) of sums raised to defray expenses 
 pertaining to general average. 
 /. The premium of insurance to cover ex- 
 penses pertaining to general average, 
 
 • gee with regard i" Voluntary Stranding, Arnoi ld. Edition, 
 Maclachlan, Vol. [I. pp. 83 I v :;*. With regard to the existing practice 
 among adjusters in England on Voluntary Stranding, sec Richard 
 LOWNDES, the Lav oi General Average. Edit. 1872. page 77 et seq. 
 
 t Arnould, Edit] Maclachlan, 1877. p. 844.
 
 Part 11 
 
 .] AVERAGE. [ C, "^; X 253 
 
 or the loss sustained by the sale of part 
 of the cargo, in a port of shelter, to cover 
 those expenses. 
 
 u. The charges incurred for the valuation 
 and adjustment of the general average. 
 
 v. The expenses, including the augmented 
 washes and the maintenance of the crew 
 occasioned by an unusual quarantine, 
 not foreseen at the closing of the af- 
 freightment, so far as the ship, and the 
 articles composing the cargo, are subject 
 thereto. 
 
 20. Generally, any sacrifice, after due deli- 
 beration, purposely and intentionally 
 rendered in distress, as the only alter- 
 native for the preservation and common 
 good of ship and cargo, and undertaken 
 on account of the common adventure, 
 with a view to avert total loss of the 
 whole, and any loss sustained as a direct 
 consequence of such sacrifice and the 
 expenses incurred, under such circum- 
 stances. Thus may be defined what 
 is called an act of general average in law. 
 
 3°. If internal defects of the ship, her unfitness 
 for the performance of the voyage, or fault or 
 neglect of the master or crew, have caused the 
 damage or expenses, these latter are not general 
 average, although willingly incurred for the good 
 of ship and cargo after requisite deliberation. 
 Again, an act which would fall within the 
 compass of the ordinary duties of the shipowner 
 cannot be regarded as a general-average act. 
 The danger may be pressing and the efforts to 
 escape it may be attended with loss, but if the 
 means employed are such as come within the ship-
 
 A wage. 
 
 254 Part II.] PRIVATE INTERNATIONAL LAW. [ C "§!£ X- 
 
 owner's contract to employ the loss falls upon 
 him only.. * 
 particular 4°. A particular average loss is such loss or 
 
 damage as is accidentally caused to the subject 
 insured, by the perils insured against, f Such 
 are the following contingencies: — 
 
 a. All damage and loss caused to the ship 
 or to the cargo, by storm, capture, ship- 
 wreck or accidental stranding. 
 
 h. Salvage and the disbursements made in 
 saving ship and cargo. 
 
 c. The loss of and the damage caused to 
 cables, anchors, cordage, sails, bow- 
 
 . sprit, topmasts, yards, boats, and ship- 
 stores, by storm, or other mishaps at sea. 
 
 d. The charges of reclaiming, and the main- 
 tenance and wages of the crew during 
 the reclaiming, if only the ship, or the 
 cargo alone, have been seized. 
 
 e. The special repairs of casks and the ex- 
 penses for putting in order damaged 
 merchandise, so far as they are not the 
 direct consequence of any casualty 
 which constitutes general average. 
 
 /. The surplus freight and the charges of 
 loading and unloading, which have to 
 be paid if the ship is condemned during 
 
 tin.- voyage j in ease the goods are for- 
 warded l>v another vessel, for account of 
 the shippers, according to the rule men- 
 tioned iii ^ 72, sub-section 15°. 
 
 g. Generally, all damages, Losses and ex- 
 penses, which are not caused or occa- 
 sioned expressly or purposely by care 
 
 * Akmu'i.k. Bffarine Insuranci . Edit. Maclacblan, 1877, \>. 812, 
 t Abnould. [clem, p. Si
 
 •] AVERAGE. [ C "^3: X - 
 
 ZOO 
 
 for the common safety of ship and cargo, 
 but on behalf of the ship alone, or for 
 the cargo alone, and which, consequent- 
 ly, according to the rules mentioned in 
 sub-section 2°. do not belong to general 
 average. 
 5°. When a ship is prevented, by existing General ( „,u 
 shoals, shallows or banks, from leaving the place AvemgeZwt 
 of departure, or reaching her place of destination^/^, 
 with her full cargo, and a part thereof must thus 
 be conveyed to the ship by, or discharged in 
 lighters, such lighterage is not considered as 
 average. The expenses come to the charge of the 
 ship, if no other agreement has been made by the 
 bills of lading or charter-party. 
 
 6°. The rules respecting general and particular 
 average, stated above, likewise apply to the lighters 
 just mentioned and the objects loaded in the same. 
 7°. If, during their navigation, any damage 
 comes to the lighters or to the goods loaded 
 therein which belongs to general average, one 
 third thereof is sustained by the lighters, and 
 two thirds by the goods which are on board of 
 them at the time. These two thirds are after- 
 wards assessed as general average on the ship, the 
 freight and the whole cargo, including that on 
 board the lighters. 
 
 8°. Reciprocally, the goods laden in the lighters 
 continue, in common with the ship and the re- 
 mainder of the cargo, to participate in the 
 general average which may have come to the 
 ship and the cargo, till the moment the goods laden 
 in the lighters shall have been landed at their 
 place of destination and delivered to the con- 
 signees. * 
 
 * The rules mentioned in sub-sections 7 & 8, as adopted on the 
 Continent of Europejand America, do not always govern English 
 practice. See Richard Lowndes. The Law of Average. Edit. 1872, 
 page 1 < 5 et seq,
 
 A 
 
 ichich the Mastei 
 
 is liable. 
 
 256 I'aki n.] PRIVATE INTERNATIONAL LAW. [ Cii {m: X 
 
 9°. Goods not yet laden either in the principal 
 ship or in the lighters employed to convey them 
 to her, do not, in any case, participate in the 
 casualties befalling the ship, in which they are 
 to be laden. 
 ages for 10°. Damages caused to the merchandise, in 
 consequence of the master having neglected to 
 close the hatches, to make the ship properly fast, 
 or to provide proper implements for hoisting, and 
 all other misfortunes, caused by neglect or care- 
 lessness of the master or crew, are particular 
 averages, for which the shipper has recourse on 
 the master, on the ship and the freight. 
 Average 11°. Sometimes bills of lading cod tain a pro- 
 
 accustomed. (1 , n , 
 
 vision tor the payment ot average accustomed. 
 These so-called petty averages cover the small 
 charges, which occur regularly in the usual 
 course of the voyage, and which the master, 
 in the ordinary course of his duty, necessarily 
 pays for the purposes of the ship and cargo. 
 Such are the ordinary charges at the place of 
 loading and unloading and during the voyage, as 
 common pilotage, towage, tonnage dues and dues 
 for entering and leaving harbours and rivers, tolls 
 of passage or departure, all tonnage, anchorage;, 
 beacon or light dues, and all other duties relative 
 to navigation; ordinary quarantine (see above 
 sub-sections 2°. v.), signals, instructions, ex- 
 penses for digging a ship out of the ice, when 
 frozen up in the regular course of the voyage, etc. 
 These charges arc. in some eases, borne, one third 
 by I he ship and two thirds by the cargo, or other- 
 wise us agreed upon by the bill of lading or the 
 charter-party, but they can never conic to the 
 charge of the underwriters, unless in the par- 
 ticular case of their being the consequence of 
 unforeseen and extraordinary contingencies, oc- 
 curring during the voyage, or necessitated to
 
 Paht II.] average. [ CH f 6 T 3 ; X " 257 
 
 relieve the ship and cargo from impeding danger; 
 in which cases they are. as stated above, consi- 
 dered to be general average. * 
 
 12 . "The true method," says Arnould, "ofAmwws 
 
 .. -, i-ii i • principle of 
 
 ascertaining the amount which tiie underwriter Average. 
 ought to pay, in order to idemnify the assured 
 for a particular average loss on goods, arriving 
 sea damaged, depends mainly on the following- 
 elementary principle of insurance law, that the 
 value upon which the premium is paid, is, as 
 between the assured and the underwriter, the sole 
 value to be regarded, in estimating the amount of 
 the underwriter's liability: — he pays no loss upon 
 that for which he receives no premium." f 
 
 Each separate underwriter pays only upon the Total loss °> i 
 actual sum subscribed by him. If live under- 
 writers have each subscribed £200 on a policy 
 on goods valued at £1,000, and if the goods 
 arrive damaged to the extent of one fourth, . 
 each underwriter will have to pay one fourth of 
 £200, as his quota, to make good this loss. The 
 five underwriters pay collectively £250, or one 
 fourth of £1,000, the estimated damage. 
 
 To estimate the particular average to be paid 
 by an underwriter, who has insured goods, for 
 all risks, the following rules are applicable : — 
 a. Whatever has, on the voyage, been robbed 
 or lost, or sold on account of damaged 
 condition, occasioned by perils of the 
 sea or any other cause which has been 
 insured against, is estimated at the prime 
 cost of the goods, that is, at the invoice- 
 price at the port of loading with all 
 expenses incurred until the goods in 
 question were put on board, also in- 
 
 * Arnould. Marine Insurance. Edit. Maclachlan, 1877, p. 888. 
 LEONE Levi. Intern. Comm. Law. Edit. 1863. Vol. II. p. 878 et seq. 
 t Aknould. Edit, Maclachlan, 1877. p. 88',).
 
 258 Fart II. J PKIV ATE INTERNATIONAL LAW. [ Vil fJi X ' 
 
 eluding premium of insurance ; or else, 
 in the case of a valued policy, the losses 
 above mentioned are estimated accord- 
 ing to the value for which the goods are 
 insured in bulk, as expressed in the 
 policy. 
 Goods wan-anted b. If insured goods, warranted free of aver- 
 
 free of average. n -. . -. 
 
 Adjustment of age, are found, on arriving at their 
 
 destination, to be partly or wholly 
 damaged, competent persons determine 
 what the goods would have been worth 
 if they had arrived in good condition, 
 and further what their value may be in 
 their present condition. In both valua- 
 tions, the gross produce of both the 
 sound and the damaged goods is to 
 be taken into account. The under- 
 writer is liable to the extent of the 
 amount of the prime cost of the goods 
 as laid down on board, or so far as the 
 value stipulated in the policy is con- 
 cerned, having accepted the risk that 
 the goods might or might not arrive 
 safe. lie has nothing to do with the 
 market-price of the goods at the port 
 of arrival, and consequently the under- 
 writer does not pay the difference be- 
 tween the two above named valuations, 
 but only such part of the sum insured, 
 as stands in proportion to the diminished 
 value of the goods, as ascertained by 
 those valuations. The object in com- 
 paring the valuations, of the sound and 
 damaged goods, respectively, is not to 
 ;i jcertain the direct amount of the mer- 
 chant's loss, bui its relative amount, 
 the proportion which it bears to the 
 price ;it which t be goods w ould have
 
 Pabtii.] AVERAGE. [ CH S X ' 259 
 
 sold if sound. Or. as Arnould puts it 
 more clearly, '"the question is not whe- 
 ther the depreciation amounts to any 
 given fixed sum, but whether it amounts 
 to one half, one fourth or one tenth of 
 the sum for which the goods would 
 have sold, if sound ; whether the com- 
 modity is one half, one fourth or one 
 tenth the worse for the sea damage ; 
 when this is ascertained, the liability 
 of the underwriter is ascertained also, 
 for he pays the same proportional part, 
 whether it be one half, one fourth or 
 one tenth of the prime cost on board 
 (as stated above), or of the value 
 stipulated in the policy. Thus the sum 
 which the underwriter will have to pay 
 will depend solely on the relative ex- 
 tent of the loss, and will be the same 
 whether the goods arrive at a gaining 
 or losing market." * 
 
 * This will be obvious from the following example. Let the 
 prime cost of the goods be £500. The amount of loss by sea damage 
 be half the sum for which they would have sold, if sound. The profit 
 or loss be half the prime cost. Then, 
 
 (1) On a losing murlct ■: — 
 
 Produce of sound sales (there being 50 per cent, loss on 
 
 prime cost), £250 
 
 Produce of damaged sales (being half the sound value), £125 
 
 Difference between sound anil damaged sales (i. c. mer- 
 
 chant's loss), £125 
 
 But £125 is one half, or 50 per cent, on £250 (the proceeds 
 of the sound sales), the underwriter pays one half or 50 per 
 cent on £500 (the prime cost), i. e. he pays £250 
 
 (2) On a f/n in ing ma rJtet : — 
 
 Produce of sound sales (being 50 per cent, over prime cost), £750 
 Produce of damaged sales (being half the sound value), £375 
 
 Difference between sound and damaged sales (merchant's 
 loss) £375 
 
 But £375 is one half, or 50 per cent, on £750 (the proceeds of the 
 sound sales) ; the underwriter pays one half, or 50 per cent, on £500 
 (the prime cost), i, <■.. he pays £250 as before. — Aiinould. Vol II 
 p. 892. " "
 
 260 Part II.] PRIVATE INTERNATIONAL LAW. [%!■•; X 
 
 "In short, that which the assured loses by 
 the depreciation of his goods, is an aliquot part 
 of the market value for which they would have 
 sold, had they arrived sound at their port of 
 destination ; that which the underwriter pays in 
 respect of such loss, is the same aliquot part of 
 their prime cost or value in the policy. Thus, 
 if the damage amounts to half the sound value 
 of the goods, the underwriter pays half the sum 
 he has agreed to insure ; if to a third, then he 
 pays a third of' that sum, and so on in exact 
 proportion to the extent of the depreciation."' 
 
 With regard to English Law, Arnould makes 
 the following further remarks. "Even after this 
 rule of adjustment was established, it was for 
 some time doubted whether the amount of de- 
 preciation on the sea-damaged goods was to be 
 ascertained by comparing together the net or 
 the gross produce of the sound and damaged 
 sales. The question came on for consideration 
 in the Court of King's Bench, when it was 
 established by Lawrence, J., in one of the ablest 
 judgments ever delivered in Westminster Hall, 
 that the true rule of adjustment is, that the 
 percentage, or aliquot pari, which the under- 
 writer has to pay of the prime cost or value in 
 the policy, must be ascertained by comparing 
 the gross produce of the sound, with the gross 
 produce of the damaged sales; and this is now 
 invariably acted on in practice as the true rule of 
 adjustment." * 
 
 The expenses incurred in obtaining an esti- 
 mate of the damage and all extra charges occa- 
 sioned by the sale of damaged goods by auction, 
 brokerage, commissions etc. are added to the 
 loss, and are chargeable on the underwriters. 
 
 • \i:\ni i i.. Edit. Maclachlan, 1*77. p. 898.
 
 PARtn.] AVERAGE. [ Ch §63. *' 261 
 
 c. To this is to be added the estimated 
 expected profit, if this has been insured. 
 
 13°. The underwriter cannot, in any case, 
 compel the assured to sell the objects insured for 
 the purpose of ascertaining their value, unless it 
 were otherwise agreed upon in the policy. 
 
 14°. The loss is valued and adjusted at the 
 place of destination, and the laws and customs 
 existing there must be complied with, if the 
 vessel and cargo arrive there, on the principle of 
 locus regit actum. If the vessel does not reach 
 its destination, then the law of the place where 
 the voyage ended must be followed. This 
 rule of locus regit actum, applies only to acts 
 of inspection, valuation and adjustment of the 
 actual damage and depreciation, and does not 
 infringe on the lex loci contractus, which governs 
 the contract of insurance as a whole and in its 
 constituent principles. If the insured goods 
 arrive at the place of destination in a damaged 
 or deteriorated state, and the damage is visible 
 outwardly, the inspection of the goods and va- 
 luation of the damage must take place by com- 
 petent persons before the goods come under the 
 control of the assured, in conformity with the 
 law and custom existing there (locus regit actum). 
 If the damage or diminution is not outwardly 
 apparent at the discharge, the inspection may 
 take place after the goods have come under the 
 control of the assured, provided it be done within 
 the space of time and term, as fixed by the 
 respective law, after the discharge ; without 
 prejudice to what further evidence may be found 
 necessary at the instance of either party. 
 
 15°. Knot otherwise required by the lex loci JJ* '&£%"* 
 contractus, in case of damage to an insured ship, "Zfilnm 
 caused by perils of the sea 3j the underwriter c s ^ s °f iron
 
 262 PautH.] PRIVATE INTERNATIONAL LAW. [ CH |el; X " 
 
 bears only two thirds of the estimated costs 
 of repairs, whether these repairs have actually 
 taken place or not, and this in proportion of the 
 insured to the uninsured part. One third re- 
 mains for account of the assured, as equivalent of 
 the presumed amelioration caused by substitution 
 of the new for the old. In the case of iron ships, 
 however, this rule is never resorted to. 
 
 If the repairs have taken place, the amount of 
 the costs thereof is proved by accounts and any 
 other evidence, and, if need be, by an estimate 
 of competent persons. If the repairs have not 
 been executed, the amount of the same is estimated 
 by competent surveyors. When it appears, — if 
 necessary, after the hearing of competent persons, 
 — that the value of the ship lias increased through 
 the repairs by more than one third of its primi- 
 tive value, the underwriter pays, in the propor- 
 tion mentioned above, the full amount of expense 
 for repairs, with deduction of the amount of 
 increased value. 
 
 If, on the other hand, the assured proves, — if 
 necessary, after inspection by experts as afore- 
 said, — that the value of the ship has not been 
 improved or increased in any way by the repairs 
 through her being new, and having suffered 
 the damage on her first voyage or if the 
 damage occurred to new sails or new ships- 
 stores, or to anchors, chain -cables or new copper- 
 sheathing etc., then the deduction of one third 
 docs nottake place and the underwriter is bound 
 to indemnify the whole cost of the repairs in pro- 
 portion of the insured to the uninsured part. 
 where If the estimated costs of repairs should amount 
 
 three fourth <# to more than three fourths of I he value of the ship. 
 
 otlier portion at (or otherwise, as reouired by the It.c loCl COTb' 
 tatedbytheUx , ■, . ,' ' .1 . •, 
 
 loci contractus, trm-liis ), she mav. Willi resperl to I he underwriter, 
 
 be held to be condemned; and the underwriter
 
 Pahi 11 
 
 ] AVERAGE. [ 0, 5"3. X - 26) 
 
 is then bound, if no abandonment has taken 
 place, to pay the sum he has insured to the 
 assured, with deduction of the value of the 
 damaged ship or wreck. * (§65, sub-section 1). 
 
 1G°. In the case of a ship which reached a part^anganon 
 
 . L • i i of losses. 
 
 of shelter, aud, after repairs there, is subsequently 
 lost, (by whatever cause this may occur), the 
 underwriter, as a general rule, is not liable for 
 more than the payment of the sum insured by 
 him. The same rule applies, in a general sense, 
 if a ship has, by several repairs, expended more 
 for this purpose than the sum insured, f 
 
 17°. The underwriter is, as a general rule, not 
 bound to support any general or particular aver- 
 age, if this, exclusive of the costs of inspection, 
 estimation aucl adjustment, does not amount to 
 one per cent, of the value of the damaged object; 
 unless parties have agreed otherwise. 
 
 18°. The underwriters pay as much for general 
 average, as the vessel, the freight or the cargo, — 
 for as much as respectively insured, — have to 
 participate in the general average, and that in the 
 proportion of the part insured to the uninsured 
 part. 
 
 19°. The general and particular average being 
 adjusted, the account of damages and loss and 
 the vouchers relating thereto, must be delivered 
 to the underwriters. These are bound to pay 
 what is due by them within the time and term 
 fixed by the lex loci contractus, and are from the 
 expiration of that time liable to legal interest in 
 conformity with that law. 
 
 * By English Law there is no absolute proportion fixed ; See 
 ARNOULD. Marine Insurance. Edit. 1877, Vol. II. p. 1001. 
 
 f In English and French Laws this rule is not observed, agfjrega- 
 tin it, of losses being recognized : See Arnould. Vol. II. p. 942 and 
 Nolt'e's Edition of BENECKE, Vol. II. pp. 191-193.
 
 26-1 r.ua u.] PRIVATE INTERNATIONAL LAW [ C "|oi: X ' 
 
 § 64. On assessment and apportionment of 
 gross or general average contribution, the follow- 
 ing rules are applicable in most cases. 
 
 1°. The adjusting and assessment of general 
 average is, like the valuation of losses and dam- 
 ages, done at the place where the voyage ends 
 unless parties have otherwise agreed (§ 63, 
 sub-section 14). 
 
 2°. The estimation and assessment of general 
 average are made at the request of the master and 
 by competent persons. The experts are appointed 
 by the parties, or by the respective Consul, at the 
 place where the estimation and assessment must 
 be made. The experts must be sworn before the 
 respective Consul or local authority previous to 
 the commencement of their work, and the assess- 
 ment must be sanctioned by the respective 
 Consul, if required by the law of the State to 
 which the vessel or parties belong. Where there 
 is no qualified Consul, the general average is 
 adjusted by the competent local authority. 
 
 3°. In case of a total cessation of the voyage 
 on the way, or of sale of the cargo in a port ot 
 shelter, the claim, adjustment and assessment of 
 the loss are made at the place where such cessa- 
 tion or sale occurs. 
 
 4°. If the master neglects to make the claim 
 mentioned in sub-section 3°., the owners of the 
 ship, or also those of the goods, arc qualified to 
 make the claim themselves, without prejudice to 
 their claim on the master for indemnification. 
 
 5 . Genera] average contributions arc borne 
 as follows : — 
 
 a. By the value of the ship, in the state in 
 which she arrived, with addition of 
 amount of compensation gained by the 
 general average contribution.
 
 Pa*. ii.] AVERAGE. [°'^'i. X ' 265 
 
 I). By the freight money, less the amount of 
 the wages and of the maintenance of 
 the crew. 
 
 c. By tlic value of the goods which, at the 
 
 time when the damage occurred, were 
 actually on board or in the lighters or 
 boats, or which, before the disaster, 
 have either been thrown overboard in 
 peril, and made good, or have had to 
 be sold to cover average charges. 
 
 d. Specie contributes to the general average 
 
 according to its rate of exchange at the 
 place where the voyage ends. 
 
 6°. As a general rule, the goods are estimated 
 at their value at the place of discharge, after 
 deduction of freight, import duties, and charges 
 for unloading, together with their particular aver- 
 age during the voyage if any. This rule suffers 
 exception in the following cases : — 
 
 a. If the adjustment and assessment must 
 
 be made at the place whence the ship 
 departed, or should have departed, the 
 price of the goods is fixed at the value 
 which the goods had at the time of 
 shipment, plus the charges on the 
 goods laid down on board, but exclusive 
 of the premium of insurance ; and, if 
 the goods are damaged, at their actual 
 value. 
 
 b. If the voyage is entirely stopped in a 
 
 foreign port, or the goods are sold, and 
 the average cannot be adjusted there, 
 then the price which the goods are worth 
 on the way, or their net proceeds at the 
 place of sale, is taken as contributing 
 value.
 
 266 PahtIl] PRIVATE INTERNATIONAL LAW. [ CU j^ X 
 
 7°. The goods thrown overboard are valued at 
 the market-price of the ship's place of discharge, 
 after deduction of freight, import duties, and 
 « irdinary charges; the quality, kind and conditions 
 of such goods are to he made out by the bills of 
 lading, invoices, and other evidence. 
 
 8°. If the kind or quality of merchandise has 
 been inaccurately described in the bill of lading, 
 being of greater value than that mentioned in 
 the bills of lading, then the contribution is fixed 
 in the assessment of general average according to 
 the real value of the merchandise. But in the 
 case of jettison, losses are made good according 
 to the quality mentioned in the bills of lading. 
 If goods are of a lower quality than that stated 
 in the bill of lading, they contribute, nevertheless, 
 to the general average according to their real 
 value. The goods are made good at the rate of 
 their real value, if they have been sacrificed in 
 jettison. 
 
 0°. The provisions, the clothes of the creAV, 
 the daily clothes of the passengers, and also the 
 ammunition required for the defence of the ship, 
 do not contribute to the general average. But 
 all articles of this description which have been 
 thrown overboard by jettison, are made good 
 through assessment of all the saved merchandise. 
 
 10°. For goods for which no bill of lading of 
 the master exists, or which are not mentioned in 
 the manifest, no compensation is paid, if (hey 
 have been thrown overboard; but they contribute 
 to the assessmenl in the loss if they have been 
 saved. 
 
 11°. Goods Laden on deck likewise contribute 
 to the general average, if they have been saved, 
 [f the master lias placed the goods on deck, 
 without the knowledge or consenl of the shipper. 
 and tin same have been thrown overboard or
 
 I'ADT 1 
 
 .] AVERAGE. [ C Ti. X ' - <57 
 
 damaged by the jettison, the shipper has the 
 right of claiming assessment for compensation, 
 which gives a right of recourse to all parties 
 concerned against the ship and the master. 
 
 12°. In case the ship is lost, notwithstanding 
 the jettison of goods or cutting of ship's rigging, 
 no assessment for compensation takes place, and 
 the goods, saved or rescued, are not liable to pay- 
 ment or compensation of loss sustained by the 
 things thrown overboard, damaged or cut. 
 
 13°. If the ship is saved by the jettison or 
 cutting, and is lost afterwards in the prosecution 
 of her voyage, and goods are then saved, the 
 goods thus saved, are alone liable to the jettison. 
 for the value they may then have, after deduction 
 of the salvage dues. 
 
 14°. If the ship and cargo are saved by cutting 
 or other damage caused to the ship, but the goods 
 perish or are robbed afterwards, the master has 
 no claim on the owners, shippers or consignees 
 of the o-oods. for contribution to the assessment, 
 in consequence of such cutting or damage. 
 
 15°. If the goods are lost, by the fault or act 
 of the shipper or consignee, they nevertheless 
 contribute in the assessment of general average. 
 
 16°. The owner of a cargo need not, in any 
 case, bear a greater share in a general average, 
 than for the value which the goods have on their 
 arrival; with the exception of such expenses as 
 have been, bond fide, incurred by the master; even 
 without authorization, after the loss of the ship, 
 or the bringing up or seizure of the goods, to 
 recover some part of what was lost, or to reclaim 
 the goods brought up; even if it has been done 
 without any good result. 
 
 17°. If, after the assessment, the goods thrown 
 overboard have been recovered by the owners, the 
 latter are bound to return, to the master and the
 
 268 Part ii.] PRIVATE INTERNATIONAL LAW. [ C "^ 
 
 APT. X. 
 
 1. 
 
 parties concerned in the cargo, what has been 
 assigned to them for the same by the adjustment, 
 under deduction of damage, charges, and salvage. 
 In such case the ship and parties concerned 
 participate in what is thus brought in, in the 
 same proportion in which they have contributed 
 for the loss by the jettison. 
 
 18°. If the owner of the goods, thrown over- 
 board, recovers the same and does not claim any 
 indemnity, he is free from contributing to any 
 general average which, after the jettison, befalls 
 the goods which have remained safe. 
 
 With regard to English Law on general aver- 
 age, Sir Robert Phillimore makes the following 
 statements. "When the preservation of the ship 
 has required the throwing overboard or sacrifice 
 of a portion of the goods, equity demands that a 
 general contribution be made by all towards a 
 loss sustained by some for the benefit of all; and 
 this is called in England by the name of general 
 average." 
 
 "The Law on this subject was transplanted 
 from the maritime code of Rhodes into, the Roman 
 Law, as follows: — Lege Rhodia cavetur, at. si 
 lavandae navis gratid jactus mercium /actus sit, 
 omnium contribiitione sarciatur quod pro omnibus 
 datum est." * 
 
 "According to the English Law," all loss 
 which arises in consequence of extraordinary 
 sacrifices made, or expenses incurred for the pre- 
 servation of the ship and cargo, come within 
 general average, and must be borne proportion- 
 ably by all who are interested." ( Birhley v. 
 Prcsgrove, 1 East's Rep. 220). 
 
 •• It has been decided by the English Courts, 
 that a claim for contribution to general average 
 arises only where a pari of the cargo is sacrificed 
 
 * Dig! i.. xiv. r. ii.
 
 PabtII.] AVERAGE. [ C ""-.-. X ' 209 
 
 for the preservation of the ship and the rest of 
 the cargo from an impending danger, not where 
 a part of the cargo is sold to raise money at a 
 port to which the ship has put hack for the re- 
 pair of damage incurred hy ordinary perils of the 
 sea. (Ifallett v. Wigram, 1850. 9 Manning fif 
 Scott's Common Bench Rep. p. 580). * 
 
 •'The principle of this rule has heen adopted 
 hy all commercial Nations, hut with considerable 
 variation in practice as to the kind of losses which 
 demand its application, and as to the nature of 
 the interests compellable to contribute. The 
 question, therefore, may arise, and has arisen : 
 What law ought to bind the underwriters to reim- 
 burse a contribution exacted in a foreign port. The 
 English cases have established the following pro- 
 positions." 
 
 "First, with respect to what law shall govern 
 the construction of the insurance covenant as to 
 what is general average. In the former edition 
 of this work it was stated : that it had been decided, 
 after much doubt and consideration, that the 
 insurer of goods to a foreign State is not liable to 
 indemnify the assured, though a subject of that 
 State, who has been obliged, by a decree of a 
 competent Court of that State, to pay a contribu- 
 tion as for general average, which by the law of 
 England is not general average, unless it be 
 proved, as a fact in the case, that the insured and 
 insurer contemplated in their contract the general 
 usage amongst merchants, or the usage of the 
 port in which the general average was struck. 
 The North American United States' cases are in 
 accordance with this doctrine." 
 
 "This principle, however, seems to have been 
 reversed, in the recent and important case of 
 
 * Sir Robert Phillimore. Comm. Vol. IV. Note p. 638.
 
 270 part n.] PRIVATE INTERNATIONAL LAW. [ ( '"^j; x 
 
 Dent v. Smith, * which has been since, more than 
 once, approved by the English Courts." 
 
 "In that case the plaintiffs effected a policy of 
 insurance in London with the defendants, on five 
 boxes of bar-gold, in the ship called the Dutchman. 
 which became a Russian ship, at and from London 
 to Constantinople, including all risks from the 
 Bank of England until safely delivered to the 
 consignees at Constantinople. The perils insured 
 against were the usual perils, including those of 
 the seas, with the usual 'suing and labouring 
 clause.' The ship sailed with the gold and other 
 caro'O on board, and was stranded in Turkish 
 territory, about 100 miles from Constantinople, 
 and within the jurisdiction of that port. The 
 gold was immediately landed by the Captain, and 
 deposited with the Russian Consul; and the 
 consignees were compelled, in order to obtain it, 
 to make a deposit of 20 per cent., upon the gold, 
 as security for the payment of any sum that 
 might be awarded against them as average or 
 salvage expenses by the Russian Consular Court. 
 In Turkish territory, by capitulations with the 
 Great Powers, all matters touching ships and 
 their cargoes are decided by the Consular Court of 
 the country to which the ship belongs. After 
 the gold had been landed, operations were com- 
 menced to get the vessel off, which proved in- 
 effectual. Rut most of the cargo was saved, and 
 many parts of the fittings of the ship. According 
 to the practice, the Russian Consul appointed a 
 curator of the wreck, and three persons were 
 appointed by the Russian Consul to decide upon 
 the average to be paid by all parties concerned. 
 They found it not a case of average, bul a case 
 of salvage; and they awarded thai the cargo, 
 
 * L. R. 4. Q. B. 414.
 
 part il] AVERAGE. [ CH §£. X " 271 
 
 including the gold, must contribute to the ex- 
 penses in certain proportions, according to the 
 value, and this threw by far the greater part of 
 the expenses on the gold. The agents of the 
 plaintiffs and defendants protested against the 
 award, as the gold had been landed before any of 
 the operations had been commenced; but the 
 award was ratified by the Russian Minister at 
 Constantinople, and no notice of appeal to the 
 Court at St. Petersburg having been lodged 
 within eight days, it became a definite judgment, 
 binding on all parties." 
 
 "The plaintiffs, having been thus obliged to 
 pay the sum awarded against the gold, brought 
 an action to recover a proportionate part of it 
 from the defendants, as a partial loss by the 
 perils insured against." 
 
 " It was holden that it was unnecessary to go 
 into the question of whether or not the j udgment 
 of the Russian Consular Court was strictly accord- 
 ing to the law administered in that Court; the ship 
 having been wrecked, the consequence was that 
 the gold had got into the hands of the Russian 
 authorities, and, in order to get it back, the 
 plaintiffs had been compelled to pay the sum 
 claimed, and this was the immediate consequence 
 of the wreck, and the plaintiffs were therefore 
 entitled to recover the money as a loss by perils 
 of the sea; and that the plaintiffs had done all 
 that a reasonable uninsured owner would have 
 done, and were not bound to have appealed to 
 the Court at St.- Petersburg." 
 
 " Secondly, in cases of admitted general aver- 
 age, England, in conformity with the maritime 
 laws and usages of all Nations, holds that the place 
 of the ship's destination, or delivery of her cargo, 
 is the place at which the average is to be 
 adjusted."
 
 272 PaktH.] PRIVATE INTERNATIONAL LAW. [' "§'^'- 
 
 "This adjustment must be made conformably 
 to the law of that place." 
 
 " When so made, it will be conclusive as to the 
 items, as well as to the apportionment thereof upon 
 the various interests, although it may be different 
 from what the English law would have made, if 
 the adjustment had been settled in an English 
 port. * 
 
 XIV. — Abandonment. 
 
 ^ G5. The insured ship and goods can be 
 abandoned or given over to the underwriters in 
 the following cases, viz.: — 
 
 a. Shipwreck. 
 
 b. Stranding with breaking up. 
 
 c. Being rendered useless by sea-damage. 
 
 d. Perishing or decay by sea-damage. 
 
 e. Bringing-up or detention by a Foreign 
 
 Power. 
 
 /. Stoppage or detention by the enemy or 
 
 other force majeure, after the beginning 
 
 of the voyage ; all without prejudice to 
 
 the particular provisions contained in 
 
 the subjoined general rules of the lex 
 
 mercatoria, unless the lex fori provides 
 
 otherwise. 
 
 1°. The abandonment of the ship, by reason of 
 
 iis being rendered useless, cannot be made, if. 
 
 after having struck or stranded, she can be brought 
 
 off again, repaired, and put in proper state to 
 
 pursue her voyage to her place of destination, 
 
 and if the cost of repairs docs not exceed a certain 
 
 pari of the value a1 which she has been estimated 
 
 on closing the insurance, as stated by thelex loci 
 
 contractus (§63, sub-section 1">). 
 
 * Sir Robert Phillimorb. Comm. on [nt/Law. Vol. IV., p. 687 
 ■ i ■■]. Le port Ac destination, oh autrrmrnt (lit, rrlui nit fo voyagi 
 sm-lirr,. i si I r port <ln reglemcnt desavar-iex. German decision, 1878; 
 Journal clc Droit lutcraat, PriYC, No. III., p. 133.
 
 Pabt II.] ABANDONMENT. [^Jw.*' 273 
 
 2°. If ships or goods have been stranded, 
 brought up or detained, the expenses of salvage 
 and reclaiming come to the charge of the under- 
 writers, even when those expenses, added to the 
 loss, exceed the amount insured. 
 
 3°. The abandonment, in case of perishing or consu-uaiw 
 deterioration, cannot be made, unless the loss or 0< 
 damage amounts to or exceeds the stipulated 
 part of the value insured, as required by the lex 
 loci contractus with regard to constructive total loss. 
 
 4°. The assured can also abandon to the insurer 
 and subsequently claim payment, without any 
 proof of the loss of the ship being necessary, if, a 
 certain time, as required by the lex loci contractus, 
 and in proportion to the length of the voyage, 
 has elapsed since the day of the sailing of the 
 ship or since the day on which the last accounts 
 concerning such ship had been received and no 
 tidings of her whatever have come to hand. In 
 these cases it is sometimes sufficient that the 
 assured declares (under oath) that no accounts 
 of the ship insured, or of the ship in which the 
 insured goods have been laden, have directly or 
 indirectly been received by him ; this without 
 prejudice to contrary evidence. 
 
 5°. Abandonment can be made in case of brum*- 
 mg up or detention, if the ships or goods, brought 
 up or detained, have not been restored or released 
 within the terms fixed by the lex loci contractus, 
 counting from the day on which the assured has re- 
 ceived advice thereof and according to the distance 
 of the place where the bringing up or detention 
 lias occurred. In case of condemnation of the 
 ship or goods brought up or detained, the aban- 
 donment can be made immediately. 
 
 6°. When deteriorated goods, or condemned 
 ships have been sold on the voyage, the assured 
 can abandon his rights to the underwriters, if,
 
 •274: ['art il] PRIVATE INTERNATIONAL LAW, [ ''"$\:!" V 
 
 notwithstanding bis endeavours, the proceeds 
 have not been accounted for to him within the 
 lime fixed by the lex loci contractus; all to be 
 estimated according to the distance of the place 
 of sale, and from the day on which advice of the 
 sale has been received by the assured. 
 
 7°. On his making abandonment, the assured 
 is bound to state all the insuranees, which he has 
 effected or ordered to be effected on the property 
 insured and the bottomry or respondentia which, 
 to his knowledge, has been taken on the insured 
 ship or goods ; in default thereof, the term of 
 payment, which should begin to run from the 
 day of abandonment, is suspended till the day 
 on which he shall have made that statement, 
 without any prolongation of the time, allowed 
 by law for abandonment, being occasioned there- 
 in'. In case of false statements, the assured is 
 deprived of the benefits of the insurance. 
 
 8 . On making the abandonment, the assured 
 is likewise bound to acquaint the underwriters 
 with what he has done to promote the saving or 
 release of the object insured, and the persons or 
 correspondents he has employed to that effect. 
 
 9°. Abandonment cannot be made partially, 
 aor conditionally. If the full value of ships or 
 U'Oods has not been insured, and the assured has 
 ihus run the risk of a part himself, the abandon- 
 ment docs not extend any further than to the 
 amounl insured, in proportion (<> I he part un- 
 covered 1>v insurance. 
 
 10°. The abandonment having beeu made con* 
 formably to the prescriptions of the law governing 
 the insurance contract, the objects insured belong 
 i<> the undcrw riter, from i he day on which notice 
 of i he abandonment was given, without prejudice 
 to I lie share of the assured, in the case alluded to 
 in ub ection 9
 
 th 
 
 Part II.] ABANDONMENT. [ " m |;-;. V 275 
 
 11°. The underwriter cannot exempt himself 
 from the payment of the sum insured, on the 
 pretence that the ship or goods have been released 
 after the abandonment, if an action on the policy 
 for a total loss have begun before the restitution. 
 
 12°. If the time of payment has not been de- 
 termined by the agreements, the underwriter 
 must pay the sum insured, together with the. 
 charges of the abandonment, within the term 
 fixed by the lex loci contractus, after notice of the 
 abandonment has been given. After that time 
 he also pays legal interests. The abandoned 
 property is responsible for that payment. 
 
 "With regard to loss, it is obvious," says opinion of 
 Arnould, u that between possession in safety, oi™y ardt °& 
 
 1 . -, i . , ■ i • i . • /■ structive tote, 
 
 the property insured and its annihilation, for <'<«*• 
 instance by tire, or its entire loss, for example, 
 by foundering at sea, the possible variety and 
 modification of loss is indefinite. " 
 
 " There may be a total loss, for example 
 through capture by the enemy, that shall cease 
 to be a loss, for instance by recapture or by 
 restitution under sentence of a Court of prize. 
 There may be a loss which is not total, but for 
 all practical purposes is nothing else, that is to 
 say, it must, for the purpose of the policy, be 
 construed as a total loss. There is a constructive 
 total loss of the ship, when by perils of the sea 
 she is converted into such a wreck that it would 
 cost more money to restore her than she would 
 afterwards sell for. The assured may, under these 
 circumstances, give the underwriters notice that 
 he abandons the wreck to them, and claims for 
 a total loss. But the underwriters are not bound 
 to act upon his construction of existing circum- 
 stances and accept the abandonment. He may
 
 276 Part II.] private international law. [ Ch jS: x " 
 
 unintentionally misconstrue the state of facts, 
 and this may be proved against him in many 
 ways, one of which would be by recovering and 
 restoring the ship to him in such a condition 
 that he is not at liberty in law to refuse it." 
 
 " Yet the actually existing circumstances of 
 the vessel, at the time of the notice of abandon- 
 ment, may have been such as to justify the 
 notice in law. If the assured, notwithstanding 
 the underwriter's refusal to accept the abandon- 
 ment, begins an action on the policy for a total 
 loss, while the circumstances continue to be such 
 as justify an abandonment, any restitution after- 
 wards of the ship can have no effect so as to 
 take away his right to recover. This depends 
 on the nature of an action, which has regard 
 only to the state of facts between the parties, at 
 the time of writ issued. If, on the contrary, the 
 restitution of the ship took place before action 
 commenced, although after notice of abandonment 
 Given, the right of action against the underwriter 
 is gone. This difference is not a mere technical 
 distinction, due to refinements of law by the 
 lawyers. Justice, lor the purpose of a deter- 
 mination of the dispute between litigants, must 
 confine its regards to some fixed period of time, 
 during which the state of the facts may be 
 ascertained, as the foundations of judgment or 
 decree. But if, before the assured has gone into 
 Court, there be restitution of his property, he 
 ceases to be in a condition requiring to be indem- 
 nified against ;i total loss, and his notice of 
 abandonment, though once valid, is obliterated 
 
 to the eye of justice by (lie slate of facts which 
 
 have subsequently supervened. His constructive 
 claim to indemnity ceases to exist by the effect 
 of subsequent events before he can assert, it in 
 law by issuing of the writ. The notice indeed
 
 PABT1I.J ABANDONMENT. [^i^ 277 
 
 wtis necessary, and may at the time have been 
 valid, because the loss existing may have been 
 no more than constructive. But though the 
 loss be, primd facie, total, as in the case of cap- 
 ture, and notice of abandonment have been given, 
 still, for the same reason, if there be restitution 
 before action commenced, occasion for such in- 
 demnity no longer exists in respect of the past, 
 and any foundation for asserting the right by 
 legal claim is consequently gone." 
 
 " Such is the English law as it proceeds 
 severally upon the right construction of the 
 nature of the contract between the parties, and 
 upon the essential view of a legal assertion of 
 right by commencement of an action. The Legis- m 
 lature might have interfered, as in France, by 
 declaring that a notice of abandonment, once 
 given under circumstances that gave it validity, 
 could not be superseded, except with the consent 
 of both parties, by any subsequent change of 
 circumstances. Or, instead of leaving the par- 
 ties to determine, in each case, upon the facts 
 arising, whether the loss be or be not so nearly 
 total as for all practical purposes it ought to be 
 so construed, the British Parliament might have 
 enacted, as the law is in the United States, that 
 damage to the extent of 50 per cent, and up- 
 wards of the value of the property insured is to 
 be construed a total loss. All that the British 
 Legislature and the English Judicature have done 
 is to prevent either party, to the injury of the 
 other, and consequently of the mercantile com- 
 munity at large, from perverting the contract 
 between them to purposes which are alien to the 
 essential notion of idemnity, on which alone it is 
 wholly based." * 
 
 * Abnould. Marine Insurance, Edit. Maclachlan. 1S77, p. 14.
 
 278 Part II.] PRIVATE INTERNATIONAL LAW. ['"^i. 
 
 X V . — S/( ipp iinj Lai os . 
 
 sea-going vessels. §66. With regard to sea-going vessels, the 
 following rules of the lex mercatoria are generally 
 applicable. 
 
 1°. Although sea-going vessels are movable 
 property, and ought as such to be governed by 
 the rules governing this class of property, yet 
 most Legislatures adopted the rule, that the deli- 
 very or transfer of sea-going ships or shares 
 thereof, cannot take place otherwise than by an 
 act or bill of sale recorded in a public register, 
 which is kept, for that purpose, at the place to 
 which the vessel in question belongs. With 
 regard to the national character and jurisdiction 
 of vessels, we refer the reader to the Fifteenth 
 < 'hapter. 
 
 Registration 2°. When ships, however, whilst abroad in a 
 
 ami Transfer of ., . , n -\ n ' J.T-.- 
 
 sea-gang vessels, foreign port, are transferred to foreigners, tne 
 delivery is made according to the laws and usages 
 of the place where the transaction takes .place, 
 but without prejudice to the rights and privileges 
 as contracted by the lex loci contractus, to which 
 belong the privileged debts as mentioned hereafter. 
 When transfer takes place in a foreign country. 
 but without changing the nationality, registration 
 may be renewed, if required, as stated in sub- 
 section 1°. 
 
 3°. In judicial sales of ships, the rules laid 
 down In the Civil (-ode arc complied with, 
 in accordance with the lex fori. 
 
 Privileged Debts. 1°. The transfer of ownership of sea-going 
 ships, by sale, cannot take place otherwise than 
 subject to the liabilities and without prejudice to
 
 paktii.] SEA-GOING VESSELS. [ C,, §e!i: X " 279 
 
 the privileges and rights, as mentioned in sub- 
 sections 5°.. 6°. and 7°.. of this section. 
 
 5°. The privileged debts, which, in the case 
 adverted to above, can be recovered out of the 
 proceeds of sea-going ships, are as follow. They 
 are privileged in the following order, viz.: — 
 
 a. Salvage, assistance, and pilot dues. 
 
 b. Tonnage dues, beacon and lighthouse and 
 
 < | uarantine dues, with other port charges. 
 
 c. Wages of guards, keepers, and porters, 
 
 and other expenses of watching the 
 vessel. 
 
 d. Kent of warehouses or stores, where the 
 
 ship's rigging etc., are deposited. 
 
 e. Wages of the master and crew. 
 
 /. Cost of sails, cordage, and other requisites, 
 and the expenses incurred in maintain- 
 ing and repairing the vessel and its 
 appurtenances. 
 
 g. Money advanced or lent to the captain 
 or paid for or by him, for the benefit 
 and use of the ship, as also the amount 
 due as indemnity for goods which he 
 had to sell, in order to discharge such 
 debts, and, in case money has been 
 taken upon bottomry, for the whole or 
 part of the same. — the bottomry bond 
 with addition of the premium thereon 
 (§§69 & 75). 
 
 The debts above mentioned under a, b, e, /and 
 //, enjoy the privilege of precedence, if contracted 
 on account of the last voyage ; namely : those 
 mentioned under a, b and g, as far as they have 
 been contracted during the voyage, and those 
 designated under e and /, as far as they have 
 been contracted from the time of fitting out
 
 "280 Part ii.] PRIVATE INTERNATIONAL LAW. [ C "^;,;.' X ' 
 
 the ship for the voyage, till the time at which the 
 voyage is held to have ended. The voyage is 
 held to have ended, one and twenty days after 
 the ship has arrived at her destination, or as 
 much sooner as the last goods have been unloaded, 
 if not otherwise provided for by the lex fori. The 
 debts mentioned under c and d enjoy the privilege 
 up to the amount they have been incurred, from 
 the day on which the ship entered the port, until 
 the day of its sale. 
 
 h. Necessary expenses incurred for repairs 
 to the ship and her equipment, not 
 pertaining to those above mentioned 
 under / and g, during the last three 
 years, from the day on which the repairs 
 were completed. 
 i The claims arising from the building of 
 the vessel, with interest due for the last 
 three years. 
 j. Bottomry on the hull of the ship, on her 
 standing and running rigging and ap- 
 purtenances, taken for the victualling 
 and equipping thereof, contracted and 
 signed for before the ship's departure ; 
 the bottomry premium not included. 
 /. The damages, costs, and interest claimed 
 by shippers, for short or improper deli- 
 very of goods shipped by them, and 
 I hose caused by ueglect of duty on the 
 part of master or crew, 
 (i . The debts mentioned in the preceding 
 sub-Section under one and the same heading, and 
 contracted in one mid die same port, have equal 
 rights and will be taken in their order, but if, in 
 pursuing the voyage, Bimilar debts have been 
 contracted, by necessity, afterwards in other 
 ports, "i- even in the same port, in ease the ship.
 
 PahtH.] SEA-GOING VESSELS. [ C "§6g. x ' 281 
 
 after having left it, has been compelled to put 
 back to it once more, then the debts contracted 
 afterwards take precedence of the debts contracted 
 before. 
 
 7°. After the debts already mentioned in sub- 
 section 5°., the following are privileged in the case 
 of vessels therein alluded to : — 
 
 a. The amount of the purchase-money yet 
 
 unpaid, with interest for the last two 
 years. 
 
 b. The amount of pledge or indenture bonds 
 
 on the vessel, for ordinary debts, with 
 like interest on the same, whether the 
 ship has come into the possession of the 
 creditor or of a third party or not. 
 The claims mentioned here shall not be 
 privileged unless they be acknowledged 
 by deed expressing the amount of the 
 debt and of the interest agreed upon. 
 The priority of these debts is regulated 
 by the order of their respective dates. 
 8°. The privileges above mentioned are lost, if 
 the vessel, after having been transferred to another, 
 without protest of privileged creditors, has been 
 navigated, in the name and for account of the new 
 owner, during sixty days, or such other time and 
 term as fixed by the respective laws, after leaving 
 port. Protest of a privileged creditor comes only 
 to the benefit of the creditor in whose name it has 
 been made. For the protection of the rights of 
 absent creditors it is necessary that the rule above 
 mentioned do not apply to the sale in a foreign 
 country (as stated already in sub-section 2°.), 
 in which case the liabilities, privileges and rights, 
 governed by the lex loci contractus, remain un- 
 touched, if the privileged creditor can prove that, 
 in consequence of the distance, the transfer has 
 taken place without his knowledge (§67).
 
 282 Paki n] PRIVATE INTERNATIONAL LAW. 
 
 \ r t. X . 
 5 67. 
 
 9°. In case of judiciary sales, the law expenses 
 take precedence of all other debts. 
 
 10°. In case of bankruptcy or insolvency of 
 the owner of the vessel, all claims and debts 
 existing at the charge of the vessel have preference 
 to those of all other creditors of the estate, but 
 such preference does not extend to the cost of 
 insurance. 
 
 11°. The seller of a vessel is bound to make 
 known to the purchaser all the privileged debts, 
 and to give him a list of them, signed by himself. 
 
 owners, ^67. When two or uiore persons employ a ship, 
 
 Managers and r> * i • i , i • • , p ;i 
 
 joint-owners, ol which they are joint owners, tor their common 
 benefit, this constitutes a community or tenancy 
 in common, the concerns of Avhich are governed by 
 the agreement and by the majority of votes taken 
 in proportion to the number of shares. "\Y hen 
 not otherwise provided for by the lex fori the fol- 
 lowing general rules of the lex mercatoria may be 
 observed, with regard to the liabilities of owners, 
 part owners and managers. 
 
 1°. The smallest share is counted as one vote, 
 and the number of votes, accruing to each part- 
 owner, is in proportion to this smallest share. 
 
 2°. The owner of* a vessel, or, in case of shares, 
 the part-owners, each in proportion to his shapes, 
 arc responsible for the acts and engagements of 
 the master, in whatever is relative to the ship and 
 the venture. This responsibility ceases by the 
 abandonmenl of the ship and of the freight, earned 
 and ye\ to be earned by it, lor the venture to 
 which the acts and engagements relate. Such 
 abandonment is made by a notarial deed. Every 
 part-owner is released from his responsibility by 
 :i like abandonmenl of his share, in the above 
 stilted form, [f the 'owner or part-owners have 
 insured their interesl in the ship and freight.
 
 Pa 
 
 kt II.] SEA-GOING VESSELS. [ C "^. * 283 
 
 their claim on the insurer is not included in this 
 abandonment. 
 
 3°. The owner of a ship or each part-owner 
 for his share, is nevertheless personally liable for 
 all repairs and disbursements incurred, in behalf 
 of the ship, by his particular order, or that of 
 the joint owners. 
 
 4°. Every part-owner is bound to contribute 
 towards the fitting out of the ship, in proportion 
 to his share, which is liable and accountable for 
 the expenses incurred through the fitting out of 
 the ship. 
 
 5°. When a ship is lying in a port of refuge, to 
 be repaired, and the majority of the owners are 
 for repairing it, the minority are bound either to 
 consent thereto, or to give up their shares to the 
 majority, the latter being obliged to accept the 
 same at such price as fixed by an estimate made 
 by competent persons. 
 
 6°. If the majority determine to dissolve the 
 joint-ownership, and to sell the ship, the minority 
 are bound thereby. The sale must take place in 
 public, unless the owners should unanimously 
 have decided otherwise. No joint -ownership can 
 however be dissolved, during an undertaken 
 voyage. 
 
 7°. No other than a part-owner can be appoint- ne Manager « 
 
 i 1 1 • 7 1 i -i ii Ship's husband. 
 
 ed as manager or ship s husband, unless by 
 unanimous consent of all the owners. The 
 manager can be discharged by a majority of the 
 votes of part-owners. 
 
 8°. The managing owner or ship's husband 
 represents the whole society of owners, and can 
 act for the same in judicial cases or otherwise, 
 provided that power has not been limited by the 
 lex fori or by express stipulations in the contract 
 of joint ownership, or the so-called owner's certi- 
 ficate.
 
 284 pautII.] private international law. [ Ch ^'. x- 
 
 claims of a 9°. The managing owner or ship's husband 
 
 master onthe appoints the master and discharges him as 
 
 ship's husband, i 11 ,! • i jr- ,i , i 1 i- 
 
 he thinks proper. It the master has been dis- 
 charged for lawful reasons, he has no right to 
 indemnity. In case the dismissal has taken place 
 without lawful reason, before the commencement 
 of the voyage, the master is entitled to daily 
 wages for the time of his service only, but if dis- 
 missed during the voyage, full wages and the costs 
 of his voyage home are due to him ; always pro- 
 vided that no other stipulations have been made 
 by written agreement. The same rules bind the 
 owners and joint-owners of the ship. 
 
 10°. The dismissed master, who has a share in 
 the ship, has a right to give up his share to the 
 other joint-owners against pa)mient of the value, 
 to be hxed by competent persons. 
 
 11°. The managing owner or ship's husband 
 has the entire management of all that is requisite 
 for the keeping in repair, equipment, victualling 
 and the affreightment of the ship. 
 
 For every new voyage or affreightment, the 
 managing owner needs the assent of the other part- 
 owners or of the majority of them, unless a more 
 unlimited authority lias been given him by the 
 owners' agreement with respect to this point. 
 
 lie is answerable to the joint-owners for all 
 
 damages or losses which may befall them by his 
 fault or negligence. They are privileged for the 
 COmpensatioD thereof on his share in the ship. 
 
 lie is nol qualified to have the ship insured 
 
 without the expressed orders of all (he owners. 
 
 hnt. he is hound to insure such costs of repairs 
 
 which may have occurred during the voyage 
 and to defray which the master has nol taken up 
 money on bottomry.
 
 l'inrii.] SEA-GOING VESSELS. [ f '"^7. X ' 28.") 
 
 His acts and engagements bind all the part- 
 owners, in proportion to their shares, but these 
 are qualified to give up their share in the ship, 
 and the freight which has been earned and is to 
 be earned by the undertaking to which the acts 
 and engagements are relative, in the manner 
 mentioned in sub-section 2°., without any further 
 liability. 
 
 In case the managing owner or ship's husband 
 has any repairs done to the ship, or has perform- 
 ed any act in connection with the vessel, at the 
 special desire of the owners or with their assent, 
 they are liable for the same in proportion to their 
 respective shares. 
 
 General terms, contained in the owners' agree- 
 ment, are not considered as a special charge or 
 assent. 
 
 The manager is bound to furnish to every part- 
 owner any information and explanation he may 
 require, about all matters and circumstances 
 concerning the ship, the voyage, and equipment; 
 he must also allow inspection of all books, letters 
 and papers, relative to his management. 
 
 He is also bound to lay before the owners, at 
 the requisition of any of them, after the termina- 
 tion of each voyage, a proper account and 
 justification of his management, as well with 
 regard to the state of the ship and the concern 
 generally, as to the performed voyage, accom- 
 panied by all the. vouchers relative thereto, and 
 to assign and pay to them, without delay, what 
 they have a right to. 
 
 12°. Every part-owner is obliged, on the other 
 hand, to assist in examining and closing that 
 account, and to pay his share of what is found 
 to be due to the manao-ino- owner.
 
 286 Part II.] PRIVATE INTERNATIONAL LAW. f "^ X * 
 
 13°. The approbation of this account by the 
 majority does not exclude the minority from 
 enforcing* their rights. 
 
 XVI. — Ship Masters, Officers and Crew. 
 
 me Master. §68. The appointment of the master rests 
 
 exclusively with the owner or part-owners or, 
 through delegation of power, with the manager 
 or ship's husband (§67, 9°.), or in case of extreme 
 necessity, and in a foreign port, with the consignee 
 or agent of the owners, or the national Consul, 
 who may appoint a master, in conformity with 
 the national laws of the respective vessel. 
 
 The master is charged with the duty of navi- 
 gating the vessel, either for the consideration of 
 stipulated wages or of a share in the profits of 
 freight or for both, under the following rights 
 and obligations. 
 
 1°. The master appoints the crew and selects 
 the officers and seamen with the concurrence of 
 the owner or manager. 
 
 2°. The master may not discharge any officers 
 or seamen, during the voyage, without lawful 
 cause. 
 
 3°. He is bound to use all diligence, care and 
 skill, and to indemnify the owner or joint-owner 
 for all costs and damages, with legal interest, in- 
 curred by them through his negligence or fault iu 
 the exercise of his employment, lie is answerable 
 for all damages occurring to the goods to be 
 transported, except such as are caused by defect 
 of the goods themselves, by superior power, or 
 by fault <»r negligence of the shipper. 
 
 4°. He is answerable lor all the consequences 
 ofbador improper stowage and placing of the 
 goods iu the ship.
 
 Pari ii.] SHIP MASTERS, OFFICERS AND CREW. [ 0lA /i's. ' V 287 
 
 5°. Before beginning to load for a foreign port, 
 the master is bound, at the request and cost of 
 any interested party, to have his ship examined 
 by competent sworn surveyors, appointed for the 
 purpose by the competent authority or, if there 
 be none such at the place where the ship is lying, 
 by the respective Consul, in order to ascertain 
 whether the ship is provided with all necessaries, 
 and held fit to undertake the voyage. It is the 
 duty of the master as well as of the owners to 
 see that the vessel is seaworthy. In every con- 
 tract for the carriage of goods between a person 
 setting himself forth as the owner of a vessel 
 ready to cany goods for hire and the person 
 putting goods on board, or employing his vessel 
 for that purpose, it is a term of the contract on 
 the part of the carrier implied by law, that his 
 vessel is tig-lit, staunch and strong, and fit for the 
 purpose or employment for which he offers and 
 holds it forth to the public ; the law presumes a 
 promise to that effect on the part of the carrier, 
 without any actual proof. * 
 
 6°. The master is accountable for all damage . 
 occurring to goods loaded by him on deck, with- 
 out consent of the shipper. 
 
 7°. Without prejudice to the personal respon- 
 sibility of the master to the shippers, in case of 
 damage to the cargo caused by his negligence or 
 fault, the ship and the freight earned on the 
 vo} r age are liable to them for the same. The 
 owner or joint-owners of the ship have a right 
 of claim on the master with regard thereto. 
 
 8°. The master is bound to sign, or to have Provisional 
 signed by his mate, receipts for all goods shipped shipped goods. 
 on board of his vessel, with specification of 
 
 * Leoxe LEVI. International Commercial Law. Vol. II. Chapt. 
 XXI. Section 10.
 
 288 I'ahtII.] PRIVATE INTERNATIONAL LAW. [ Cu |^". X ' 
 
 quantities, marks, and numbers, to be afterwards 
 exchanged for the bills of lading (§73). 
 
 9°. The master should not take on board any 
 goods exhibiting visible outward signs of leakage 
 or damage, or goods which are deficient in pack- 
 age, without making mention of such defects in 
 the receipts and bills of lading ; in default thereof 
 the goods are considered to have been shipped in 
 an apparently good and well conditioned state. 
 
 10°. The master may not load any merchandise 
 for his own account, without paying freight for 
 the same, or without having obtained the consent of 
 the owner or managing owner, or of the freighters 
 if the whole ship has been freighted, — unless he 
 should be authorized thereto, by the conditions 
 on which he has taken service and charge of the 
 vessel and by the stipulations of the charter- 
 party. 
 
 11°. The master who navigates a ship on joint 
 profits, may not load any goods therein for his 
 private account, unless it has been specially agreed 
 upon; In case of transgression of this rule, the 
 goods taken on board for the master's private 
 account are forfeited to the other parties concerned 
 in the cargo, without prejudice to his liability to 
 extra, charges, damages, and interest, incurred 
 thereby. 
 
 12°. When provided with all necessaries, and 
 ready for departure, the master must, without 
 delay, avail himself of the first favourable oppor- 
 tunity f<> undertake and perform the voyage for 
 which he has engaged himself. 
 
 I.", . The master may not defer the voyage on 
 accounl of sickness of any of the officers or crew, 
 I, lit is bound to replace them immediately by 
 others.
 
 r.vin ii.] SHIP MASTERS, OFFICERS AND CREW. [ Ch $£ Xl 28 ( J 
 
 14°. If illness of the master precludes his 
 navigating the ship, when it can and ought to 
 depart, he must appoint another master in his 
 stead, or let his mate succeed him, where this can 
 be done without danger for ship and cargo. If 
 the owner or manager be present at the place of 
 departure, the change can only be effected with 
 his consent. 
 
 15°. The master must be provided on board s/ap's Papers. 
 with the following documents, viz.: — 
 
 a. The letter of transfer or proof of property 
 
 of the vessel, or an authenticated copy 
 . thereof. 
 
 b. The ship's register. 
 
 c. The ship's articles. 
 
 d. The manifest. 
 
 e. The bills of lading and charter-parties. 
 /'. The Code of Commerce or Shipping Act. 
 
 (See Chapter XV). 
 16°. The master is bound to keep a log-book 
 or journal, which must contain the following 
 entries, viz.: — 
 
 a. The daily state of wind and weather. 
 
 b. The daily progress or delay of the vessel. 
 
 c. The longitude and latitude in which she 
 
 is on each day. 
 
 d. All disasters which betall the ship and 
 
 care;o, and the causes thereof. 
 
 e. Particulars, as many as possible, regard- 
 
 ing what has been lost in consequence 
 
 of any disaster, or by cutting away. 
 /'. The courses he has steered, and the reasons 
 
 for deviating from them, either volun- 
 
 tarily or out of necessity. 
 a. All resolutions taken in ship's council. 
 
 h. The discharge of ship's officers or men, 
 and the reasons thereof.
 
 290 r-un ii.] PRIVATE INTERNATIONAL LAW. 
 
 Ciiapt. X. 
 
 /. The receipts and expenditure concerning 
 the ship and the cargo, and in general 
 everything, relating to ship and cargo, 
 that can lead to acconntahleness and 
 justification of accounts, or to the 
 making or resisting of any claim. 
 17°. The log-book or journal shall be kept up 
 day by day, the state of wind and weather per- 
 mitting, and be dated and signed by the master 
 and mate. 
 Reports 18°. During the voyage the master must 
 
 Manager- . ^ " D . 
 
 avail himself of every opportunity offering to in- 
 form the manager of what has occurred to him 
 and the ship. 
 
 19°. The master is bound to be personally 
 present on board of his ship from the moment 
 he begins the voyage, until he shall have reached 
 a safe road or port. 
 
 20°. In whatever danger the ship may be. the 
 master may not leave the ship during the voyage, 
 without having consulted with the chief men of 
 the ship's company. He is bound in such case 
 to make special provision for the preservation of 
 his log-book and other ship's papers, the specie, 
 and. as much as possible, for the most valuable 
 goods belonging to the cargo; on pain of being 
 personally answerable for the same, [f thegoodai 
 saved or remaining on board, owing to some 
 unforeseen event, and without his fault, have 
 been lost or stolen, he is not answerable for them. 
 ,'■''"■"'■"' 21°. The master is bound to employ the nej 
 cessary pilots, w henever law. custom, or prudence 
 requires it. If the ship is put under the charge 
 of a pilot, the pilot, while on board, has the ex- 
 clusive control of the ship. He is considered ai 
 master pro hac rice, and if any loss or injury be 
 sustained in the navigation of the vessel, while
 
 Past ii.] SHIP MASTERS, OFFICERS AND CREW. [ C "^: X ' 291 
 
 under his charge, lie is answerable as strictly as if 
 he was a common carrier, for his default, negligence 
 or unskilfulness, and the owner would also be 
 responsible to the party injured for the act of the 
 pilot, as being the act of his agent.* 
 
 22°. If the master, while on the voyage receives Master's duty 
 information that the flag has become unfree, heTemfrle? /la9 
 must make for the nearest neutral port, and re- 
 main there until the impediment has been removed. 
 Thence he can either depart under convoy, or in 
 some other safe manner, or if he receives per- 
 emptory orders for his departure, as well from 
 the owner or manager, as from the parties con- 
 cerned in the cargo. 
 
 23°. In case of the ship being brought up, seized Master's duty in 
 or detained, the master is bound to reclaim it, of the vessel. 
 together with the cargo, and must avail himself 
 of every suitable opportunity to acquaint the 
 owner or manager, and the shippers or consignees 
 of the goods on board, with the state of his ship 
 and cargo. He is bound meanwhile, provisionally, 
 to make such necessary arrangements for the safety 
 of ship and cargo as do not admit of any delay. 
 
 24°. In the case mentioned in sub-section 2?>°.j' iM *<'cf 
 
 i i . .ii . . ■, . Average, 
 
 the resolution ot the majority of the owners is /<//w "- 
 decisive and binds the minority. Should, how- 
 ever, the majority determine not to prosecute the 
 case, the minority remain at liberty to enforce 
 their rip-lit for their own account, under reserve 
 of the obligation of the majority, to contribute 
 towards the charges, so far as thev should be 
 benefited by a successful result. 
 
 25°. In all occurrences of importance, whether 
 in setting sail, cutting away of anchors or masts, 
 jettison of goods, engaging helpers or lighters, 
 
 * Kent"s Commentaries. Vol. III., p. 207. LEONE LEVI. Intern. 
 Comm. Law. V<>1. II. Chapt. XXI. Sect. in.
 
 292 Part II,] PRIVATE INTERNATIONAL LAW. [ C "^s. X ' 
 
 putting in a port for shelter, running the ship 
 on shore, and all similar events, the master is 
 bound to consult with his owners or their agents. 
 if present, and, in every instance, with his ship's 
 officers and principal shipmates or men. Where 
 opinions disagree, the opinion of the master is 
 followed. 
 
 26°. If any articles must be thrown overboard, 
 the master is bound to sacrifice in preference, ii 
 attainable, such as can be best dispensed with, 
 and such as are the heaviest and the least valuable, 
 and next the merchandise between decks at his 
 option, after consulting with his officers. The 
 master is bound to put into writing, as soon as 
 opportunity offers, the consultations thus held. 
 This document must contain the reasons for the 
 jettison and a statement of the goods thrown 
 overboard or damaged. It must be signed by 
 those who have been consulted, or they must 
 state their motives for not signing. It must be 
 entered in the ship's journal or log-book. 
 
 27°. The master is hound to affirm, by oath. 
 the trul li of the statements contained in the said 
 document after it shall have been transcribed in 
 his journal. This must he done as soon as 
 possible on his arrival at the first port the shin 
 reaches, before the authority designated in sub- 
 section .°>f>°. of this paragraph. 
 '"'T'r, , 28°. In ease of blockade of the ship's port of 
 
 blockaded port. l ' 
 
 destination, the master, not having contrary 
 orders, is bound to make for one of the other 
 nearesl ports of the same Power which ii is allowed 
 to enter. The regulations contained in sub- 
 section 2.",°.. that respecting reclaiming excepted, 
 are applicable to this case. 
 
 29°. [fin want of provisions during the voyage, 
 the master may, after consulting the principal
 
 Part ii.] SHIP MASTERS, OFFICERS AND CREW. [ C "<^. X ' 293 
 
 part of the crew, compel those who are still 
 provided therewith, to give up their store for the 
 common good, against payment of the value 
 (§74, sub -section 10). 
 
 30°. AVhile at the place of residence of the 
 owner or part owners of the ship, or their agents 
 or correspondents, the master may not, without 
 their special cousent, have the ship repaired, nor 
 can he buy any sails, cordage or other things for 
 her service, nor can he take up money on the 
 ship, or affreight or let her. 
 
 31°. The master who has taken up money on^? & ?*w a» 
 
 , . , i 1 •> Master, when 
 
 the ship, her stores, or provisions, without neces- acting ''/"«"'/ 
 
 1 * i i -i • • • instructions from 
 
 sity, sold or pawned merchandise or provisions, or «»«» 
 brought into account feigned losses or expenses, 
 is responsible for it to those concerned. He is 
 personally bound to repay the money taken up, 
 or the value of the goods, independently of penal 
 prosecution if grounds for it exist.. 
 
 32°. Any sale of the ship by the master, with- 
 out special authority of the owner or joint owners, 
 except in case of innavigability legally proved, is 
 null and void and the master is moreover bound 
 in damages, independent of penal prosecution if 
 grounds exist. 
 
 33°. Previous to his leaving a port of shelter, Report m 
 
 ~ I . . , port Oj she 
 
 or entering upon his return voyage to the ship s 
 own country, the master is bound to forward to 
 his owner, manager, or their agents, an account 
 signed by him, containing a statement of the cargo 
 and the price of the goods taken on board for 
 account of the owners, as also of the cost of repairs 
 effected, the sum borrowed by him, and the names 
 and residences of the lenders. 
 
 31°. The master is qualified, before proceeding 
 on the voyage mentioned in sub- section 33°., to 
 insure the goods taken on board as cargo, and 
 
 rom 
 shelter.
 
 291 Part II.] PRIVATE INTERNATIONAL LAW. [ C " A § 7s. X ' 
 
 also the amount of his disbursements in behalf 
 of the ship, provided he gives due notice thereof 
 to the owners or manager. 
 Report of voiwje 35° Everv master of a ship is bound, within 
 
 before the Consul ■ J C 
 
 Zit^t competent ^ !iree times four and twenty hours after entering 
 a port, to exhibit his log-book, and to make a 
 report of his voyage, containing the following 
 details, viz. : — 
 
 a. The port and time of his departure. 
 
 b. The course he has taken. 
 
 c. The dangers which he has encountered, 
 
 the disturbances, which have occurred 
 on board, and all remarkable circum- 
 stances of his voyage. 
 
 Such exhibition and report must take place, 
 and be made in a foreign port, before his Consul 
 or, in the absence of a Consular officer, before 
 the competent local authority ; or, in a national 
 port, before the competent authority. 
 
 36°. On making his report, wherever it may 
 be, the master is bound to have the visa of the 
 authority, before which it is made, placed on his 
 log-book or journal, which journal he is bound, 
 at all times, to show to parties concerned, and 
 to allow them to take copies or extracts from it. 
 
 37°. In all cases where the master is answer- 
 able for number, measure or weight, or interested 
 therein, lie may require that the goods be counted, 
 measured, or weighed at the unloading ( § 72, 
 sub-section 28). 
 
 38°. Ln case of ship-wreck, entering a pori for 
 safety, or damage, (lie master is bound to make 
 a deposition thereof, with all bis officers and 
 seamen present, within 24 hours at the first place 
 of arrival, before the public authorities indicated 
 above in sub-section 3.")°. 
 
 ,5 a-prott st.
 
 Paet ii.] SHIP MASTEKS, OFFICERS AND CHEW. [ C "§<£. X - 295 
 
 All depositions or reports drawn up to serve 
 as proof of losses, disasters, damage, or of any 
 claim whatever, must be affirmed by oath of 
 those who made them, before the competent 
 authority, which is qualified to interrogate the 
 master, officers and seamen, and even the pas- 
 sengers as to facts and circumstances. Contrary 
 proof is allowed to all parties concerned. 
 
 39°. After the termination of every voyage, Master's account. 
 the master is bound to furnish the owners or 
 manager with a proper account and justification 
 of his conduct in the command and manage- 
 ment of the ship and cargo, and to deliver up 
 to them with the same, against an acknowl- 
 edgment in writing, all the. journals, books, 
 papers and funds in anyway relating to the said 
 account. 
 
 40°. The owner or manager is bound to exa- settlement of 
 
 .,-. tt .-, . t • .' n .' Master's claims. 
 
 mine without delay the account and j ustincation, 
 and finding them in regular order, to pay out 
 to the master such balance as shall thereby appear 
 to be due to him. 
 
 41°. Tn case of disagreement arising about the 
 account, the owner or manager is bound to pay 
 the master his wages provisionally, under bond, 
 and the books, journal and papers shall be de- 
 posited at the respective Consulate or competent 
 legal authority, in conformity with the lex fori, 
 until the final settlement of the difference by the 
 competent legal authority or by arbitration. 
 
 42°. Should the master have made a condition 
 for a share in the profits, he must abide, for the 
 settlement thereof, by the judicial regulations 
 with respect to commercial partnerships, in con- 
 formity with the lex loci contractus.
 
 '2\)i> J'AKi U.] PRIVATE INTERNATIONAL LAW. 
 
 C!). 
 
 43°. The ship, with her rigging and materials, 
 and the freight earned, are preferably liable to 
 the master, for his wages or monthly pay, as 
 also for his indemnification and travelling ex- 
 penses. 
 
 44°. If the master is part-owner or jointly 
 interested in the ship, his shares and the propor- 
 tion of profits belonging thereto, are preferably 
 liable to the joint-owners for what is due by 
 him to the joint concern. 
 
 45°. In case the master is sole proprietor of 
 the ship, he is subject, with regard to shippers 
 or freighters, to all the obligations devolving on 
 the owner as well as on the master. * 
 
 § 69. Extra repairs and other extra wants of 
 the ship, during a voyage in foreign parts, are 
 supplied under the following considerations. 
 
 1°. If, during the voyage, it appears necessary 
 t^Sfsuppiied to repair the ship, or to provide sails, portions of 
 o/th!S!i? the engines, cordage or other stores or provisions, 
 or to supply other pressing wants and deficiencies, 
 and the distance from the residence of the owners 
 or managers of the ship or caro'o and their agents 
 precludes awaiting their orders, the master may, 
 on his own responsibility, have such repairs 
 effected or make such purchases or disbursements", 
 after having the necessity thereof asserted by a 
 declaratiou signed by the principal members of 
 the crew, and procuring the authorization of his 
 Consul, or, in default of this, of the local autho- 
 rities. If in want of the necessary funds for the 
 purpose, and unable to procure them against his 
 drafts on the manager or owners of the ship, he 
 may. as authorized above, take up money on 
 bottomry (§ 75) <»n the ship and her appurte- 
 nances, and. if necessary, on the cargo, or, should 
 
 ' I, i. mm Levi. [nternat. Commerc.Law.Vol.il. Chapt. XXI, 
 10 Arnould, Marine Insurance. Vol. I. Part I. Chapt. VII,
 
 l'AKi ii.] EXTRA REPAIRS DURING VOYAGE. [° a ^n. X ' 2U7 
 
 this prove wholly or partially impracticable, lie 
 may sell goods to the amount wanted (§75, 9). 
 
 2°. On the ship's safe arrival at the place of 
 destination, the value of the goods thus sold shall 
 be computed at the market, price, which goods of 
 the same description and quality are worth at the 
 said place at the time of the ship's arrival. Where 
 such market price is less than that at which the 
 goods have been sold, the profit shall come to the 
 benefit of the owners of the same. Should the 
 ship be unable to reach her place of destination, 
 the price, at which the goods have been sold, shall 
 be taken as a basis of valuation. * 
 
 ^70. The hiring of ship's officers and seamen ship's oncers 
 
 •'.. -i 1 • i • i al Seamen ; 
 
 and their rights and duties are subject to tne* fte *rr^ to 
 
 f> -ii . -I " and duties. 
 
 following rules. 
 
 1°. The contract between the master and the 
 ship's officers and seamen, consists, on the part 
 of the officers and seamen, in engaging their ser- 
 vices for one or more voyages or b}' the month, 
 each in his capacity, for a stipulated payment : 
 and, on the part of the master, in an engagement 
 to pay what is due for that service according to 
 the contract or the law. 
 
 2°. The conditions of the engagement between The ships 
 the master and the officers and seamen, are proved 
 by the ship's articles. In default of the ship's 
 articles all other lawful evidence is admitted. 
 
 3°. The signing of the ship's articles takes 
 place before a shipping-master or other official 
 appointed for the purpose, which in foreign ports 
 is the Consul of the nationality of the vessel, and 
 contains the following data, in conformity with 
 the lex loci contractus. 
 
 * Leone Levi. Intern. Convmerc. Law, Vol. II. Chapt. XXI. 
 Sect. 10. Akxould. Oil the Law of Marine Insurance. Vol. I, Pave 
 I. Chapt. VII.
 
 •>98 run ii ] PRIVATE INTERNATIONAL LAW. [ Ch §7o. X 
 
 a. The names of the ship, of the master and 
 
 of the officers and seamen. 
 
 b. The place where the voyage begins, that 
 
 of the ship's destination and the port to 
 which she is to return. 
 
 c. The pay or wages agreed upon, and 
 
 whether it is monthly or for the voyage. 
 
 d. The advance promised, or received. 
 
 e. The obligation of every member of the 
 
 crew to come on board with his effects 
 at the time fixed by the master, not to 
 be absent from the ship by night either 
 in the national or a foreign country, 
 without the master's leave, and not to 
 take his effects on or from board, with- 
 out previous examination by the master 
 or mate. 
 
 /'. The mate's declaration of his having al- 
 ready performed a voyage to the place 
 of destination as officer, or otherwise. 
 
 //. The competency of the master to put on 
 shore and dismiss without wages, before 
 leaving port, any member of the crew 
 who has engaged himself in a capacity 
 for which he is unfit, and to assign to 
 such person such position and wages 
 as he shall think proper, if his un- 
 fitness is discovered after the ship's 
 departure. 
 
 It. Particulars of the victuals or what arc 
 termed rations, which, under ordinary 
 circumstances, must be allowed weekly 
 to each man. 
 
 i. The obligation to obey, withoul contra- 
 diction, any order of the master and 
 officers, given by each in his proper 
 capacity, and to abstain from drunk- 
 enness and fighting
 
 Past n.] SHIP'S OFFICERS AND SEAMEN. [ U 'V 7 ' ( ; v 299 
 
 /'. The textual insertion of those sections of 
 the respective shipping laws-, which 
 regulate the rights and duties of officers 
 and seamen. 
 
 /■. The stipulation that whoever deserts and 
 leaves the ship, before being dismissed, 
 forfeits the wages due to him. 
 
 /. The obligation of the chief officer to take 
 care of the proper placing and stowing 
 of the goods to be taken on board, 
 under penalty of indemnification. 
 
 m. The obligation of the chief officer to re- 
 main on board day and night, while 
 any merchandise remains in the ship, 
 and to take care of the closing and 
 locking, especially by night. 
 
 n. The obligation of the officers and sea- 
 men to behave properly and in an 
 orderly manner during public worship 
 on board. 
 
 o. The general obligation to comply, besides, 
 with whatever is further prescribed by 
 the respective shipping laws. 
 
 p. Finally, whatever may have been further 
 agreed upon between the parties, pro- 
 vided it be not contrary to law. 
 4°. A master who has taken his departure 
 with his ship without the ship's articles being 
 made up and signed, where this is required, shall 
 forfeit to the owner or joint-owners the indemni- 
 fication stipulated by the respective shipping 
 laws, besides the liability of master, officers and 
 members of the crew for the infringement of those 
 laws with regard to ship's articles. * 
 
 * Leone- Levi. Intern. Commerc. Law. Vol. II. Chapt. XXI. 
 
 Sect. 11.
 
 300 Pari II.] PRIVATE INTERNATIONAL LAW. [ Ch |^; *■ 
 
 5°. The reciprocal obligations between the 
 master and the officers and seamen begin the 
 moment after signing the articles. 
 
 snip's discipline. 6°. The articles having been signed, the officers 
 and seamen are bound to repair on board at the 
 master's command, and to put in order and load 
 the ship. 
 
 No one may absent himself from on board with- 
 out leave from the master or his representative. 
 
 The master or his representative can, in con- 
 formity with the local laws, call in the public 
 force against those who refuse to come on board, 
 who absent themselves from the ship without 
 leave, or refuse to perform to the end the service 
 for which they are engaged. The expenses there- 
 by incurred can be deducted from the delinquent's 
 wages, without prejudice to his liability to damages 
 and interest where assignable. (Comp. §44). 
 
 7°. Besides the wages agreed upon with sea- 
 faring men, proper sustenance is due to them 
 during their term of service. 
 
 8°. The ship's officers and ship's company are 
 bound to assist the master in all cases of aggressi* >n 
 or calamities befalling the ship and cargo. 
 
 images! 9°- All ship's officers and men, who engage 
 
 themselves as duly qualified, are answerable on 
 that account for any damages, caused by ignorance 
 in the performance of their duties. 
 
 uabuitia 10°. The chief officer who engages himself for 
 
 offlur. a port whither he has never navigated as officer, 
 
 without declaring this on signing the articles, or 
 who has falsely asserted his having made a voyage 
 thither in thai capacity, forfeits his full wages, 
 the cd! it pad being void from the outset. In case of 
 damage occurring t<> the ship or cargo through 
 his ignorance, lie is hound to indemnify the same. 
 independent of punishment by Law, it' any ground 
 for this may exisl in his false statement.'
 
 Part II.] SHIP'S OFFICERS AND SEAMEN. [ C %to. X " 301 
 
 11°. If the master, while in a foreign country, 
 thinks fit to proceed to another port, the chief 
 officer is bound to make again a declaration as 
 mentioned above, before he undertakes the voyage, 
 under the same liability to forfeiture, indemnifica- 
 tion and punishment in the case of false statement. 
 
 12°. If in this latter case, the chief officer de- 
 clares never to have made a voyage to that place 
 as officer, he shall nevertheless continue in service 
 for the wages agreed upon, or, if engaged for the 
 voyage, against an augmentation- of pay, propor- 
 tionate to the prolongation and the nature of the 
 voyage. The master is not entitled in such case 
 to dismiss him without paying him, in full, the 
 wages agreed upon for the voyage, and that, if 
 engaged by the month, up to the time at which 
 the voyage would probably have ended. He is 
 bound, moreover, to indemnify him for his travel- 
 ling expenses to the place where he has been 
 engaged. He is, however, not obliged to make 
 this payment or indemnity, if the chief officer has, 
 on his engagement, falsely declared to the master 
 that he had previously made such voyage as 
 officer. 
 
 13°. The ship's officers or seamen may not, Rules concerning 
 without paying freight and without consent ofthe«^SfS«. 
 owners or, if the whole ship is freighted, of the 
 freighters, load any merchandise on their own 
 account, unless it has been otherwise agreed upon 
 at their engagement or by the charter-party. 
 
 14°. In case the voyage be entirely given up, 
 on behalf of the owner, the master, or the freighter, 
 it is left at the option of the officers and seamen, 
 either to keep as indemnity what they have 
 received as advance, or to claim a month's wages 
 under deduction of the advance, or if engaged by 
 the voyage, one fourth of the pay agreed upon, if
 
 302 part il] PRIVATE INTERNATIONAL LAW. [ Ch ?to. X 
 
 not otherwise regulated by the lex loci contractus. 
 In whatever manner they may have been hired, 
 they remain entitled to their pay, as agreed upon, 
 for the number of days during which they have 
 done duty, to count from the day of signing the 
 ship's articles. 
 
 15°. If the suspension of the voyage takes place- 
 after it had been entered upon, they receive, over 
 and above the pay already earned, as indemnity, 
 double of what is mentioned in sub-section 14°., 
 besides the necessary travelling expenses to the 
 place of the ship's departure ; provided however, 
 that the pay earned, added to the indemnity, does, 
 in no instance, exceed what they would have 
 received if the voyage had been completed. In 
 case of disagreement as to the travelling expenses 
 for officers and ship's company, the affair is 
 submitted to the decision of the respective Consul, 
 or, in default of such, to a competent authority 
 at the place where the ship is lying. 
 
 16°. If previous to the beginning of the voy- 
 age, trade with the place whither the ship is 
 bound, or the exportation of the articles for 
 which it has been especially freighted, be forbid- 
 den, or the ship be seized by authority before 
 the commencement of the voyage, wages are 
 only due for the time during which the officers 
 and seamen have been in actual service, under 
 deduction of what they have received as advance. 
 
 17°. Such interdiction or seizure taking place 
 after the commencement of the voyage, they 
 retain their full wages until discharged, an I 
 receive travelling expenses as mentioned in sub- 
 section 15°. 
 
 18°. If the voyage be protracted in behalf of 
 the master or freighter, through stay in a port 
 of shelter, or by unlawful capture or detention, or 
 by other causes, in behalf of and for the safety of
 
 paetii.] ship's officers and seamen. [ Ch §toI x " 303 
 
 ship and cargo, the pay of the officers and men 
 who have been engaged for the voyage, must be 
 augmented in proportion to such prolongation. 
 
 19°. When the officers and seamen serve under 
 an engagement to receive a portion of the profits 
 of the adventure (as in the fishing-trade), or 
 of the freight, no indemnity or hire is due to 
 them on account of breaking off, delaying or 
 prolongation of the voyage caused by a superior 
 power. 
 
 If the breaking off, delaying, or prolonga- 
 tion of the voyage is caused by shippers of 
 cargo, the ship's company participate in the 
 indemnity assigned to the ship. Such indemnity 
 is divided between the owners and the ship's 
 company in the same proportion as would have 
 been adopted with regard to the freight. Such 
 is also the case, if the breaking off, delaying or 
 prolongation of the voyage takes place in behalf 
 of the master or owners of the ship, who are then 
 liable to the ship's company for the same pro- 
 portionate indemnity. 
 
 20°. Where the officers and seamen have been 
 engaged for more than one voyage, they have a 
 right, at the end of every voyage, to claim their 
 fall pay for the one already completed. 
 
 21°. The ship's officers and ship's company 
 cannot claim any wages or pay for the voyage 
 on which the ship is captured or declared lawful 
 prize, or on which she is so stranded and broken 
 that ship and cargo are totally lost. They are 
 not liable, however, to the restitution of what has 
 been paid them in advance. 
 
 22°. When part of the ship has been saved, Freight eamed 
 the officers and ship's company have a right to % r'Z'JlT whm 
 claim the wages due to them, out of the proceeds K e lrf 
 of what has been saved of the wreck or remains " m ' ment -
 
 304 I'aht ii.] PRIVATE INTERNATIONAL LAW. [° IA § 7j. X " 
 
 of tlie ship. This being insufficient, or when 
 goods alone have been saved, the freight earned 
 is accountable for such wages. 
 
 23°. The officers and ship's company engaged 
 on share in the freight, have a claim on the 
 freight only, in proportion to what the master or 
 charterer receives. 
 Extra services to 24°. On whatever footing the ship's officers 
 and crew have been hired, they arc always paid 
 for the days during which they have been em- 
 ployed in saving the lost ship and goods. Par- 
 ticular diligence, crowned with success, is in that 
 case rewarded extraordinarily in the way of 
 salvage (§78). 
 
 Extra service is taken note of in the log-book 
 or journal, and can give claim to extraordinary 
 reward. 
 sickand 25°. Every member of the ship's company 
 
 7di?sser7iceto who becomes ill during the voyage, or is, in the 
 "v''/wV service of the ship, wounded or maimed in battle 
 against an enemy or pirates, continues entitled 
 to his pay, and has a right to care and cure; and 
 if disabled, to indemnification, in as much and 
 in such a shape or manner, as the judge, in case 
 of disagreement, shall deem equitable, in con- 
 formity with the lex loci contractus. 
 
 2(i°. The expenses incurred for attendance 
 and cure and indemnification come to the charge 
 of the ship and the freight earned, if the illness, 
 wounding, or disabling, have occurred in the 
 ship's service. They are assessed as general 
 average on the ship and her freight and cargo, 
 if they have been occasioned by battle in the 
 ship's defence (§ (53, No. 2, //.) 
 
 27°. If any sick, Avoundcd, or maimed seaman, 
 be not so far recovered at the ship's departure, 
 that he can be taken on board with safety, the 
 said attendance and treatment shall continue until
 
 l'.uu li.] ship's officers and seamen. [ CnA §76. x ' 305 
 
 his recovery. The master is bound, before his 
 departure, to pay the said expenses and to provide 
 for the maintenance of the sick or wounded sea- 
 man. 
 
 28°. The sick, wounded or maimed man con- 
 tinues entitled not only to his pay during the 
 cure, but also till the day on which he can be 
 returned to the place from which he started witli 
 the ship, and to a reasonable indemnity for his 
 travelling-expenses thither.. 
 
 29°. In the cases mentioned in sub-sections 2G°., 
 27°. and 28°. he has no further claim than on 
 the ship and the freight earned, or on the ship 
 and the freight earned and on the canro. 
 
 30°. Where a ship's officer or other member of 
 the crew, having left the ship without leave, 
 becomes ill, is wounded or maimed on shore, the 
 expenses of his treatment and cure remain at his 
 own charge. 
 
 31°. The body of one of the ship's company, Effects of 
 who has died during the voyage, must be buried tolTutLl 
 at the ship's expense, or put overboard, as i\ie ca,e 0/ ' 
 master may decide. 
 
 The master is bound to take charge of the 
 effects left on board by the deceased, and to make 
 a proper inventory of the same in the presence of 
 two of the ship's company, which inventory must 
 be signed by him and the said two men. 
 
 The pay or wages are due to his heirs under 
 the following; distinctions : — 
 
 a. If he be engaged by the month, pay or 
 
 wages are due to the end of the current 
 month. . 
 
 b. If engaged for the voyage out and home, 
 
 one half is due if he dies on the outward 
 voyage, and the whole, if he dies on 
 the voyage home. 
 
 deceased Scamin
 
 306 
 
 "] 
 
 PRIVATE INTERNATIONAL LAW. 
 
 I I ll.M'l. 
 
 L §70. 
 
 Discharge of 
 
 Seamen. 
 
 Lawful reasons 
 of discharge. 
 
 Lawful 
 
 c. If the deceased was engaged on part of 
 profit or freight, his share is due in full, 
 if he dies after the commencement of 
 the vo}^age. 
 (I. The pay of men who have died in the 
 defence of the ship, is due for the whole 
 voyage, if the ship reaches a port in 
 safety. 
 32°. If the master discharges officers or men, 
 for lawful reasons, he must pay them their wages 
 earned, calculated in proportion to the voyage 
 performed, up to the day of discharge ; hut in 
 case the discharge is given before the commence- 
 ment of the voyage, then only for the days 
 during which they have been in service. 
 
 The following are considered lawful reasons 
 for discharge, viz.: — 
 
 a. Disobedience. 
 
 b. Habitual drunkenness. 
 
 c. Fighting on board. 
 
 d. An interruption of the voyage legally 
 
 allowed or prescribed, provided it be in 
 conformity with what the respective 
 law stipulates in the ease. 
 
 e. Absence from on board without leave, or 
 
 desertion. 
 
 . Any officer or seaman who shows proof 
 of his having been discharged without lawful 
 reason, after having signed the articles, is entitled 
 to indemnity at the master's charge, in conformity 
 with the lex loci contractus. The master cannot 
 claim £he amount of the indemnity from the owner 
 or joint-owners, unless he has been authorized 
 by i hem ii> «!i.-< harge I he man. 
 
 . < Officers mid rvrw can decline service only 
 when in port, and I he ship being in safety and 
 free from nil actual present dangers, and only for 
 Mi" following lawful reasons: —
 
 run ii.] SHIP'S OFFICERS AND SEAMEN. [2jto* X " 307 
 
 a. .When their time of engagement, as stipu- 
 
 lated in the ship's articles, is expired. 
 
 b. If the master wishes to alter the voyage 
 
 for which they have engaged them- 
 selves, before it has begun. 
 
 c. If, previous to the beginning of the voy- 
 
 age, the respective State becomes in- 
 volved in a maritime war, or if, during 
 the ship's stay in a port of refuge, a war 
 breaks out in which the State takes 
 part. 
 
 d. If before the beginning of the voyage, or 
 
 while the ship is lying in a port of 
 shelter, certain intelligence is received 
 that the plague, yellow fever, or other 
 contagious disease prevails at the place 
 whither the ship was bound. 
 
 e. If, the ship passes entirely into the hands ' 
 
 of other owners, before the commence- 
 ment of the voyage. 
 
 f. If, before the beginning of the voyage. 
 
 the master dies, or be dismissed by the 
 owners or by the managing owner. 
 
 g. If it had been agreed to depart under 
 
 convoy, and no convoy is granted. 
 
 If, while in foreign parts, the master thinks 
 proper to proceed to another free port and to 
 unload or reload the ship, the crew must remain 
 in service, even when the voyage is prolonged 
 thereby. In this case, the pay of those engaged 
 for the voyage is increased in proportion. But 
 on discharging them in foreign parts, the master is 
 bound to pay each what is due to him. He can 
 do so by drawing a bill on the owner or managing 
 owner.
 
 SOS 
 
 "•] 
 
 PRIVATE INTERNATIONAL LAW 
 
 r Chaft. x 
 b 5 '0. 
 
 Lawful reasons 
 for complaints. 
 
 Paying-off at 
 the end of the 
 voyage. 
 
 35°. The officers or the crew may not, on any 
 pretence whatsoever, trouble or impede the master 
 or the ship by law -suits of any kind, before the 
 voyage is ended. They can, however, while the 
 ship is lying in a port, claim their discharge from 
 the respective Consul, or, in default thereof, from 
 the competent local authorities, if the master has 
 ill-treated them or withheld from them the stipu- 
 lated victuals. 
 
 36°. At the end of the voyage, the owner or 
 managing: owner is bound to deliver the effects, 
 money, and the wages earned, of such of the crew 
 as have died during the voyage, or have been left 
 behind, to their heirs or representatives, and if 
 these cannot be immediately found out, to deal 
 therewith in accordance with the existing regula- 
 tions on the subject. 
 
 37°. After the completion of the voyage for 
 which the crew Avas engaged, they must, at the 
 Vo^SorXn master's or owner's desire, unload and stay the 
 s c%u r l d! or ship, bring it to its berth, and moor and unrig it; 
 and, further, within three days after the unloading 
 of the ship, make the required deposition or report 
 upon oath, either alone or with the master (§ 68, 
 sub-sections 35°.— 38°.) 
 
 As soon as the requirements, mentioned above, 
 have been complied with by the officers and crew, 
 they must be immediately discharged, and the 
 wages earned paid to them, within four and 
 twenty hours. Owners and managing owners 
 are liable to a line for each day of illegal withhold- 
 ing of payments due to Officers and Crew, after 
 their discharge, as provided for by the lex fori. 
 
 38°. When a ship is lost or captured, and 
 declared a lawful prize, without any freight being 
 earned or anything saved, those of the crew, 
 who return, are, nevertheless, bound to confirm 
 the depositions of the master, or conscientiously 
 
 Obligations of 
 Officers and 
 Crew after the
 
 paiwii.] ship's officers and seamen. [ Ch §™. x " 309 
 
 to report or depose upon oath. A reasonable 
 indemnity per day is due to them for their loss 
 of time, in making such deposition. 
 
 39°. Shij) and freight are specially liable for 
 the wages, indemnity, and travelling expenses of 
 the crew. 
 
 40°. The ship's officers and crew, by acts of 
 neglect or misconduct, committed in the service, 
 bind the ship and freight in favour of the shipper 
 of cargo who sustains damage thereby, saving 
 the .ship-owner's claim for redress on the master, 
 and his recourse against the crew for barratry. 
 
 Barratry, says Leone Levi, is any fraudulent B<m-«tr V . 
 or criminal conduct against the owners of a 
 ship or goods, by the master or mariners, in 
 breach of the trust reposed in them, and to the 
 injury of the owners ; although it may not be 
 done with intent to injure them, or to benefit at 
 their expense the master or mariners. 
 
 Sailing out of port without paying duties, 
 whereby the ship is subject to forfeiture ; cruising 
 for and taking a prize, contrary to the instruc- 
 tions of the owner ; resistance to or disregard of 
 an embargo lawfully laid ; attempting a breach 
 of blockade ; smuggling, wilfully delaying or 
 deviating, running away with the ship, and 
 selling her or part of her cargo, — are all con- 
 sidered barratry by the master. A master would 
 be guilty of a breach of trust to his owners, and 
 therefore of barratry, if he did any thing injurious 
 to their interest, in contravention of the law, — the 
 observance of which is, where nothing is expressed 
 to the contrary, always implied in their order. 
 Barratry may be committed by the owner or 
 master against the general freighter, or with the 
 consent of the freighters against the owners. It 
 may be committed by a master himself, or by a
 
 310 Past II.] PRIVATE INTERNATIONAL LAW. [°"f 71. X ' 
 
 part-owner against another ; but if the master be 
 owner, he cannot commit barratry against him- 
 self.*' y * 
 
 Barratry makes the persons implicated liable 
 to indemnification of damages, cost and interest, 
 besides the punishment by law, where this is 
 applicable by the lex fori. The wages and hire 
 of the master, officers and crew are especially 
 liable for such recovery. 
 
 XVII. — Freighting and Charter-party. 
 Freighting and & 71. As regards freio-htino- and chartering of 
 vessels and contracts of affreightment, the follow- 
 ing general rules may be found useful. 
 
 1°. There are two forms of the contract of 
 affreightment, viz. : — 
 
 a. By a charter-party for the whole or part 
 of a ship, and for the performing of one 
 or more voyages. 
 h. For the loading by piecemeal or a general 
 cargo, where the master of a ship con- 
 tracts, with any party offering, to load 
 and convey the quantity of goods he 
 thinks proper. This contract for con- 
 veyance in a genera] ship can be made, 
 either by the owner himself, or by the 
 person by whom the whole vessel is 
 hired under a charter-party. 
 2°. When a ship is wholly or partly freighted . 
 for a sea-voyage, the contract of affreightment is 
 called a charter-party. Such contract is generally 
 in writing, but il is immaterial whether it be by 
 deed or by writing under hand only. Universally, 
 however, the agreement is not under notary-seal. 
 when it is called a memorandum of charter! 
 Even an agreement between the owners and (lie 
 merchants, for the employment of a ship on a 
 * Lkom Levi, [ntern. Comm, Law, Vol, 1 1. < lhapt, XX 1. Sect. 12,
 
 Part II.] FREIGHTING AND CHARTER-PARTY. [ Cu ffi *' 311 
 
 voyage, not in writing, but acted upon by the 
 parties, is equivalent to a charter-party. 
 
 3°. The contract of affreightment, in its usual 
 form, contains the following specifications, viz.: — 
 
 a. The name and burthen of the vessel. 
 
 b. The name of the master. 
 
 c The names of owner and freighter. 
 
 d. The place and time fixed for loading and 
 
 unloading. 
 
 e. The freight agreed upon. 
 
 /'. The stipulation that the affreightment is 
 for the whole, or for a part of the ship; 
 for the voyage or for a period of time. 
 (j. The lay or running days. 
 h. The time appointed for the payment of 
 freight and the manner of such payment. 
 i. The rate of demurrage per diem, in case 
 of the vessel's detention beyond her 
 lay or running days. 
 When the whole of a ship is freighted, the 
 cabin is not included therein. The master is, how- 
 ever, not allowed to load any merchandise in the 
 cabin for himself or others, without the freighter's 
 leave, on pain of costs, damages and interest. 
 
 4°. Where no time is limited by the charter- Lay-days ana 
 party from which the demurrage is to be reckoned, demurrwj€ - 
 it is generally reckoned from the time of the ship's 
 arrival at the ordinary place of discharge, accord- 
 ing to the usage of the port. According to this 
 usage, the question is also decided, in cases not 
 provided for in the charter-party, if Sundays are 
 to be computed in the calculation of the lay-days, 
 or whether the lay-days mean only working days. 
 When one part of the cargo is to be shipped 
 or discharged in one place and another part at 
 another place, the time allowed for lay-days is 
 suspended, during the voyage or removal of the
 
 312 Paki II.] PRIVATE INTERNATIONAL LAW. [ ( '" A 7 
 
 rT. X. 
 1. 
 
 vessel from the one place to the other. This 
 holds good also in case the vessel should, for the 
 purposes of navigation, discharge some of her 
 cargo in lighters, as the lay-days are to be calcu- 
 lated from the period of the vessel's arrival at the 
 selected or usual place of discharge. 
 
 After the voyage has begun, the time allowed 
 for lay-days and all that regards the liability for 
 demurrage, questions of release from that liability 
 and the modes of suing for demurrage are to be 
 determined by the law or custom of the respec- 
 tive place, i. e. the lex loci executionis or the lex 
 fori, in all cases not fixed by the charter-party. 
 
 5°. The voyage is considered to have begun as 
 soon as the ship has left the place where she com- 
 menced loading, or, if going in ballast, when the 
 ballast has been taken in ; with observance, 
 however, of the stipulations mentioned in sub- 
 section 4°. 
 capacuy of tM 6°. The owner or master who has stated the 
 
 ships. Time and , n ■. -. . ■■ 
 
 mode of charter- measurement or capacity ot the snip to be greater 
 
 inn and payment. ,, ., -ii««it-i,i , • , 
 
 than it really is, is obliged to bear a proportionate 
 reduction of the freight, and to indemnify the 
 freighter for costs, damages and interests. Where 
 the statement does not exceed the actual capacity 
 of the ship by more than one fortieth part, the 
 difference is not taken into consideration. 
 
 7°. If the time and mode of payment of the 
 freight are not fixed by the charter-party, payment 
 can be claimed immediately upon delivery of the 
 goods loaded. 
 
 8°. Ships may be chartered by the voyage, or 
 by the month, or in such other manner as parties 
 may agree upon. 
 
 If a ship is chartered by the month, and no 
 agreement to the contrary is made, the contract 
 begins with the day of departure or the beginning 
 of the voyage, (as stated in sub-section 5°.), and
 
 PaktU.] contract OF AFFREIGHTMENT. ["'«;£ v 313 
 
 the time of computation continues for the whole 
 course of the voyage and during all unavoidable 
 delays. * 
 
 <S 72. The principal legal rights and obligations ^i?**?""* , 
 
 3 I I O O o Obligations of 
 
 of parties to the contract of affreightment are the pavmtotu 
 
 l _ O Contract of 
 
 followin o*. affreightment. 
 
 1°. When the freighter has not made any use 
 of the time, allowed him by the respective lex 
 mercatoria or by the charter-party, for loading, 
 the owner is entitled, at his option, either to the 
 indemnity fixed by the charter-party for the time 
 which he waits; beyond the period allowed, (or, 
 — if not fixed. — to claim such indemnity on an 
 estimate by experts ) or. to hold the contract of 
 affreightment and charter-party to be broken, and 
 claim from the freighter one half of the freight 
 agreed upon; or. within the time fixed by law, 
 after having given due notice, to undertake, with- 
 out cargo, the voyage for which the ship has been 
 chartered, and, after the performing thereof, claim 
 from the freighter, the full freight due, and 
 demurrage, if any has taken place. 
 
 2°. If the freighter has only employed part of 
 the time allowed for loading, the owner has the 
 choice, to claim the indemnities mentioned above, 
 or to perform the voyage partly loaded in the 
 manner indicated. 
 
 3°. When the ship, having undertaken the 
 voyage partly laden or without any cargo, meets 
 with any casualty on the voyage, whereby ex- 
 penses are incurred, which, on a full laden ship, 
 would have to be borne as general average, the 
 owner is entitled to claim from the freighter two 
 thirds of the amount of such expenses on what 
 has not been laden. 
 
 * Leoxi Levi. Intern. Comm. Law. Vol. II. Chapt. XXII. page 
 759.
 
 314 I'-viii n.j PRIVATE INTERN ATIONAL LAW. [ Ch §tc. *' 
 
 4°. The owner is entitled to one half of the 
 freight fixed hy the charter-party, if the freighter 
 gives up the voyage before the expiration of the 
 lay-days allowed, without having laden any cargo 
 on board. 
 
 5°. In cases which give the owner the right to 
 perform the voyage partly loaded or without cargo 
 (mentioned in sub-section 1°), he is at liberty, 
 without the freighter's consent, to let the master 
 load merchandise from other parties, as security 
 for the freight and average. The freighter becomes 
 then entitled to the benefit of the freight of such 
 goods, besides being released from the liability of 
 average in proportion as such comes on the goods. 
 
 6°. When the freighter ships more goods than 
 was stipulated by the charter-party-, the owner 
 is entitled to the freight of what has been shipped 
 in excess, in proportion to the rate fixed by the 
 contract of affreightment. 
 
 7°. The owner, not having the ship ready at 
 the time fixed by the contract, or not delivering 
 her actually ready to load, is liable, on behalf of 
 the freighter, for indemnification of costs, damages 
 and interest. 
 
 8°. The freighter is bound to deliver to the 
 owner or master all papers and documents re- 
 quired by the law for the conveyance of mer- 
 chandise, within twice four-and -twenty hours 
 artci- loading, if this has not been otherwise 
 agreed upon. In default thereof the freighter is 
 liable for indemnification of costs, damages and 
 interest, and the owner or master can. according 
 to the circumstances, moreover be authorized by 
 judicial authority, to unload those goods. 
 
 9°. When a ship is laying on for a general 
 cargo, the owner or master is at liberty to deter- 
 mine how long he shall wait for cargo. That 
 time having expired, the master is bound to
 
 Part II.] CONTRACT OF AFFREIGHTMENT. [ r "^; v 315 
 
 avail himself of the first fair wind, tide and 
 opportunity to depart, unless he should be able 
 to agree with the shippers about a further delay. 
 
 10°. When a ship is laying on for a general 
 cargo without a time being fixed for' loading", 
 every shipper is at liberty to unload his goods 
 again, without payment of the freight, but on 
 restitution to the master of the bills of lading, 
 signed by him, and on sufficient guarantee for 
 all claims if one or more of them should have 
 been despatched ; besides the payment of the 
 charges incurred or to be incurred by the loading 
 and unloading. If, however, the ship has already 
 taken more than one half of her cargo on board, 
 the captain is bound to avail himself of the first 
 favourable wind, tide and opportunity to depart, 
 eight clays after being summoned thereto, if the 
 majority of the shippers desire it, in which latter 
 case no shipper has a right to take back his 
 goods (§73, 5). 
 
 11°. When a ship is detained either at her 
 departure, or during the voyage, or at the place 
 of discharge, by the fault or neglect of the 
 freighter or one of the shippers of the cargo, the 
 freighter or such shipper is bound to indemnify 
 the owner or master and the other shippers for 
 costs, damages and interest occasioned thereby ; 
 for which indemnity the merchandise shipped 
 by him is liable. 
 
 1 2°. The owner or master is bound to indemnify 
 the freighter or shippers of cargo for all costs, 
 damages and interest, if the ship is seized or 
 detained at her departure, during the voyage, or 
 at the place of discharge, through his fault or 
 neglect. 
 
 13°. If the owner sustains any loss in this 
 respect by the fault or neglect of the master, he 
 recovers it from the same.
 
 ;lfi part it] PRIVATE INTERNATIONAL LAW. [ Cn ^. X ' 
 
 14°. A freighter or shipper, who, without the 
 master's knowledge or consent, loads goods, the 
 import or export of which is prohibited, or other- 
 wise, without the master's knowledge or concur- 
 rence, proceeds, in an illicit manner, in loading 
 or discharging, is bound to indemnify the ship. 
 the master and all further parties concerned for 
 the consequences thereof, and to pay the full 
 stipulated freight and general average, even when 
 the o'oods are confiscated. 
 
 15°. When, during the voyage, the master is 
 compelled to have the ship repaired, the freighter 
 or shipper must await the completion of the re- 
 pairs, or, if he prefers it, imload the cargo and 
 take charge thereof, against payment of the full 
 freight and the general average due, and subject 
 to the stipulations with regard to the bills of 
 lading, as stated in paragraph 73. sub-section 5°. 
 No freight is due by him during the repairs, if 
 the ship is chartered by the month, nor any 
 augmentation of freight, if she has been freighted 
 by the voyage. If the ship cannot be repaired. 
 the master is bound to hire one or more vessels 
 for his account, to convey the cargo to the place 
 of destination, without being entitled to any 
 augmentation of freight. In this case, the care 
 of transporting the cargo further devolves on 
 the shippers respectively, without prejudice to 
 the obligation of the master, not only to acquaint 
 them with the state of things, but also to take. 
 in the meantime, due precautionary measure's 
 for the preservation of the cargo; all unless 
 otherwise agreed upon by the parties' (§7-1, (i). 
 
 16°. The freighter is not chargeable with any 
 freight, and has a right to indemnification, if it 
 appears that the ship, at \\w. time of undertaking 
 the voyage, was not in a proper state; to perform 
 it. Evidence thereof is admitted, notwithstand-
 
 Tart ii.] CONTRACT OF AFFREIGHTMENT. [ ( "V;j. X ' 317 
 
 ing the certificates of survey, effected before the 
 departure (§68, 5). 
 
 17°. If the master has been under the necessity 
 of selling goods, as stated in paragraph 69, sub- 
 section 1°., the freight for these goods is due in 
 full, if the ship arrives safely, or if she be lost, in 
 proportion to the part of the voyage performed. 
 
 18°. Freight is also due for the goods which, 
 for the general safety, have been jettisoned, and 
 which are indemnified by the general average in 
 conformity with the lex loci executionis or the 
 lex fori. 
 
 19°. No freight is due for goods lost by ship- 
 wreck, stranding or through other inevitable 
 causes, or when the vessel is taken by pirates or 
 enemies. The freighter can even claim the resti- 
 tution of what has been paid in advance, if no 
 agreement to the contrary has been made. 
 
 20°. Ship and cargo being ransomed or re- 
 deemed, or goods saved after shipwreck, the 
 freight thereof is due, — for as much as the voy- 
 age cannot be completed, — up to the place where 
 the ship has been taken, or where she has been 
 wrecked, in proportion to the freight agreed upon. 
 If the ransomed or redeemed o'oods are delivered 
 by the master at the place of destination, the 
 owner or master is entitled to the full freight. 
 In the cases provided for above, the owner or 
 master contributes to the costs of ransom or sal- 
 vage by way of general average. 
 
 21°. No freight is due for goods which, having 
 belonged to the cargo of a ship, are fished up or 
 rescued at sea or on the coast, without the master's 
 action and afterwards delivered to the parties 
 concerned. 
 
 22°. The owner or master has the right to 
 compel the freighter or consignee of the cargo to 
 discharge, against payment of the freight and
 
 318 Part II.] PRIVATE INTERNATIONAL LAW. [' "V?. V 
 
 average due to him, when the time stipulated by 
 the charter-party or by the law for unloading has 
 expired. 
 
 23°. If the lay-days have expired, or if a defer- 
 ence about the unloading arises, the owner or 
 master is justified, after having obtained judicial 
 authority, to discharge the cargo, and to place it 
 under the care of a third person appointed for the 
 purpose, without prejudice to his claims on the 
 same. 
 
 24°. The owner or master may not retain the 
 goods on board for the -freight, charges and 
 general average. He has the right to require 
 their being warehoused and placed under the 
 care of a third person, until payment of the 
 freight, charges and general average, and, in the 
 case of perishable goods, he may require their 
 being sold. If the general average cannot speedily 
 be estimated, he is entitled to require the deposit 
 in Court of an equitable sum, to be fixed by the 
 Court for the same. 
 
 25°. If the master has delivered the goods 
 without having received payment of freight, 
 average and other charges, or without availing 
 himself of the means of security, allowed by the 
 laws of the place of discharge (the lex fori), he 
 looses his claim on the freighter or shipper, in 
 case the latter shows that he has settled the 
 amount thereof with the receiver of the goods, 
 or would be unable to obtain its restitution in 
 consequence of his failure. 
 
 20°. If the consignee refuses to receive the 
 goods, the owner or master is qualified, on being 
 judicially authorized, to sell part, or if necessary, 
 the whole of the goods, to the amount of the 
 freight, charges and average, provided lie deposits 
 the remainder in Court, and withoul prejudice
 
 PabtH.] contract op affreightment. [ CllA § 72. x " 319 
 
 to his claim on the freighter or shipper for auy 
 deficiency. 
 
 27°. Owners or masters have a prior claim on 
 the goods shipped in their vessel, before all other 
 creditors, for freight, charges and average, during 
 twenty days after the delivery (or otherwise as 
 stipulated by the lex fori) if they have not passed 
 into the hands of a third person. 
 
 28°. In all cases where the freight has been 
 stipulated by number, weight or measure, the 
 owner or master has the right to require the 
 counting, weighing or measuring immediately on 
 the discharge (§ 68. sub-section 37°.) 
 
 29°. If. in the case mentioned above in sub- 
 section 28°.. the goods are delivered from on board 
 without counting, weighing or measuring, the 
 receiver of the same is entitled to prove the 
 identity, number, measure or weight of the goods, 
 even by testimony of the persons whom he has 
 employed to receive and store them. 
 
 30°. If damage, deterioration, robbery or dimi- 
 nution of the goods is suspected, the master, con- 
 signees or parties concerned, are, respectively, 
 entitled to require a legal investigation, survey 
 and valuation of the loss, before, or at the dis- 
 charge. Such requisition, though being made by 
 the master, does not prejudice his means of vin- 
 dication. 
 
 31°. If the goods have been delivered from on 
 board by the master, against a receipt or acquitted 
 bill of lading, on which mention is made of their 
 having been landed in a damaged, deteriorated, 
 depreciated or diminished state, the consignee is 
 entitled to procure evidence of their condition by 
 a legal inspection, provided this be asked within 
 twice four-and-twenty hours after the delivery, 
 or within such other period of time as may be 
 stipulated by the lex fori.
 
 320 i'akt ii.] PRIVATE INTERNATIONAL LAW. [' '"^ 
 
 Laws which 
 govern the 
 Contract of 
 affreightment. 
 
 Dissolution of 
 
 ('antra '-if of 
 affreigMment. 
 
 32°. If the damage or diminution is not visible 
 outwardly, the legal inspection can take place, 
 with lea;al effect, after the sroods have been brought 
 under the management of the receiver or consignee, 
 provided this inspection be made, likewise, within 
 twice four-and-twenty hours after the discharge, 
 or within such other period of time as stipulated 
 by the lex fori, and that the identity of the 
 goods can be satisfactorily shown, as stated above 
 in sub-section 29°., or by any other legal evidence, 
 in conformity with the lex fori. 
 
 33°. The contract of affreightment having been 
 fulfilled by owner and master on their part, the 
 freighter cannot subsequently claim any reduction 
 of freight. 
 
 34°. The shipper cannot under any circum- 
 stances abandon the goods for the freight. Casks, 
 which have been filled with liquids, and which 
 have leaked during the voyage, so as to be entirely 
 or nearly empty, can, however, be abandoned for 
 freight, average and charges. 
 
 35°. A vessel being chartered in a foreign 
 country, master as well as ship are subject to the 
 lex loci contractus, or, in cases of self-jurisdicton, 
 to the law of the flag of the vessel (Comp. §47). 
 With regard to the discharge and in every thing 
 which must be done in a foreign place, the master 
 and vessel are subject to the lex loci executionis 
 and the lex fori or to the law of the flag, in cases 
 as mentioned above. * 
 
 36°. The contract of affreightment is legally 
 dissolved, without the parties having any claim on 
 each other for freight or indemnity, if any of the 
 
 * ]n several cases, contracts of affreightment, if no1 otherwise 
 stipulated between parties, were held to be permanently governed by 
 the law of tlie flag of the vessel. See judgment of the Exchequer- 
 Chamber delivered by Willes, J. in the ease Lloyd v. Gtitbcrt. L. H. 
 I. Q. B. L15; cited by J. A. FOOTE. Private Intern. Jurisprudence. 
 L878, pp. 315-326.
 
 part ii.] CONTRACT OF AFFREIGHTMENT. [ C "f 7 T' X " 321 
 
 following circumstances occur before the beginning 
 of the voyage : — 
 
 a. That the departure of the ship is prevented 
 
 by inevitable causes, — whether she be 
 chartered for the exportation of cargo 
 from the place of affreightment or char- 
 tered when lying in a foreign port. 
 
 b. That a prohibition of export from the 
 
 place of departure, or a prohibition of 
 import at the place of destination, exist, 
 either against all or against some of the 
 articles mentioned in one and the same 
 charter-party: if the prohibition affects 
 only a part of the cargo, the shipper shall 
 be at liberty to maintain the agreement, 
 provided he indemnifies the owner. 
 
 c. That trade with the country whither the 
 
 ship is bound, is prohibited. In all these 
 cases the charges of loading and unload- 
 mg are for account of the freighter. 
 37°. The contract of affreightment can be an- 
 nulled, at the requisition of one of the parties, 
 when a war breaks out before the beginning of the 
 voyage, in consequence of which ship and cargo, 
 or either of them, can no more be considered as 
 neutral property. Ship and cargo being both 
 equally unfree, owner and freighter cannot claim 
 any indemnity from each other. The charges 
 incurred by loading and unloading are, however, 
 for account of the freighter. If the cargo alone 
 is unfree, the freighter pays to the owner all 
 necessary disbursements for the fitting out of the 
 ship for the voyage, together with the wages and 
 board of the crew, paid by him up to the day on 
 which the rescinding of the contract was required, 
 or the goods already shipped were unloaded. If 
 the ship alone is unfree, the owner or master pays 
 all the charges of loading and unloading.
 
 322 pari II.] PRIVATE INTERNATIONAL LAW. [ Cn $l v 
 
 38°. In the cases mentioned in snb-sections 36°. 
 and 37°., owner or master retains his claim for 
 demurrage, if any has been incurred ; likewise for 
 general average for damages sustained previous 
 to the dissolution or rescinding of the agreement. 
 
 39°. When a ship, chartered for more than one 
 destination, after performing one voyage, is 
 staying in a port from which another voyage 
 should begin, and a war breaks out before this 
 latter has -been entered upon, the following rules 
 may be complied with, if not otherwise stipulated 
 by the lex loci contractus. (Sub-section 35). 
 
 a. Ship and cargo bang both unfree, the 
 
 ship must remain there until peace be 
 restored, or until she can safely depart 
 under convoy or otherwise, or until the 
 master shall have received the necessary 
 orders from the owners of the ship and 
 cargo, and no longer. If the ship be 
 loaded, the master may have the cargo 
 deposited in warehouses or other safe 
 stores, until the voyage can be pursued 
 or other arrangements be made. The 
 board and wages of the crew, the rent 
 of the warehouses, and other expenses, 
 caused by the detention, are borne 
 by the freighter and owner by way of 
 general average. If the ship be not 
 yet laden, two thirds of those charges 
 come to the account of the freighters. 
 
 b. The ship alone being unfree, the contract 
 
 for the voyage not yet performed is 
 annulled at the requisition of the owner. 
 If the ship is loaded, the owner or 
 master pays the charges incurred by 
 1 (jading and unloading, and is only 
 entitled to flic freight for the voyage
 
 Part n.] CONTRACT OF AFFREIGHTMENT. [ Ch §^". X " 323 
 
 already performed, demurrage, and gen- 
 eral average. 
 c. The vessel being free while the cargo alone 
 is unfree, and the freighter declining to 
 load the ship, the master is at liberty to 
 depart without cargo and to perform 
 the voyage for which the ship is char- 
 tered ; after the completion of the voy- 
 age, the full stipulated freight shall be 
 paid to him. With regard to damages 
 and charges, for the taking in of a new 
 cargo, and the profit arising from the 
 freight thereof, the rules mentioned in 
 sub-sections 3 and 5 of this paragraph 
 are here also applicable. 
 40°. If a vessel, having been chartered to pro- 
 ceed in ballast to another port to be loaded there 
 for a voyage, is, after arrival at the place of loading, 
 prevented by war from pursuing the voyage, the 
 contract is considered as annulled, if both ship 
 and cargo are unfree, without the parties having 
 any claim on each other. But if the cargo alone 
 is unfree, the parties are released from each other 
 by the payment of one half of the stipulated 
 freight. 
 
 41°. If trade with the country whither the 
 ship was proceeding is prohibited, and she is 
 thereby compelled to return with the cargo, no 
 more is due than the freight for the outward 
 voyage, although the ship had been chartered for 
 the voyage out and home. 
 
 42°. When the voyage of a ship, either before 
 its beginning, or in the course thereof, is tempo- 
 rarily interrupted by embargo, or by some other 
 measure or means, through force majeure, without 
 the fault of the master, owner or freighter, the 
 agreements remain in force, without any damages 
 being due on either side. No freight is due by
 
 ,324 run: II.] PRIVATE INTERNATIONAL LAW. [ Cn j"'. 
 
 X. 
 
 the freighter during the detention caused there- 
 by to the ship, if she has been chartered by the 
 month, nor any augmentation of freight, if char- 
 tered for the voyage. During this impediment 
 the shipper may discharge his goods at his own 
 expense, provided he reloads them again after- 
 wards, or indemnifies the owner with respect to 
 the freight. 
 
 43°. The rules noted above, in sub-sections 
 36°.-42°., are equally applicable to charters for a 
 general cargo or a so-called general ship (§71. 
 sub -section 1°.) 
 
 These rules, belono-mo- to the lex mercaioria, 
 are applicable in cases not otherwise regulated 
 by the lex loci contractus. (Comp. note on Sub- 
 section 35). 
 
 Natureand §73. "A Bill of Lading is a formal receipt, 
 
 tteunof 1 * ' subscribed by the master of a ship in his capacity 
 as carrier, acknowledging that he has received 
 the goods specified in it on board his ship and 
 binding himself (under certain exceptions) to 
 deliver them, in the like good order as received, 
 at the place and to the individual named in* the 
 bill, or his assigns, on his or their paying him 
 the stipulated freight. The exceptions to the 
 liability of the carrier introduced in the bill of 
 lading are : ' the acts of God, the Nation's enemies, 
 fire and all and every other danger and accident 
 of the seas, rivers, and navigation, of whatever 
 nature and kind soever. ' But the application of 
 the exception, inserted in the bill of lading, be- 
 longs to the judge who is guided by the usage 
 and practice among merchants. And in order 
 that the loss may fall within that clause, it must 
 have happened from natural causes and not from 
 any neglect or negligence of man. No master or 
 owner is liable for any loss of gold, silver, dia- 
 
 lading.
 
 Part II.] BILLS OF LADING. [ C "§?3'. X ' 325 
 
 monds, watches, jewels or precious stones shipped 
 on board a ship, by reason of robbery, embezzle- 
 ment, making away with or secreting thereof, 
 unless the owner or master has inserted in the 
 bill of lading the true nature, quality and value 
 of the same." * 
 
 A bill of lading, signed by the ship-owner or 
 master, is nothing more than a formal receipt, by 
 which the carrier acknowledges that he has re- 
 ceived certain goods on board his ship, and binds 
 himself to deliver them to the consignee or his 
 assignee. Nor is it conclusive as between the 
 consignor and the owner. Where the consignor 
 delivers the goods to a carrier by order of the 
 consignee, and they are afterwards lost, the con- 
 signor could not maintain an action against the 
 carrier for loss, in his own name, but the action 
 must be brought by the consignee. So as regards 
 vendor and vendee. If the goods remain, whilst 
 the carrier has charge over them, at the risk of 
 the vendor, then it is the vendor who has the 
 action against the carrier. So, when an agree- 
 ment exists between the consignor ana consignee 
 to the effect that the property in the goods shall 
 not vest until bills are accepted, and the bills of 
 lading are till then endorsed to another, the 
 master would have to keep the goods to the ship- 
 per's order. 
 
 There is nothing -final or irrevocable in the 
 nature of a bill of lading ; the owner of the goods 
 may change his purpose, at any time before the 
 delivery of the goods themselves or of the bill of 
 lading to the party named in it, and may order 
 the delivery of them to some other person. Where 
 the bill of lading is made up for delivery to the 
 order of the shipper, or to or order or assigns, 
 
 * 26 Geo. 3, C. 86, S. 2. Leone Levi. Intern. C'omm. Law. Cbapt. 
 XXII. Section 3.
 
 326 Tai-.t 11.] PRIVATE INTERNATIONAL LAW. f "^. X * 
 
 it is the master's duty to retain the goods, and he 
 cannot safely deliver them until they are claimed 
 by the holder of a bill of lading, indorsed by the 
 shipper, to whose order he has engaged to return 
 them. But when, by the terms of agreement, all 
 the conditions attached to the delivery of the 
 goods are performed, the property vests in the 
 consignee, and an action for loss or injury of the 
 goods may be maintained by him. Where a bill 
 of lading is made to the order of the shipper, or 
 
 to or order, and the same is indorsed, and 
 
 sent to him as consignee, as a security for advances, 
 the property will vest in the consignee, and he 
 may maintain an action for loss or injury. The 
 indorsement of a bill of lading, without considera- 
 tion, does not transfer any property in the goods, 
 and such consignee cannot maintain an action for 
 delivery of or for loss or injury in the goods. 
 
 A bill of lading is transferable by indorsement, 
 and every consignee of goods named in the 
 instrument, and every indorsee of the same, to 
 whom the property of the goods therein mention- 
 ed shall pass, by reason of such consignment 
 or indorsement, shall have tranferred to and vested 
 in him all rights of suit, and be subject to the 
 same liabilities, in respect of such goods, as if the 
 contract contained in the bill of lading had been ' 
 made with himself. * Yet an indorsee, who had 
 indorsed the bill of lading before the arrival of t lie 
 vessel and before the delivery of the cargo, will 
 not remain liable for the freight. Nor will the 
 rights thus conferred on the consignee of the 
 goods, or indorsee of the; bill of lading, affect the 
 right of stoppage in- transitu (§<i<>^ or tne right 
 to claim freight against the original shipper or 
 owner, or any liability of the consignee or in- 
 dorsee, arising from his being the consignee or 
 * 18 and 19, Vict, Chapt. 11 1, Sec l.
 
 PAHxtl.] BILLS OF LADING. {.°^fn. ** 327 
 
 indorsee, in consequence of such consignment 
 or indorsement. * Every bill of lading, in the 
 hands of a consignee or indorsee, for valuable 
 consideration, representing goods to have been 
 shipped on board a vessel, is conclusive evidence 
 of such shipment, as against the master or other 
 person signing the same ; notwithstanding that 
 such goods, or some part thereof, may not have 
 been so shipped ; unless the holder of the bill of 
 lading shall have had actual notice, at the time 
 of receiving the same, that the goods had not 
 been in fact laden on board. The master, or 
 other person who signed the bill may, however, 
 exonerate himself in respect of such misrepresen- 
 tation, by showing that it was caused without 
 any default on his part, and wholly by the fraud 
 of the shipper, or of the holder, or some person 
 through whom the holder claims, f 
 
 To bills of lading are further applicable the Rates una, 
 following rules of the lex mercatoria, if not other- SrSSJJ.* 1 "* 
 wise regulated by the lex loci contractus, viz.: — 
 
 1°. The bill of lading contains: — 
 
 a. The name of the freighter, or shipper. 
 
 b. The designation of the consignee, that is 
 
 the person to whom the goods are sent. 
 
 c. The name and domicile of the master, as 
 
 carrier. 
 
 d. The name and sort of the ship, and the 
 
 place to which she belongs. 
 
 e. The kind, quantity, marks and numbers 
 
 of the goods to be transported. 
 
 /. The place of departure, and that of the 
 destination. 
 
 g. The stipulations respecting the freight. 
 
 * 18 and 19. Vict. Chapt, 111, Sec. 2. 
 
 f 18 and 10. Vict. Chapt. Ill, Sec. 3. Leoxi Levi. Intern. Comra. 
 Law. Chapt. XXII. Sec. 3.
 
 328 part ii.] PRIVATE INTERNATIONAL LAW. [ Ch {^; x ' 
 
 h. The signature of the master and that of 
 the shipper or of him who manages the 
 shipment for him. 
 
 2°. The bill of lading may be to order, to 
 bearer, or to a particular person. That made out 
 to order can be transferred by endorsement. 
 
 3°. Of every bill of lading a certain number of 
 original copies are made. One for the freighter 
 or shipper, one for the consignee of the goods, 
 one for the master and one for the owner or 
 joint-owners, or their agent, are the usual num- 
 ber. These original bills of lading must be signed, 
 within four-and-twenty hours after the shipment, 
 and delivered against restitution of the receipts 
 provisionally given for the goods received on 
 board; and it is the duty of the master not to 
 deliver the bill of lading except to the persons 
 who can produce the receipts in exchange for it. 
 
 4°. The master is bound, nevertheless, to fur- 
 nish the freighter or shipper with as many bills 
 of lading, of the same tenor and date, as he may 
 desire. The number of copies is attested on each 
 copy of correspondig tenor and date, with the 
 clause of one being accomplished, the others to stand 
 void. 
 
 5°. The freighters or shippers cannot discharge 
 the goods shipped, without restoring all the bills 
 of lading delivered to them for the same by the 
 master. When one or more of the bills of lading 
 have been despatched, the discharge can only 
 lake place on judicial authority, after investiga- 
 tion of circumstances, and under the shipper's 
 security for all claims that may arise with regard 
 to the bills of lading despatched; at all events 
 against payment of the full freight of the goods 
 shipped by him, and the charges of discharging 
 and of rcstowins; the remainder of the cargo; all
 
 Part ii.] BILLS or LADING. [^i.** 329 
 
 without prejudice to what has been stipulated in 
 paragraph 72, sub-section 1 10. 
 
 6°. The bill of lading, made out in due form, 
 serves as evidence between all parties concerned 
 in the shipment, and between those interested in 
 the cargo and the underwriters, under reserve to 
 these latter of the right to produce contrary 
 evidence. 
 
 7°. When the goods have been shipped with- 
 out being counted, weighed or measured, the 
 master may note on the bill of lading that the 
 kind, number, weight or measure are unknown 
 to him. 
 
 8°. If the master can prove that the quantity 
 of goods mentioned in the bill of lading cannot 
 have been loaded in the ship, that proof holds 
 good against the shipper, but he is bound, never- 
 theless, to indemnify the consignee, if this latter 
 Las paid or advanced more to the shipper on the 
 faith of the bill of lading than the ship had on 
 board ; without prejudice to the recourse of the 
 master on the shipper. 
 
 9°. Where a difference exists between bills of 
 lading of one and the same cargo, the most 
 regular one has the preference. ' 
 
 10°. Where several persons are holders of a 
 
 bill of lading of the same goods, he that holds 
 
 • • • • 
 
 one made out in his name direct, is entitled to 
 
 the provisional warehousing, in preference to 
 
 him, who is only in possession of one made out 
 
 to order, or to bearer. 
 
 11°. If all the bills of lading of the same goods 
 are made out respectively in the names of their 
 several holders, or all to order or to bearer, 
 judicial authority must decide which of them is 
 entitled to store the goods provisionally.
 
 330 part H.] PRIVATE INTERNATIONAL LAW. [ Cu §7 4 '. X ' 
 
 12°. If the master is aware of there being 
 more than one holder of a bill of lading of the 
 same goods, or of an attachment having been 
 laid thereon, he may not discharge the same 
 without authorization of the respective Consul or 
 judicial authority. He may, in such cases, ask 
 for judicial authorization to land the goods, and 
 store them, without-prejudice to any one's rights, 
 under such custody as the judge shall appoint. 
 
 13°. All parties concerned, and also the person 
 appointed to keep the goods provisionally under 
 his care, may, on account of the state in which 
 they are, or of their being perishable, require 
 their being sold by judicial authority. The 
 proceeds, after deduction of the charges, then 
 represent the goods, and must be placed under 
 judicial deposit. 
 
 14°. No attachment or opposition of third 
 parties, not being holders of bills of lading, can 
 prevent the holder of a bill of lading to require 
 (lie storing and sale by judicial authority, with- 
 out prejudice to the rights of him by whom the 
 attachment has been laid, or of him that has 
 come in opposition, on the proceeds of the sale. 
 
 X VIII. — Passengers. 
 Huh regarding §74. With regard to passengers on sea-voyages 
 
 passengers and , " <• • 't' ,i <• n • i i 
 
 to toreign parts the tollowmg rules may be 
 applicable, in cases of Concurrent Jurisdiction, 
 viz.: — 
 
 I . [fno previous agreemenl lias beeu made 
 aboul the fare for the transport of a passenger 
 the passage-money shall be judicially fixed, if 
 necessary, after hearing competent evidence. 
 
 2°. [f the passenger does nol repair on board, 
 or absents bimself from the ship withoul the 
 master's leave, when she is ready in sail, the
 
 part ii.] PASSENGERS. [ C 'Ti. V 331 
 
 master is at liberty to depart, and nevertheless 
 to claim the full passage-money. 
 
 3°. The passenger may not, without the mas- 
 ter's consent, transfer to a third person his right 
 resulting from the agreement made. 
 
 4°. If the passenger dies before the commence- 
 ment of the voyage, only one half of the passage- 
 money is due. Where maintenance is included 
 in the passage-money, the amount due is in that 
 ease fixed by the judge, if necessary after hearing 
 competent evidence. 
 
 5°. If, either before the departure of the ship, 
 or in the course of the voyage, the ship's voyage 
 is broken off, or interrupted by inevitable causes, 
 or by some cause over which the master or 
 owners have no control, the passenger and master 
 are released from each other without any indem- 
 nity. If a voyage already begun is put a stop 
 to, the passengers are liable to the payment of 
 the passage-money in proportion to the part of 
 of the voyage performed . 
 
 6°. If, in the case mentioned in section 7 '2, 
 sub-section 15, the passenger chooses to await 
 the termination of the repairs, he is not liable to 
 any augmentation of passage-money, but must, 
 during the interval, provide for his own main- 
 tenance, or arrange it with the master. 
 
 7°. In case the agreement is broken, either 
 before the commencement of the voyage or dur- 
 ing its course, the master has a right to claim 
 what he has already furnished to the passengers, 
 or disbursed for them. 
 
 8°. The passengers are bound to behave in con- 
 formity with the master's directions, for as much 
 as such tend to maintain good order on board. 
 
 9°. The master is not obliged, nor even autho- 
 rized, to touch or stop at any port at the desire 
 or in behalf of passengers.
 
 332 paktil] private international law. [ Ch §"; x " 
 
 10. Each passenger provides for his own neces- 
 sities, unless the contrary has been agreed upon. 
 In case, however, of his being in want of provi- 
 sions, the master is bound to supply him with 
 necessary victuals, at a reasonable price. The 
 rule mentioned in paragraph 68, sub-section 29, 
 applies also to the passengers. 
 
 1 1°. In the case of a passenger dying during the 
 voyage, it is left to the master's decision to have 
 the body buried, or to consign it to the deep. 
 The master takes charge of the effects left on 
 board by. the deceased passenger. . 
 
 12°. The passenger is considered as shipper 
 with respect to the goods he has on board. But 
 with regard to goods which a passenger has held 
 under his own care, the master is only answerable 
 for damage, when such damage is caused by the 
 master's fault or by that of the crew. 
 
 The master has a right of retention and pre- 
 ference on the goods which the passenger has 
 taken on board, for the recovery of passage-money 
 and maintenance. 
 
 XIX. — Bottomry. 
 Nature and ie<jai S 75. Bottomry is an agreement between a 
 
 aspects of the -, -, * n l , . . 
 
 bottomry money-lender and a money- borrower, m virtue 
 
 contract. „ , < . .. . J 1 , . . , 
 
 ot which a sum ol money is advanced m consider- 
 ation <>t' a premium and on the security of a ship 
 or goods or of both, to th thai the lender 
 
 Loses his righl to the money advanced and to the 
 premium,— called marine or maritime interest, — 
 if the property pledged, wholly or partly, perishes. 
 or is diminished by casualties at sea, in so I'm- as 
 the claim cannot be covered bywhal remains of the 
 pledge, whilst the loan and marine interest must 
 be paid in full, if the property pledged arrives 
 safely al i he place of destinai ion.
 
 Paw II.] BOTTOMRY. ['''V" ' '■>'■ 
 
 The vital principle of bottomry hypothecation 
 and bonds demands compliance with the follow- 
 ing conditions, viz., 1°., that the Joan be made 
 under pressure of strict necessity, i.e. to enable the 
 ship to refit, or to pay for the repairs and des- 
 patch of the vessel, for the completion of .her 
 voyage; 2°., that the master was unable to obtain 
 such advances upon personal credit ; 3°., that the 
 owner is known to have no credit, or no re- 
 sources for obtaining the necessary supplies. If 
 the master takes up money from a person who 
 knows that he has a general credit in the place, or, 
 at least, that there is an authorized consignee or 
 agent willing to supply his wants, the giving a 
 bottomry bond is a void transaction not affecting 
 the property of the owners. 
 
 When the contract of the loan has for its object 
 the hypothecation of the goods, and the loan of 
 money is contracted solely upon merchandise, 
 laden on board a ship, — the repayment of the 
 loan being made to depend upon the safe arrival 
 of the merchandise at the port of destination, — 
 the bottomry is called respondentia ( § 62, sub- 
 sections 16 and 18).* 
 
 Bottomry and respondentia are subject to the iJ " to j«^ 
 
 , ^ ^ J , 7 y , regard to 
 
 following rules or the lex mercatoria, — ll not oottomry and 
 
 . .°.-, -.-, 17 7- respondentia. 
 
 otherwise stipulated by the lex loci contractus. 
 
 1°. The agreement must be made in writing. 
 It contains : — 
 
 a. The name of the money-lender and of the 
 
 money -borrower . 
 h. The sum advanced and the premium or 
 marine interest, agreed to be paid for 
 the sea-risk. 
 
 c. The objects specially bound by the loan. 
 
 d. The names of the ship and master. 
 
 * Leom Levi. Intern. Comm. Law, Chapt. XXII. Section I.
 
 the tittg. 
 
 334 Part II.] PRIVATE INTERNATIONAL LAW. \_ Ca £i\ X " 
 
 e. Whether the loan takes place for one or 
 more voyages, for what voyage and for 
 what time. 
 /, The time and terms of re-imbursement of 
 
 the money raised. 
 a. The place and date on which the bottomry 
 or respondentia is contracted. 
 Bottomry con- 2°. If the formalities of the lex loci contractus 
 e7SZ e h'xio"f\mve not been complied with, the contract is not 
 'iTttp«>*'of d considered bottomry, and the money-lender is 
 only entitled to the sum advanced with the legal 
 interest, under personal liability of him who raised 
 the money. The necessity of the master's act 
 must be proved by the law of the flag. * 
 
 3°. All bottomry-bonds can, if made out to 
 order, be transferred to third parties by endorse- 
 ment, in the same manner as bills of exchange. 
 In this case the endorsee replaces the endorser, 
 as well with regard to profit as to loss, without 
 the endorser being liable to any other guarantee 
 than that of the reality of the bottomry. 
 
 4°. Loans on bottomry can be made on pledge: 
 of the hull and keel of the ship ; of the tackle and 
 further rigging; of the implements of war and 
 provisions ; of the cargo ; of any of these objeel s 
 together or of each separately ; of a defined part 
 of any of them ; of the freight and expected profit, 
 but under observance of the rules mentioned in 
 sub-section 8°. 
 
 5°. If bottomry has been contracted on pledge 
 of the ship, without further definition, the tackle 
 and further rigging, as also the implements of 
 war are included. 
 
 (j°. Every loan on bottomry contracted for a 
 sum exceeding the value of the objects <>n which 
 it is made, can be declared void at the request of 
 
 • .1. A. Foote. Priv. Intern. Jurisprudence, Edit. 1 87ft. p. 326, 
 ci Beq.
 
 Part II.] BOTTOMRY. t^w.*" 335 
 
 the money -lender, if it be proved that the borrower 
 lias acted fraudulently. If no fraud exists, the 
 contract holds good to the amount of the value 
 of the objects pledged for the sum advanced ; the 
 surplus of the sum advanced is repaid with the 
 legal interest. 
 
 7°. No money may be advanced, on bottomry, 
 to sailors or seamen on their wages or allowance 
 for travelling expenses. (See with regard to 
 wages § 62, sub-section 8). * 
 
 8°. No money may be advanced, on bottomry, 
 either on freight to be earned alone, or expected 
 profit alone, nor exclusively on these two objects 
 combined. Neither can general average be the 
 subject of a bottomry bond, f In these cases, and 
 in that mentioned in sub-section 7°., the money- 
 lender is only entitled to the payment of the 
 advanced sum, as noted in sub-section 2°. 
 
 9°. A loan on bottomry, contracted, in a home- 
 port, by the master of a ship, — when he has means 
 of communicating with the owner, — without 
 written consent of the owners, or, in a foreign 
 country, without complying with the formalities 
 stipulated in paragraph 69°., sub-section 1, gives 
 no right of preference, except for the share which 
 the master may have in the objects hypotheca- 
 ted. J 
 
 10°. The shares of each part-owner of the ship, uabauyof 
 — even of such as have not contributed what was °' c 
 legally due by them towards the outfit of the 
 vessel, — are liable for loans contracted on bot- 
 tomry or otherwise, for repairs or purchase of 
 provisions ( § 67). 
 
 * Aknould. Marine Insurance. Edit. Maclachlan, 1877. p. 43, et 
 seq. 
 
 f Leoni Levi. Edit. iStyi. p. 795. 
 
 X "The Master has a right to hypothecate the ship and cargo, 
 though lying in a port of the same country in which the owners 
 reside, provided he has no means of communicating with the owners. - ' 
 \ mould. /, r.
 
 336 I'aki' "•] PRIVATE INTERNATIONAL LAW. [ Cl, |~; x ' 
 
 /lWv . 0/ 11°. Money taken up on behalf of the last 
 
 preference. voyage of the ship, is a preferential debt to that 
 of unpaid purchase-money and to any debts con- 
 tracted for preceding voyages. Money raised in 
 need, by the master, during and for the voyage, 
 has preference above that borrowed before the 
 ship's departure; and if several loans have taken 
 place in the course of the same voyage, the last 
 loan always has the preference before those pre- 
 viously contracted. Of two or more bottomry 
 bonds the latest has always the priority. But 
 bottomry debts contracted on one and the same 
 voyage, in the same port of shelter, and during 
 the same detention, have mutually equal right. 
 
 12°. He that lends money on bottomry on 
 goods laden in a ship, designated in the contract. 
 does not sustain the loss thereof, even when 
 caused by the dangers of the sea, if the goods 
 have been trans-shipped in another vessel, unless 
 it be proved that the trans-shipment was caused 
 by unavoidable causes. 
 
 13°. In case bottomry is taken on goods before 
 the commencement of the voyage, it must be men- 
 tioned on the bills of lading and on the manifest, 
 with designation of the person to whom the 
 master must give notice of his safe arrival at the 
 stipulated places of discharge. In default of"this, 
 the consignee, who, relying on the bills of lading 
 received, has accepted bills or made advances, is 
 privileged above the holder of such bottomry- 
 bond.' In default of the designation above required, 
 the master, as not knowing to whom he has to 
 give notice of bis arrival, may also have the goods 
 landed, without making himself in any way 
 responsible *to the holder of the bottomry -bond 
 ju thai case. 
 
 11°. He who has, dishonestly- landed goodfi 
 charged with bottomry, to the prejudice of the
 
 Pari I 
 
 ■] BOTTOMRY. [''"^ v So\ 
 
 holder of the bottomry-bond, thereby becomes 
 
 personally responsible for the payment of the 
 bottomry-debt. 
 
 15°. When the bottomry-contract does not 
 contain any particular stipulations, the sea-risk 
 of the money-lender begins: — 
 
 a. With respect to the engaged ship, her 
 
 rigging, implements of war and provi- 
 sions, — at the moment of her sailing. 
 and it ends at the time she comes to 
 anchor or is moored at the place of 
 destination. 
 
 b. With regard to the goods, — as soon as 
 
 they are loaded in the ship, or in the 
 lighters which must bring the goods on 
 board, and, — if the bottomry has been 
 contracted on goods already shipped 
 during the voyage, — on the day on 
 which the contract was closed. In both 
 these latter cases the risk ends as soon 
 as the goods are landed or ought to 
 have been landed at the place of des- 
 tination. 
 16°. If, after the closing of a contract of bot- 
 tomry, the voyage of the pledged ship and goods 
 is not proceeded with, the money-lender can claim 
 the restitution of the sum advanced, with only 
 the legal interest thereon, as a preferential debt, 
 unless the risk had already begun to run for his 
 account; in which case he has a right to the 
 marine interest. 
 
 17°. The money-borrower is personally res- 
 ponsible for the advanced sum and the. marine 
 interest, if the voyage is altered by his fault or 
 with his consent, or if the pledged ship or goods, 
 either by internal corruption, or by fault, villany, 
 purpose or neglect of the borrower, diminish, 
 deteriorate or perish.
 
 ?>?,8 PAwrii.] PRIVATE INTERNATIONAL LAW. [ ClI j76. ,X 
 
 lcS°. If 1 are totally lost, or 
 
 captured and confiscated; and the loss or capture 
 has been caused by an unforeseen casualty or by 
 superior power, during the time and on the 
 voyage for which the Ivanced, the 
 
 repayment of the sum advanced cannot be claim- 
 ed. If a part of the objec I Iged is saved, the 
 money-lender has a right of recourse thereon, but 
 further than it can yield. 
 
 Bottomry, contracted in need, does not support 
 any other average, than the damages resulting 
 from those losses or derni ■ attached 
 
 to the nature of the agi ribed in the 
 
 beginning of thi . (p. 332), unless the 
 
 contrary has been expressly agreed upon. * 
 
 19°. In the event of any disaster befalling the 
 pledged ship or goods, or of their being captured, 
 the money-borrower must, on receiving informa- 
 tion thereof, immediately bring this to the knowL 
 edge of the -money-lender. Without prejudice 
 to the master's obli -borrower, 
 
 when being n. :ts pledged, is bound to 
 
 u ! all diligence, (at the cl ■' the objects), to 
 
 save them. When proving negligent in either 
 case, lie is liable to indemnification. 
 
 20°. He who. in ease of stranding or wrecking 
 of a pledged ship 'xpenses, which should 
 
 have prefereno b re the holder of a bottomry - 
 bond, acquires the precedence of the original 
 creditor. (Comp. §66 : sub-section '>. a). 
 
 XX. — Prescription of Maritiim Contracts, 
 
 §70. Contracts in mari a commerce become 
 fu^SStL prescribed in a cerl : " • ■■ in conformity 
 
 con£a with the respective lex mercatoria. 
 
 Leone Le\ i. I "- "'' Bott< 
 
 mdi n\ in Bonds,
 
 Pabt II. 1 PRESCRIPTION OF MARITIME CON'TKACTrf. [^"'V^j', *' 339 
 
 Iii cases of concurrent jurisdiction (§ -19), the 
 following rules, which give an idea as to the 
 comparative value of the respective claims may 
 be adopted. 
 
 1°. By the lapse of one //car become prescribed 
 the following claims, viz.: — 
 
 a. For payment of ship's freight, wages and 
 
 pay of the master, officers and crew. 
 
 b. For payment of provisions furnished to 
 
 officers and crew by the master's order. 
 
 c. For the delivery of merchandise. 
 
 d. For payment of what is due by passengers. 
 2°. The terms of these prescriptions begin to 
 
 run as follow : — 
 
 Those sub a, with the end of the vovaee. 
 Those sub b, with the delivery of the provisions 
 in question. Those sub c and d, with the arrival 
 of the ship at the place of destination. 
 
 3°. The following claims become void by the 
 lapse of thn y ars. 
 
 a. All claims arising from supplies in behalf 
 of the fittin^-out and victualling of the 
 ship, as also of timber, sails, anchors 
 and what is further required for the 
 building and repairing, and, finally, for 
 wages and work done to the ship. 
 h. All claim fo iges caused by fouling, 
 
 running down, drifting or collision. 
 The term of the first mentioned pres- 
 cription begins to run from the day of 
 delivery of the articles, or completing 
 of the work and that of the latter, from 
 the day on which the event occurred. 
 1°. By the lapse of five years become void : — 
 all claims resulting from bottomry-contracts or 
 policies of insurance. The terms of these pre- 
 scriptions begin to count from the day on which 
 the respective agreement was made.
 
 340 r-vuT ir.] PRIVATE INTERNATIONAL LAW. [^T?."*' 
 
 5°. All claims, between the parties concerned, 
 to an assessment by way of general average. 
 become prescribed two years after the termination 
 of the voyage. 
 
 6°. The privilege on ship, freight and goods 
 for bottomry-debt, ceases after the lapse of six 
 months, after the ship's arrival at the place where 
 the voyage ends, if the bottomry -bond has been 
 granted within the limits of the same ocean, but 
 after one year if it bas been granted at any place 
 on the coasts of continents in another hemis- 
 phere, than that where the voyage ends. These 
 periods of time are doubled in case of maritime 
 war. 
 
 7°. All claims against the master and the 
 underwriters, on account of damages sustained 
 by the goods shipped, are void, if they had been 
 accepted without the inspection and valuation of 
 the damage in the manner prescribed by the lex 
 loci executionis, or if, — the damage not being visible 
 outwardly, — the inspection and valuation have 
 not taken place within the term fixed by the 
 lex fori. 
 
 XXI—Collision. 
 lMeswithregard S77. Cases of collision, like cases • of 'salvage* 
 
 to the adjudica- J ,,,, . -; -, u 
 
 am of collision. sa yg ^ u » Kobert 1 hulimorc, arc considered as 
 belonging to the jus gentium. * In all cases of 
 collision upon the high sea, or. in territorial 
 waters, between a foreign and a national vesselj 
 or between two foreign vessels, the wrong-aoer, 
 whether he be foreigner or national, is judged by 
 the existing International i- Rules of the road at 
 Sen," of 1871), containing regulations for prevent- 
 ing collisions at sea, to which all civilized Maritime 
 Nations have given their adhesion. Damages, 
 occasioned by running down, collision, or fouling 
 
 * Coinm. Intern. Law. Vol. IV. 1874, p. 625.
 
 part il] collisox. [ Cn f£; s - 341 
 
 are commonly judged by the lex fori. In con- 
 current jurisdiction the following rules might 
 afford some solution in the case. 
 
 1°. When a ship, by the fault of the master or 
 crew, runs down, runs foul of, or comes in colli- 
 sion with another, and thus damages her, the 
 whole of the damage occasioned to the ship and 
 the goods on board must be compensated by the 
 master of the ship by which the damage has been 
 occasioned. 
 
 2°. If it has been caused by faults on both 
 sides, each of them bears his own damage. In 
 this latter case, as well as in that alluded sub 1°., 
 the masters are bound to indemnify the owners 
 of the ships and goods, without prejudice to their 
 redress on the officers and crew, if grounds for 
 it appear. 
 
 3°. If the running down, fouling, or collision 
 has been purely accidental, each ship and cargo 
 supports her and its own damage, without pre- 
 judice to what is stated in sub-section 7°. 
 
 4°. The preceding rule applies also if one of 
 the ships is without cargo. 
 
 5°. If neither fault nor fortuitousness can be 
 proved, and the cause of the collision is therefore 
 dubious, the damage sustained by both ships and 
 their cargoes, shall be added together, and the 
 aggregate be supported by each of them in pro- 
 portion to the respective value of the ships and 
 cargoes. The amount of such part of the general 
 loss as each ship and cargo has to bear, is 
 assessed on each particular ship and cargo, in 
 proportion to their value. 
 
 6°. If, after having been run foul of, or having 
 been in collision with another, a ship is lost in the 
 track or course, which it has been compelled to 
 take, to reach a port of refuge in order to repair
 
 142 Part II.] PRIVATE INTERNATIONAL LAW. 
 
 the damage sustained, the presumption exists 
 that the loss has been caused by the collision. 
 
 7°. If a ship while under sail or drifting runs 
 foul of, comes in collision with and causes damage 
 to another ship, which is riding at anchor or 
 moored in a proper place, and this happens with- 
 out any fault of her master or crew, she shall 
 • hear one half of the damage she has caused 
 to the ship, which was anchored or moored, and 
 her cargo, without this latter ship being charge- 
 able with any part of the damage, sustained by 
 the one, which was under sail or drifting, or her 
 cargo. This indemnity is assessed on the ship 
 and cargo, as general average. The said claim 
 to one half of the damage does nut exist, if the 
 master of the ship lying at anchor or moored. 
 might, without danger to herself, have prevented 
 or lessened the damage, by slipping of cables, 
 or cutting of moorings, or if he has not done this. 
 when timely urged thereto, by or on the part of 
 the master of the ship, which was under sail or 
 drifting. 
 
 8°. If, a ship having got adrift and been driven 
 ( >n the cables or ropes of another lying at anchor 
 near her, the master cuts those cables or ropes. 
 and thereby causes this latter ship to part from 
 her anchors or moorings and to get damaged or 
 to be wrecked, the ship which had got adril 
 bound to indemnify the whole of the damage she 
 has occasioned to the other ship and her cargo. 
 
 0°. If ships lying in a harbour or dock, and 
 or moored, and with or without parting from 
 their anchors or getting adrift, come,— through a 
 high tide, rough swell, storm, or other gei 
 accident or disaster, caused by superior power,— - 
 in collision with other ships lying near them, so 
 as to cause damage to the latter, such damage is 
 supported by each injured ship, as if occ
 
 pahth.] • COLLISION. [ Ch |£; x - 343 
 
 by disaster of the sea, and comes under the head 
 of particular average. 
 
 10°. If a ship is aground so that she cannot be 
 veered, the master has the right, in case of danger, 
 to require another ship lying near, to weigh 
 ancli or or even to cut her cables and make way, 
 provided she can do so without risk, and that the 
 loss occ by her weighing anchor or cutting 
 
 her obits, be made good to her. The master of 
 such shi . near, who in that case refuses or 
 
 neglects To comply with the request, must com- 
 pensate the damage occasioned thereby. 
 
 11°. All masters whose ships are lying at 
 anchor, are responsible for the whole damage 
 sioned by their neglect of having a buoy or 
 float on their anchors, unless they prove the same 
 to have parted therefrom without their fault and 
 without their being able to restore or replace the 
 same. 
 
 12°. With regard to the liability of owners, £««*«»& <>/ 
 Sir Robert Phillimore says, "by the general 
 
 maritime law of Europe, the liability of owners 
 for the wrongful acts of masters is limited to the 
 value of the vessel and freight, and by abandoning 
 these to the creditors the owners may discharge 
 the: This limitation, however, did not 
 
 form part of the common law of England or of the English Law. 
 United States of America but was introduced 
 by special statute. In England the value of the 
 ship is now arbitrarily fixed at £8 per ton, in 
 ordinary eases, and £io per ton, in cases where 
 the wrongful act has given rise to claims for 
 loss of life or personal injury. And this law 
 has been held to apply where the owners of a 
 foreign ship sue an English ship in the Admiralty 
 
 * Emerigon. Contratsa la grosse. Chapt. IV. Sec. 11. Boulav- 
 Patey. Com ide Droit Comm. Vol. I. pp. 263-298. Kelt's Comment. 
 Vol. HI. ;.'. -I ?. Abbott, on Shipping. Part III. Chapt. V.
 
 34 I U.] PRIVATE INTERNATIONAL LAW. f "^.* 
 
 Court for damage from a collision on the high 
 
 seas."* 
 
 XXII. — Salvage. 
 
 sau-wje. § 78. Salvage is the allowance or compensation 
 
 made to those by whose exertions ships or goods 
 have been saved from the dangers of the seas. 
 fire, pirates or enemies. With regard to insurance, 
 there is understood by the term salvage, the 
 claim, to which an insurer is liable, for expenses 
 necessary incurred in preserving the object of 
 insurance from a loss for which he would be liable 
 under the policy, and which is recoverable from 
 him in virtue of an express clause in the policy, 
 inserted for such a case, and known as the "sue 
 and labour clause." f The aspect under which 
 salvage is treated in the present section has 
 regard to maritime laws regarding wrecks and 
 casualties. % 
 
 Wrecks and Flotson. Under this head the 
 
 following rules are applicable : — 
 
 salvage in cases 1°. It is not allowed to any one, even under 
 
 andftotsL pretext of wishing to assist or save, to come on 
 
 board a ship without the express consent of the 
 
 master or his substitute. 
 
 2°. Ships stranding or breaking up on banks 
 off the coast, and goods, fished up at sea or on 
 the outward grounds, may not be salved by any 
 one, without permission of the master or his 
 substitute, if he is present. 
 
 3°. If the master or commander, or the owner 
 or consignee of the cargo is on the spot, the afore- 
 said ships and goods must be left at their dis- 
 posal, and immediately given up to them by the 
 salvors, against sufficient security for the salvage. 
 
 * Sin Robert Phillimore. Comment, on lutein. Law, Vol. IV. 
 Edit. LS74, p. 628. 
 f Arnotjld. Marine Insurance. Edit. 1877. p. 778. 
 % 17 and 18 Vict. Chapt. 104, *§ P5S-470. 
 
 at sea.
 
 part ii.] SALVAGE. [ r "§ P 7<. X ' 345 
 
 4°. Those who detain stranded ships or goods, 
 which have been saved or rescued, or who do not 
 immediately comply with the demand of the 
 master or his substitute or the consignee or 
 owners of the cargo, to give up the goods to 
 them against sufficient security, lose all claim to 
 salvage money or reward for help, and are more- 
 over bound to make good all damage or loss 
 caused by such retaining of the same. 
 
 5°. The charges and freight incurred by the 
 transport of the goods from the place of salvage 
 to their destination, are paid by those who receive 
 them, without prejudice to the recourse to which 
 they may be entitled. 
 
 6°. If ships or goods have been salved, rescued 
 or fished up at sea, or on banks off the coast, with- 
 out either the master or other commander or the 
 owner or consignee of the cargo being present, 
 or known to the salvors, the objects salved shall 
 as soon as possible, be transported to the place 
 nearest to that of the salvage, and delivered to 
 the respective Consul or to such official, as, by 
 the local laws, is charged with the functions of 
 superintendent of wrecks, or. in default thereof, 
 to the chief local magistrate of the place of salvage. 
 By infringing the local laws of salvage, the salvor 
 forfeits all claims to salvage, or reward for help, 
 besides being liable to damage, cost and interest, 
 and incurring the penalties, imposed by the res- 
 pective laws. 
 
 7°. The same rules for salvage of shipwreck salvage meases 
 
 ,'- ill 1 of stranding, 
 
 and fiotson at sea or on the coast, hold good and goodswasiud 
 for those cases of ships stranding, wrecked, or 
 broken up. or goods salved, on or near the shore, 
 and are in like manner dealt with as stated in 
 sub- section 6°. 
 
 In the absence of the master or commander m^.'Ltksot 
 and the owner or consignee of the cargo, or the^Sf" 16
 
 34G PahtH.] PRIVATE INTERNATIONAL LAW. ['"jVs. X ' 
 
 respective agents, and in case no arrangements 
 have been made by them, all articles washed 
 on shore or taken from any wreck, shall be re- 
 ceived and stored by either the official appointed 
 for the purpose or by the respective Consul, and 
 in default of both, by the chief local magistrate 
 of the district in which the goods are salved. If, 
 however, in case the goods are mixed, or, by any 
 other cause, there exists any difficulty or difference 
 in ascertaining positively the ownership of the 
 same, the salving or securing shall exclusively, be 
 effected by the local authority aforesaid, acting 
 as superintendent of wrecks. In cases of con- 
 current jurisdiction, under extra-territoriality, or 
 capitulation, the respective Consuls may, jointly, 
 appoint one or more persons to act, in casu. as 
 receivers of icrecks, with power to value the pro- 
 perty in respect to salvage claims. * 
 
 * With regard to the crimes of plundering wrecks, of obstructing 
 the saving of shipwrecked property and with regard to the secreting 
 of the same, the laws of England contain the following provisions. 
 
 "Whenever any ship or boat is stranded or otherwise in distress on 
 or near the shore of any sea or tidal water in the United Kingdom, 
 and such ship or boat or any part of the cargo or apparel thereof is 
 plundered, damaged, or destroyed by any persons riotously and 
 tumultuously assembled together, whether on shore or afloat, full 
 compensation shall be made to the owner of such ship, boat, cargo, 
 or apparel, by the inhabitants of the hundred, or of the county, city, 
 or borough in or nearest to which such offence is commit! 
 
 "Every person who wrongfully carries away or removes any part 
 any ship or boat stranded or in danger of being stranded or other- 
 wise in distress, on or near the shore of any sea or tidal water, on any 
 part of tb n apparel thereof, or any wreck; or endeavours in 
 
 any way to impede or hinder the saving of such ship, boat, cargo, apparel, 
 or wrecl es any wreck, or ol I s any marks 
 
 thereon; in addition to any other p may be subject to, for 
 
 ace, incurs a penalty not exceeding fifty pounds: and 
 everypei ■ ■ or a person hereinbefore authorized 
 
 in distress, 
 or not acting an . who, with 4 
 
 out the leave of th any such 
 
 I,,,:,, a penalty not exceed- 
 
 ing fifty ] is lawful for the master of such ship or boat 
 
 to i- ■■, . . rson so attempl in to board the same,. 
 
 If any pi into any foreign port or place any ship or boat 
 
 aded, derelict, or i I on or near the sb ire of the 
 
 tidal v.-ao i d within the Limits of the United
 
 Part n 
 
 ] SALVAGE. [ ClI s'7s; X - 347 
 
 8°. In the cases in which the official mentioned 
 in sub-section 7°., or in default of such, the local 
 authority, or receiver of wrecks, is qualified to 
 assume the management of goods stranded, sal- 
 ved or fished up, he makes a proper inven- 
 tory thereof, and is subject, with regard to the 
 delivery of the objects, to the same obligations as 
 the salvors, who have rescued or recovered the 
 ships or goods at sea, or on the banks off the 
 coast, as stated in sub-section 6°. They receive for 
 their exertions such reward as is stipulated by 
 the local regulations. The masters or "owners of 
 the ships or goods, are, reciprocally, liable, with 
 regard to such official or local authority, or 
 receivers of wrecks, to the same obligations, as 
 towards other salvors, with respect to the salvage 
 dues. 
 
 9°. Superintendents of wrecks or local author- 
 ities acting as such are bound to report to the 
 respective Chief- Officer of their Government, on 
 all the cases above alluded to, occurring in their 
 district, and on what has been done by them in 
 the same. 
 
 After obtaining authorization of their chiefs, 
 they have, without delay, the public sale effected, 
 according to the custom of the place, o£ such 
 goods as remain unclaimed, or the damaged state 
 or perishable nature of which makes the ware- 
 housing unadvisible, or positively contrary to the 
 interest of the owner. 
 
 They must give notice of the salving within 
 the term of time fixed by law, through advertise- 
 ment in properly circulating newpapers, mention- 
 ing all marks and particulars, and, at the same 
 
 Kingdom, or any part of the cargo or apparel thereof or anything 
 belonging thereto, or any wreck found within such limits as aforesaid, 
 and there sells the same, he is guilty of felony, and is subject to penal 
 servitude for a term not exceeding four rears." 17 and 18 Vict. c. 
 J 04, ss. 477-479.
 
 ("C'HAPT. X. 
 
 348 Part II.] TRIVATE INTERNATIONAL LAW. [ §?8. 
 
 time, summoning all and every one, who consider 
 themselves entitled to what has been saved, to 
 claim it. The summons shall be repeated, from 
 time to time as stated by the respective law. If, 
 however, the little importance of the goods saved 
 renders it advisable, the summons may, with 
 the consent of the respective Chief Authority, be 
 provisionally put off to include them later in a 
 notice of other cases. These rules are likewise 
 applicable to the respective Consul, when acting as 
 superintendent of wrecks etc. for his nationals, 
 by virtue of treaty stipulations, or under condi- 
 tion of extra-territoriality or capitulation. 
 
 10°. If any person proves his right to what has 
 been saved by bills of lading or other sufficient 
 documents, his property shall be delivered to him, 
 against the payment of the salvage and other 
 charges. In case of doubt as to the right of the 
 claimant, of opposition made by third parties 
 or of differences about the salvage or charges, the 
 parties must have recourse to judicial decision. 
 The judge may, in this case, order the goods to 
 be delivered under sufficient security, in conform- 
 ity with the rules of the lev fori. 
 
 11°. The general rule with most States is that 
 no strand-dues (Strandrecht) are levied by the 
 Government on goods or ships stranded or salved : 
 whether they be national or foreign property. 
 
 • SSSZum* 12°. Tor assistance afforded towards saving 
 nn!isai^e p ships or goods in need or distress, from fire and 
 """""• dangers of the sea, reward is naturally due to the 
 
 helper or salvor, in accordance with the merits of 
 each case. But there are two distinct classes of 
 rewards attached to cases of wreck and casualties, 
 viz.. remuneration for services rendered and scdvage 
 money. These are separately deal.t with in the 
 rules given in sub-sections 13°— 17 .
 
 Paist II 
 
 ] SALVAGE. [ C "^. A - 349 
 
 13°. Remuneration for services rendered by 
 way of help is allowed, when ships and cargoes 
 have, with the help and assistance afforded, been 
 restored to a condition of safety, at sea or in a 
 port, either together or after unloading and 
 lio'htmo'. 
 
 © o 
 
 14°. In estimating the amount of remuneration 
 due for help or assistance, the following points 
 are to be taken into consideration : — 
 
 a. The speed with which the helpers have 
 
 exerted themselves to afford assistance, 
 on the first observation of danger. 
 
 b. The time consumed by the services ren- 
 
 dered. 
 
 c. The number of persons necessarily em- 
 
 ployed in rendering assistance. 
 
 d. The nature of the services rendered. 
 
 e. The danger which attended the operations. 
 15°. Salvage is awarded in the following- 
 cases : — 
 
 a. When ships or goods are rescued at sea, 
 
 or fished up, found, or salved on the 
 shores. 
 
 b. When goods are salved out of a ship, 
 
 which grounded on the coast or within 
 the surf, the ship being in such a dan- 
 gerous situation as to render her posi- 
 tion unfit as a place of safety for the 
 goods or the crew. 
 
 c. When goods are salved from ships which 
 
 have actually gone to pieces. 
 
 d. Finally, when ships are abandoned by 
 
 the master and crew in consequence 
 of their dangerous position or want of 
 shelter on board, or in case the master 
 and crew have left a ship or been taken 
 from on board to save their lives, and • 
 the ship in question is subsequently
 
 350 Part II.] PRIVATE INTERNATIONAL LAW. ['"^y. X ' 
 
 taken possession of by salvors; provided 
 ship and cargo are subsequently brought, 
 either entirely or in parts, into a safe 
 port, by the salvors. 
 iSSSSoSf 16°. In estimating the amount of remuneration 
 ^aiH^ZL. due f° r ne lp or savage, not only all the circum- 
 stances mentioned in sub-sections 14° and 15° 
 must be considered, but also the danger out of 
 which the things saved have been rescued, and 
 the value of what has been salved, as estimated 
 by competent persons. 
 
 17°. In case of difference, the rewards for 
 assistance, help or salvage, are fixed by qualified 
 appraisers, appointed by a competent Court. 
 
 18°. When a ship, after having been abandoned 
 by the master and crew, has been taken charge of 
 by salvors, the master or commander shall never- 
 theless at all times be at liberty to return to his 
 ship and resume the command thereof, in which 
 case the salvors must, on forfeiture of their remu- 
 neration, and with liability for damages, imme- 
 diately give up the command to the master, 
 without prejudice to their right to salvage already 
 acquired. 
 
 19°. If rescued ships or goods, delivered against 
 security at the place of salvage, perish between 
 the place of salvage and that of destination, with- 
 out their value having been determined in order 
 to fix the amount of salvage, it shall be estimated 
 by competent persons according to an equitable 
 estimate of the value which the ships or goods 
 probably had at the place at which they were 
 delivered. 
 
 20°. Differences about remuneration for help 
 
 and for salvage are decided by the lex fori of the 
 
 place where the vessel stranded or was brought 
 
 * in; or, if the ship is lost, where the goods have 
 
 been salved.
 
 Part II.] INSOLVENCY AND BANKRUPTCY. [ 0l \7i X- 351 
 
 21°. All contracts or agreements about com- 
 pensation for help or salvage, made either at sea 
 or on stranding, with shipmasters, commanders 
 or owners, with regard to ships or goods in peril, 
 can be modified or annulled by the lex fort. 
 Every one is at liberty, when the danger is over, 
 to treat and agree amicably about compensation 
 for salvage or assistance. Such agreements, how- 
 ever, do not bind owners, consignees or insurers, 
 if they have not given their consent thereto. 
 
 XXIII. — insolvency and Bankruptcy. 
 
 §79. Bankruptcy laws affect more particularly objects of Bank- 
 traders. Though such laws may include all 
 insolvent persons, they are intimately connected 
 with commercial laws, as forming an essential 
 part of the lex mercatoria. "The leading objects 
 of a bankrupt law," says Timothy Walker, "are 
 four: First, to compel an equal distribution of the 
 effects of the bankrupt among his creditors, with- 
 out preference, in proportion to their claims; for 
 which purpose the law defines what shall be 
 considered acts of bankruptcy; and, from the mo- 
 ment of committing one of these acts, the power 
 of the bankrupt over his property is at an end 
 and the commissioners are appointed to take pos- 
 session, and to settle with the creditors. Secondly, 
 to exempt not only the person of the bankrupt 
 from imprisonment, but also his future acquisitions 
 from liability for his then existing debts; for 
 which purpose the creditors are compelled to take 
 their respective portions of his effects, in full dis- 
 charge and satisfaction of their claims. Thirdly, 
 to promote honesty; for which purpose not only 
 is the discharge made dependent upon the honesty 
 of the bankrupt, but severe penalties are annexed 
 to dishonesty. Fourthly, to encourage future 
 efforts; for which purpose, if all is found to have
 
 oo2 part ii.] PRIVATE INTERNATIONAL LAW. [^Y^.^ 
 
 been fair and honest, not only is the bankrupt 
 released from future liability for past debts, but 
 he is allowed a small sum out of the wreck of his 
 fortune, with which to begin the world anew. 
 Such are the general features of a bankrupt law. 
 and their humanity and equity would seem suffi- 
 cient at once to commend them to every mind." * 
 comparative Bankruptcy procedures affect the persons and 
 
 legislation in L J L . ,, .-, x .. 
 
 Bankruptcy, properties, especially m mercantile communities, 
 of every country, in nearly equal proportions. 
 Therefore a certain amount of reciprocity in the 
 respective bankruptcy laws of mercantile countries 
 is absolutely necessary. Through direct legisla- 
 tion, however, little is done as yet, and though 
 some mutual understanding is arrived at, thanks 
 to the international comity of Law Courts, a 
 great deal is yet left to be done, by legislation, in 
 this branch of Private International Law, to arrive 
 at that harmony of proceedings, so essential to 
 mutual security in trade. The following are the 
 principal features in which the greater part of 
 the different national Law Courts agree. 
 
 insolvency. Every person who suspends payment is to be 
 
 judicially declared to be in state of insolvency 
 (faillite), either at his own request or at that of 
 his creditors, or at the requisition of the competent 
 public authority. This does not exclude the 
 possibility of the insolvent debtor being himself 
 an innocent sufferer, and whilst the law provides 
 for the rights of the creditors, it undertakes also, 
 as we have seen above, the protection of the 
 debtor. 
 
 Bankruptcy. By the term bankruptcy, is more particularly 
 
 meant that condition of insolvency, in which the 
 insolvent committed certain acts, which may 
 afford evidence of an intention on his part, to 
 
 * Timothy Walker. Introd. American Law, Edit. Bryant Wal- 
 ker, 1874, page 145.
 
 Bank- 
 
 uptcy. 
 
 Paht n.] SIMPLE BANKRUPTCY. [ C "§7o. * ^53 
 
 avoid the legal payment of his debts, or to defeat 
 or delay his creditors. * 
 
 Bankruptcy is either simple or fraudulent. 
 This distinction depends on the following cir- 
 cumstances. 
 
 Simple Bankruptcy. The insolvent debtor is^* J 
 liable to be committed by the Court for simple 
 bankruptcy, under any of the following circum- 
 stances. 
 
 a. If the disbursements made for his house- 
 
 hold or house- keeping, which he is 
 bound to enter in his journal, are judged 
 to be extravagant. 
 
 b. If it appears that he has suffered import- 
 
 ant losses, either in transactions purely 
 hazardous, or in tictitous operations of 
 exchange, or on merchandise, depend- 
 ing merely on hazard or chance. 
 
 c. If it appears, from his last balance-sheet, 
 
 that, with the intention to delay his 
 insolvency, he borrowed large sums, or 
 sold goods at a loss and under the 
 market-price ; while his debts exceeded 
 the assets of his estate by fifty per cent. 
 
 cL If he issued bills of exchange, or other 
 commercial paper of circulation, for 
 more than thrice the amount of the 
 assets of his estate, according to his last 
 statement and balance-sheet. 
 
 e. If he has not made the legal declaration 
 of insolvency, as required by law, on 
 his suspension of payment. 
 
 /'. If, while at large, he has not appeared 
 though regularly summoned in his 
 cases. 
 
 * Leoni Levi. Intern. Coram. Law, Vol. II. Chapt. XXVII. 4G 
 and 17. Vict. CHapt. 52. (Bankruptcy Act of 25th October, 1883).
 
 35-4 Part II,] PRIVATE INTERNATIONAL LAW. [ C ™. X " 
 
 g. If his books, although without any traces 
 of fraud, are irregularly kept, or if he 
 does not produce all his books, or has 
 not made an exact inventory of his 
 estate. 
 Simple Bankruptcy is prosecuted before the 
 Correctional Court, which, in case of conviction, 
 orders its sentence to be posted up and to be in- 
 serted in the newspapers which it indicates. 
 Fraudulent Fraudulent Bankruptcy '. The insolvent is pro- 
 
 secuted as a fraudulent bankrupt under the fol- 
 lowing circumstances. 
 
 a. If he represented feigned disbursements 
 
 or losses as real or has not entered all 
 his assets. 
 
 b. If he concealed any sums of money, any 
 
 debts owing to his estate, any goods, 
 merchandise, or any personal estate. 
 
 c. If he entered in his books fictitious sales, 
 
 loans or donations. 
 
 (I. If, in collusion with pretended creditors, 
 he represented fictitious debts of his 
 estate as real, by making out fraudulent 
 deeds or documents, or by acknowledg- 
 ing himself to be indebted, without 
 material cause or any value received, 
 either by private or official bond or 
 deed. 
 
 e. I f, when charged, either by special mandate 
 or as trustee, with the keeping of monies, 
 commercial papers, goods or merchan- 
 dise, he applied to his own benefit the 
 monies or the value of the property 
 vested in him, by virtue of such charge 
 or trust. 
 
 /'. If lie bought persona] or real estate under 
 ;i feigned name.
 
 Part li.] FRAUDULENT BANKRUPTCY. [ C *§m * 355 
 
 g. If he hid away his books, or did not keep 
 any books, or if his books do not show 
 the real state of his affairs, or do not 
 present a true statement of his assets 
 and liabilities. 
 //. If, after being released from the custody, 
 under which he bad been placed, either 
 with or without bail for his re-appearing 
 when called, he failed to appear when re- 
 gularly summoned, without legal cause 
 of prevention. 
 Fraudulent bankruptcy, and participation there- 
 in, is prosecuted as all other acts of felony, and 
 the sentences are made public, by posting them 
 up in public and by publishing them in such 
 newspapers as the Judge shall designate. Fur- 
 ther shall be declared an accomplice of fraudu- 
 lent bankruptcy, and punished for felony, any 
 person who may be convicted of having conspired 
 with the bankrupt to conceal any of his personal 
 or real property, or to defraud the estate thereof, 
 or to have acquired or contrived false claims against 
 the estate and persisted in the attempt to have 
 the same admitted as real and true, even when 
 affirmation upon oath could be judicially required. 
 
 Subject to the provisions of the lex fori, the General mien 
 
 r* n 11 I*j17 ,• with reqard to 
 
 following general rules or the lex mercatoria are insolvent estates. 
 usually followed with regard to the adjudication 
 of insolvent or bankrupt estates. 
 
 1°. A person or company suspending; payment *mw deciam- 
 
 , -, L , 7 7 .• n ■ / tioiiofin- 
 
 is bound to make a declaration of insolvency, solvency. 
 in writing, in such form as directed by the lex 
 fori, at the office of the registrar of the local 
 Court having jurisdiction in bankruptcy. A 
 copy of such declaration, certified by the regis- 
 trar, serves as evidence of the act. The declara- 
 tion of insolvency must be filed within three
 
 PahtII.] PRIVATE INTERNATIONAL LAW. [ Cha 5 "|. X " 
 
 Petition of 
 creditors. 
 
 days, — (or within the term fixed by the lex fori) , 
 — after the suspension of payment. 
 
 With regard to partnerships under a firm, the 
 declaration of insolvency must contain the name 
 and domicile of each of the partners individually 
 liable for the whole. 
 
 2°. The petition for adjudication of insolvency, 
 by creditors, is presented in writing accompanied 
 by the proofs or indications of the facts and circum- 
 stances, which show that suspension of payment 
 has actually taken place. The petition is filed 
 in the office of the registrar of the Court having 
 jurisdiction in bankruptcy, and the date of pre- 
 sentation is to be duly recorded in a register kept 
 for the purpose. The Court decides, as soon as 
 possible, on the petition, after having heard the 
 debtor, who is summoned for the purpose, through 
 a letter from the registrar. 
 
 3°. The estate of a trader, deceased after having 
 stopped payment, can be declared to be in a state 
 of insolvency, whether his heirs avail themselves 
 or not of the right of consideration, or accept the 
 inheritance unconditionally or under privilege of 
 inventory, or reject the estate. The declaration 
 of insolvency has the judicial effect of separating 
 the estate of the deceased from that of his heirs, 
 in the manner as prescribed by the lex domicilii. 
 
 4°. The state of insolvency is reckoned to 
 begin with the day of the debtor's declaration, or 
 from the day of presentation at the Court of the 
 petition of the creditors, or, finally, from that of 
 the requisition by public authority, as mentioned 
 above. Where no time is named, the cessation 
 of payment and the beginning of the insolvency 
 is deemed to have taken place from the time in 
 which the judgment declaratory of the insolvency 
 was rendered. The judgment is posted up and 
 inserted in the newspapers both of the place 
 
 Insolvent estate 
 of a deceased 
 
 Hie adjudication 
 of insolvency.
 
 l-AKT il] INSOLVENT ESTATES. [ C "§7<j.' X " 357 
 
 where the insolvency has been declared, and of 
 the places where the insolvent has commercial 
 establishments. 
 
 The judgment declaratory of the insolvency 
 divests the insolvent of the management and 
 control of his property, even of what thereafter 
 may fall due to him during the time he continues 
 in a state of insolvency. With respect to the 
 estate of a deceased insolvent debtor, this rule 
 applies also to his heirs, in the case mentioned 
 above in sub -section 3°. 
 
 5°. The adjudication of insolvency also implies Effect upon 
 that, from the date of declaration of insolvency, "" 
 no action can be answered or instituted but by 
 or against the curators or assignees. Judgment 
 execution against personal or real estate of the 
 debtor, commenced before the declaration of 
 insolvency, is suspended, and, for the same 
 reason, no judgment of corporal restraint will 
 be executed. In the case of a judicial suit to 
 reclaim goods, sold and delivered, having com- Egectupon 
 
 O ' i O suits. 
 
 menced before the declaration of insolvency, this 
 is continued against curators or assignees of the 
 estate on whom the sentence is to be executed. 
 This also applies to every suit whereby some 
 particular object is reclaimed as property. 
 
 6°. If, before the insolvency or bankruptcy ofwectupmsates 
 the debtor, the eviction of his personal or real 
 estate was so far advanced, that the day of defi- 
 nitive sale thereof was fixed and made known by 
 public announcement, bill-posting etc., the cura- 
 tors or assignees can, by authority of the Court, 
 cause the sale to be proceeded with, for account 
 of the estate, without prejudice to rights of pre- 
 cedence, pledge or mortgage. 
 
 7°. All funds paid for debts, not yet due AtSSuaSSii, 
 the commencement of the state of insolvency, or 7Z n t)Tbe/o,-e 
 contracted by the debtor within forty days pre- "^Jf
 
 358 Part II.] PRIVATE INTERNATIONAL LAW. [ C "^;;. X- 
 
 vious to the declaration of insolvency, or within 
 any term fixed by the lex fori, must be restored 
 to the estate, without prejudice to the prosecution 
 which may be instituted for simple or fraudulent 
 bankruptcy, as the case may be. 
 Mortgages 8°. Pledges or mortgages, granted by the debtor 
 
 within forty days, (or within such other term as 
 fixed by the lex- fori), before the commencement 
 of the failure, are void in the two following cases. 
 
 a. If granted as security for engagements 
 
 entered into before that time. 
 
 b. If they have been granted as security for 
 
 engagements entered into within that 
 term, but not directly established by 
 the original agreement. 
 These rules are not applicable to mortgages 
 which a trustee or curator is bound to give as 
 security for his administration. 
 Donations. 9°. All donations of personal or real estate, 
 
 made by the debtor, are judicially void with re- 
 spect to creditors, if they have taken place within 
 the term of sixty days, (or within such other term 
 as fixed by the lex fori), before the commence- 
 ment of the insolvency, even if parties should 
 have acted in good faith. That term is doubled, 
 in case the donee is related to the donor, by 
 kindred or by marriage, in the ascending or des- 
 cending line indefinitely, or, in the collateral line, 
 to the fourth degree inclusively. This is applic- 
 able also if the donation has been made to the 
 donee by means of intermediate persons. 
 
 At whatever time the donation has taken place, 
 it can be annulled for the benefit oft lie creditors, 
 if it is proved that the donor was aware of the 
 unfavourable state of his affairs, even if the donee 
 acted in good faith. A suit for this annulment 
 becomes void, as soon as the curators or assignees
 
 Part li.] INSOLVENT ESTATES. [ C "t"o. X ' 359 
 
 have delivered their accounts, in accordance with 
 the rules for the settlement of the estate, as laid 
 down by the respective lex fori. 
 
 10°. All deeds by which the debtor has trans- Deeds. 
 ferred the property of personal or real estate by an 
 onerous contract, and, generally, all dealings what- 
 soever, and at whatever time they have taken 
 place, can be annulled, by sentence of a compe- 
 tent Judge, at the requisition of creditors, if 
 they prove that the same were intended by both 
 parties fraudulently to wrong the interests of the 
 creditors. 
 
 11°. By insolvency or bankruptcy, debts not ^ "<?<«<; 
 yet due, but running at the charge of the insolvent 
 debtor, become exigible and must be settled ac- 
 cordingly. If the debt, however, was to be paid 
 off by yearly instalments, or only to become 
 exigible after the lapse of three years or later, — (or 
 within any term fixed by the lex fori) , — without 
 the debtor being in either case liable to the pay- 
 ment of interest, the capital, for which the creditor 
 is acknowledged in the estate, shall be estimated 
 by the Court, according to the lesser actual value 
 resulting therefrom and with regard to the com- 
 putation of time. 
 
 12°. If claims on the insolvent or bankrupt conditional 
 party appear, the existence, the exigibility , or the Sa 
 amount of which depend on the fulfilment or 
 non-fulfilment of certain conditions, at a future 
 time, and the liquidation of the estate cannot, 
 consistently with the interest of general creditors, 
 be delayed till the final issue, one of the follow- 
 ing modes of settlement is usually adopted, ac- 
 cording to circumstances, viz.: — 
 
 a. The claim of the particular creditor shall, 
 in case of commutation, be estimated, 
 by competent experts, — and, if neces-
 
 360 Part II.] PRIVATE INTERNATIONAL LAW. [''"57a. X ' 
 
 sary, fixed by the Court, — according 
 to the principal amount of the debt, 
 and in proportion to the loss which the 
 estate may suffer by the non-fulfilment 
 of the conditions, and according to the 
 profit wdiich the creditor can enjoy by 
 the release from the fulfilment of these 
 conditions. 
 
 b. If such valuation is either deemed im- 
 
 practicable on account of the nature of 
 the case, or unadvisable in the general 
 interest of parties, the commutation 
 shall not take place, but the creditor shall 
 be acknowledged for the full amount of 
 his conditional claim, and, in proportion, 
 the dividend be paid to him, against 
 satisfactory security for the restitution 
 with legal interest, for as much as it 
 may appear later, that the conditions, 
 to which his claim is liable, have not 
 been properly fulfilled in accordance 
 with the nature of the contract. 
 
 c. If such security cannot be obtained, or 
 
 in case the Court may deem it more 
 advisable, in view of existing circum- 
 stances, for the general interest of par- 
 ties, the Court can order the amount of 
 the dividend to which the creditor would 
 later on be entitled, to be deposited in 
 the consignment-fund, until the fulfil- 
 ment or non-fulfilment of the conditions 
 in question shall be made sure of. The 
 amount thus reserved, is afterwards, in 
 conformity with the fulfilment or non- 
 f nlment of those conditions, either paid to 
 the particular creditor witli the interest 
 which accrued thereon, (after deduction 
 of charges), or restored to the estate,
 
 Part II.] INSOLVENT ESTATES. ['"^^ X ' 36] 
 
 for the benefit of general creditors or 
 claimants entitled. 
 
 13°. If things be found in the estate of the conditional 
 insolvent, which belong to him conditionally, or the estate.' 
 of which be can only dispose conditionally, the 
 sale thereof shall be ordered to be made in such a 
 manner, that the purchaser be charged with the 
 fulfilment of the conditions, unless the nature of 
 some peculiar case, and the interest of general 
 creditors, should cause the Court to deem it more 
 advisable to order the settlement, to take place in 
 the manner stated in sub-section 12°. (a, b, ore) 
 or to leave the thino; unsold until the final settle- 
 ment of the estate. 
 
 1-1°. If a conditional debt is secured by pledge, conditional 
 and it is for the good of the estate to leave thety pledge. 
 holder thereof in possession of the object pleged, 
 he comes in as a consenting creditor, at the final 
 issue, and has a claim only for what may then 
 be left in the estate. If, on the contrary, the 
 good of the estate does not recpiire that the holder 
 of the pledge should be left in the possession of 
 it, the same rules apply as above mentioned in 
 sub-section 12°., — with this difference, that in the 
 case stated under a, the creditor need not give 
 up the pledge, until the sum be paid to him at 
 which his claim is valued, — for as much as that 
 sum can be recovered on the object; and that, in 
 the cases mentioned undeY b and c. such amount, 
 as corresponds with the real value of the object 
 pawned, be paid to him or deposited in the con- 
 signment-fund, against restitution of the pledge. 
 
 15°. If a debt is secured by mortgage, thef/^f^f 
 rules laid down by Common or Civil Law with 
 regard to the dissolution of mortgage bonds are 
 applicable in conformity with the nature of the 
 contract. At the final settlement the creditor 
 holding the mortgage has a claim as concurrent
 
 302 Pa,tii.] p RIVA .TE INTERNATIONAL LAW r<*« * 
 
 L 
 
 creditor, for what comes short on fr- i , 
 m proportion to what may then *- , A P - & ' 
 estate. * «->e left in the 
 
 Annuities and 1 (\° Ae+« * 
 
 ft>m». . 10 • as to yearn* ,,-, 3 ., . ., 
 
 bequests, dona*- -J > monthly and other similar 
 
 down by ^ -«ions or allowances, the rules laid 
 
 life-- 1 " common or Civil Law, with regard to 
 
 .ents or annuities,. are applicable, in conformity 
 
 with the nature of the contract. 
 
 &£££« § 80 - The ' Gonrt b y wllich . the insolvency or 
 fekai/o/'tfj' 1 bankruptcy is declared appoints one or more 
 mwnsignees. curators or assignees, for the management and 
 adjustment of the insolvent estate. These cura- 
 tors or assignees cannot be released or replaced 
 except by an order of the Court. All this is 
 to be done in conformity with the rules of the 
 respective lex fori. The rules regarding the 
 official assignee are laid down by the lev fori. 
 
 "With regard to the measures devolving from 
 the declaration of insolvency or bankruptcy and 
 the powers vested in the curators or assignees, 
 the following are the rules of the lex mercatoria 
 usually followed.. 
 
 1°. Besides making mention of the day of 
 commencement of the insolvency, the sentence 
 of adjudication of insolvency contains the follow- 
 ing provisions, viz.: — 
 
 a. The appointment of one or more curators 
 
 or assignees. These are by preference 
 chosen from amongst the creditors, or 
 on their nomination. 
 
 b. The charge to the curators or assignees 
 
 to provide for the security of the estate 
 
 by putting on seals and taking other 
 
 suitable measures. 
 
 2°. The Court can at all times release curators 
 
 or assignees or any of them, and cause them to 
 
 be replaced by others, either by authority of the
 
 Pi ItT 
 
 «■] INSOLVENT ESTATES. [° H §80. X ' 363 
 
 Court or at the request of creditors. The Court 
 •can, in like manner, add one or more creditors as 
 curators to any already appointed. At the meet- 
 ings of creditors for the verification of claims 
 the Court consults with the creditors regarding 
 the appointment of curators. It belongs, how- 
 ever, to the exclusive domain of the Court to 
 decide and make the appointment as it may deem 
 expedient for tire good of the estate. 
 
 3°. By the sentence of adjudication of insol- Arrest of me 
 vency, or afterwards, at the option of the Court, >«*« reuast m 
 the Judge can order that a bankrupt be placed ' 
 in custody, either in prison* or under arrest in 
 his own dwelling, in charge of a sergeant or ■ • 
 official guard. The Court is qualified, on the 
 report of the curators, or at the request of the 
 bankrupt, after proper security and bail is given, 
 to cause the debtor to be released from custody. 
 The amount of the bail is fixed by the Court, 
 and, on non-appearance, when summoned, the 
 bail is forfeited for the benefit of the estate. 
 
 4°. On every occasion on which the debtor's 
 presence is required for the transaction of busi- 
 ness relative to the estate, he can, if in gaol or 
 in a place of arrest, be brought into Court. The 
 measures necessary to prevent his escape are 
 ordered by the Court. 
 
 5°. A sentence of adjudication of insolvencv or Bightof appeal 
 
 bi • . • . , . . ■, -. J , of tlte debtor and 
 
 ankruptcy is put into execution without delay, ofMscpdmrs. 
 
 notwithstanding opposition or appeal to a higher 
 Court. The insolvent or bankrupt, after having 
 been heard by the Court, has the right of appeal 
 until fourteen clays after the announcement in the 
 newspapers of the sentence declaring the insolven- 
 cy or bankruptcy, (as mentioned in sub- section 7 ), 
 the day of the advertisement not included. If 
 he has not appeared, he has the right of opposi- 
 tion during the same period. He can, in tin's
 
 364 Part II.] PRIVATE INTERNATIONAL LAW. [ C "p. V 
 
 case, enter an appeal, until the fourteenth day after 
 which the judgment on the opposition lias been 
 brought officially to his notice ; the day of giving 
 notice being likewise not included in this case. 
 The right of appeal and opposition, is pursued 
 against those at whose request, or on whose 
 requisition, the sentence declaring the state of 
 insolvency or bankruptcy has been given. Cred- 
 itors whose petition to have their debtor de- 
 clared insolvent or bankrupt, has been rejected, 
 have likewise the right of appeal during four- 
 teen days from the day of rejection. With the 
 exception of those at whose requisition the decla- 
 ration of insolvency or bankruptcy has been 
 given, all other creditors and all parties interested 
 have a right of opposition, in all declarations of 
 insolvency or bankruptcy, till the thirtieth day 
 after the publication of the sentence in the news- 
 papers, and, in case of rejection, they have a right 
 of appeal till the fourteenth day after official 
 notice has been given, counting as aforesaid. 
 All terms regarding right of opposition or appeal 
 run equally for all parties concerned, wherever 
 residing or domiciled, and are determined by the 
 lex fori. 
 
 6°. The curators or assignees must, immedia- 
 tely after their appointment, make oath before 
 the Judge, that they shall faithfully execute their 
 charge 
 
 SS&n* 7° They are bound to have posted up. within 
 IZtnTlZte! three days after their appointment, an extract 
 from the sentence declaring the insolvency or 
 bankruptcy, mentioning the name, the domicile, 
 and the business of the insolvent or bankrupt. 
 the names of the curators or assignees, and the 
 day of commencement of the insolvency. This 
 ex1r;iH is to be posted : — 
 
 Duties of curators 
 (»/• assignees.
 
 Paw II.] INSOLVENT ESTATES. [ C '7su. V 365 
 
 a. At the respective Consulate, and, in case 
 
 of commercial partnerships, at the place 
 where the office of the partnership is 
 established. 
 
 b. At the building where the Court as- 
 
 sembles, and likewise at the public 
 exchange, if any exists at the place. 
 
 c. The said extract must, moreover, within 
 
 five days after the appointment of the 
 curators, be inserted in one of the news- 
 papers of the community where the 
 Court is established, or, in default of 
 such, in a newspaper to be designated 
 by the Court. 
 8°. In case of insolvency or bankruptcy of a neseait. 
 partnership, the sealing-up, if ordered, takes place 
 as well in the principal office, as in the dwelling 
 of each of the partners liable for the whole. 
 
 9°. If the sealing-up has not been effected al- 
 ready by the Judge or Consul, the curators must 
 cause it to be done without delay, and send into 
 the Court a certificate and report concerning 
 the sealing. 
 
 10°. The curators or assignees have power to 
 require, at or after every sealing-up. that any bill 
 or paper at short date, or any document which 
 must be presented for acceptance, existing in the 
 estate, be given up to them, and they are to 
 make mention of such surrender in their certi- 
 ficate and report of the sealing, with accurate 
 description of the particulars. 
 
 11°. On the proposal of curators the Court may carrying on 
 
 1 11 1 •Till'''"' '"'"'''• 
 
 make an order, that, to obviate considerable loss 
 to the estate, the trade of the insolvent or bankrupt 
 shall not be abruptly stopped, but shall be con- 
 tinued for some time for the benefit of the creditors, 
 by the curators or assignees or by a manager under 
 their superintendence. In such case the curators
 
 ?autII.] PRIVATE INTERNATIONAL LaW. 
 
 rcnAPT. x- 
 
 L § 80, 
 
 Inventory of 
 the Estate. 
 
 The F.alance- 
 Sheet. 
 
 can require that the documeiits necessary for the 
 business, be not put under seal. The Court can 
 at all times repeal or alter these measures, at the 
 curators 1 proposal and after hearing the insolvent 
 if necessary. 
 
 12°. The curators subsequently proceed to the 
 inventory, and cause themselves to be assisted 
 by competent persons for the valuation of the 
 things, unless the insignificancy thereof should 
 induce ithe Judge to leave the valuation to them 
 {personally. The insolvent, when called to assist, 
 lis bound to give all information and to make all 
 disclosures required concerning his estate, and 
 he can be compelled by the Court to declare on 
 oath, whether he possesses any other or more 
 good* than those found in the estate, and, if so, 
 it© deliver or indicate them to the curators. 
 
 13°. If the sealing has taken place, the inven- 
 tory is made up by the curators, progressively as 
 the unsealing is being proceeded with, in the 
 presence of the respective official assignee or 
 judicial authority, and the inventory is to be 
 signed also by them. Previous to and during 
 the making up of the inventory, the curators can 
 require that the books, papers and documents of 
 the insolvent be handed over to them, and they 
 must make mention thereof, and of the state of 
 the books, on the inventory. 
 
 14°. If no sealing has been ordered, the inven- 
 tory is made before a notary public, unless the 
 Court should, on account of peculiar circumstances 
 of the estate, allow the curators or assignees to 
 do so by private deed, in which case this deed 
 must, without delay, be filed at the ojliee of tin 
 Registrar of the Court. 
 
 15°. If the bankrupt lias made out his balance- 
 sheet previous to the declaration of insolvency, he 
 must hand it over to the curators or assignee-
 
 ParxIT.] INSOLVENT ESTATES. ['""ssii. *' 36' 
 
 within 24 hours after their entering* upon their 
 duties. 
 
 16°. The balance-sheet must contain the state- 
 ment and valuation of all the personal and real 
 estate of the insolvent or bankrupt, the statement 
 of debts and claims, with mention of the names 
 of the debtors and creditors, and such indica- 
 tions as may facilitate a survey of the situation 
 of his affairs. 
 
 17°. If the balance-sheet has not yet been made 
 out, the bankrupt must do so, either personally 
 or by an authorized substitute, in the presence 
 of the curators or assignees or some one appointed 
 by them. The insolvent or bankrupt or his 
 attorney has, for that purpose, access to the books 
 and papers under the superintendence and control 
 of the curators or assignees. . 
 
 18°. In case the insolvent or bankrupt neglects 
 or refuses to make out the balance-sheet, or has 
 died without having done so, the curators proceed 
 to draw it up themselves, with the help of the 
 books and papers of the insolvent or bankrupt, 
 and by using all such information and elucida- 
 tion as they can procure. 
 
 19°. The counting-house clerks or others, in wttimmto 
 the service of the insolvent or bankrupt, cannot 
 refuse to give such information or explanation. 
 The Court can take their evidence, on oath if 
 required, as to the data on which the balance-sheet 
 has been made up, and also as regards the causes 
 and circumstances of the insolvency or bankruptcy. 
 The wife or widow, the children, and other des- 
 cendants, or the parents or grand-parents of the 
 insolvent or bankrupt are usually not officially 
 or legally interrogated in the case. 
 
 20°. The curators or assignees receive all funds 
 belonging to the estate and give receipts for the 
 same.
 
 368 pam ii. J PRIVATE INTERNATIONAL LAW. [ CH {gft X 
 
 21°. They may open all business letters directed 
 to the insolvent. If the insolvent is on the spot, 
 he can be present at the opening. 
 
 22°. Under approbation of the Court, the cura- 
 tors or assignees can give up to the insolvent and 
 his household, the clothes, linen, and furniture re- 
 quired for their use; a statement whereof is to be 
 made out. Where no prosecution for fraudulent 
 bankruptcy has been instituted against the insolv- 
 ent, the curators or assignees can be authorized 
 by the Court to provide, according to circum- 
 stances, out of the ready money at hand, for the 
 maintenance of the household during the time 
 the process of liquidation might last. The Court 
 then fixes the sum to be expended for that purpose. 
 
 23°. The curators or assignees report to the 
 Court, whenever this is requisite, on all matters 
 re^'ardino; the estate. The Court maintains the 
 necessary superintendence and control and decides 
 on all differences which may arise concerning the 
 insolvent estate, in matters within its jurisdiction. 
 
 24°. The curator or assignees are bound to 
 
 perform all acts requisite for the preservation of 
 
 the rights of the estate and its claims on the 
 
 debtors of the insolvent. 
 
 \,,w,uuvnof 25°. The meeting of creditors for the verifica- 
 
 Ltitof'aeknow- tion of debts, the admission of claims, of prefer- 
 
 ' ences, pledges or mortgages, of conditional debts 
 
 (§ 79, sub-section 12) and the proceedings with 
 
 regard to the making up and closing of the list 
 
 of acknowledged creditors are all regulated by 
 
 the lex fori. 
 
 26°. If the admission of one or more of the 
 creditors is disputed by the curators or by a co- 
 creditor, or a difference arises about the motion of 
 discharge of the conditional claims (alluded to in 
 § 70. sub-section 12 and following), the Court 
 shall give judgment in the case in conformity
 
 Paiit il] COMPOSITION IN INSOLVENCY. [ CrI ^; x " 369 
 
 with the lex fori, if the Judge cannot bring parties 
 to agree on a compromise in the case. The cu- 
 rators or assignees are in duty bound to plead 
 for the security of the rights of the estate in all 
 litigations respecting the verification of claims. 
 
 § 81. Composition in Insolvency. The insol- 
 vent is qualified to offer a composition to his 0/ Composition 
 joint-creditors. The following rules of the tex****** 
 mercatoria are then usually observed. 
 
 1°. Some eight days, at least, previous to the 
 convocation of the first meeting for the verifica- 
 tion of the claims, the insolvent must deposit at 
 the office of the Registrar of the Court a scheme 
 of composition. 
 
 2°. The deliberation and decision on the scheme 
 of composition takes place on a clay fixed by the 
 Court. 
 
 3°. Only those creditors are entitled to delib- 
 erate and decide upon the composition offered, 
 whose claims are acknowledged, and who have 
 been placed as such on the list of acknowledged 
 creditors, together with those who are acknow- 
 ledged as such by decision of the Court. The 
 privileged creditors, and those who hold a pledge 
 or mortgage, have no vote unless they renounce 
 their privilege, pledge or mortgage in favour of 
 the estate. This renunciation has no effect unless 
 the composition is agreed upon. 
 
 4°. If at the meeting, at which the composition 
 is deliberated upon, other creditors appear who 
 have not attended the previous meeting, they shall 
 be admitted, provided no difference arises about 
 the verification of their claims, and that they take 
 the oath immediately, if required. 
 
 5°. Those creditors, who have previously ap- 
 peared by attorney and whose oath had been re- 
 quired, shall likewise be admitted after they shall 
 have taken oath either personally or by attorney.
 
 370 Part V!.] PRIVATE INTERNATIONAL LAW [ CH }n; X " 
 
 6°. For the acceptance of the composition there 
 is required the consent of two thirds of the concur- 
 ring creditors, representing, jointly, three fourths of 
 the amount of the claims, which are unprivileged 
 and not covered by pledge or mortgage; or other- 
 wise three fourths of these creditors, representing 
 two thirds of the said amount. 
 
 If three fourths of the creditors present, repre- 
 senting more than one half of the amount of the 
 claims, agree to the composition, the deliberation 
 can be postponed by the Judge to a new meeting. 
 
 7°. The agreement regarding the composition, 
 shall, after its acceptance, be immediately signed 
 by all the creditors who have acceded thereto. 
 
 8°. The result of the decision is noted in the 
 records and sanctioned by the Court within eight 
 days after the expiration of the term left for 
 opposition, as noted in the following rules, viz. : — 
 
 a. The creditors whose claims were acknow- 
 
 ledged at the time of deliberating on 
 the composition, and who have not ac- 
 ceded thereto, can oppose the sanction, 
 provided a written statement of the op- 
 position be delivered by them to the 
 curators and to the insolvent, and a 
 copy thereof deposited at the Registrar's 
 office, all within eight days succeeding 
 the day of acceptance of the composition, 
 that day not included. 
 
 b. The opposition can, amongst other mo- 
 
 tives, be grounded on the fact that the 
 
 assets exceed considerably the amount 
 
 of the composition proposed. 
 
 9°. In case of opposition, the Judge fixes' a day 
 
 on which it shall be heard by the Court. Xotice 
 
 of this nmsi be given by the curators or assignees 
 
 to the opposing creditors, as soon as possible;
 
 part ii.] COMPOSITION IN INSOLVENCY. ["'<>1: X ' 371 
 
 and at least eight days before the day fixed for 
 the hearing of the ease. The insolvent is quali- 
 fied to appear, to defend and explain the grounds 
 of his composition. 
 
 The creditors who have acceded to the compo- 
 sition, or who have not been present at the delib- 
 eration thereon, can attend the sitting and join 
 in the litigation. 
 
 10°. After expiration of the term allowed for 
 opposition, whether any has taken place or not, 
 the Court shall, on the conclusions of the curators, 
 give judgment on the composition. 
 
 11°. The sanction of the Court makes the 
 composition binding for all creditors without ex- 
 ception, known or unknown, including such as 
 may come forward later on: without prejudice to 
 the rights of such creditors as have preference or 
 are holders of pledge or mortgage. Those how- 
 ever, who came forward after sanctioning of the 
 composition by the Court cannot, in any case, claim 
 from their co-creditors any return on account of 
 dividends which have been distributed out of the 
 estate in compliance with the agreement of com- 
 position, without prejudice however of their right 
 against the bankrupt for the amount of the 
 composition. 
 
 12°. When the judgment by which the sanction 
 has been accorded, has acquired force of execution 
 and notice thereof has been oiven to the curators 
 or assignees, these latter are bound to account to 
 and to settle with the insolvent. All differences 
 arising on this head can be settled by arbitra- 
 tion. If no other stipulations have been made by 
 the agreement of composition, the curators or 
 assignees give up to the insolvent, against his 
 proper discharge, all goods, monies, effects, books 
 and papers belonging to the estate.
 
 372 pabtil] private international law. [ Ch j^: x 
 
 Discharge on 13°. On granting its sanction to the composi- 
 
 rj ranting the 
 
 composition, tion, the Court is competent, to rehabilitate at 
 once the insolvent who has acted throughout in 
 good faith. In all other cases, rehabilitation 
 takes place in the manner as described below in 
 paragraph 83. 
 
 14°. If no compensation has been offered or 
 accepted, or the sanction of the Court has been 
 refused, the Court declares the estate insolvent 
 and orders the same to be adjusted by the curators 
 or assignees. 
 0/ the adjust- § 82. As soon as the mandate mentioned in 
 insolvent estate, sub-section 14 of the preceedino; paragraph has 
 
 Proceedings of , . ,, in i 01 oi_ 
 
 Liquidation. been issued by the Court, the curators or assignees 
 proceed with the adjustment of the estate, under 
 observance of the rules laid down by the re- 
 spective lex mercatoria i.e. the customs of the 
 place. With regard to the rights of the holders 
 of pledges, the redeeming of objects pledged or 
 of mortgaged estates, the provisions of the Civil 
 Law are to be observed. 
 
 nanMng ana After termination of the sale of the personal 
 
 Classification of n 1 . l -. 
 
 creditors. as well as real estate, a statement is made out, 
 by the curators, of the acknowledged creditors 
 who, on the verification of their claims, have 
 alleged preference, pledge or mortgage. For that 
 purpose they take over the titles of the claims, 
 against receipt. A statement is drawn up of 
 the general classification, showing the proceeds 
 of the different objects sold, the order in which 
 each of the said creditors is entitled and the 
 sum for which he is definitively admitted, and 
 finally, the sum which, in consequence, may 
 remain for the benefit of the concurring creditors. 
 The curators or assignees are ranked as first 
 privileged on the whole proceeds, for the charges 
 incumbent on the bankruptcy, inclusive of* their 
 remuneration.
 
 Part ii.] PROCEEDINGS OF LIQUIDATION. [ C "p. X 373 
 
 That remuneration is usually fixed at one per 
 cent, of the proceeds of the personal and real estate 
 sold, of the other receipts, and of the ready 
 money found in the estate, without prejudice 
 to the power of the Court to allot further to the 
 curators or assignees an additional sum for special 
 time employed, if this is deemed equitable on 
 account of the importance of the services rendered. 
 
 The statement of classification, together with 
 the vouchers, deposited by the curators at the 
 Registrar's office, may be ordered by the Court 
 to remain there for public inspection during the 
 term fixed by the lex fori. This fact is announced 
 in such newspaper or newspapers as the Judge 
 shall indicate. The term begins to run on the 
 day following that of insertion in the indicated 
 newspapers. If no opposition has been made 
 within the term aforesaid, the classification is 
 definitively closed by the Judge, after which no 
 opposition whatever is admitted. In case of op- 
 position, the closing of the classification is defer- 
 red, until the questions which may have arisen 
 have been settled by a definitive decision of 
 the Court. The opposition is made at the Regis- 
 trar's office, either by declaration or official notice, 
 (stating in either case the grounds of opposition), 
 and further proceedings are taken thereupon in 
 conformity with the lex fori. 
 
 All the questions which have arisen are, as 
 far as possible, decided by the Court in one and 
 the same judgment. 
 
 If the interest of any holder of a pledge, 
 or mortgage creditor, makes it desirable not to 
 await the result of the final classification, and 
 if a special assignment of rank does not wrong 
 the other creditors, the Court can, at the request 
 of the person concerned, after hearing curators.
 
 Chapt. X. 
 
 374 Part II.] PRIVATE INTERNATIONAL LAW. 
 
 order a separate classification to be made as to 
 the proceeds of either personal or real estate, 
 to be specially designated in the order. In that 
 case, the creditor is paid out of the proceeds of 
 the object pledged, and the mortgage thereon, if 
 there be any, is canceled. 
 
 After the final closing of the classification, the 
 Court orders all mortgages on goods sold to be 
 erased, in conformity with the rules of the Civil 
 Law on this head. 
 
 The funds remaining in hand, after the classifi- 
 cation, for the benefit of concurring creditors, are 
 proportionately divided between them. With the 
 consent of the Judge, the curators are qualified, 
 however, to make a provisional distribution of 
 dividends, out of the funds available for the pur- 
 pose, before the settlement of the classification. 
 The Judge fixes on each occasion the amount of 
 the provisional distribution, and the manner in 
 which notice shall be given to the creditors of the 
 distribution to be made. 
 
 18°. The mortgage creditors participate, in pro- 
 portion to the full amount of their claims, with 
 the concurring creditors, in such distributions as 
 take place before the payment of the price of the 
 mortgaged property. 
 
 The amount they might thus provisionally 
 receive, is deducted afterwards, from what they 
 shall appear to have a right to, out of the proceeds 
 of the mortgaged property, and the sum provision- 
 ally paid them comes back to the general estate. 
 The preceding rules also apply to pledges and 
 privileged debts. 
 Claim ofth In case of insolvency or bankruptcy of the 
 'facZmunity husband, the wife takes back " in natura ' all 
 personal and real estate belonging to her and not 
 included in the community ofgoods< It must
 
 pAuxli.] PROCEEDINGS OF LIQUIDATION. \?"$L*" 375 
 
 be proved in accordance with the rules laid down 
 by Civil Law what property or jointure, brought 
 in by her at her marriage, has been excluded from 
 the community of goods. 
 
 The acquisition of personal estate during the 
 marriage by inheritance, legacy or donation to 
 the wife, not coming into the community of goods, 
 must appear by a description made thereof, or 
 by other proper documents, to the satisfaction of 
 the Court. 
 
 All goods proceeding from the investment or 
 re-investment of funds belonging to the wife, 
 exclusive of the community of goods, are likewise 
 taken back by her, provided the investment or 
 re-investment be proved by proper documents to 
 the satisfaction of the Court. 
 
 The wife exercises her right as mortgagee like 
 other creditors of that class. She participates 
 with the other concurring creditors, for her per- 
 sonal claims. 
 
 The property taken by the wife, as mentioned 
 above, continues liable for the mortgages or debts 
 with which it was legally encumbered. 
 
 The wife has no claim on the estate on account 
 of advantages settled by the marriage-contract ; 
 reciprocally the creditors cannot be benefited by 
 the advantages settled by the wife on the husband 
 by marriage-contract. An ante-nuptial settle- 
 ment on the wife, however, would be protected. 
 
 According to the usages adopted by the Law international 
 Courts of most countries, the curator, syndic, courts, ««» 
 
 -. i.i i regard to tlte 
 
 trustee or assignee in an insolvent estate has the power o/ cam- 
 right to draw into the estate and liquidate all the 
 property of the insolvent, wherever situated. By 
 virtue of the proceedings, commenced under the 
 bankruptcy law of the insolvent's domicile, the 
 curators or assignees are sometimes admitted to
 
 376 Taut n.] PRIVATE INTERNATIONAL LAW. [ Cn 5";. x - 
 
 Lave the right of attachment and to distribute the 
 property pro rata, — either preferentially or pari 
 passu, — among all the creditors, wherever domi- 
 ciled ; but, in the same way as testamentary ex- 
 ecutors, the curators or assignees of an insolvent 
 estate cannot exercise their functions in a foreign 
 country, without having previously obtained the 
 authorization of the Court which has jurisdiction 
 over the property (movable as well as immovable) 
 of the bankrupt. But although the above stated 
 usages are based on the just principle of acting 
 beneficially in the interests of the mass of cred- 
 itors, they are not as yet adopted by the Law 
 Courts of all countries. According to the views 
 of some, the right of the assignee or curator in 
 bankruptcy to the property of the bankrupt, 
 found or situated in a foreign country, is sub- 
 ject to the same usages which govern the transfer 
 of movable and immovable property, by deed 
 or will and marital rights, and thus cannot bar 
 proceedings against the property by citizens 
 of these countries in their own Courts. The 
 Court of the foreign country, where property of 
 the bankrupt is situated, secures priority to its 
 own subjects, as bond fide creditors, against those 
 of the country where the bankruptcy certificate 
 was issued, following its own bankruptcy law 
 with regard to the effect of priority of creditors, 
 and thus excluding all non-domiciled claims and, 
 of course, invalidating all private transfer of pro- 
 perty to trustees or curators, by an insolvent 
 person, for the benefit of all creditors equally, 
 when this act operates against domiciled creditors. 
 As to the rest, bankruptcy laws are, for the most 
 part, based on the commercial usages in vogue 
 in the different countries; though it is frequently 
 allowed to give preference to the attaching cred- 
 itor against the law of what is termed the locus
 
 1' A Ki- 
 
 ll.] REHABILITATION. [ C "§83. X 377 
 
 concursus cfeditorum, which is the place of the 
 debtor's domicile (Wheaton, § 112). However, 
 prior judicial proceedings of the foreign curator 
 or assignee, taken in the Court of the State 
 where the property of the bankrupt is situated, 
 are generally upheld, and sequestration once 
 acknowledged is invariably maintained. * 
 
 § 83. Rehabilitation of the insolvent. The insolv- rehabilitation 
 
 , , , ' , , . , . , . , of the insolvent. 
 
 ent who has not been rehabilitated m accordance certificate of 
 
 • it i i • i • -, -discharge. 
 
 with the rule mentioned in sub-section IS ol 
 paragraph 81, on the sanction of the agreement of 
 composition with his creditors, — or the heirs, in 
 the case mentioned under rule 3° of paragraph 
 79, — is qualified to present a petition of rehabi- 
 litation to the Court which has adjudicated the 
 insolvency (§79, No. 2). even if the insolvent 
 should be residing elsewhere. In this case the 
 following rules are observed. 
 
 1°. To rehabilitation are not admitted those 
 who have been declared guilty of fraudulent sale, 
 or who have been sentenced for fraudulent bank- 
 ruptcy, theft, imposture, or abuse of money or 
 goods entrusted to them. 
 
 2°. The petition of the insolvent or bankrupt 
 or his heirs is not admissible, unless accompanied 
 by a certificate showing that all the creditors 
 have been arranged with to their satisfaction. 
 
 3°. The petition is posted up in the manner and 
 places mentioned in sub- section 7 of paragraph 
 80. It is moreover published in such newspaper, 
 or newspapers, as the Court shall order. 
 
 4°. Every creditor is qualified to oppose the 
 petition within two months after the announce- 
 
 * STORY. On Conflict of Laws. Edit. Kedfield. § 338. pp. 403-423, 
 341-347. Phillimore. Vol. IV. Ch. 30, pp. 590-621. Merlin. Re- 
 pertoire. Faillite et Banqueroute. Wheaton. Elem. of Int. Law. 
 Part II. Chap. IT. § 88. Von Bar, §§ 78. 79 and 128. Translation 
 by 0, R. Gillespie, p. 311, et seq. and pp. 594-612,
 
 378 Part II.] PRIVATE INTERNATIONAL. LAW. ['"^i. X ' 
 
 ment aforesaid, by a petition, filed at the office 
 of the registrar of the Court, or by such deeds 
 or within such period of time as stipulated by the 
 lex fori. That opposition can be founded only 
 on the fact that the debtor has not duly complied 
 with the prescriptions of the law as mentioned 
 above in sub -section 2°. 
 
 5°. After the expiration of the said two months, 
 the Court shall give judgment according to the 
 conclusions of the public prosecutor, grant or 
 refuse the request, whether opposition has been 
 made or not. 
 
 6°. If the request be granted notwithstanding 
 opposition, or is refused, the opposing party can 
 in the former and the insolvent or bankrupt in 
 the latter case appeal to a higher Court. 
 
 7°. As soon as the sentence pronouncing the 
 rehabilitation has acquired legal force, it is, at 
 the request of the rehabilitated party, read off 
 publicly in the aud'ence hall of the Court, and 
 inserted in its records. 
 
 8°. If the rehabilitated party should reside 
 elsewhere, he can require that reading and record- 
 ing should take place further also in the Court of 
 his actual place of residence. 
 certificates of A certificate of discharge obtained by an in- 
 
 discharge with ■. . •. -, •. . ■■ • *i ■ j 
 
 regard to inter- solvent in the country where lie is domiciled 
 (with nationality of domicile, §-i0), and where 
 his business transactions took place, is valid as 
 regards all his creditors in every other country, 
 to the extent provided for by the respective bank- 
 ruptcy or insolvency laws (the lex loci), provided 
 there is a complete extinguishment of the debt. 
 But this is the case only when the contract, from 
 which the liability evolved, was made within the 
 jurisdiction of the State whose Court granted 
 the certificate of discharge, and provided that 
 the latter was nol coupled with the condition 
 
 national usages.
 
 part II.] SURCEASE OF BAYMENT. ['"">!: X ' 379 
 
 that the discharge have effect in any specified 
 country, for then the contract can only be dis- 
 solved by the laws of that country where it is to 
 have effect (the lex loci executionis). 
 
 This general rule is based on the principle of 
 the law of contracts (§55), viz., that a contract 
 derives its character, validity and durability from 
 the lex loci contractus, so that the bankruptcy 
 and insolvency laws of any country must be sup- 
 posed to form a tacit part of the obligations of 
 every contract, made in that country with its 
 citizens ; which implies that the debtor may be 
 discharged from his obligation in the manner 
 prescribed by its bankruptcy law. 
 
 But when, by the lex loci, there is no virtual 
 or direct extinguishment of the debt itself, but 
 only a modification of the remedy to enforce the 
 obligation : such as an exemption from arrest 
 and imprisonment (contrainte par corps) on a 
 cessio bonorum, while the contract remains still 
 legally valid, the lex loci has no effect on that of 
 the forum of the foreign creditor. The lex loci 
 being, in this case, a law of remedies, it belongs 
 to the ordinatoria litis, which, as being strictly 
 local, cannot form the lex fori of a foreign Court, 
 as each State controls the remedial processes to 
 be pursued in its own Courts. * 
 
 XXIV. — Surcease of Payment. 
 
 \ 84. Surcease of payment is a sort of private surcease of 
 moratorium, granted in conformity with the res-.PS" 
 pective Municipal Law, to traders, who, either by 
 circumstances of war or by other unforeseen cala- 
 mities, are rendered unable for the time present 
 to satisfy their creditors, but who can show by 
 
 * Stoby. Conflict of Laws. § 571. Von Bar. §§ 78. 79 and 128: 
 translation of G. R. Gillespie, p. 311. et seq. and pp. 594-612. 
 Westlake. Priv. Intern. Law. § 411. Dana. On Wheaton's Elevn. 
 Int. Law. §§ 88, K9-M4. Not.- Nos. 93-95, 
 
 mora- 
 torium.
 
 380 
 
 I'aktII.] PRIVATE INTERNATIONAL LAW. [' '*%£. * 
 
 Exterritorial 
 operation of 
 foreign 
 Judgments. 
 
 In criminal 
 cases. 
 
 a balance-sheet of their estate, corroborated by- 
 proper vouchers, that, by the delay to be allowed 
 them, they shall be enabled to pay them in full. 
 
 Surcease of payment is only granted by the 
 highest authority after hearing in the respective 
 Law Court, in conformity with the lex fori, and 
 for a limited time, usually not exceeding the term 
 of twelve months. 
 
 The surcease of payment has the same effect 
 outside the State as a certificate of discharge in 
 bankruptcy for the period of time for which it is 
 granted. 
 
 XXV. — Foreign Judgments and Foreign Legal 
 
 Instruments. Evidence of Foreign Laws. 
 
 Commissions Rogatoires. 
 
 § 85. Judgments of foreign tribunals of com- 
 petent jurisdiction (lex judicata) constitute in 
 most Law Courts, where parties claim the benefit 
 of it, primd facie evidence. 
 
 In civil cases such evidence is received as proof 
 of a debt but subject to contest by the defendant 
 so that a new judgment, in conformity with the 
 Ux fori, is required for its execution. Like con- 
 tracts and testaments, sentences of a foreign com- 
 petent Court have the strength of legal or authentic 
 deeds of evidence on the principle of locus regit 
 actum, but the execution is subject to the lex fori. 
 
 A judgment in a criminal cases, pronounced by 
 a foreign Court, cannot have execution within the 
 jurisdiction of any independent State, but it is an 
 authentic proof for a claim of extradition, and 
 a valid sentence, whether of conviction or ac- 
 quittal, pronounced by the competent judicial 
 power of one State, has the collateral effect of 
 being a bar (e.vceptio rei judicata') to a prosecution 
 for the same offence in another State which has 
 jurisdiction ;i- regards the offence; except in case
 
 paktii.] foreign judgments. [ Ca %. K ' 381 
 
 a criminal has fled to the foreign State to obtain 
 there a milder sentence or when a sentence of 
 acquittal was passed in another State than that 
 within whose territory the offence is alleged to 
 have taken place. * 
 
 With regard to exterritorial operation of judg- Inpertomm , 
 ments in personam, the general comity, utility 
 and convenience of Nations established a usage 
 among civilized States, by which final judg- 
 ments rendered in personal actions, in competent 
 Law Courts of one State have the conclusive 
 effect of a res adjudicata in every other State. 
 This rule depends, however, upon the principle of 
 reciprocity existing among States, f The personal 
 status being governed by the laws of the political 
 nationality (§51), judgments given by the com- 
 petent foreign Court in this matter are usually 
 admitted. 
 
 In real actions the sentence of the competent m rem. 
 Court is generally respected, when the affair is 
 brought up. incidentally, in litigation in a foreign 
 Court. 
 
 With regard to foreign judgments, Halleck %£Si\ 
 makes the following statements. wimum. 
 
 "Foreign judgments or sentences of a Court of 
 competent jurisdiction, proceeding ad rem, such 
 as the sentences of prize-courts, courts of admi- 
 ralty, and revenue-courts, are conclusive as to 
 the proprietary interest in, or title to, the thing 
 in question, wherever the same comes incidentally 
 in controversy in the tribunals of another State.'' 
 
 "Whatever doubts may exist," says Wheat on, 
 " as to the conclusiveness of foreign sentences, in 
 
 * Wheaton. Elem. Intern. Law. § 121. Dana's Note. No. 80 
 and § 138. Westlake. Private International Law. Chapt. II. Hal- 
 leck. Intern. Law. Vol. I. Chapt. VII. Woolsey. Introduction. 
 §77. 
 
 f Wheaton. Elem. Intern. Law. §§ 138-147. Vattel. Droit 
 des Gens. Liv. II. Chapt. VII. § 84. De Martens. Droit dcs Gens. 
 §§ 93, 94 & 95. Kluuer. Droit des Gens. § 59.
 
 382 PabtII.] private international law. ['"^; x ' 
 
 respect of facts collaterally involved in the judg- 
 ment, the peace of the civilized world, and the 
 general security and convenience of commerce, 
 obviously require that full and complete effect 
 should be given to such sentences, whenever the 
 title to the specific property, which has been once 
 determined in a competent tribunal, is again drawn 
 in question in any other Court or country." 
 
 "If a foreign Court exercises a jurisdiction 
 which, according the law of Nations, its sovereign 
 could not confer upon it, its sentence or judgment 
 is not available in the Courts of any other State, 
 and the Courts, in which such judgment is brought 
 in controversy, will determine the question of 
 jurisdiction for themselves; but so far as its 
 jurisdiction depends upon municipal law, or its 
 proceedings are governed by municipal rules, it 
 is the exclusive judge of its ownjurisdictionand of 
 the regularity of its own proceedings, and its 
 decision, on these points, binds the world. Of 
 its own jurisdiction, says Chief Justice Marshall, 
 tso far as depends on municipal rides, the Court of 
 a foreign Nation must judge and its decision must 
 be respected. If the proceedings are merely ir- 
 regular, the Courts of the country, pronouncing 
 the sentence, were the exclusive judges of that 
 irregularity, and their decision binds the world. 
 Thus, if the Court of one country condemns a 
 vessel as a prize under the law of Nations, and the 
 sentence is brought in controversy in the Court of 
 another State, the latter may examine into, not 
 only the authority of the former to act as a prize 
 court, but also whether the vessel condemned was 
 in a situation to subject her to the jurisdiction of 
 that Court. But if the matter in controversy is 
 land, or other immovable property, the judgment 
 pronounced in the forum rei sitce, is held of uni- 
 versal obligation, as to all the matters of right
 
 run ii. J EVIDENCE OF FOREIGN LAWS. [ CB §f& *' 383 
 
 and title which it professes to decide in relation 
 thereto. And this results from the very nature 
 of the case, for no other Court can have a compe- 
 tent jurisdiction to inquire into or settle such 
 right or title. By the general consent of Nations, 
 therefore, the judgment of the forum rei sitae is 
 held absolutely conclusive, lmmobilia ejusjuris- 
 dictionis esse reputantur, ubi sita sunt. And the 
 same principle is applied to all other cases of pro- 
 ceeding ad rem, as to movable property, within 
 the jurisdiction of the Court pronouncing the 
 judgment. Whatever that Court settles as to the 
 right or title, or whatever disposition it makes of 
 the property by sale, revendication, transfer or 
 other act, will be held valid in another country, 
 where the same question comes, directly or in- 
 directly, in judgment before any other tribunal." * 
 
 <S 86. Questions of evidence, to prove foreign Evidence of 
 
 , •> .. .. ,.,... l ji • foreign laid. 
 
 laws as well as their applicability to the case m 
 litigation, are decided by the respective Law Court 
 (lex fori). 
 
 Foreign written laws, judgments, wills, con- 
 tracts and other instruments are authenticated by 
 a certiticate annexed to the document, declaring 
 the document to be the original instrument or a 
 true copy of the same, as the case may be. This 
 certificate must be signed and sealed by some duly 
 authorized notary public or Government officer, 
 whose signature must be authenticated by the 
 chief of the Department of State under whose 
 cognizance the affair comes. As the signature 
 in question will be unknown in a foreign country, 
 it must always be legalized by the Representative, 
 Diplomatic or Consular Agent, of the State in 
 whose Law Court or before whose authorities 
 the document in question is intended to be 
 produced. 
 
 * HALLKCK. Intern. La\v. \ T o\. !-.*§§ 31 and 32.
 
 384 l-Ain ii.] PEIVATB INTERNATIONAL LAW. [° H §87: *" 
 
 Foreign unwritten laws, customs and usages 
 must be proved by the testimony of competent 
 jurisconsults, whether verbal on oath, before the 
 respective Court, or by written certificate, duly 
 authenticated as stated above for written laws. * 
 
 With regard to evidence of foreign laws, 
 Timothy Walker makes the following statements. 
 " The general rule respecting evidence, is that its 
 competency must depend upon the law of the 
 forum. But in the case of deeds, wills, and other 
 instruments of writing, it would seem to be almost 
 a matter of necessity that the evidence which 
 would be sufficient to prove their execution in the 
 place where made, should be held sufficient every- 
 where. With respect to foreign laws, their exist- 
 ence must be proved like any other facts, before 
 the Court will take notice of them. And the 
 same is true of foreign judgments. The mode of 
 proof varies according to the nature of the case. 
 The great seal of a nation is sufficient to authen- 
 ticate a foreign written law or judgment, but 
 not the seal of a Court, except it be a Court of 
 Admiralty. So a copy, sworn to be a true copy, 
 will be held sufficient. But the unwritten laws 
 and usages of foreign nations are proved, either 
 by the exhibition of printed reports, or by the 
 oaths of persons having the means of knowing, 
 or sometimes by the certificates of persons in 
 high authority. " f 
 
 commissions §87. By judicial commission of investigation, 
 generally known by the term commission rotja- 
 toire {Uterai mutui compassus sive requisitoHales)^ 
 is understood a certain request addressed by the 
 
 * IIalleck. Intern. Law. Edit. Sir Sherston Baker. Vol. I. p. 200. 
 JIi'.iitf.r. Le Droit Intern, de l'Euj'Ope. Traduction Bergson. 
 Edit. 1873, page 69. Story. Conflict of Laws. §§629-643. West- 
 LAKE. I'riv. Intern. Law. Chapt. XII. 
 
 f Timothy Walker. Lntrod. to America Law. Edit. 1874, p. 760, 
 
 Rogatoires.
 
 Part it.] COMMISSIONS ROGATOIRES. [° U §87. *' o85 
 
 Court of one country to that of another, for the 
 purpose of obtaining information on the subject 
 matter of an action or suit pending in the 
 former Court, in so far as the demand for inves- 
 tigation does not encroach upon the Sovereignty 
 of the State, upon whose Courts the demand is 
 made. This demand can include all acts of in- 
 struction and procedure by which a judicial 
 sentence is attained or which can afford grounds 
 on which it is to be determined, as the hearing" of 
 witnesses under oath, .the verification of facts, the 
 exhibition of mercantile books and the receiving 
 of oaths prescribed by the law of procedure, and, 
 in some cases, also the serving of citations, and 
 the obtaining of exequatur for the execution of 
 sentences. * 
 
 With regard to hearing of witnesses, Professor 
 von Bar makes the following- statements. " The 
 judge upon whom the demand is made conducts 
 the procedure which is desired of him in the form 
 which his own law lays down as essential to secure 
 credibility and validity, and the law of procedure 
 in the other country must allow evidence so taken 
 full credence, f Witnesses, then, for instance, 
 will not be required to subscribe their depositions, 
 if that is not required by the law of the Court 
 which takes the evidence, in order to secure 
 credibility. The Court on which the demand is 
 made may, however, at the special request of the 
 Court which makes the demand, put in force 
 
 * MASSE. Vol. If. |>. -is. Von Bar. §124. Asser. Sketch of 
 
 Priv. Intern. Law, page 117. 
 
 f Masse. Nos. 283-284; Oppenheim, p. :i7.s ; Schaffner, p, 
 206 : Fcelix, 1. ^ 246, ad fin. p. 17(i ; Linde, § 41. note 5 : WETZEL, 
 §39, note 42. The judge win i makes the demand for inquiry alone 
 can determine whether the parties shall be admitted to the process, 
 and must make the necessary notes on that point in his demand. 
 "Evidence taken on oath before a magistrate in Leith was allowed, 
 the same weight as evidence before a German Court as it would 
 have had in Scotland. Hamburg, 20th October,1875." (Note of (!. 
 11. Gillespie).
 
 380 I'ahtII.] PRIVATE INTERNATIONAL LAW. [' "jst. V 
 
 forms which can be observed without doing 
 violence to any absolutely prohibitory laws, or 
 to the views of proper procedure which it may 
 entertain, and without using any undue compul- 
 sion on a person who may be summoned as a 
 witness or without laying any excessive burden 
 upon the Court itself, while, of course, it must 
 always respect the forms which its own law 
 requires to give validity to testimony." 
 
 ki On the other hand, it is entirely for the Court 
 which makes the demand to say what meaning 
 is to be attached to the result of any such in- 
 quiry; and that, again, depends upon its own law; 
 it is that Court and that law that desire to be 
 informed as to the existence or non-existence of 
 particular facts ; although, of course, unless the 
 demand for information shall make some parti- 
 cular request to a different effect, the judge upon 
 whom the demand is made, not knowing foreign 
 law as a rule, and being in no case bound to 
 recognize it, will conduct the process in the way 
 pointed out in his own law." * 
 
 With regard to Commissions rogatoires, Sir 
 Robert Phillimore makes the following state- 
 ments. 
 
 "The civil jurisdiction to which a foreigner 
 may have recourse or be amenable, is cither 
 voluntary or contentious." 
 
 " The chief organ of the voluntary jurisdiction 
 
 O JO 
 
 is the notary public, who is. in fact, a kind of 
 international officer, to the testimony of whose 
 acts all civilized States give credit; an officer less 
 known and more restricted in his powers in 
 
 * Peop. Vox BAR. Das Internationale Privat-imd Straf-reclit. 
 $ 12-1. "Section 334 of the Civil Processordnung provides thai proof 
 which satisfies the requirements of I lie Court in Germany is no1 open 
 to any objection that might have been urged againsl M in a Eoreign 
 ( lourt, by whose officials it has been taken." (Note of G. 11. Gillespie 
 p. 556). '
 
 part it.] COMMISSIONS EOGATOIRES. [''""si. X " 387 
 
 England than on the Continent, — bat in England 
 also a well -recognized and important functionary. 
 Recent English statutes have conferred upon the 
 English Consul much of the authority of the 
 notary." * 
 
 " Under this head of voluntary jurisdiction, 
 also, should be considered those requests which 
 the tribunals or authorities of one State are, in 
 the execution of justice, obliged to make to the 
 tribunals or authorities of a foreign State, to 
 permit or enforce the investigation of facts or the 
 acquisition of evidence in the territory of that; 
 foreign State. A commission generally issues 
 for this purpose, which the French call commis- 
 sion rogatoire, a proceeding familiar to all ac- 
 quainted with the proceedings of the civil law/' 
 
 "These commissions are, almost invariably, 
 respected by foreign tribunals; the formula given 
 by Denisart expresses the foundation of pure 
 comity on which they rest: ' Nous vous prions 
 de . . . comme nous ferionsle semblable pour vous, 
 si par cons nous etions pries et requis. 1 Till 
 lately, England and the United States or North 
 America, instead of directing the commission to 
 the foreijm tribunals, have been in the habit of 
 entrusting their execution to certain of their own 
 citizens, lawyers, magistrates, or consuls, as the 
 case may be, a mode of proceeding which rendered 
 it optional on the part of witnesses whether they 
 would give or withhold their testimony; but by 
 later statutes f English judges are empowered 
 to issue commissions to the judges of a foreign 
 Court; and by a more recent statute English tri- 
 bunals are empowered to order the examination 
 of witnesses in England in relation to a civil or 
 
 * 18 and 19 Vict. Cli. 42. 
 
 f 1. William TV. Ch. 2:1. :i and + Vict. Ch. 105,
 
 388 patitii.] private international law. ['"^t. x ' 
 
 commercial matter pending before any foreign 
 tribunals." * 
 
 " The English Courts have ruled that a commis- 
 sion may issue to the judges of foreign Courts, as 
 individuals, to take the examination of witnesses, 
 notwithstanding the examination may not be 
 conducted according to the law of England. Yet 
 it would seem that, if illegal evidence be returned, 
 or if it appear either on the face of the return, or 
 by extrinsic evidence, that the examination has 
 been so conducted as to render it inadmissible, 
 the whole or part may be rejected at A7 / Prius." 
 
 "In a recent case, a former commission issued 
 by the same party having proved abortive, in 
 consequence of the witnesses refusing to be exa- 
 mined by an English commissioner according to 
 the English law, the Court, on granting: a new 
 commission to the foreign judges, imposed the 
 payment of the costs of the former commission." 
 
 ' ; In a case of Fischer v. Sztaray (heard before 
 the Court of Queen's Bench, May 1858), a com- 
 mission to examine witnesses, which had issued 
 to the judges of a Hungarian Court as individuals. 
 was returned unexecuted, and an affidavit of the 
 defendant's attorney stated that he was told by 
 a secretary of the Austrian Legation in London 
 that the commission ought to have been address- 
 ed to the Court as a Court, and not to individual 
 judges." 
 
 "Thereupon, the Queen's Bench ordered the 
 commission to issue to the Court, as a Court, the 
 usual clause prescribing the form of oaths to be 
 omitted, the plaintiff having the opportunity, on 
 the return of the commission, to object to the 
 admissibility of the evidence taken under it; the 
 costs of the abortive commission to be the plain- 
 tiff's costs in the cause, at all events." 
 
 * 10 and 20 Vict. Ch. 113.
 
 r.u,r ii.] COMMISSIONS ROGATOIRES. [ CB §87.' X " 389 
 
 41 It has been considered to be no answer to an 
 application for a commission to examine witnesses 
 abroad, (supported by the ordinary affidavit), 
 that the opposite party deposes that there are 
 persons in this country, and documents accessible 
 to the applicant, which would supply him with 
 any information he could obtain from the wit- 
 nesses he proposes to examine. And after a 
 judge has exercised his discretion on such an 
 application, the Court will not disturb his decision 
 unless it is manifestly wrong." 
 
 ; ' The Court has ruled that it will not permit a 
 writ of subpoena ad testificandum, to issue, to 
 compel the attendance of a witness resident out 
 of the jurisdiction, unless it be shewn that the 
 evidence cannot be had under a commission, or 
 otherwise than by personal attendance of the 
 witness. 1 ' 
 
 " As to the mode of executing a commission 
 under the recent statute, the following decision 
 is important. A commission having issued to be 
 executed at New York, returnable in a month, 
 with leave to defendant to cross-examine, there . 
 was, some weeks afterwards, a consent made by . 
 him that no objection to the admissibility of 
 the evidence taken should be made by reason of 
 the time of taking or returning such evidence, 
 saving all just exceptions to the evidence. The 
 commission was returned executed two or three 
 days after such consent, having been executed 
 without any notice to the defendant of the time 
 at which he might attend its execution, it was 
 holden by the Court that, nevertheless, the evid- 
 ence taken under it was admissible at the trial." 
 
 The commissions rogatoires, can be made also 
 available, to ascertain the forms of evidence as 
 
 * Whyte r. Hallet, 28, Law Journal. Exch. 208. Sir Robert 
 PHILLIMORE. Common Intern. Law. Vol. IV. p. 690. ot seq.
 
 390 Pakt il.] PRIVATE INTERNATIONAL LAW. [ Ca f£. X 
 
 admissible in a foreign Court when these forms 
 are not acceptable, as such, by the lex fori, al- 
 though the value of the evidence, as to fact, may 
 not be denied, as in cases of obligations ex lege, 
 quasi ex-contractu, quasi ex delicto, ex delicto 
 (§ 55), the evidence of such obligations being 
 in most Courts regarded to be determined by the 
 law of the place, where the act creating the 
 obligation took place. * 
 Ruios proved The followm?: rules were adopted by the Ins- 
 
 bn the institid ile , 7 n • r • • • 
 
 ih-oit i„t ei - Htut de Droit International, in its session of loth 
 
 national. ^ , rj • \ . • 
 
 September, 18 m, at Zurich, on the proposition 
 of Professor Asser, member of a commission ap- 
 pointed by the Institut'm 1874-1875 to report on 
 Private International Law, f with regard to de- 
 mands for informations on the subject-matter 
 of actions in litigation, addressed to a foreign 
 Court : — 
 
 a. "Lejuge saisidunproces, pourra s'adresser 
 
 par commission rogatoire a unjuge Stran- 
 ger, pour le prier defaire dims son res- 
 sort, soit un acte d 'instruction, soit cVautres 
 actes judiciaires, pour lesquels V interven- 
 tion dujuge Stranger seraitindispensable" 
 
 b. " Le juge a qui Von demande de delivr&r 
 
 une commission rogatoire. decide: 1°.. de 
 sa propre competence ; 2°.. de la legdlite 
 de la requete; o°., de son opportunity, 
 lorsqiiil s'agit <fun acte qui legalement 
 
 * VOX BAR. Das Intern. Priv. unci Straf-recht. §§ 87 and 8S. By 
 the Italian Law this system is sanctioned in the stipulation of Art. 
 10, Section 2°.. of the Dispozioni sulla Pubblicazione etc., of the King- 
 dom of Italy, which reads as follows : — "Jmezzi di prova delle obbli- 
 gazioni sono determinati dolle leggi del luogo in cui Vatto fu fatto" 
 
 ■f The members of this commission -were : Professors Asser, Von 
 Bar, Bluntschli, Brooher, Esperson, P. Fioke, B. Lawrence, 
 Laurent, Mancini, Masse, Westlake. The reporters were 
 M. M. Mancini and Asser, who brought out each a separate report, to be 
 found, respectively, on pages 329 seep and 3(U seq. of the licritr de 
 Droit International, Tome VII. 1X7.~>. The report of Professor Asser, 
 having for its subject-matter the Civil process-laws, includes the 
 rules for comininsionx rogatoiren.
 
 PaktH.] commissions ROGATOIRES. [ Ch §87. x ' 391 
 
 peut aussi Men sefaire devant lejuge du 
 proces, p. ex. d entendre cles temoins, de 
 faire prefer serment a Vune des parties. 
 
 'eh-r 
 
 c. " La commission rogatoire est adressee di- 
 
 rectment de tribunal a tribunal, apres 
 quon Taura revetue des preuves aau- 
 thenticite, preserites par les traites" 
 
 d. '' Tjt tribunal a qui la commission est adres- 
 
 see sera oblige dy satisfaire apres setre 
 assure: 1°., de I ' autheniicite du document, 
 2°., de sa propre competence, ratione ma- 
 teria', d apres les his du pais oh il siege." 
 
 e. " En cas d incompetence materielle, le tri- 
 
 bunal requis transmettra directement la 
 commission rogatoire ou tribunal compe- 
 tent, apres en avoir informe le requerant." 
 
 f. ' ; Le tribunal qui procede a uu actejudiciaire 
 
 en vertu dune commission rogatoire ap- 
 plique les his de son pays en ce qui con- 
 ccrne les formes du proces, y compris les 
 formes des preuves et du serment." 
 
 " * 
 
 * Anm/cirr de Vlmtitwt de Droit International, 1878. p. 44.
 
 PART III. 
 
 MARITIME AND COMMERCIAL 
 INTERNATIONAL LAW.
 
 CHAPTER XL 
 
 The Open Sea, Maritime Domain and 
 
 Territorial Waters, and their 
 
 Jurisdiction. 
 
 § 88. The open sea or main ocean is, like the Mare merum. 
 atmosphere, free for common use to all mankind 
 and cannot be appropriated by any State to the 
 exclusion of others. 
 
 It is not so much the improbability of any 
 power being able to actually occupy and maintain 
 such a possession, but rather the total absence of 
 all justifiable and reasonable grounds for such 
 monstrous usurpation, which constitutes the prin- 
 cipal argument against all claims of exclusive 
 right over vast tracts of the ocean. The latter is 
 by nature designed to be the common property of 
 all mankind, even if it were physically possible for 
 anyone Nation to occupy and keep possession of it. 
 This is, at present, the generally admitted principle 
 of the Law of Nations. The recognition of this 
 principle has put an end to the controversies 
 which, at a less civilized period of European 
 history, were raised by the arbitrary assumptions 
 of some Maritime Stares claiming exclusive right 
 of control and domain over portions of this 
 common human property, for no practicable 
 purpose whatever, but only to gratify an imagi- 
 nary ambition of supremacy over other Nations, 
 such as, in our time, is observed only in the case 
 of semi-barbarous Eastern Potentates. 
 
 The famous Mare Liberum of Grotius (A.D. 
 1609). the erudite and cleverly written Mare
 
 39G 
 
 Pakt III] MARITIME INTERNATIONAL LAW. 
 
 rciiAPT. xi. 
 
 Maritime 
 Domain (Mare 
 Clausum). 
 T/te King's 
 Chambers. 
 
 Clausum of Selden (A.D. 1635), * Puffendorf, 
 in his " De jure natures et gentium" Libr. IV 
 (A.D. 1672), Bynkershoek's " De dominio maris 
 dissertatio" (A.D. 1730), and so many able 
 writers after them, have exhausted the theme, 
 while common sense, enlightened by an ever 
 progressing civilization, has given judgment 
 against the clever arguments of Selden in favour 
 of the Mare Liberum of Grotius, and the open sea, 
 as the necessary high-way of all Nations, has ever 
 since been considered free for ever. Thus this 
 celebrated question of the open sea can now fairly 
 be regarded as res adjudicata, and the learned 
 controversies which, until the beginning of this 
 century, occupied the pens of the ablest publicists, 
 as belonging to the domain of history, f 
 
 § 89. All natural waterways and passages, 
 originally created by nature, (irrespective of arti- 
 ficial improvements superadded), and navigable 
 by sea-going vessels, are internationally free with 
 the exception of those waters situated entirely 
 within the limits of one and the same State 
 constituting maritime domain, which really could 
 be called the mare clausum of the State to which 
 the exclusive right of property and the juris- 
 diction over these waters belongs by virtue of 
 their natural condition. 
 
 To the maritime domain belong : — 
 
 * Of this work Valin said, u a la re rite il next pas possible de 
 defendrc aree pins d' esprit et d'adresse une cause de cette nature ; 
 niais eiijin il n'emplui avenn argument qiCvn ne pitisse facilcment 
 re/uter. Valin. Nouveau commentaire sur l'Ordonnance de la Ma- 
 rine du mois d'Aout, 1G81, Vol. II. page 68G. 
 
 f "It is sufficient to say, that the reason of the thing, the prepon- 
 derance of authority and the practice of Nations, have decided that 
 the main ocean as much as it is the necessary high-way of all 
 nations and is from its nature incapable of being continuously pos- 
 sessed, cannot be the property of any one State." Phillimore, 
 Comm. on Intern. Law. Vol. I. § 172. Ortolan, Dipl. de la Mer. 
 Edit. 1801. Vol. f. Chapt. VII. Perelb. Intern. Seerecht, p. in,
 
 l-ARTiii] OPEN SEA, MARITIME DOMAIN. [ C %7y. XI " 397 
 
 1°. All ports, harbours and road-steads, on- 
 closed by bead-lands, islands or shoals which 
 form part of the territory of a State. 
 
 2°. All open road-steads, or anchorages on the 
 coast, being the resort of a town, village or public 
 establishment, the limit being that of the anchor- 
 age ground. 
 
 3°. Those bays and gulfs whose shores and 
 surrounding islands, shoals and head-lands are 
 in legal possession and occupation of one and the 
 same State, provided the distance intervening 
 between the head-lands and enclosing shoals and 
 islands is such as to enable batteries, established 
 on the land, to control the passages to and the 
 navigation of the inner waters, or otherwise 
 does not exceed ten nautical miles (of 60 in the 
 equatorial degree). These are termed closed 
 bays, the entrance being regarded as defensible 
 from the shore, in contra-distinction from those 
 of greater width, which are regarded as open 
 territorial- waters (§90). * 
 
 4°. All inland-seas and lakes, whose shores 
 belong entirely to the territory of one and the 
 same State. 
 
 5°. All narrow straits, channels or rivers, lead- 
 ing from the open sea through the territory of 
 a State to an inland -sea, provided that the shores 
 of the latter, as well as the shores or banks of 
 such passage communicating with the open sea. 
 belong to the same State. 
 
 * The general reservation made by France in the Fishery Treaty 
 with England of 2nd August, 1839, Art 9 (de Martens Nouv. Reel. 
 XII. 954) is the breadth often miles for the entrances of her inlets 
 and recesses. Ten miles is also the breadth, stipulated for closed 
 bays and indentations of the German Coast in the Fishery Treaty 
 between the North German Confederation and Great Britain, of 186S. 
 Pekels. Das Internationale Sffentliehe Seerecht der Gegenwart. 
 Edit. 1882, page 30-38. CALVO. Droit Intern. Edit. 1870, Vol. I. 
 §190. Ortolan. Dipl. de la Mer. Vol. I. p. ItiO.
 
 398 Paiit III. J MARITIME INTERNATIONAL LAW. [ C "fU. Xlw 
 
 6°. Rivers which rise and debouch within the 
 limits of the same State, keeping throughout their 
 course within its territories, belong entirely to 
 the domain of that State. 
 
 7°. Also the estuaries of the rivers aforemen- 
 tioned, provided that the breadth between head- 
 lands, shoals or islands, answers to the conditions, 
 noted in sub-section 3, with regard to the closed 
 bays. Such estuaries are then called closed 
 estuaries. But the open estuaries, formed by 
 the river delta outside that limit of breadth, are 
 classed with open bays or gulfs, as will be noted 
 in the next section. 
 
 The closed bays and river-estuaries, as de- 
 scribed in sub-sections 3°. and 7°., represent 
 what is called in England the Kings Chambers. * 
 
 Every State has absolute right of property and 
 jurisdiction over its maritime domain and by 
 virtue of this right, so far as it is not modified by 
 treaty or otherwise abandoned, each State may 
 prohibit access to any or all of its ports, harbours, 
 rivers, and road-steads to any or all vessels, or ex- 
 clude all or any particular foreign vessel from the 
 privilege of its coast-trade navigation (cabotage)^ 
 or subject these privileges to certain regulations, 
 whether for the protection of the home trade, for 
 fiscal interest or for political reasons. These 
 prohibitions, however, can never be extended 
 beyond the strict limits of the maritime domain, 
 nor interfere with the international immunities 
 of the territorial waters (§ 00), or be applicable to 
 those vessels which, by stress of weather and other 
 (■(/uses majeures, arc obliged to take refuge in the 
 nearest shelter of land or harbour. This is called 
 the right of refuge (droit de relacheforcSe), which 
 
 * I'HILLIMOKE. ('onnii. Intern. L:nv. Vol. I. page 284. WOOLSfeY. 
 Intern. Law, Ed. 1879. 860.
 
 PaktIII.] TERRITORIAL WATERS. [^fw.* 1, 399 
 
 is a maritime international usage recognized by 
 all civilized Nations. * 
 
 § 90. Apart from the exclusive right of proper- %%% ria J d . 
 
 latent seas. 
 Maritime 
 
 ty which belongs to each State, possessing a mari-* 
 time domain or mare clausum as above stated, theJSESi 
 jurisdiction of each State extends also over those 
 portions of open bays or gulfs and open estuaries, 
 of free inland-seas and lakes and of the open sea, 
 adjacent to its territories, which are situated 
 within a radius of three miles or 5555 meters 
 from any point of its coast or territory (to be 
 reckoned from low- water mark). This distance 
 is presumed to be the range of the coast defences, 
 but on the maxim that terrce dominium finitur ubi 
 finitur armorum vis, it should be stated to extend 
 to any point on the sea to which the cannon of 
 actual coast defences on shore can carry a pro- 
 jectile. But as the carrying power of any given 
 cannon is such a vague measure, the three miles 
 radius is generally adopted. The miles here 
 referred to are nautical miles (miles. Seemeilen), 
 sixty of which are equivalent to an equatorial 
 degree, and measure nearly 1852 meters. Three 
 of the latter are equal to one French league 
 (lieue murine, legua) and four are equal to one 
 geographical or Dutch mile which is calculated 
 to measure 7407 meters. 
 
 This belt of the sea littoral constitutes the 
 range regarded as necessarily belonging to the 
 coast defences of the respective State and is termed 
 its territorial waters (mer territorial, Territorial- 
 meer). The exclusive jurisdiction, which the State 
 exercises over the said littoral, is called mari- 
 time territorial jurisdiction (jurisdiction maritime, 
 
 * Kluber. Ed. Ott. § 130. De Martens. Ed. Ch. Verger. §42. 
 W. E. Hali,. Ed. 1880. Part II. Chapt. II. § 42. Wheaton. Ed. 
 Dana, Part II. Chapt. IV. Ortolan. Dipl. de la Mer. Ed. 1864. Vol. 
 I. pp. 140-148. Halleck. Edit. Sir Sherston Baker. Vol. I. p. 140. 
 WOOLSEY. Edit. 1879. §§60-62.
 
 100 Part HI.] MARITIME INTERNATIONAL LAW. [ ,J "V;;- Vl 
 
 Hoheits-gewoBSser. § 30). Within the limits of 
 this jurisdiction each State has the exclusive right 
 of coast-fishery (peche cotiere, Kasten-Jischerei), 
 and may enforce its municipal laws and regula- 
 tions with regard to territorial defences, sanitary 
 measures, pilotage and navigation rules, customs 
 control, strandings and flotson regulations, har- 
 bour and road-stead police, and other measures 
 necessary for the safety of shipping and trade. 
 
 Outside the maritime domain, (which is con- 
 stituted by the closed river-estuaries and the closed 
 bays as noted in the preceding section), the littoral 
 sea or territorial water is reckoned to begin from 
 a straight line, drawn between the head-lands, 
 islands or shoals which form the mouth or entrance 
 of the respective closed river or bay, and between 
 which the breadth is not more than ten sea 
 miles. * 
 
 It is a principle of International Law that 
 these marginal seas, or territorial waters are 
 considered to be open to the navigation of all 
 Nations up to the land, as near as practicable for 
 sea-going vessels, but without right of fishery, 
 and always subject to the respective maritime 
 territorial jurisdiction. This jurisdiction, how- 
 ever, does not include the right to prohibit or 
 completely obstruct the peaceable traffic of sea- 
 going vessels. Even in case a State wishes to 
 close all or some of its ports to certain foreign 
 vessels, and deems it proper to place individual 
 vessels nearin^ its coasts under certain restric- 
 tions by way of control and supervision for the 
 sake of its internal public safety or to secure its 
 fiscal revenue, yet such State cannot interdict the 
 
 * Fishery Treaty between France and Great Britain of 2nd August, 
 1839, Art, !) & 10. Annales Maritimes et Coloniales, 1839, Part, 1 ; 
 1>. 861. Ortolan. Dipl. de la Mer. Liv. II. Chapt. VIII. Ed. 1864. 
 page 153, et secj. Perels. Internationales Seerecht §5. Nationalc 
 Gew&sser. British Territorial Waters Jurisdiction Act of 1878,
 
 1'aki in.] NARROW SEAS AND CANALS. [ CB ^S. aa ' 401 
 
 innocent use of its territorial waters in the case 
 of way-ward bound vessels, using the passage of 
 these natural waterways to proceed to their 
 respective places of destination. On the other 
 hand, a State may, for fiscal or defensive pur- 
 poses, forbid foreign vessels from hanging around 
 (hovering) or anchoring on its coasts, when not 
 forced by stress of weather or accidents beyond 
 their control. * 
 
 § 91. By virtue of the same principle of maritime Narrov>sw& 
 
 • -i« ,■ • ,i n • , -n and canals. 
 
 jurisdiction, with tree innocent passage to all 
 Nations, are classed by International Law, under 
 the term narrow seas, those straits and sea-arms, 
 rivers or navigable waterways of every descrip- 
 tion, which unite two parts of the open sea or two 
 navigable and internationally free waters, irre- 
 spective of the state, condition or circumstances 
 with regard to the dominion of the shores, and 
 notwithstanding the jurisdiction of the respective 
 territorial waters. 
 
 The narrow seas are, in the eye of International 
 Law, as free, as the waters between which they 
 serve as the natural means of the intercourse 
 of Nations, especially so when such straits, 
 rivers or channels may afford, at any time, the 
 shortest or safest passage for sea-goiug neutral 
 vessels and thus serve as the natural route of the 
 traffic carried on by such vessels. 
 
 The right of navigating internationally free 
 waters, includes the right of passing through the 
 straits communicating with these waters. 
 
 There is no reason for not including in this 
 general rule all canals or narrow straits, connect- 
 ing, for the benefit of outside and international 
 navigation, two open and internationally free 
 seas, although such a canal may be an entirely 
 
 * Halleck. Intern. Law. Edit. Sherston Baker. A r ol. I. p. 135, 
 
 el beq.
 
 L02 l-AUT in.] MARITIME INTERNATIONAL LAW. :. x1, 
 
 or partially artificial channel, dug out for the 
 said purpose and passing entirely through the 
 
 territory of one Power. The legal status of such 
 a canal, in the eye of International Law. is but 
 the state it actually occupies in the intercourse 
 of Nations, independent of its origin. Being 
 once de facto established as an international high- 
 way, whether with or without tolls, the only 
 concern of International jurisprudence regarding 
 it is its raison d'etre. This is exclusively the 
 connection of two open seas, for without the 
 pre-existence of a desideratum regarding the 
 necessary intercommunication between these In- 
 ternational properties, the canal would not have 
 been in existence. Such a highway, having once 
 been declared open to all Nations, can therefore 
 not be legally closed again except on the princi- 
 ples which govern all natural narrow passages 
 between open seas * (§ 93). 
 
 When narrow straits are only navigable by 
 means of lighthouses, beacons, or buoys, the 
 States which maintain these are entitled to reim- 
 bursement of the costs, but where no consider- 
 able expenses are incurred for the preservation 
 of the waterway, this right is rarely used, as it 
 is a generally adopted rule, that every State pays 
 the expenses of the works, established on its 
 own shores, although tiiese might benefit passing 
 vessels as well, f 
 Boundai-y of The boundaries of the territorial waters of 
 
 watersin, States, whose respective territories are divided by 
 
 narrow channels. •. -, L , -,■ • i 3j_i j.i 
 
 narrow channels not exceeding in breadth the 
 limit of ten nautical miles (of 60 in the degree). 
 
 * Professor Holland. On tb inal. Fortnightly Review. 
 
 July )**:•. Prof. LAWRENCE. On the Suez-Canal. Law Magazine 
 and Review. February 1884. 
 
 f The claim of Denmark to impose the so-called Sund-dues, al 
 doned by Treaties in 1857 as i inallj Pounded a a consideration 
 of the expenses incurred by thai State to se :ure the safety of navi- 
 gation in the Sund.
 
 Part 1II.1 RIVERS, LAKES AND INLAND SEAS. I" "*"' XT ' 403 
 
 are supposed to meet in the middle of the channel 
 concerned, which is considered to belong to the 
 joint maritime jurisdiction of the co-riparian 
 States with free passage to all Nations. 
 
 & 92. The first occupation of any part of the international 
 
 ■.''-, n . *■ in • ■ i • • character of 
 
 borders or a river is regarded to indicate an m- rivers, lakes 
 
 . n * . V , n , . and inland seas, 
 
 i cation or taking possession also oi the opposite 
 river bank. 
 
 This principle is likewise applicable to the first 
 occupation of any part of the shores of a lake ; 
 which act constitutes a primd facie claim to the 
 whole of the unoccupied shores. 
 
 Navigable rivers, traversing the territories of 
 two oi' more States, are indiscriminately open to 
 the innocent passage of all vessels going to and 
 fro past the respective co-riparian States and thus 
 internationally free. The old selfish system which 
 prevailed during the middle ages, that the owner 
 of one section of the river has, independent of 
 treaties, no concern in the interest of any other 
 co-riparian State, whether above or below the 
 stream, has yielded to the better judgment brought 
 to bear on this subject by the spirit of civilization, 
 which asserted its influence in matters of free 
 river navigation no less than in so many other 
 spheres of human intercourse, where its constant 
 action is perceivable in wearing off the crust of 
 narrow-minded egotism which would maintain 
 an antagonism between individual interests and 
 
 CD 
 
 the common weal. * 
 
 On the same principle, the navigation of inland 
 seas and lakes, whose shores belong; to two or 
 more States, is to be regarded as free, subject to 
 the joint maritime jurisdiction of the respective 
 co-riparian States, in conformity with their 
 boundary agreement. 
 
 * Art. 108-117 of the Treaty of Vienna of 1815. Bltjntschli. 
 Le Droit Intern. Codifie. Art" 311. Wheaton. Part II. Chapt. 
 IV. §§ 11-19. Hefftbr, Le Droit Intern, do l'Europe, p. 155.
 
 404 Pari III,] MARITIME INTERNATIONAL LAW. [ C "|m 1 Xl ' 
 
 me Thalweg. With regard to the case of a net -work of rivers 
 traversing the territory of several States, the 
 jurisdiction is regulated by the boundary treaties 
 which always exist between co-riparian States 
 and which generally admit the centre of the deep- 
 est channel, called the Thalweg, as the boundary 
 line. 
 
 whatu meant §93. Internationally free navigation or pas- 
 
 bu international- * , , y . ° . J 
 
 /« free nariga- sage through territorial waters, straits, canals, 
 rivers, lakes and inland-seas, as described above 
 (§§ 90-92), implies freedom for the outside com- 
 merce and the right of outward international 
 intercourse, so far as to secure unimpeded com- 
 munication between individual States, by the 
 use of those waters which are the natural high- 
 ways of international commerce, or declared open 
 to free peaceable navigation and passage by 
 sea-going vessels from foreign countries of all 
 nationalities, without compulsory trans-shipment 
 of cargo or any charges for the commutation of 
 any right of compulsory stoppage, but where 
 required with reasonable .compensation, under the 
 head of tolls or dues, for pilotage services, lights, 
 buoys, beacons and all other expenses, in behalf 
 of the preservation of the waterway and the 
 safety of navigation. By this it is obvious, that 
 the international usage with regard to free pas- 
 sage in the above described case of territorial 
 waters, narrow seas, canals, rivers, and lakes 
 does not intend any infringement on the sover- 
 eignty rights of the States, whose territories the 
 waterway divides, to make conjointly such reg- 
 ulation as may be required to limit this free 
 traffic to peaceable intents or to purposes of 
 harmless utility, to be determined and controlled 
 by them. 
 
 coast-Mery. Neither does this usage of free international 
 
 Voast-lrade •ill • l n /» i a ? 
 
 vavigafm, passage include the right ot coast-fishery (peche
 
 PAnrm.] REVENUE LAWS. [ CU %^ 405 
 
 cotiere, Kiistenjiskerei) nor the right of coast- 
 trade navigation (Cabotage, Kiistenfraehtfahrt) or 
 that of trading with coasting vessels or with in- 
 land or river crafts by foreigners, without special 
 agreement, by treaty or on general admittance, 
 by municipal regulations of the respective States. * 
 
 §94. "With regard to the extension of the*^;; 
 right of control beyond territorial waters, for ^;» «#«<*»< 
 the protection of the revenue of a State, it 
 is admitted that within the territorial waters, 
 which may be called the territory of Nations, as 
 within a marine league, or in creeks and bays, the 
 vessel of a friendly State may be boarded and 
 searched on suspicion of being engaged in un- 
 lawful commerce, or of violating the laws con- 
 cerning revenue. But further than this, on ac- 
 count of the ease with which a criminal may 
 escape beyond the proper sea-line of a country, it 
 is allowable to chase such a vessel into the high 
 sea, and then execute the arrest and search which 
 flight had prevented before. Furthermore, sus- 
 picion of offences against the laws talcing their 
 commencement in the neighbouring waters beymd 
 the sea-line, will authorize the detention and ex- 
 amination of the supposed criminal. An English 
 statute prohibits foreign goods to be trans-shipped 
 within four leagues of the eoa*t, without payment, 
 of duties. The act of Congress of the United 
 States of America, of March 20th, 1799, contained 
 
 * Articles 1US-117 of the Acte final du Congres de Vienne, of 9th 
 June, 1815. concerning free river navigation. Grotius. de jure 
 belli, ae paeis. Book II. Chapt. III. Vattel. Droit de.s Gens. Book. 
 I. Chapt. XXIII. Wheatox. Elm. Intern. Law. Edit. Dana. 
 §§177-205. Calvo. Droit Intern. Edit. 1870. Vol. I. §§ 188-233. 
 Bhilliiioee. Comm. Intern. Law. Vol. I. Edit. 1879. Bart III. Chapt-. 
 IV.-VIII. Berels. Intern. Offentl. Seereeht, § 5, sub-section X. 
 With regard to internationally free river navigation, seethe valuable 
 contributions by Mr. Ed. Exgelhardt, Minister Blenip. of France, 
 former member of the Danube Commission, under the head " La 
 liberie de la navigation fluviale.'" in the Revue de Droit International. 
 1879. p. 363 and 1881. p. 187,
 
 406 Pact III.] MARITIME INTERNATIONAL LAW. ['""''m^ 
 
 the same prohibition; and the exorcist; of juris- 
 diction to that distance, for the safety and pro- 
 tection of the revenue laws, was declared by the 
 Supreme Court of that country, in Church v. 
 Hubbard (2 C ranch, 187), to be conformable to 
 the laws and usages of Nations" (Kent, I.. 31, 
 Sect. II). * On the other hand, it is understood, 
 that this exceptional right does not extend into 
 foreign territorial waters, unless through special 
 understanding between States with conterminous 
 territorial waters (§113). 
 
 The right in time of war. of temporarily stop- 
 ping neutral vessels, in any part of a Nation's own 
 territorial waters, narrow seas, rivers, etc., for 
 strategical purposes, which is acknowledged by 
 the Law of War ns the right of a belligerent Slate 
 does not belong to the ordinary right of jurisdic- 
 tion over these waters. 
 
 *_Wool?EY. lutein, Law. Edit. 1879, p. 374.
 
 ... I INTEKNATlOXAL POLICE ON SEAS fGHAPi'-XIt. |/>7 
 
 Past III. J WITHOUT JUBISDICTION. L §»5- XKJ ' 
 
 CHAPTER XII. 
 
 International Police and Control on 
 Seas without Jurisdiction. 
 
 §95: From the foregoing it is obvious that. ^o P f se a 
 
 ^ o o , ' subject to Inter- 
 
 by the generally approved usage of Nations, the national Law. 
 
 established rale of International Law is now that 
 
 the open sea is unconditionally free and cannot 
 
 be brought under the jurisdiction or control of 
 
 any Nation to the exclusion of others. All have 
 
 equal right of navigation, fishery and jurisdiction, 
 
 which rights cannot be lost by prescription, 
 
 being natural, self-sustaining and unalienable. 
 
 Where all nationalities have equal rights, where 
 they meet each other with perfectly free motives, 
 on the vastest neutral field of practical inter- 
 course, there is the natural domain of Interna- 
 tional Law. Here each State exercises its sover- 
 eignty rights with equal mutual respect for the 
 flags of all sovereign States, upheld by the 
 established international usage among all civi- 
 lized Nations. This mutual respect constitutes 
 the first condition of the mare liber urn. 
 
 Modern commerce is essentially maritime ; 
 hence the predominant international necessity 
 of securing the safety of the open sea. It is 
 obvious that the only guarantee for the safe 
 navigation of the high seas consists in the mutual 
 observance by all Nations of certain indispensable 
 rules. These conditions are as follow : — 
 
 1°. Every vessel must belong to an acknow- 
 ledged State.
 
 •108 Paei hi] MARITIME INTERNATIONAL LAW. 
 
 ClIAPT. XII. 
 
 596. 
 
 2°. Each vessel should have a name, by which 
 she may be identified, and distinet proofs of 
 her nationality and identity, by carrying out- 
 ward conspicuous tokens in the shape of flags 
 and pendants, by having the ship's name and 
 place of registry painted outside on the hulk, and 
 finally by documents ; all in conformity with 
 the laws of the respective State and with the 
 established international usages. 
 
 3°. Every vessel on the high seas is subject to 
 the laws and jurisdiction of her own State. 
 
 4°. All respect is due to the established usages 
 of International Law and existing treaty stipula- 
 tions, with regard to the technical rules of navi- 
 gation. 
 Every vmei ^ \)Q, The great ocean, and those parts of it, 
 
 navigating the i • i i -i • • i 
 
 seas must belong which, thornm territorial waters, are not vet under 
 
 to an acknow- ' , <p ' J 
 
 ledgedmtiona- any special j unsdiction, are open to the free inter- 
 course of vessels of all description and nations in 
 different states of civilization, and thus, from the 
 very nature of things, the oceans of the world are 
 liable to become vast theatres of lawlessness and 
 brigandage, to the detriment of peaceful com- 
 merce and of free intercourse between the in- 
 habitants of the globe, which would finally lead 
 to complete stagnation of civilization. 
 
 This was the case from the first rise of navi- 
 gation in open waters, when the high seas, the 
 territory of no one, were made the resort of all 
 <lescriptions of criminals. 
 
 It is so difficult to bring the open sea under 
 proper control, for the guarantee of life and pro- 
 perty in the exercise of the rights of peaceable 
 navigation, that it becomes indispensably requisite 
 that every vessel should declare in an unequivocal 
 manner, to which nationality she belongs, or 
 else be treated, by all other Nations, as dangerous 
 to common safety. The public vessels of any
 
 i'.wm in.] THE RIGHT OF APPROACH. ['" §07. X11 * ^09 
 
 State have full authority to arrest vagabonds rov- 
 ing on the high seas, who cannot make proper 
 declaration of nationality nor produce proofs of 
 legal means of existence, and to conduct such 
 vagabonds to the nearest port of any civilized 
 State as suspected pirates, in order to secure the 
 safety of peaceable navigation and the liberty of 
 the open sea. 
 
 The common interests of all Nations have 
 placed this common field of the labour of all under 
 those mutual guarantees which are procured by 
 strict adherence to the principles of the Law of 
 Nations. * 
 
 § !>7. The vessels qualified, by general usage, The Right of 
 to carry out this international police and control Jetwetede™ 
 of the seas without special jurisdiction, are the 7 "' 
 public vessels of all civilized States. This usage 
 has established a right which is called the right 
 of approach or droit tfenquete da pavilion, which 
 must be clearly distinguished from the right of 
 visitation and search (droit de visite), the latter 
 being an exclusively belligerent right ; nor must 
 it be confounded with the right of visit, as agreed 
 by the treaties for the suppression of the slave 
 trade (§99). 
 
 With regard to international police and con- 
 trol or the jurisdiction to be exercised by civilized 
 States or their agents, in places not within the 
 territory of any State, Mr. Hall gives the folio w- 
 in<»' general views. 
 
 " On the unappropriated sea and on land not Mr. uaw* 
 
 , , •. f -i nopinion with 
 
 belon f >ma' to any community so tar possessed 01 regard interna- 
 
 • -V .• j.1 i. 'a -1 ■ 1 • • J'\' 1 tioiml Police 
 
 civilization that its territorial jurisdiction can be and control in 
 recognized, it is evident that, as between equal wX/'^e dem- 
 and independent Powers, unless complete law- mte°. my 
 lessness is to be permitted to exist, jurisdiction 
 
 * Ortolan. Dipl. de la Mcr. Chapt. IX, p. 163 and 228. Pjsrels. 
 Das Internationale Oeffentliche Seereckt, pp. 21-47.
 
 D I'M.r in.J MARITIME INTERNATIONAL LAW. ['"" V'.', 7 M1 - 
 
 must be exercised either exclusively by each 
 State over persons and property belonging to it, 
 or concurrently with the other members of the 
 body of States over all persons and property, to 
 whatever country they may belong. The former 
 of these alternatives is that which is most in 
 consonance with principle, it has been seen that 
 the State retains control over the members of the 
 State community, when beyond its territorial 
 jurisdiction in so far as such control can be 
 exercised without prejudice to the territorial 
 rights of foreign States, so that with respect to 
 individuals there is always a State in a position to 
 assert a claim to jurisdiction higher than any 
 which can be put forward by other States ; and, 
 although jurisdiction cannot be founded on non- 
 territorial property, so as to exclude or diminish 
 territorial jurisdiction, the possession of an object 
 as property forms least at a reasonable ground 
 to attribute exclusive control to its owner, 
 when no equal or superior right of control can be 
 shown by another. Concurrent jurisdiction could 
 therefore only be justified by a greater universal 
 convenience than separate jurisdiction can secure, 
 and in most cases, so far from universal convenience 
 being promoted, it would be distinctly interfered 
 with, by the admission of a common right of 
 jurisdiction on the part of all Xations. It is con- 
 sequently the settled usage that, as a general rule, 
 persons belonging to a State community, when 
 in places not within the territorial jurisdiction of 
 any Power, are in the same legal position as if on 
 the soil of their own State, and that, also as a 
 general rule, property belonging to a State or its 
 subjects, while evidently in the possession of its 
 owners, cannot be subjected to foreign j urisdic- 
 tion."*' 
 
 * Sec § 47. Sclf-Jumdictiun.
 
 parthi.] the right op approach. [ Ci, ^ XI1, 411 
 
 " For special reasons, however, exceptions are 
 sometimes made to this usage. It has been 
 already pointed out that in time of war a neutral 
 State frees itself from responsibility for acts done 
 outside its frontier by its subjects, when they arc 
 not employed as its own agents, by allowing a 
 belligerent to exercise so much jurisdiction over 
 them and their property as is necessary for the 
 protection of his right to attack an enemy in the 
 various ways sanctioned by the customs of war. 
 In such cases the right of jurisdiction is wholly 
 abandoned within defined limits." * 
 
 '• Concurrent jurisdiction, f again, is conceded 
 by a country to a specific foreign State when sub- 
 jects of the former take passage or service on 
 board the vessels of the latter, and to all foreign 
 States, when the crew of a ship belonging to it 
 are guilty of certain acts which go by the name of 
 piracy. Finally, when persons on board a ship, 
 lying in or passing through foreign waters, com- 
 mit acts forbidden by the territorial law, the local 
 authorities may pursue the offending vessel into 
 the open sea in order to vindicate their jurisdic- 
 tion."J 
 
 On the afore-mentioned principles of self- juris- mas from 
 
 L < i w iritick the right 
 
 diction, abandoned jurisdiction, and concurrent of approach 
 jurisdiction (§§ 47-49), is based the right ol the 
 public vessels of any State to take cognizance of 
 the flag and other outward tokens of nationality 
 of any vessel encountered on the open sea or in 
 other places not within the territory of any civi- 
 lized State. 
 
 Thus the right of approach is involved from 
 the above mentioned acknowledged international 
 
 * See § 48. Abandoned Jurisdiction. 
 f Sec § 49, Concurrenl Jurisdiction. 
 1 Hall, [ntern. Law, Edit. 1880, p. 206.
 
 412 Pinrm.] MARITIME INTERNATIONAL LAW. [''"^J';.*"' 
 
 rights. The maintenance of public security on 
 the sea is one of the objects of the Common Law 
 of Nations and whatever can contribute to the 
 maintainance of the security of the sea. the com- 
 mon property of all, acts as a safeguard against 
 transgressions of the Law of Nations, and of 
 which all Nations may partake. * 
 
 Decision of the The Supreme Court of the United States has 
 '^f^'T.'s.'of decided that ships of war. acting under the au- 
 re™ardto "he thoi'ity of government to arrest pirates and other 
 approach. public offenders, may approach any vessel des- 
 cried at sea for the purpose of ascertaining her 
 real character, f But this right to approach does 
 not extend, for non-belligerents, to the right of 
 visitation and search, for the purpose of obtaining 
 the custody of the offender, unless expressly 
 permitted by international compact, as in the 
 treaties for the suppression of the slave trade. % 
 
 * Twiss. I. § 170. Ortolan. Dipl. dc la Mef. Liv. II. Chapt, 
 XTT. Du Droit d'Enquete dn Pavilion en pleine mer. 
 
 f Case of the Mariana Flora, 11 Wheaton, \'.\. 
 
 \ IIallkck. Intern. Law. Vol. I. Chapt. VII. Perels. Interna- 
 tionales Seerecht. French translation of Mr. I,. Arendt, Director 
 at the Foreign Office. Bnixelles. Edit. 1883, § 12.
 
 ,..,,,11,] PIRACY. FT*'"' 413 
 
 CHAPTER XIII. 
 
 Piracy. 
 
 § 98. As stated above (§ 38, page 115 ), acts of */««<>« 
 piracy are considered, under the Law of Nations' 
 (jure gentium), to he acts which are equally 
 injurious to all nationalities and over which all 
 States have a natural right of jurisdiction, irres- 
 pective of the persons by whom or the place 
 where such acts of piracy may be committed, as 
 this class of offenders against the Law of Nations 
 do not possess any political nationality. With 
 piracy, says Woolsey, the Law of Nations has to 
 do as it is a crime, not against any particular 
 State, but against all States and the established 
 order of the world. Piracy is a robbery on the 
 high-sea, committed by persons not holding a 
 commission from, or at the time pertaining to, 
 any established State. If the robbery is confined 
 to the land, although committed by the crew of 
 a vessel, i.e., if it be committed within the terri- 
 torial jurisdiction of any Nation, it would not be 
 called piracy, and would come under the cogni- 
 zance of the territorial laws alone. * 
 
 With respect to the general character of pira- General 
 tical acts, Mr. Woolsey makes the following Waticai acts 
 statements. "Piracy is the act, (1.) of persons 
 who form an organization for the purposes of 
 plunder, or with malicious intent; but who, in- 
 asmuch as such a body is not constituted for 
 political purposes, cannot be said to be a body 
 politic; (2.) of persons who, having in defiance of 
 
 * Woolsey. Intern.Law. Edit. 1879, p.242. DA.NA.onWheaton's 
 Elem. of Intern, Law. Note *:;.
 
 • 114 part in.] MARITIME INTERNATIONAL LAW. [''"^I,;^"' 
 
 law seized possession of a chartered vessel, use it 
 for the purpose of robbery; (3.) of persons taking 
 a commission from two belligerent adversaries. 
 The reason for ranking these latter among pirates 
 is, that the animus furandi is shown by acting 
 under two repugnant authorities. It lias been 
 held by some that a vessel which takes commis- 
 sions even from two allies, is guilty of piracy, but 
 others regard such an act only as illegal and 
 irregular/' 
 
 " On the other hand, it is not held to be piracy, 
 if a privateer or other armed vessel, exceeding its 
 commission, prey on commerce admitted by its 
 sovereign to be friendly. Offences of this kind 
 entitle the injured party to compensation, but the 
 jurisdiction belongs to the vessel's sovereign, who 
 is responsible for the conduct of his officer." 
 
 " Piracy being a crime against Nations, nun- 
 be brought before any Court, no matter what 
 the nationality of the plaintiff or the origin of 
 the pirate may be. It is a natural although not 
 a necessary consequence of this principle, that 
 an acquittal by any Court in Christendom is an 
 effectual bar against another trial For the same 
 offence." 
 
 "As pirates acquire no title to what they take 
 or recapture, it reverts to the proprietor without 
 application of the rule of postliminy, but the 
 re-captor can claim salvage." 
 
 "The punishment of piracy depends on the 
 municipal law of the State where the offence is 
 tried; the penalty commonly inflicted is death." 
 
 "The law of each State may enlarge the de- 
 finition of the crime of piracy, but must confine 
 the operation of the new definition to its own 
 citizens and to foreigners on its own vessels. 
 So. by treaty, two States may agree to regard as 
 piracy ft particular crime which is not classed
 
 • -, ui.] pihacy. [ c "^ x '" 415 
 
 under international piracy. The effect of .such a 
 treaty is to give to both States jurisdiction for 
 this crime over the citizens or subjects of both. 
 but its operation has no bearing on other nations/' 
 
 "In the time of Bynkershoek it was made a opinion <>/ 
 question whether the Barbary Powers were pi- 
 rates, as earlier writers on the Law of Nations had 
 pronounced them to be. He decides that they 
 form Slates, and may be justi hostes in war; and 
 that, in fact. Europe had acknowledged this by 
 making treaties with them. No one now will 
 question this, especially as in the course of time 
 these States. — those of them which still exist, — 
 have in a measure laid aside their piratical 
 habits.'" 
 
 "Could the crews of war- vessels, public or Are the crews 
 private, of a government, like the Confederated pirates. 
 States, be regarded as pirates? This question 
 came before our Courts, early in the war, in 
 the case of the crew of the Savannah and one 
 of the crew of the Jeff Darts. In the first case 
 Judge Nelson instructed the jury that the offence 
 committed by the said crew was not ^piracy 
 according to the Law of Nations, for the captain's 
 design Mas to prey on the commerce of the 
 United States only, while piracy implies war 
 against Nations in general. If piracy, it was 
 such only by a law of the United States of the 
 year 1820. But the commission given by the 
 Confederate States could not be admitted as a 
 defence, for the Courts could not recognize such 
 an authority before the government had so done. 
 Yet felonious intent is essential to robbery on 
 land or sea ; if this were wanting, the offence 
 could not be piracy under the statute which 
 defines it as committing robbery in or upon any 
 ship, ship's lading, or company."
 
 ll'i iak. m.J MARITIME INTERNATIONAL LAW. [' ' 1A, § o 8 X ' i1, 
 
 u In the case of the Golden Rocket, captured 
 and burnt by the privateer Sumter, it was held 
 (by the State and Circuit Courts), that the owner 
 could not recover for the loss, under policies 
 which insured against capture by pirates. For 
 although the destruction of this vessel might be 
 held to be a piratical act under the law of the 
 United States, it would not be held to be such 
 by the general Commercial Law of the world, 
 which must be presumed to govern in the inter- 
 pretation of the policy." 
 
 " These decisions are in conformity with the 
 Law of Nations, and with our own declared 
 views and claims under it. A privateer of an 
 organized rebellious community, acting under 
 letters-of-niarque, given by the supreme author- 
 ity, according to law, is not doing piratical 
 work when, in a state of open war, it preys on 
 the commerce of its enemy, although its govern- 
 ment be as yet unrecognized. For, (1.) there is 
 in this case no animus furandi; (2.) the com- 
 mission is a special one against a particular 
 enemy and not against mankind: (3.) and thus 
 the captures made by such a vessel will not be 
 noticed, by the Courts of neutral countries, as 
 crimes against the Law of Nations. Accordingly, 
 when Denmark delivered up to Great Britain 
 three prizes, carried into a port of Norway by 
 Paul Jones, in the Revolutionary War, we com- 
 plained of it, and continued our reclamations 
 through more than sixty years." * 
 
 A different principle was brought forward in 
 the case of the Peruvian ship-of-war Huascar 
 
 The Peruvia 
 Insurgent vt 
 Huascar. 
 
 * Wo^lsky. Intern. Law. Edit. LS7D. p. 242, et seq. Compare 
 Db Martens. Nouvelles causes celebres. Vol. I. pp. 492-495. Law- 
 rence's Wheaton. French translation. Vol. I. pp. 176-179. Prof. 
 I:i;i:xm:t). ol' Oxford. British Neutrality, pp. 119-121. ORTOLAN. 
 Diplom. de la Mcr. Vol. I. Chapt. XI. p. 207. et seq.
 
 PAMHL] PIRACY. [ ^ " A ;':,s X " , • 417 
 
 which lost her nationality, by going over to the 
 insurgents in 1877, under the following circum- 
 stances. 
 
 On the evening of May 6, 1877, the crew of a 
 Peruvian ship of war. the Huascar, anchored in 
 the bay of Callao, revolted and declared in favour 
 of Don Nicolas Pierola. The captain and most 
 of the officers were on shore at the time, and 
 those who remained on board headed the mutiny. 
 Several naval officers, both from shore and from 
 other men-of-war took part in the movement, 
 which was also aided by some civilians, friends to 
 the cause of Seiior Pierola. The vessel was im- 
 mediately got under weigh, without any attempt 
 apparently being made to detain her by the 
 other men-of-war anchored near her, and she 
 eventually got clear of the bay, and proceeded 
 towards the south. Two days afterwards, the 
 following decree was issued by the President of 
 the Republic : — 
 
 Art. 1. Let the proper procedure be com- 
 menced against the authors and their accomplices 
 who committed the crimes that took place on 
 board the monitor Huascar, on the night of the 
 6th instant. 
 
 Art. 2. The Government declare that the Re- 
 public is not responsible for the acts of the rebels 
 of whatsoever nature they may be. 
 
 Art. 3. The Government authorize the capture 
 of the Huascar, and offer to recompense properly 
 all those who, not belonging to the crews of the 
 vessels forming the squadron of operation, shall 
 bring her under the authority of the Govern- 
 ment, or who may contribute to do so. 
 
 [n the meantime the Huascar proceeded to 
 Mollendo, where she boarded a British steamer, 
 and demanded the official correspondence, which
 
 418 PAKTin.] MARITIME INTERNATIONAL LAW. [ CnA "o8. Xl11 " 
 
 was refused ; whereupon the officer of the Huas- 
 car stated that he did not like to use force, as 
 Senor Pierola was not yet on board, but that 
 they soon expected orders to seize the mails when 
 they thought proper to do so. A few days later, 
 the Huascar stopped the British mail steamer 
 from Liver] tool, on the high seas, by firing a 
 blank cartridge. On this occasion also the 
 officers who boarded the steamer demanded the 
 official correspondence, which was refused, and 
 they retired without resorting to violence. After- 
 wards she stopped another British steamer, and 
 took out of her by force Colonels Varela and 
 Espinosa, two Government officials, who were 
 passengers, and who were going to Iquique on 
 the Government service. Finally, Rear-Admiral 
 de Horsey, the British Commander-in-Chief, 
 received a telegram from Her Majesty's Consul 
 at Arica, informing him that the Huascar had 
 taken seven lighters of coals from an English 
 vessel, without making any arrangements as to 
 payment. Under these circumstances the Ad- 
 miral considered it his duty, in view of the 
 Peruvian Government decree, declaring that the 
 Republic was not responsible for the actions of 
 that vessel, to seize the Huascar, in order to 
 put a stop to her proceedings against British 
 interests ; and he consequently proceeded to sea 
 in H. M. S. Shah for that purpose. The Huascar 
 having refused to obey his summons, the Admiral 
 engaged her in Peruvian waters, off the town of 
 Pacocha, and he also sent a torpedo expedition to 
 blow her up; but this failed, owing to the Huascar 
 having got away under cover of tin; night. 
 After her engagement with, and escape from, 
 the Shah, she appeared off Iquique with a flag 
 of truce flying. The Peruvian squadron went 
 out to meet her. and communication was estab-
 
 PahtIII.] PIRACY. [ C,U "R Xr "' 411) 
 
 lished. After much parleying, the Huascar 
 surrendered, first making' terms that everyone 
 on board that ship, except Pierola himself, should 
 be set at liberty. The Peruvian Republic com- 
 plained to the British Government of the conduct 
 of Rear- Admiral de Horsev, alleging" that the 
 Huascar did not, on account of having refused 
 to recognize the authority of the Government of 
 Peru, cease to belong to Peru ; and that, although 
 the supreme decree of May 8th was issued to bring- 
 about the apprehension of the Huascar, foreign 
 ships-of-war were not thereby entitled to attack 
 her, not only because International Law prohibited 
 mixing in the internal affairs of other States, 
 but also because the reward offered by the decree 
 could not refer to the commanders of such ships 
 without grossly offending their personal and na- 
 tional dignity. The P>ritish Government having 
 required the opinion of its Law Officers on 
 the subject, the latter reported that in their 
 opinion the papers submitted to them showed 
 that the Huascar had been taken out of the 
 hands of her lawful officers ; that the Peruvian 
 Government had disavowed any liability for her 
 acts ; that she was consequently sailing under 
 no national flag ; and that no redress could be 
 obtained for any acts which she might commit. 
 Therefore, they were of opinion that in this state 
 of things Admiral de Horsey was bound to act 
 decisively for the protection of British subjects 
 and property, and that the proceedings, resorted 
 to, by him, were in law justifiable. Lord Derby 
 approved of the Admiral putting a stop to the 
 lawless proceedings of the Huascar, but, at the 
 same time, expressed regret that lie had not in 
 the first instance endeavoured to obtain redress 
 by means of remonstrance. (See Pari. Papers, 
 1877).
 
 420 pAnxlll.] MARITIME INTERNATIONAL LAW. [''"^i^" 1. 
 
 On the question being brought before the House 
 of Commons, the Attorney -General expressed his 
 opinion that the Huascar was not a belligerent, 
 but a rover committing depredations which made 
 her an enemy of Her Britannic Majesty ; and. 
 therefore, it could not be disputed that the Ad- 
 miral could wage war upon her. If she were a 
 belligerent, or the vessel of a belligerent Power, 
 to which the representative of the British Govern- 
 ment was under au obligation to extend bellig- 
 erent rights, the proceedings of the Admiral might 
 be open to censure. But to make out that she 
 was a vessel belonging to a belligerent power. 
 there must be a rebellion ; the rebels also, 
 must have established something like a Govern- 
 ment, to do certain acts upon the high seas against 
 neutral ships. If a cruiser did commit acts of 
 depredation without authority, the neutral States 
 would demand satisfaction. If the Huascar were 
 a belligerent, she would be responsible. In 
 strictness the crew of the Huascar were pirates, 
 and might have been treated as such ; but it was 
 one thing to say that, according to strict letter 
 of the law, people have been guilty of acts of 
 piracy, and another to advise that they should be 
 tried for their lives and hanged at Newgate. The 
 Huascar was called upon to surrender, and she 
 refused. The Admiral took steps accordingly 
 to make her surrender. (H.ofC. Debates, 1877).* 
 
 * Halleck. Intern. Law. Edit. Shcrston Baker. Vol. I. \>. 38H.
 
 SLAVE-TRADE. [T*™ [ ' 21 
 
 CHAPTEB XIV, 
 
 The Slave Trade. 
 $ 99 Bv the treaty of Paris of 20th November, Treaties for the 
 
 • • • i--. ,ri i-» • • r» • n suppression of 
 
 181.5, Austria. France, Cxreat Britain, rrussia and siavetmde. 
 Russia entered into an international compact, on 
 the principles proclaimed at the Congress of 
 Vienna, to employ efficacious measures for the 
 entire and definite abolition of the slave trade, 
 which was declared highly objectionable to all 
 religious and natural laws. At the Congress of 
 Vienna in 1815, of Aix-la-Chapelle in 1818, and 
 of Verona in 1822. the abolition of the slave trade 
 was formally adopted as a principle of Public 
 Law. * 
 
 Since these periods the principle has been car- 
 ried into execution by special treaties between 
 Great Britain and the different States of Christ- 
 endom, both in the new and the old world and 
 also with various heathen potentates in the 
 southern coast of Africa, Many countries have 
 stamped the character of piracy upon this horrible 
 traffic, so far as the authority of their own Muni- 
 cipal Laws may extend, f 
 
 The question of the right of visit, which, as Treaty between 
 connected with the suppression of slave trade ni^'"' 1 ' 
 was so long a matter of contention between < rreat 'Zl'^Z/s,/. 
 Britain and France, and between the former and 
 
 * De Martens et De Cussv. Recueil de Traites el de Conven- 
 tions. Vol. V. p. 437. Traites des Noirs. 
 
 f A catalogue of these treaties between Great Britain and othei 
 States, up to 1850 is given in PMllimore's ('unim.cn intern. Law, 
 Vol. T. Edit. 1879. p. 120. Sec also De MARTENS ef De CuSST. 
 Recueil de Traites el Conventions. Traites des Noirs. Vol. V. pp. 
 i:u; J t<>.
 
 422 
 
 Part hi. J MARITIME INTERNATIONAL LAW. [ < '" A 7,-,. 1 XIV 
 
 Instructions to 
 commanding 
 officers of 
 Oiiiisers. 
 
 the United States of America, lias been settled by 
 the treaty of May, 1845, with France and that of 
 April, 1862, with America. As to the rio-ht of 
 visit, the instructions of the French and British 
 Governments, respectively given to their cruisers. 
 were communicated by each Government to the 
 other and annexed to the convention. Those 
 instructions contained, among other things, the 
 following rules with regard to the right of ap- 
 proach and visit issued by the P>ritish Admiralty. 
 "You are not to capture, visit, or in airy way 
 interfere with vessels of France, and }-ou will 
 give strict instructions to the commanding officers 
 of cruisers under your orders to abstain therefrom. 
 At the same time } T ou will remember, that the 
 King of the French is far from claiming that the 
 Hag of France should give immunity to those who 
 have no right to bear it, and that Great Britain 
 will not allow vessels of other Nations to escape 
 visit and examination by merely hoisting a French 
 flag, or the flag of any other Nation, with which 
 Great Britain has not by existing treaty the 
 right of search. Accordingly, when, from intelli- 
 gence which the officer commanding her Majesty's 
 cruiser may have received, or from the manoeuvres 
 of the vessel, or other sufficient cause, he may 
 have reason to believe that the vessel does not 
 belong to the Nation indicated by her colours, 
 he is. if the state of the weather will admit of 
 it. to go ahead of the suspected vessel, after 
 communicating his intention by hailing, and to 
 drop a boat on board of her to ascertain her 
 nationality, without causing her detention in the 
 event of her really proving to be a vessel of 
 
 the Nation the colours of which she has displayed, 
 
 and therefore one which he i> n<»t authorized to 
 search; but should the strength of the wind or 
 other circumstance render such mode of visiting
 
 PAitx ui.J SLAVE-TRADE. L' "7^ '-'' ; 
 
 the stranger impracticable, lie is to require the 
 suspecting vessel to be brought to, in order that 
 her nationality may be ascertained, and he will 
 be justified in enforcing it, if necessary, under- 
 standing always that he is not to resort to any 
 coercive measure until every other shall have 
 failed; and the officer who boards the stranger is 
 to be instructed merely in the first instance to 
 satisfy himself, by the vessel's papers or other 
 proof, of her nationality, and, if she prove really 
 to be a vessel of the Nation designated by her 
 colours, and one which he is not authorized to 
 search, he is to lose no time in quitting her, 
 offering to note on the papers of the vessel the 
 cause of his having suspected her nationality, as 
 well as the number of minutes the vessel was 
 detained (if detained at all) for the object in 
 question; such notation to be signed by the 
 boarding officer, specifying his rank and the name 
 of her Majesty's cruiser, and Avhether the com- 
 mander of the visited vessel consent to such 
 notation of the vessel's papers or not (and it is 
 not to be done without his consent): all the said 
 particulars are to be immediately inserted in the 
 log-book of her Majesty's cruiser, and a full and 
 complete statement of the circumstances is to be 
 sent, addressed to the Secretary of the Admiralty, 
 by the first opportunity direct to England, and 
 aiso a similar statement to you as senior officer 
 on the station, to be forwarded by you to our 
 secretary, accompanied by any remarks you may 
 have reason to make thereon. The commanding 
 officers of her Majesty.'s vessels must bear in mind 
 that the duty of executing the instruction imme- 
 diately ] (receding, must be discharged with great 
 care and circumspection. For, if any injury be 
 occasioned by examination without sufficient 
 cause, or by the examination being improperly
 
 £24 run in.] MARITIME INTERNATIONAL LAW. [ Cu ^q* IV ' 
 
 conducted, compensation must be made to the 
 party aggrieved; and the officer who may cause 
 an examination to be made without sufficient 
 cause, or who may conduct it improperly, will in- 
 cur the displeasure of her Majesty's Government. 
 Of course, in cases when the suspicion of the 
 commander turns out to be well founded, and the 
 vessel boarded proves, notwithstanding her col- 
 ours, not to belong to the Nation designated bv 
 those colours, the commander of her Majesty's 
 cruiser will deal with her as he would have been 
 authorized and required to do had she not hoisted 
 a false flag;. * 
 
 With regard to the treaty of April 7, 1862, 
 between Great Britain and the United States of 
 
 Treaty between 
 Great Britain 
 and the United 
 
 vie question of America. Mr. Dana makes the following' observa 
 
 rtstt am! much. 
 
 tions. 
 
 "The right to detain, search, seize, and send 
 in for adjudication, is confined to cruisers of 
 either Power, expressly authorized for that pur- 
 pose; and is to be exercised only over merchant 
 vessels, and only within a distance of two 
 hundred and twenty miles from the coast of 
 Africa, and to the southward of thirty-two 
 degrees north latitude, and within thirty leagues 
 from the island of Cuba, and never witlnn the 
 territorial waters of either contracting Power. 
 The right to visit is to be exercised, when there 
 is reasonable ground to suspect a vessel of having 
 been fitted out for. or engaged in. the trade. 
 The only trade referred to is the slave trade 
 upon the coast of Africa, or the African slave 
 trade. To secure responsibility and freedom 
 from vexation, special provisions are made as to 
 exhibiting written authority, with names of the 
 cruiser and her commander; entries in log-books; 
 
 PUILLIMOBB, Comm. Fin > in. Law, V"i. I. Is?'.', p. HG, <-i seq.
 
 Pabt m.] FUGITIVE SLAVES. [^jio'o*™ ^5 
 
 requiring the boarding' officers and coiiunanders 
 of authorized cruisers to be of a certain rank in 
 the navy ; providing exchange of notifications 
 between the two P.owers of the names of vessels 
 and commanders employed, and as to the course 
 to be pursued in case of convoy etc. ; and stipu- 
 lating; that each Power will make indemnification 
 for losses to vessels arbitrarily and illegally de- 
 tained. As to what shall constitute reasonable 
 suspicion, certain articles or arrangements found 
 on board are specified as authorizing a bringing 
 iu for adjudication, and as affording protection 
 against claims for damages, and as primd facie 
 evidence of being in the trade, and as authorizing 
 condemnation of the vessel, unless clear and in- 
 controvertible evidence is adduced, that they were 
 engaged hi leg-al business. Mixed tribunals are 
 constituted for adjudication upon the vessels, but 
 persons are to be sent home to their respective 
 jurisdictions to be tried. Vessels condemned by 
 the tribunals are to be broken up, unless either 
 Government takes them for its navy, at an ap- 
 praisement ; and the negroes found on board are 
 to be delivered to the State whose cruiser made 
 the capture, and to be by that State set free." * 
 
 §100. Another feature connected with the Fugitive staves. 
 great question of the suppression of the slave-trade 
 is that with regard to fugitive slaves. On this 
 subject the Lords of the British Admiralty issued 
 on December 5th, 1875, certain instructions, "for 
 the guidance of the commanders of Her Majesty's 
 ships in reference to the receipt of fugitive 
 slaves," f the publication of which caused great 
 sensation throughout that country. These in- 
 structions were construed, says Sir R. Phillimore, 
 
 * Dana's Wheaton. p. 203. note. United State's Laws XII, 279. 
 
 t See Report of the Commissioners on fugitive slaves, presented 
 to Parliament, 1876. p. 13.
 
 1:26 Pa»i in.] MARITIME INTERNATIONAL LAW. ['""'a 
 
 xiv. 
 
 10U. 
 
 as generally curtailing and, in some respects, abol- 
 ishing the protection of the British flag hitherto 
 accorded to fugitive slaves. The Government, 
 in consequence of the feeling excited against 
 the instructions, issued a Commission, dated 
 February 14th, 1876, to inquire into and report 
 upon the nature and extent of such international 
 obligations as are applicable to questions as to 
 the reception of fugitive slaves by Her Majesty's 
 ships in the territorial waters of foreign States, 
 and into all instructions from time to time issued 
 to the commanders of Pier Majesty's ships relative 
 thereto, and whether any engagements into which 
 this country (Great Britain) has entered bear 
 upon such questions ; and whether, in case such 
 obligations, instructions, or engagements shall 
 appear to be at variance with the maintenance 
 by Her Majesty's ships and officers, in whatever 
 waters they may be, of the right of personal 
 liberty, any and what steps should be taken to 
 secure for them greater freedom of action. 
 
 nepon of The Commissioners having; inquired into the 
 
 Commustaners , . r n • , • 11 
 
 on fugitive law and practice ol ioreign countries as Ave Li as 
 of England upon this subject, made an elaborate 
 report, dated May 30th,' 1876, at the close of 
 which they expressed themselves as follows : — 
 
 " We have now stated what we believe will be 
 the best course to promote the humane and en- 
 lightened policy which this country has consist- 
 ently pursued, but it will be convenient to reca- 
 pitulate the purport of our recommendations." 
 
 "I. While, on the one hand, naval officers 
 should abstain from any active, interference with 
 slavery in countries where it is a legal institution, 
 bhe commander of a ship ol' war should not be 
 altogether prohibited from exercising his discre- 
 tion as t" retaining a fugitive slave <>n board his
 
 Part hi.] FUGITIVE SLAVES. [^funf 17, 427 
 
 vessel, whether such slave has conic on board 
 clandestinely or in any other way." 
 
 "II. The cases that present themselves to 
 naval officers vary so much in character, that it 
 would be inexpedient, even were it possible, to 
 lay down any strict rules for their guidance under 
 all the different circumstances which may occur." 
 
 "III. Ships of the Royal navy should not be 
 made a general asylum for fugitive slaves ; and 
 the commander should, therefore, before retaining 
 a slave on board, satisfy himself that there is some 
 sufficient reason for so doing." 
 
 " Such reason (where there is no treaty au- 
 thorizing the release of the slave) consisting not 
 only in the desire of the slave to escape from 
 slavery," but in some circumstance beyond this 
 desire." 
 
 " IV. In dealing with this question the officer 
 should be guided, before all things, by consider- 
 ations of humanity. Whenever, in his judgment, 
 humanity requires that the slave should be re- 
 tained on board, as in cases where the slave has 
 been, or is in danger of being, cruelly used, the 
 officer should retain him. In other cases he 
 should do so only where special reasons exist." 
 
 " V. When it appears that the fugitive has 
 been newly reduced to slavery, or imported in 
 violation of treaty engagements, or entitled to 
 his freedom under the especial provisions of a 
 treaty, — as under the treaty with Zanzibar of 
 1875, — he should always be retained." 
 
 " VI. If the delivery of a fugitive slave, whom 
 the officer would otherwise have thought it right 
 to retain, be claimed on the ground that he has 
 committed a criminal offence, that is an offence 
 for which he would equally have been punishable 
 according to the local law if he had been a free
 
 428 tart in.] MARITIME INTERNATIONAL LAW. [^{ib?*" 
 
 man, the officer ought, before complying with 
 the request, to satisfy himself that the charge is 
 not merely a colourable pretext for procuring the 
 restitution of the slave, and also that the slave, 
 if delivered up, will not be treated with inhu- 
 manity." 
 
 "VII. Where a slave has come on board under 
 such circumstances as to give his master a right 
 to expect that he will uot be harboured there 
 against the master's will, as in the case of slaves 
 attending their masters on visits of ceremony, or 
 entering a ship in order to coal her or with pro- 
 visions for sale, the slave should not be retained 
 unless his retention should appear to be demanded 
 by strong reasons of humanity." 
 
 " VIII. In all cases where the officer decides 
 that the fugitive should not be retained, he 
 should not consider what course would be most 
 for the interest of the slave himself: whether to 
 put the slave on shore, or allow him to go ashore 
 or deliver him over to the nearest British Diplo- 
 matic or Consular officer, or to the local author- 
 ities. But the officer should not compel the 
 slave to leave the ship unless satisfied that such 
 a measure would not lead to any ill-treatment of 
 him on account of his attempt to escape." 
 
 •■IX. Where facilities are available for com- 
 municating with any of Her Majesty's Diplo- 
 matic or Consular authorities, the officer should 
 in all cases, without delay, inform such authority 
 of the steps he has taken." 
 
 " We hope that the instructions which we have 
 recommended to be given to our naval officers 
 will, if carried into effect, tend to some mitiga- 
 tion of the cruelties of slavery which have been 
 brought to our notice." 
 
 '• It is obvious that the benefits to be derived 
 from these recommendations will depend to some
 
 PAiiTin.] FUGITIVE SLAVES. [""fig™- ^29 
 
 extent upon the degree to which a similar policy 
 may be adopted by other Nations. It is not 
 within the scope of our duty to suggest the 
 manner in which this result should be brought 
 about, but we regard it as a matter of the first 
 importance." 
 
 " It must be observed that the reception of 
 fugitive slaves is only a small part of the great 
 problem of slavery which this country earnestly 
 desires to solve, and must be treated as subor- 
 dinate to that greater purpose. For this end the 
 British Government must, if the evidence which 
 we have taken is to be trusted, enter into some 
 arrangements with those Powers whose posses- 
 sions are in the immediate neighbourhood of the 
 slave-trading districts. 1 ' 
 
 ;> If the Red Sea is to serve the purpose of the 
 slave-dealer, and the hoisting of the Turkish or 
 Egyptian flag is to protect this traffic, our efforts 
 to abolish the slave trade must be ineffectual. 
 So again in Portuguese waters, * we should seek 
 to obtain the right of search, which under former 
 treaties we possessed. It would also be desirable 
 to obtain some modification of the treaty with 
 Madagascar." 
 
 '• Some of these matters are perhaps beyond the 
 strict limits of the inquiry for which this Com- 
 mission was appointed, but the release of a few 
 fugitive slaves would have little effect on slavery 
 or the slave trade, unless measures were also 
 taken to block the larger channels through which 
 the slave dealer can still conduct a lucrative trade 
 in African captives." 
 
 " In concluding this report, we must express 
 the great obligations under which we are to 
 
 * A Treaty between Great Britain and Portugal, making further 
 provisions with regard to joint action to betaken for the suppression 
 of the slave trade on the East coast of Africa and in the interior. 
 was signed ar Lisbon, in Mav 1879.
 
 430 ^aet m] MARITIME INTERNATIONAL LAW. [ C "Yi';,; N1V 
 
 foreign Governments, as to your Majesty's 
 officers, both at home and abroad, for the valu- 
 able assistance and information they have afforded 
 us in our inquiry." The Commissioners, who 
 signed the report, were Somerset, A. E. Cock- 
 burn, Robert Phillimore. * Montague Bernard. 
 T. D. Archibald. Alfred H. Thesiger, H. T. 
 Holland, L. G. Heath, S. H. Maine, J. F. 
 Stephen, H. 0. Rothery. Subsequently to the 
 publication of this report the Lords of the Admi- 
 ralty issued the following Circular. 
 
 "Admiralty, 16th August, 1879. 
 " Receipt of Fugitive Slaves, 
 amaar of the " My Lords Commissioners of the Admiralty 
 
 British Admiral- 1 * / - I , . . i /> n • . J 
 
 %% A i"ilhr u,] are P ieasec * to direct, that the following mstruc- 
 fugitive slaves, tions shall be considered as superseding all pre- 
 vious instructions, issued for the guidance of 
 commanding officers of Her Majesty's ships, as 
 to the receipt of fugitive slaves." 
 
 " These instructions are to be considered part 
 of the General Slave Trade Instructions, and to 
 be inserted at page 29 of that volume, in lieu of 
 the Circular dated December 5, IS?."), with the 
 heading of ' Receipt of Fugitive- Slaves.' but 
 they are also intended for the guidance of com- 
 manding officers of Her Majesty's ships gener- 
 ally." 
 
 " 1. In any case in which you have received 
 a fugitive slave into your ship, and taken him 
 under the protection of the British Hag. whether 
 within or beyond the territorial waters of any 
 State, you will not admit or entertain any de- 
 mand made upon you for his surrender on the 
 ground of slavery." 
 
 Sir Robert Phillimore. Agreed with \ho report excepl on 
 ■ "in' point, tin- last sentence of Section 1 1 1.
 
 Tai;i ill.] MUNICIPAL LEGISLATION ON SLAVE-TRADE, f C " V'/.j , X ' % ' 431 
 
 •• 2. It is not intended, nor is it possible, to 
 lay down any precise or general rule as to the 
 cases in which you ought to receive a fugitive 
 slave on board your ship. You are. as to this, 
 to be guided by considerations of humanity, and 
 these considerations must have full effect given 
 to them, whether your ship is on the high seas 
 or within the territorial waters of a State in 
 which slavery exists : but, in the latter case, 
 )'ou ought, at the same time, to avoid conduct 
 which may appear to be a breach of interna- 
 tional comity and good faith." 
 
 " 3. If any person, within territorial waters, 
 claims your protection on the ground that he is 
 kept in slavery, contrary 10 treaties with Great 
 Britain, you should receive him until the truth 
 of his statement is examined into. This ex- 
 amination should be made, if possible, after 
 communication with the nearest British Consular 
 authority, and you should be guided in your 
 subsequent proceedings by the result." 
 
 " 4. A special report is to be made of every 
 case of a fugitive slave received on board your 
 ship." * 
 
 § 101. The legislation and jurisdiction of a civil- Municipal 
 ized State with regard to its external relations, otregardtothe 
 wnicli we gave a sketch in paragraph oo, cannot slave-trade. 
 be regarded as complete, without the necessary 
 provisions in its Municipal Laws against the 
 slave trade as well as against piracy. Viewing 
 what is already accomplished, also in this branch 
 of humanity, by impartial civilization, we may 
 share with confidence the hope of Sir Robert 
 Phillimore, "that before many more years have 
 elapsed, both Municipal and International Law 
 
 * Sir Robert Phillimore, Comm. Intern. Law. Vol. I. Edit. 
 1879. p. 441. et seq.
 
 -132 Pakt III,] MARITIME INTERNATIONAL LAW. [ 
 
 CHAPT. XIV 
 
 5 Wl. 
 
 will be brought into harmony with the Law of 
 Nature ; and that, to the question of the abolition 
 both of slavery and the slave trade, the em- 
 phatic language of Grotius may be applicable, 
 humano generi placuit." * 
 
 * L. II. C. X. § 1.
 
 PAitx in.] PRIVATE Oil MERCHANT VESSELS. [ CH *§ro2? V ' 433 
 
 CHAPTER XV, 
 
 National Character and jurisdiction 
 
 of Vessels. 
 
 1. — Nationality of Private or Merchant Vessels 
 
 § 102. The national character of a vessel is{v« 
 determined by the nationality of domicile of its 
 owner (§40), under certain conditions which 
 are imposed by the law of the State granting the 
 rio-ht to use its national flag. Conditions of 
 
 • n • ' 1 
 
 nationality in the case of sea-going private vessels 
 have regard to the following four classes of 
 details, viz. : — 
 
 1°. The construction or origin of the vessel ; 
 the question being, whether foreign- built vessels 
 are admitted to the privilege of using the na- 
 tional flag of the State and, if so, under what 
 conditions. 
 
 2°. The ownership ; under which head the 
 question arises whether the vessel must belong 
 entirely to subjects or citizens of the State 
 (Staatsangehorigen), or whether aliens are allowed 
 to have shares in the property and to what 
 extent. 
 
 3°. Captain and officers. The question here 
 is whether the captain and officers must all be 
 nationals, or in how far foreigners are allowed to 
 serve as captains or officers on board national 
 vessels. 
 
 4°. The crew. The question here is whether 
 the whole complement must consist of nationals, 
 or what portion of the crew is allowed to be 
 composed of foreigners. 
 
 'ate or 
 merchant vessels.
 
 I.'il Path hi.] MARITIME INTERNATIONAL LAW. [ Ch J7<h. XV " 
 
 The legislation regulating the conditions on 
 which private vessels can obtain nationality, 
 forms part of the Navigation Laws (Merchant 
 Shipping Acts) of each State, and as it is of the 
 utmost consequence to prove, at any time, the 
 nationality of private vessels, the documents 
 which serve to prove the right of a vessel to the 
 nationality claimed, are also specified in these 
 laws. Special legislation regulates the different 
 modes of protection, given by each State to its 
 national trade and navigation, whether in the 
 shape of certain monopolies, rights, or advan- 
 tages, or in the shape of exemption from or 
 reduction of customs dues in general or with 
 regard only to the transport of goods between 
 the different ports of the State, the coast trade- 
 navigation (Cabotage). These national rights, 
 when extended to foreigners, form the subject 
 of commercial treaties between States, while 
 these treaties are always based on the internal 
 legislation of the States concerned and on the 
 conditions under which vessels can obtain the 
 respective nationality. Hence these acts of na- 
 tional legislation overlap the domain of the Law 
 of Nations, constituting one of the principal 
 subjects of Maritime International Law. 
 
 The national status of a ship remains attached 
 to her, wherever she may be sailing or riding 
 at anchor, as long as the conditions of her na- 
 tionality are maintained in conformity with the 
 respective law governing those conditions. 
 
 J I. — Outward T<>/,-< ns of Nationality. 
 
 rtuff. xvame. § ' (|; '- The ostensible token or badge of na- 
 tionality is the Hag (pavilion, Flagge) of the Slate 
 
 to which the ship belongs, bul which she i> 
 
 entitled i<> carry only as long as she complies
 
 Part III.] FLAG AND NAME 01 SEA-GOING VESSELS [ ' " V ,V,:; XN 135 
 
 with the conditions under which the nationality 
 is obtained. The outward means of identifying 
 the ship are her name and place of registry 
 painted on the outside of the hulk. 
 
 Private or merchant vessels are obliged to 
 have their names painted conspicuously on both 
 sides of the bow, and on the stern (Heck) the name 
 and place of registry. The laws of some States 
 prescribe also, besides the outward names,- the 
 marking of the vessel in-board. on the mainbeam 
 (Hauptbalken). 
 
 Some States have a special Hag for their public 
 vessels and fortresses, which is called the military 
 Hag (Kriegsflagge) and is distinct from that 
 allowed to the private or merchant vessels of 
 their nationality. 
 
 Private vessels are not allowed to fly the 
 pendant (flamme, Wim-pelj which is the distinct- 
 ive badge of the public vessels of the State. 
 When merchant vessels are chartered by their 
 Government for special services and have mili- 
 tary officers or troops on board, or when they are 
 commanded by naval officers, the pendant is 
 shown as a token of their official character, when 
 this is required to secure for them the privileges 
 of a public vessel. 
 
 The right of approach, treated in paragraph 
 05, is exercised exclusively for the purpose of 
 ascertaining the outward tokens of nationality 
 noted in this section. 
 
 But the flag and other outward tokens are not 
 sufficient to prove the nationality of a vessel. 
 These apparent distinctions, which can easily be 
 adopted and changed by any vessel, must be 
 corroborated by more permanent proofs, which 
 are noted in the next section.
 
 436 I'aui in.] MARITIME INTERNATIONAL LAW. [ r "VT, M 
 
 1 1 1 . — ,57/ ip '$ pa/ )&i 's . 
 
 fSmaStiid § ^^' ^tih regard to the national character 
 hy private of public vessels or vessels of war, we refer our 
 
 vessels ui evidence * 
 
 %!!'and n Me, na ' rea ders to the next section. As to vessels 
 tTo7boJrd e owne( l by private individuals or corporations, 
 which are termed private or merchant vessels, 
 their nationality is not acknowledged unless the 
 exhibition of the nag is supported by other proofs 
 indicating that the ship in question has com- 
 plied with all the conditions of nationality, as 
 stipulated by the laws of the State to which she 
 belongs. These proofs are furnished by docu- 
 ments, collectively called the ship's papers (pa- 
 piers de bord, or lettres de mer, Schiffs-papiere). 
 These documents may be divided into the follow- 
 ing four classes. 
 
 A. Documents whicli serve to identify the 
 vessel and its nationality. 
 
 B. Documents referring to the ship's crew 
 and passengers. 
 
 C. Documents indicating the intended voyage 
 of the ship, the port last left and the port* of 
 destination. 
 
 IK Documents detailing the nature of the 
 cargo carried by the ship. 
 
 A. The following ship's papers furnish evidence 
 of nationality. 
 
 1°. The sea-brief (patente de navigation, See- 
 brief) or certificate of registration (acte de frand- 
 sation ou litre de propriety, Schiffs-certificat) in par- 
 ticular eases substituted by the sea-pass (permis 
 de navigation, Felaggenattest) which is a provisional 
 sailing licence, granted to a vessel, by the proper 
 authority, for a definite short period, when regis- 
 tration in formd cannot take place.
 
 1-Anrin] ship's papers. [ c "Ti';. xv ' 1-M 
 
 The sea-brief or certificate of registration, or 
 the substituted sea-pass, contains the following 
 
 items : — 
 
 a. Name of the vessel. 
 
 b. Description of rigging, stating whether 
 
 the "ship is propelled by sail or steam 
 or both and specifying engiue power 
 where there are engines. 
 
 c. Amount of gross and net tonnage. 
 
 d. Port of registration (ffeimaths-hafen), date 
 
 and number of registry. 
 
 e. Place and time of building the ship. 
 
 /. Names and domicile of owners, specifying 
 also, where there are more owners than 
 one. the share each owner has in the 
 property of the vessel. 
 g. Description of the armament of the ship. 
 2°. The builders' certificate (Acte de construc- 
 tion, Beilbrief) or certificate 'of ownership. 
 3°. Certificate of measurement (Messbrief). 
 
 B. The following; documents furnish evidence 
 with regard to the crew and passengers. 
 
 1°. The muster roll (role d'equipaqe, Muster- 
 rolle). 
 
 2°. The shipping articles (often attached to 
 the muster roll and forming one document with 
 the same). 
 
 3°. List of passengers. 
 
 4°. Bill of health. 1 " 
 
 C. The following documents serve to verily 
 the nature of the cargo. 
 
 1°. Bills of lading (connaissement). 
 2°. Manifests of customs clearance. 
 3°. Consular manifests or declaration. 
 
 D. The following documents furnish the evi- 
 dence required as to the voyage intended. 
 
 1°. The ship's log-book (Journal).
 
 438 i'a'<t in.] MARITIME INTERNATIONAL LAW. [°%7;;, xv 
 
 2°. The charter-party (charter- partie), if the 
 vessel has been chartered. 
 
 oo 
 
 The certificate and visa of the respective 
 Consulates on the certificate of registry (Sea- 
 brief). 
 
 4°. Cockets or custom-house clearances. 
 
 The verification of the documents enumerated 
 in this section is the object of the right of visit 
 and search, as exercised by belligerents, for the 
 determination of a vessel's nationality. 
 
 IV. — Public Vcsseh. 
 
 Sis V tf*war. § 105, Under the denomination of public vessels 
 are comprised all vessels in the service of a State. 
 whether they be the actual property of such 
 State or merely hired for public purposes, wheth- 
 er they be armed for war (in which case then' 
 are more particularly called vessels of war), or 
 equipped as Government transports or store ships, 
 yachts, avisos, tenders, or hospital ships. No 
 other condition is required to constitute the public 
 character of a ship except that she be bond fide 
 commissioned by the State and commanded ami 
 manned by officers and men in the regular service 
 of their own Government. 
 
 Tokens of the nationality, attaching to the 
 public vessels of a State, consist in the national 
 military (lag and the pendant which such vessels 
 carry and in verification of which a declaration 
 may be required of the Commanding Officer, if 
 necessary, to be solemnly given in writing or by 
 word of honour, or he may produce Ins commis- 
 sion, orders or instrucl ions. 
 
 Besides the flag and pendant and certain pe- 
 culiar outward appearances which distinguish 
 public vessels generally (and especially the war 
 vessels of the presen'1 time) and in which the
 
 r.un in.] PUBLIC VESSELS. [ C ""'?^ V ' |;1; ' 
 
 experienced eye of the mariner will seldom be 
 mistaken, the scries of outward tokens verifying 
 the public character of a vessel may be completed 
 at sea by the discharge of one or more guns. * 
 
 The public vessels of a friendly power are tacitly 
 considered to have, in time of peace, admittance 
 to all ports, even those closed to foreign trade 
 and commercial navigation, unless it be otherwise 
 stipulated by treaty for political reasons, or when 
 a port in rebellion is declared blockaded by the 
 sovereign Government of the respective State. 
 In some particular instances also the admittance 
 of foreign vessels of war may be refused. — on the 
 ground of the absence of previous communication 
 made within proper time, — for temporary reasons 
 in a particular port, where their appearance, for 
 some reason or other, may, at a critical moment 
 or period of public affairs, cause serious local dis- 
 turbances. In such cases the local authorities 
 give their reasons for the refusal of admittance, 
 which are always respected by the commanding 
 officers of a friendly Power, f 
 
 Vessels equipped as Royal yachts, transports, 
 troop-ships or hospital ships, and other vessels 
 equipped and commissioned by the Government 
 of a State for any kind of public services, enjoy 
 all the immunities of a public vessel, and are 
 placed on the same footing as a vessel of war 
 equipped for purely military or naval service. 
 
 All public vessels of a sovereign State enjoy, 
 whilst in foreign territorial waters, exemption 
 from the local jurisdiction, so far as the vessel, 
 the captain and officers and all persons belonging 
 
 * ■• It is important to observe that, if any question arise as to the 
 nationality of a ship of war, the commission is held to supply ade- 
 quate proof." Thillimore. ( '.mi. Int. Law. Vol. I. Edit. 1*879. p. 
 182. Ortolax. Diplom. de la Mer. Edit. 1864, Vol. I. p. 141 and 
 181, el seq. Hale. Int. Law. Edit. 1880, p. 132. 
 
 f Ortolan. Regl. Intern. Vol. I. Li v. II. Chapts, VIII-X,
 
 UO 1am in] MARITIME INTERNATIONAL LAW. [ CuA § 7defT' 
 
 to the crew unci the passengers are concerned 
 who embarked on board the vessel in the national 
 waters of the vessel or in the waters of a third 
 State. 
 
 Public vessels are also exempt from the super- 
 vision of custom-house officials on board, from 
 entrance or clearance certificates, and from all 
 duties, dues and tolls (peage) which serve directly 
 to make up the fiscal revenue of the State. 
 
 Public vessels are also exempt from all forms 
 of process in private suits or claims before any 
 foreign tribunal. 
 
 With respect to their national character and 
 prerogatives, the public vessels of a friendly 
 Power, when within the territorial waters of a 
 State, are entitled to be treated in accordance 
 with all the rules of courtesy and etiquette which 
 are customary among civilized Nations in the due 
 observance of the principles of maritime cere- 
 monial. 
 
 What is due with regard to the national char- 
 acter of a public vessel, is likewise applicable to 
 her boats, cutters, tenders and crew. 
 
 Vessels of 
 recognized 
 
 § 10(5. Yachts belonging to organized national 
 yacht clubs, provided that the statutes of the 
 club have been recognized by the respective 
 Government and brought under the cognizance 
 of the different maritime Powers, are regarded 
 as privileged vessels, being in some respects as- 
 similated with public vessels. When arriving 
 in foreign territorial waters, such yachts are 
 treated by the naval authorities with the out- 
 ward tokens of regard due to public vessels, but 
 without firing of salutes. They are also exempt 
 from custom house charges and from supervision 
 of customs-officers on board ship.
 
 „ ... "1 1'UUL.IC VESSELS IX FOREIGN rCuAJT. X.V. I | | 
 
 lAU1 '"-J TERRITORIAL WATERS. L §108. LL1 
 
 § 107. The exemptions, immunities and privi- PrMegn or 
 leares above stated, granted to the public vessels foreign terrt- 
 
 /P . , t i . i i 1 tonal waters. 
 
 of an independent State, and which have been 
 wrongly ascribed to the fiction of extra-terri- 
 fcoriality (comp. § 105 ), are conceded to public 
 vessels by virtue of their being, to a certain 
 extent, regarded as representing the sovereign 
 Power of the State. In other words, the conces- 
 sion is due to the respect which the sovereignty 
 of a friendly State can claim. Thus, reciprocally, 
 when any public vessel is within the territorial 
 waters of a foreign sovereign State, the relations 
 Avhich mutually exist between independent States 
 must always be maintained by such public vessel 
 belonging to a friendly Power. These relations, 
 which in no circumstances can be ignored, entail 
 some exceptions from the general rule of immunity 
 due to public vessels, in which the local laws 
 prevail. In these cases, to avoid conflict of juris- 
 diction, when applying the local laws, the concur- 
 rence of tlie State to which the public vessel in 
 question belongs, is expressedly or tacitly implied, 
 and such jurisdiction is therefore called concur- 
 rent, as noted in paragraph 49. These cases will 
 be dealt with in paragraphs 110 and 111. 
 
 V. — The International Status of Public 
 and Private Vessels compared. 
 
 § 108. Public and private vessels are, when oii&«m*- 
 
 .*-... , L . , , ..-. Unction between, 
 
 the high seas, that is to say outside the territorial puwc or state 
 limits of any State, subject to the jurisdiction of private vessels, 
 
 t/ ■,...''. . , ." •, -, with regard to 
 
 the State whose political nationality they share, national juris- 
 
 Axr . , , -, L . . n l • ' • 1 diction and 
 
 With regard to the continuation of this national ^national 
 jurisdiction outside the limits of the respective 
 State, there is an essential distinction to be ob- 
 served between public or war vessels and private 
 or merchant vessels. 
 
 status.
 
 Ill' run in.] MARITIME INTERNATIONAL LAW. ['"'Th^'' 
 
 With regard to the jurisdiction of public and 
 private vessels. Mr. Woolsey, combining the 
 opinions of modern writers in his plain clear and 
 concise manner, makes the following remarks. 
 •• Vessels belonging to the citizens of Nations, on 
 the high seas, and public vessels, wherever found, 
 have some of the attributes of territory. In 
 regard, however, of the territorial character of 
 vessels, it is necessary to be more definite, for, if 
 they have this property, in some respects but 
 not in all, only false and illogical deductions can 
 be drawn from an unqualified statement. Is it 
 true then that they are identical in their pro- 
 perties with territories ? If a ship is confiscated 
 on account of piracy or of violation of custom- 
 house laws in a foreign port, or is there attached 
 by the owner's creditor and becomes Ins property. 
 we never think that territory has been taken 
 a way. For a crime committed in port, a vessel 
 may be chased into the high seas and there ar- 
 rested, without a suspicion that territorial rights 
 have been violated, while to chase a criminal 
 across the borders is a gross offence against sover- 
 eignt}'. Again, a private vessel when it arrives 
 in a foreign port, ceases to be regarded as terri- 
 tory, unless treaty provides otherwise, and then 
 becomes merely the property of aliens. If injury 
 is done to it, it is an injury which indirectly 
 affects the sovereign of the alien, whereas injuries 
 to territory, properly so-called, affect the public 
 power in an immediate manner. It is unsafe, 
 then, to argue on the assumption that ships are 
 altogether territory, as will appear, perhaps, when 
 we come to consider the laws of maritime war- 
 fare. <)u the other hand, private ships have cer- 
 tain qualities resembling those of territory. (1 ) 
 As against their crews on the high seas; for the 
 territorial or municipal law accompanies them as
 
 _ ..."I DISTINCTION BETWEEN PUBLIC AND ["Chaw. XV. 110 
 
 Past HI. J PKIVATE VESSELS. L §108. ' '"' 
 
 long as they are beyond the reach of other law, 
 or until they come within the bounds of some 
 other jurisdiction. (2) As against foreigners, 
 who are excluded on the high seas from any act 
 of sovereignty over them, just as if they were a 
 part of the soil of their country. Public vessels 
 stand on higher ground : they are not only 
 public property, built or bought by the Govern- 
 ment, but they are, as it were, floating barracks, 
 a part of the public organism, and represent the 
 national dignity, and on these accounts, even in 
 foreign ports, are exempt from the local jurisdic- 
 tion. In both cases, however, it is on account 
 of the crew, rather than of the ship itself, that 
 they have any territorial quality. Take the crew 
 away, let the abandoned hulk be met at sea : 
 it now becomes property, and nothing more." 
 
 §109. The combined power and organisation Distinction 
 which constitute the movable body, called a respective 
 vessel of war, or any other vessel in the actual pmuand 
 service of a State, is rightly regarded to repre-" 
 sent, through its officers and crew, the State to 
 which the vessel belongs. This principle can safe- 
 ly be maintained on the ground that the public 
 vessels or war vessels of a State are under the 
 direct control of officers properly educated and 
 trained for the performance of their various du- 
 ties, which qualify them to be entrusted, under 
 the responsibility of their Government, with 
 the administration of the laws of the State, 
 in all circumstances and places, wherever they 
 may be outside their national waters. But 
 this is far from being the case with private or 
 merchant, vessels, which have such a variety of 
 organisation in the composition of its staff of 
 officers and crew, that sometimes not even the 
 
 * Woolsey. Intern. Law. Edit, 1879. § 5S. Edit, 1870. p. 7J. 
 et seq.
 
 414 Pjuwm.] MARITIME INTERNATIONAL LAW. [^"d^" 
 
 captain is required to be a subject of the State 
 whose flag he is carrying over the sea. A Gov- 
 ernment, therefore, cannot possibly take the res- 
 ponsibility of entrusting these combinations of 
 private individuals of different nationalities, — 
 over which it has no direct control, no choice of 
 individuals, no right of nomination, appointment 
 or dismissal, and no instructions or orders to give, 
 — with the administration of the laws of the State 
 or with the slightest judicial power beyond what 
 is strictly necessary to maintain professional dis- 
 cipline on board among the crew and passengers, 
 when out of the jurisdiction of the State or its 
 Consular officers. 
 
 As the State is bound to protect its subjects 
 and their properties, wherever contained or in- 
 vested in vessels of its nationality, the adminis- 
 trative and judicial power, which on the public 
 vessels of the State are entrusted to the captain 
 and the officers, as the representative agents of 
 the State, are, with regard to private vessels en- 
 trusted to the Government's Consular officers, 
 the representatives of the State abroad, in every 
 foreign port where a private vessel is likely to 
 arrive. From this state of affairs lias originated 
 that branch of the office of the Consul, which is 
 called Consular jurisdiction. 
 
 It is thus only out of sheer necessity that. 
 during the passage from one port to the other, 
 the administrative and judicial powers, (under 
 control of the Consuls and other territorial author- 
 ities), are entrusted to the masters and officers 
 of private vessels, with injunctions to report all 
 eases occurring during the passage, as soon as 
 possible lo the respective Consular officer abroad, 
 on arrival in the first port where such Consulate 
 is established, or to (he territorial authorities
 
 „,„„ ,,, 1 DISTINCTION BETWEEN PUBLIC AND rm.vrr. \\. < . - 
 
 PART m ' J PRIVATE VESSELS. L §100. l'l-> 
 
 when arriving in any port or waters belonging 
 to the vessel's national State jurisdiction. Under 
 the same authority the master of a private vessel 
 is also competent to register in the log-book any 
 births and deaths, occurring during a passage on 
 board ship while at sea, and to hand over to his ' 
 Consul, certificates or copies of such registration 
 on arrival in the first port where such a repre- 
 sentative of his Government is stationed. Such 
 is likewise the case Ayitli regard to wills made at 
 sea on board a private vessel. All these functions 
 of the master cease the moment he arrives within 
 the jurisdiction of any State whatever, when the 
 registering of births or deaths or the drawing up 
 of any document concerning a will must be done 
 by the Consular officers or by the local authorities, 
 in conformity with local usages or treaties. 
 
 It is therefore universally acknowledged, that, 
 as a rule, private vessels entering the territorial 
 waters of a foreign State, are, with their crew 
 and passengers, in all cases not belonging, ex- 
 clusively, to the internal discipline of the vessel, 
 subject to the jurisdiction of that State, whose 
 laws are applicable to all circumstances and 
 cases in which it is not otherwise stipulated in 
 Treaties of commerce or Consular conventions. 
 
 When the jurisdiction is. regulated by conven- 
 tion, it is generally done on the principle that 
 exemption from foreign jurisdiction is limited to 
 acts committed within ship-board, that is to say 
 to offences against the regulations of the vessel's 
 internal or professional discipline and to offences 
 committed by any member of the crew against 
 another person belonging to the same vessel. 
 Thus with regard to private or merchant vessels, 
 whilst within the territorial waters of a foreign 
 State, the privilege of exterritoriality cannot be
 
 CUAFT. XV. 
 
 446 Part in.] MARITIME INTERNATIONAL LAW. [ Ch ^& 9 
 
 claimed under any circumstances. The exemp- 
 tions granted as above stated, by comity or con- 
 vention, are limited to cases of a purely domestic 
 character, that is to cases concerning only the 
 members of one and the same ship's company 
 and occurring within ship-board, unconnected 
 with any conflict with the local police. In the 
 case of any offence committed, be it on board 
 ship or on shore, by a member of a ship's com- 
 pany against any person not belonging to the 
 same ship, and generally in the case of any con- 
 flict occurring between the ship's crew on shore 
 or outside their vessel, and finally in all cases in 
 which the public peace of the place or harbour is 
 disturbed or assistance from local authorities has 
 been solicited by the parties interested, the terri- 
 torial jurisdiction follows its natural course and 
 lias full authority. In such cases the local 
 authorities have the right to arrest persons on 
 board ship, to take any member of the crew into 
 custody on shore, or to institute legal investiga- 
 tions on board ship. This is, however, invariably 
 done with the concurrence of the respective 
 Consular officer. Hence it follows that local 
 jurisdiction extends to all offences committed on 
 board a ship, by or against any person not be- 
 longing to the same crew. An offence committed 
 on board a ship against a member of the crew of 
 another vessel belonging to the same nationality, 
 can likewise not be regarded as m domestic affair, 
 within ship-board, because it is to the vessel and 
 not to tiie Xation at targe to which the exemp- 
 tion in question is granted, unless the wording 
 of the respective convention contain a contrary 
 stipulation; but even then the occurrence must 
 
 have taken place on hoard one of the vessels 
 implicated, for all offences committed outside 
 ship-board belong to the local jurisdiction.
 
 p.-. ||, I DISTIN( HON BETWEEN PUBLIC AOT rCBAPT.XV. i i~ 
 
 1 VU1 '"J PRIVATE VESSELS. L i ">■'■ '' ' i 
 
 li follows from the principle that every vessel acu commuted 
 
 ,i . i • . . . i i i • on the high sea 
 
 on the open sea is subject to the laws and inns-™ board /■>■-"■ 
 diction of its own State, that acts committed on 
 board a private or merchant vessel on the open 
 sea cannot be brought under the jurisdiction 
 of a foreign State in whose port the vessel may 
 subsequently arrive. This general rule does not 
 exclude Concurrent Jurisdiction in some parti- 
 cular cases, as stated in § 49. sub-section 3°. 
 
 Actions arising from collision and salvage Actions arising 
 claims, are subject to the laws of the place where «»<* '.salvage 
 the vessel is found. Private vessels are liable regard™ ' 
 
 . , j -j , ,• n , • „ private vessels 
 
 to arrest ana detention for any transgression of ««<* »«* regard 
 
 X! i l n , o -i -i i to public vessels. 
 
 fiscal laws, tor non-payment of salvage dues and 
 in case of other direct claims ad rem. 
 
 Public vessels are. by virtue of their character, 
 exempt from all local jurisdiction, also with 
 regard to actions brought regarding- collision and 
 salvage claims. Any such claim must be ex- 
 amined and decided by the representative of the 
 foreign State to which the Public vessel belongs, 
 (com p. paragraphs 77 and 78). 
 
 With regard to the responsibility of foreign obimthns of 
 vessels in the territorial waters, of a friendly ™ the territorial 
 State. Wheaton makes the following statement &. friendly state. 
 •• Whatever may be the nature and extent of the 
 exemption of the public or private vessel of one 
 State from the local jurisdiction in the ports of 
 another, it is evident that this exemption, whether 
 express or implied, can never be construed to 
 justify any act of hostility committed by such 
 vessels, her officers and crew, in violation of the 
 laws of Nations, against the security of the State 
 in whose ports she is received or to exclude the 
 local tribunals and authorities from resorting to 
 such measures of self-defence as the security of 
 the State may require." * 
 
 Wheaton. Eleni. Intern, Law. Edit. Dana. 1866, §104.
 
 -J, IS partMII.] maritime international law. [ CuA fu i; , xv- 
 
 van boau. Mail boats ( Paqudbots-poste), being vessels be- 
 
 °* lwlfc,> longing to Navigation Companies which possess 
 an organized service, sanctioned by their Govern- 
 ment, for the regular conveyance of the mails of 
 the Government's postal service, enjoy some of 
 the immunities of public vessels. This privilege 
 is granted to enable them to keep up the regular 
 mail-service which they contracted to keep up 
 under the direct control of their respective States. 
 These immunities have regard to exemption 
 from arrest or detention of the vessel and to 
 other facilities granted, especially with regard to 
 fiscal matters, by treaties or postal conventions. 
 In all other respects mail-boats have no more 
 privileges than any other private or merchant 
 vessel, to which class they belong unless it be 
 expressly stipulated otherwise by treaty. 
 Private vessels It is obvious from the foregoing remarks, that 
 *&**£& private vessels cannot possibly be regarded as 
 " :rritori(tl State territory, in any sense of the word. A 
 State is by no means responsible for acts of hos- 
 tility committed against another State or vessel, 
 on the open ocean or in any territorial waters, 
 by a private vessel Hying the national flag of the 
 State. Such responsibility, however, attaches t< i 
 its full extent to any State with respect to acts 
 committed by its public vessels. The latter 
 only are considered as State property. The mo- 
 ment a private vessel enters the territorial waters 
 of another State, she becomes subject to the local 
 jurisdiction in all cases concerning the interest 
 or the laws of the place. When such a ship, 
 after having committed an offence against any of 
 these laws, is pursued in territorial waters and 
 seeks the refuge of the open sea, she may be 
 brouglil back thence to answer the charges 
 brought against her or the culprit may be ar- 
 rested "it board. In the case of damages or
 
 ,.,,., ... 1 DISTINCTION l;l IWI.IA L'CBLIC AND. T'iiaii. \v. i ii, 
 
 lAKrul 'J PRIVATE VESSELS. L ?'"''• ii,J 
 
 redress being claimed for wrongful acts, commit- 
 
 ted by a merchant vessel or persons on board 
 
 her. against private foreign individuals, liability 
 
 attaches to the vessel, wherever she be found 
 
 within any territorial waters, or to the persons 
 
 responsible for the acts in litigation, in conformity 
 
 with the respective municipal law. * Although 
 
 the flag of a friendly State, which covers every 
 
 private or merchant vessel belonging to that 
 
 State, must always be respected, such private 
 
 vessel cannot be regarded as entitled to the same 
 
 immunities which are granted to the public vessels 
 
 of the State. Mr. Ortolan maintains', with regard ortolan's opinion 
 
 to the jurisdiction of private vessels in foreign thejuruucai ° 
 
 territorial waters, the following propositions. prim>L veLis. 
 
 "Quant aux navires de commerce, leur condition n'est 
 pas La meme. La question des autorites <ie police on de 
 juridictiou competentes pour la repression des crimes ou des 
 delits commis a bord de ces navires, dans uti port etranger 
 ou dans une rade etrangere, n'esf pas aussi simple ni aussi 
 unanimement resolue." 
 
 "Nous savons, par les explications deja donnees an cka- 
 j)itre X, page 204, (pie la situation de ces navires est mixte; 
 que le benefice de i'exterritorialite doit s'y appliquer pour 
 certains l'aits, et ne pas s'y appliquer pour d'autres. De la. 
 des distinctions qui ae sont pas nettement posees par les 
 ecrivains publicistes, que la continue et les traites n'ont pas 
 arretees partout d'une maniere bien precise, et sur lesquelles 
 par consequent, les esprits ne sont pas tons d'accord." 
 
 K M. Wheaton, dans son traite de droit international, 
 d'accord en cela avec d'autres ecrivains, formule le principe 
 general, que: Les batiments merchands d'un Etat quelcon- 
 que, entres dans les ports d'un autre Etat, ne sont pas 
 exempts de la juridictiou locale, a moiiis d'une convention 
 expresse ; et qu'ils le sont seulement en ce qui a ete prevu 
 par une telle convention." | 
 
 * Hall. Intern. Law. Edit. 1880. p. 214. § 80. Woolsey. Int. 
 Law. Edit. 1879. §58. 
 
 t The principle put forward by sir Robert Puillijiore is as 
 follows : — •• With respect to merchant or private vessels, the general 
 rule of Law is. that, except under the provisions of an express stipu- 
 lation, such vessels have no exemption from the territorial jurisdic- 
 tion of the harbour or port, or. so to speak, territorial waters (mer 
 littorale), in which they lie." Phillimore. Com. Int. Law, Vol, 
 I. Edit. 1879. p. 483.
 
 !."><» Part 111.] MARITIME INTERNATIONAL LAW. [ c 
 
 n.vii. XV 
 1UU. 
 
 " Suivant la doctrine francaise, cette proposition est trop 
 absolue et susceptible de quelques restrictions." 
 
 "Voici comment, en France, a defaut de convention 
 speciale, est eutendue et pratiquee la regie de droit inter- 
 national sur cette matiere." 
 
 " Notre legislation etablit, quant aux tabs qui se passent 
 a board des navires de commerce, dans un port on dans line 
 rade en pays etranger, nue distinction entre: — 1°, d'une part, 
 les actes de pure discipline interieure du navire; ou meme 
 les crimes on debts communs commis par un bomme de 
 I'equipage contre uu autre bomme du meme equipage, lors- 
 que la tranquillite du port n'en est pas compromise: — et 2°, 
 d'autre part,-les crimes Ou debts commis, meme a bord, 
 contre des personnes etrangeres a I'equipage ou par tout 
 autre que par-un bomme de I'equipage; ou meme ceux 
 commis par les gens de I'equipage entre eux, si la tranquil- 
 lite du port en est compromise." 
 
 "A l'egard des faits de la premiere classe, notre legis- 
 lation declare que les droits de la puissance a laquelle ap- 
 partient le navire doivent etre respectes ; que I'autorite 
 locale, par consequent, ne doit pas s'ingerer dans ces faits, 
 a moms que son secours ne soit reclame. Ces faits restenl 
 done .--ons la police et sous la juridicfion de I'Etat auquel 
 appartient le navire/' 
 
 "Quant aux faits de la seconde classe, notre legislation 
 pose le principe que la protection accordee aux navires dans 
 les ports i'rancais ne saurait dessaisir la juridicfion territo- 
 riale pour tout ce qui toucbe aux interets de l'Etal ; qa'ainsi 
 le navire admis dans un port de I'Etat, est de plein droit 
 soumis aux lois de police' du lieu ou il est recu ; et (pie les 
 gens de son equipage sont justiciables des fribunaux du 
 pays pour les debts commis meme a bord contre des person- 
 nes etrangeres a I'equipage, ainsi que pour Les conventions 
 civiles qu'ils pourraienl faire avec ellcs ; <pie notre juridic- 
 tion penale est applicable aussi aux crimes ou debts entre 
 -ens de I'equipage seuls, lorsque le secours de nos autorites 
 esl reclame ou lorsque la tranquillite* du port s'esl trouvee 
 compromise; en uu mot que la juiidiction tcrritoriale, pour 
 cette seconde classe de faits, est bors de doute." 
 
 "C'esl d'apres ces principes qite qos autorite's et aos 
 luridiciions ge conduisenl en Prance a l'egard des navires 
 inerchands Strangers mouilles dan- uos eaux." ' 
 
 The American Chief Justice Marshall has given 
 the following opinion : — 
 
 OBTOLAs! t'lpl " Edit. L8G4. v ol I • 2C9 " -i
 
 „ ,, ... 1 DISTINCTION BETWEEN PUBLIC \\l> [m.u-t \\ <-i 
 
 1 "' '"J PRIVATE VESSELS. L 5100. h,) ' 
 
 When private individuals of one Nation com- cMtfjuaux 
 mingle with those of another, as business or caprice opinion. 
 may direct, promiscuously dwelling and dealing 
 with the inhabitants of another country, or when 
 merchant vessels enter for the purposes of trade, 
 it would be obviously inconvenient and dangerous 
 to society, and would subject the laws to continued 
 infraction and the Government to degradation, if 
 such individuals or merchants did not owe tem- 
 porary and local allegiance, and were not amen- 
 able to the jurisdiction of the country. Nor can 
 the foreign sovereign have any motive for wish- 
 ing such exemption. His subjects, thus passing 
 into foreign countries, are not employed by him, 
 nor are they engaged in national pursuits. Con- 
 sequently, whilst there are powerful motives for 
 not exempting persons of this description from 
 the jurisdiction of the country in which they are 
 found, there is not one motive requiring such 
 exemption. The implied licence, therefore, under 
 which they enter, can never be construed to grant 
 such exemption. * 
 
 With regard to the limits of the jurisdiction of a *>*««•« 
 State over its merchant vessels, outside its domain 
 or territorial waters. Mr. Hall makes the follow- 
 ing statements. 
 
 ,; Putting aside the fiction of territoriality as 
 untenable, it may be taken for granted, that the 
 jurisdiction exercised by a State over its mer- 
 chant vessels upon the ocean is conceded to it in 
 virtue of its owner-ship of them as property in a 
 place where no local jurisdiction exists; this 
 being a reasonable theory, and the only one which 
 enters into competition with the doctrine of ter- 
 ritoriality. It only remains, therefore, to see what 
 are the limits of the jurisdiction thus possessed. 
 As might be expected, it is sufficient to provide 
 
 * The Exchange v. McFaddon, 7 rVanoh (American) TCep. p. Ml.
 
 452 p^ut in.] MARITIME "INTERNATIONAL LAW. 
 
 OiiAPT. XV 
 5110. 
 
 for the good order of the seas, and excludes for- 
 eign jurisdiction until grave reason can be shown 
 for its exercise. Its extent may be defined as 
 follows. A State has : — 
 
 1 . ' ; Administrative and criminal j urisdiction so 
 as to bring all acts, cognizable under these heads 
 whether done by subjects or foreigners, under 
 the disciplinary authority established in virtue of 
 State control on board the ship and under the 
 authority of the State tribunals." 
 
 '2. "Full civil jurisdiction over subjects on 
 board, and civil jurisdiction over foreigners, to 
 the extent and for the purposes that it is exercised 
 over them on the soil of the State, unless partial 
 exemption is given to them when on board ship 
 by the municipal laws of the State." 
 
 3. "Protective jurisdiction to the extent of 
 
 guarding the vessel against interference of any 
 
 kind on the part of other Powers, unless she 
 
 commits acts of hostility against them, or does 
 
 certain acts during war between two or more of 
 
 • • • 
 
 them which belligerents are permitted to restrain, 
 
 or, finally, escapes into non-territorial waters after 
 committing, or after some one on board has com- 
 mitted, an infraction of the law of a foreign country 
 within the territory of the latter/' * 
 
 VI. — Concurrent Jurisdiction over Foreign 
 Private Vessels in Territorial Waters, 
 concurrent §110. The attributes and exerciscof control, 
 
 Consular 3 .. ... .,..,. 
 
 jurisdiction. j n matters oi police and internal discipline, con- 
 cerning foreign private vessels in the territorial 
 waters of a btate, lu'long to the accredited Con- 
 sular officer of the Nation concerned, always 
 provided that there be no infringement of the 
 general territorial right of jurisdiction and police 
 belonging to the local authorities, and that all 
 
 W. n ii m i [nlern. r,nw. Edit. ]«80. p. 21i».
 
 Part III.] CONCURRENT CONSULAI? Jl BISDICTION. [ * " VTi" XN ' 1:53 
 
 proceedings he taken in conformity witli treaty 
 rights, usage and reciprocity principles. * 
 
 The principle of concurrent jurisdiction requires 
 that, when local authorities have, in the exercise 
 of their right of jurisdiction or police, occasion to 
 search a private vessel, they give previous notice 
 of the case to the Consul of the Nation concerned, 
 or, in the absence of a Consul, to the captain or 
 senior officer of any public vessel of the same 
 Nation that may be at the time in the waters of 
 the said authorities, f 
 
 It is a general principle of Consular attributes, 
 that foreign Consular officers, accredited within 
 the territory of a State, exercise jurisdiction re- 
 garding questions of wages, regarding the ship- 
 ping and discharging of seamen and in cases 
 of transactions and delicts occurring on board 
 vessels of the respective Consul's nationality 
 within the territorial waters of his sphere of office, 
 so far as they concern only the vessels of his 
 nationality and their cargoes or the persons be- 
 longing to the crew or passengers of the respective 
 vessel. If any such case concerns the public 
 peace of the country or the rights of persons not 
 belonging to the crew or passengers of the vessel 
 in question, the case is subject to local jurisdiction. 
 But when persons coming under the jurisdiction 
 of the Consul happen to be citizens or subjects of 
 the State from which the respective foreign Con- 
 sul has received his exequatur, there is occasion 
 for concurrent jurisdiction, as noted in section 
 49, sub-section 3. Concurrent jurisdiction oc- 
 curs likewise also in those cases in which a 
 Consul, or, by reason of the absence of this 
 official, the captain or master of a foreign vessel 
 
 * Ortolan. Dipl. dc la Mer. Edit, 1864. p. 277. Avis du Consul 
 d'Etat du 20 November, 1806. 
 
 f Idem. Vol. r. Liv. TT. Cbapt. XT 1 1.
 
 l.jl PAiwm.] MAEITIME INTERNATIONAL LAW. [ C "Vm' XV 
 
 appeals to the local authorities for assistance" to 
 detain delinquents of the vessel, to arrest desert- 
 ers etc.. as stated before in section 44. 
 
 Consular 
 
 §111. The attributes of the Consul include 
 the jurisdiction which he exercises with regard 
 to individuals of foreign nationalities on board 
 private vessels of the Consul's nationality. Such 
 jurisdiction is also exercised in cases of exterri- 
 toriality or capitulation. A treaty of exterri- 
 toriality or capitulation includes not alone the 
 subjects or citizens of the Treaty Power, but also 
 those individuals of different nationality who are 
 temporarily or permanently under the jurisdic- 
 tion or protection of the Treaty Power, whether 
 on board the vessels of such Power or registered 
 at its Consulates, and this independently of the 
 condition in which the State or Nation, to which 
 the protected individuals respectively belong, 
 may be with regard to such exterritoriality or 
 capitulation. The same principle governs the 
 case of a foreigner, who belongs to a Nation 
 in enmity or at war with the country where he 
 arrives in a vessel or under protection of a third 
 friendly Power, provided the Power concerned be 
 entirely responsible for the protected individual 
 and the latter be regarded as under its actual 
 jurisdiction. 
 
 VII. — Droit d'Asile and Extradition with 
 
 regard to Vessels in Territorial Waters, 
 
 in Time of Peace. 
 
 §112. We have already noted that the terri- 
 torial jurisdiction of a State is not limited to the 
 terra firma and inland waters, but extends to its 
 closed bays and estuaries and the sea which 
 washes its shores, the only limit being the range 
 of its actual coast defences or a distance of three 
 
 Central
 
 I'.Ma 111.] PROTECTION IN I'ERRITORIAL WATERS. [ U ' A .;' U '-. M ' 455 
 
 marine miles (one league) from any part of the 
 territory of the State, or in other words the ter- 
 ritorial waters. Hence this extended jurisdiction 
 is termed marine territorial jurisdiction (§90). 
 
 On the other hand, we have also noted that the 
 ►State has in the case of these waters no right of 
 property or exclusive domain, and cannot impede 
 in time of peace the innocent navigation of the 
 same by friendly vessels. 
 
 From the sovereignty rights of self-preserva- 
 tion and defence devolves, however, the right of 
 empire or control and supervision, by means of 
 legislation and jurisdiction. This right is indis- 
 pensable to the State for the proper protection of 
 its territories, harbours, coasts and littoral seas. * 
 As noted also in paragraph 108, all vessels, with- 
 out distinction of class or nationality, are, when 
 on the open sea, subject to the laws and jurisdic- 
 tion of their own State. 
 
 With regard to the jurisdiction of foreign 
 vessels in the territorial waters of a State, there is 
 a clear distinction made, as we have seen above 
 ( §§ 108 & 109). between public or war vessels 
 and private or merchant vessels. The former 
 remain entirely exempt from foreign jurisdiction, 
 while the latter arc exempt only in so far as 
 admitted by international comity or stipulations 
 made by treaties of commerce and Consular con- 
 ventions (§§ 108-111). 
 
 We proceed now to refer to the peculiar con- 
 tingencies arising in the case of vessels entering 
 accidentally into territorial waters, under cir- 
 cumstances deviating from the normal rules 
 above stated. 
 
 * Ortolax. Dipl. de la Mer. Liv. II. Chapt. 8. Hai.leck. Edit. 
 Shi ;-i"n Baker Vol 1 § 138. pp, 176-190.
 
 \\ 
 
 156 I'ahtiii.] MARITIME INTERNATIONAL LAW. [ CuA §n 3 - 
 
 tSl^iSL, § lls - The general principle of the inviolability 
 ^wuecruisers. °f territorial waters is uniformly maintained in 
 time of peace as well as in time of war. As in 
 time of war belligerents must respect the terri- 
 ! ( trial waters of neutral States and their right of 
 asylum, thus also, quite apart from the interna- 
 tional rules of war. (which form the subject 
 matter of Part V.), the territorial waters of a 
 sovereign State constitute a safe refuge to all 
 vessels of acknowledged nationality and em- 
 ployed in legal trade, and thus must, as a rule, 
 serve as a bar against all proceedings on the 
 part of foreign customs cruisers. As stated 
 before (§94), when a private vessel, having been 
 engaged in unlawful commerce or having violated 
 the revenue laws of any State while being in 
 territorial waters, attempts then, to escape the 
 legal consequences of such action by leaving the 
 port or roadstead in a clandestine manner, the 
 State concerned has a perfect right to chase such 
 vessel, of whatever nationality she may be, even 
 to the open sea and then and there to execute 
 the search and arrest, which flight had prevented 
 before; always provided that the special object be 
 to execute the revenue laws of the State concerned. * 
 This right ceases, however, the moment sucli 
 chased vessel enters the territorial waters of a 
 foreign State, when it merges into the right of 
 
 WooiSEY. §212. Hall, [ntern. Law. Edit. 1880, p. 213. 
 Ortolan. Dipl. de la Mer. Edit 1864, p. 271. " The rights of in- 
 dependence and self-preservation have been judicially considered to 
 justify a nation extending, in time of peace, the limits of absolute pro- 
 perty and jurisdiction, fixed for her territorial wains, by preventing 
 
 evenue laws being evaded byforeignera beyond this exact limit'. 
 Both Great Britain and the United States of America have provided 
 by their municipal Laws againsl frauds being practised againsl their 
 
 lues, bj prohibiting the trans-shipmenl of foreign goods within 
 the distance or four leagues from the coast, and have exercised jurisdic- 
 tion Eor this purpose in time of peace. These enactments are called 
 the Bovervng Acts. By9. George III. c. 35, it is.forbidden to trans- 
 ship foreign fyood - within fow leagues from thecoasl without paymenl 
 of dutii . The American Acl of i ongress, L799, March 2, §§ 25, 26,
 
 vaktiii.J FOREIGN REVENUE CRUISERS. [ Uli s 7 n M ' 457 
 
 asylum to be claimed of this latter, which right 
 must, of course, be respected by the pursuer, 
 and the question becomes then, with regard to 
 all individuals on board the chased vessel, one of 
 extradition, as described in section 41. 
 
 The only exception, which this rule would 5* 8 **" 1 to 
 
 , . iiii » , . . this rule. 
 
 admit, may be based on the exceptional situation 
 of affairs created between States with conterminal 
 territorial waters, when the chase, begun in the 
 waters of the one, is uninterruptedly continued 
 into that of the other State ; for it is then a 
 matter of that mutual security which is absolutely 
 necessary and which renders the concessions to 
 be made in such a case reciprocally benificial. 
 
 §114. The question above stated assumes a Asylum claimed 
 
 d-/v» •/» s 7 by revenue 
 
 itrerent aspect it a revenue cruiser (g uar da- cruiser* < g u<mia 
 
 casta) or any other public vessel of a friendly vessel incmody. 
 State, after having arrested a vessel, for violating 
 its revenue laws, arrives within the harbour, 
 roadstead, or, in general, within the territorial 
 waters subject to the jurisdiction of a foreign 
 State, whether voluntarily or compelled by stress 
 of weather or other vis major, and the captor 
 claims the right of asylum in behalf of himself 
 and his prisoners. Cases of this nature may 
 occur under the following qualifying circum- 
 stances, viz.: — 
 
 A. Both the revenue cruiser and the vessel in her 
 custody belong to the same nationality. 
 
 In this case, and provided the arrest has taken 
 place outside the territorial waters, the State 
 
 27 & 99, contains the same prohibition, and their Supreme Court 
 has declared this regulation to be founded on International Law. 
 Church v. Itubbards, 2 Crunch Reports, p. 187. Waiters American 
 State Papers, 1-75. See also above paragraph 89, as to the King's 
 Chambers. The present English law on the* subject is contained in 
 the Customs Consolidation Act, 1876, 39 and 40 Vict, c. 36, §§ 53, 
 134, 138, 147, 179, 181, 182, 189 & 229. Phillimore. Com. Intern, 
 Law. Vol. I, Edit. 1879, page 275,
 
 458 Pjuwin.] MARITIME INTERNATIONAL LAW. [ C *f?U? y ' 
 
 grants complete protection to the arresting vessel 
 with all her dependencies, and the arrested vessel 
 is then regarded as forming part of the foreign 
 public vessel of the same nationality, thus barring 
 all interference of foreign jurisdiction. If, how- 
 ever, the arrest has taken place in violation of 
 the sovereignty right of exclusive jurisdiction 
 over territorial waters, the arrest is void per se, 
 and the arrested vessel has not lost the individual 
 status attached to her as a private vessel under 
 the finer of a friendly State, but she retains, as 
 completely as the arresting cruiser, an individual 
 claim to the right of asylum to be granted by the 
 foreign State under whose protection she places 
 herself. This claim is based on the same princi- 
 ple as that applicable to the case of any individual 
 taking refuge in the territory of a foreign State, 
 while at the same time the rules regarding extra- 
 dition ( § 44), are, in all their bearings, taken into 
 consideration in the decision of the case. 
 
 B. 7 he arrested vessel belongs to the nationality 
 of the State in whose territorial waters the foreign 
 arresting revenue cruiser or public vessel takes re- 
 fuge with her prisoner. 
 
 In this case the local Government takes, at 
 once, the arrested national vessel into its own 
 provisional charge, and the foreign cruiser is 
 bound to comply with the summons of the local 
 
 luthority to deliver up the arrested vessel with 
 her cargo and all the papers taken on board. The 
 
 :ase is then decided in conformity with the stipu- 
 lations of existing treaties, by the rules of muni- 
 cipal laws, or in pursuance of the instructions 
 
 >f the respective central Government.* In no 
 
 ■;.se whatever can the natural claim on the hos- 
 
 * The rules 1 il dowt) bj the lords of the British Admiralty, in 
 ctoher L876. with ii to be followed by British Authorities, 
 
 n reference to vessels arrest* ..,.., 
 
 follow : —
 
 i'ABr 1U.] FOREIGN REVENUE CRUISERS. [ C ^5af V ' 459 
 
 pitality or comity existing between friendly State? 
 be stretched to that extent as to expect any State 
 to tole ate the subjection of the property of its 
 own subjects or citizens to foreign custody within 
 its own jurisdiction. The foreign captor, what- 
 ever rights he possessed outside the limits of such 
 jurisdiction, is bound to respect, first of all, the 
 sovereignty rights of the State within whose 
 waters he takes refuge, as this is the first condi- 
 tion on which his claim for asylum or protection 
 is based. 
 
 C. The arrested vessel belongs to the nationality 
 of a third friend 'y Power. 
 
 This case is treated in the same manner as the 
 preceding case, but with this distinction, that the 
 local Government does not take any action in the 
 matter, unless interference is duly requested by 
 the Consul of the nationality to which the arrested 
 vessel belongs or by others who are directly and 
 materially concerned in the vessel in question, as 
 agents, consignees, creditors, and the like. 
 
 In the three cases above mentioned it is under- 
 stood, that the arrested vessel has not been legally 
 condemned by the competent tribunal and is 
 consequently, as yet, in full possession of her 
 nationality. Although the arresting revenue 
 cruiser may have taken all the ship's papers and 
 even the crew from the arrested vessel, the 
 captor is not, by any means, authorized to change 
 
 (1.) In British waters, if a vessel of any nationality is wrong- 
 fully captured, she may be recaptured within such waters, 
 and the capturing vessel may be lawfully detained. 
 
 (2.) If a British vessel is wrongfully captured on the high seas, 
 she may be recaptured there ; but a foreign vessel, if wrong- 
 fully captured in British waters, cannot be lawfully recap- 
 tured on the high seas. 
 
 (3.) In foreign waters no vessel. British or fo-eign, though 
 wrongfully captured, can be lawfully recaptured. 
 
 (4.) The capturing vessel cannot lawfully be detained outside 
 British waters,
 
 Ch ait. XV. 
 
 460 PABTin.] MARITIME INTERNATIONAL LAW, [ CH |ff 4 
 
 the flag of the vessel in his custody. The nation- 
 ality of the arrested vessel cannot be considered as 
 lost until a condemnation by the proper legal 
 authorities has actually taken place. 
 
 When a foreign vessel, having been legally 
 seized within the territorial waters of a State, or 
 if she, after being chased to the open sea, (as 
 noted in § 94), by a revenue cruiser or public 
 vessel on account of an alleged violation of 
 municipal laws, be legally condemned to confis- 
 cation by the competent tribunal, the condemned 
 vessel loses her nationality and, when she has 
 been sold under that sentence to third parties, 
 the new owner enters into an indisputable right 
 of property, for the newly acquired nationality 
 must be respected every where without exception. 
 If the condemned vessel is subsequently purchased 
 by her former owners, after a legal sentence of 
 confiscation by a competent foreign tribunal, she 
 must be registered as a new vessel before she 
 becomes legally entitled to resume her original 
 nationality. * 
 
 * Where a British vessel has been seized in a French port for an 
 alleged violation of French municipal laws, condemned, and sold 
 under that sentence to a French merchant, and afterwards recaptured 
 on the breaking out of a war between France and England, it was 
 held that she could not be restored on salvage to the former British 
 proprietor ; the restitution to the former owner mentioned in the 
 Prize Act being confined to property taken by the enemy as prize. 
 The Jevne Voyagenr. 5 Mob, I. IIallixk. * Intern. Law. Edit. 
 Bherston Laker. Vol. II. Chapt. XXXV. bight of Postliminy, etc.
 
 PiKtlll.] OBJECTS OF PBOTKCTION. ['"'ii's^' - 461 
 
 CHAPTER XVI. 
 
 Objects of Maritime International 
 Protection. 
 
 §115. The main object of maritime interna- Principle of 
 tional protection is the commerce of the world, international 
 in its peaceful and civilizing aspects. All civil- 
 ized Nations are equally bound, as a matter of 
 duty, to protect the international trade routes 
 which are the arteries of civilization, on the prin- 
 ciple of the mare librum and of the free interna- 
 tional thoroughfares, as described in paragraphs 
 90-92. 
 
 In time of peace this international obligation 
 is universal and unqualified, but when two or 
 more of these natural protectors of the common 
 good are at war or in serious complications, then 
 this duty assumes a specific nature, and becomes 
 qualified through there being two essential divi- 
 sions in the camp of mutual relations, viz., the 
 interest of the belligerent on the one hand and 
 the common interest of the neutrals on the other 
 hand, a marked difference of aim attaching to 
 either side. The former, without denying the 
 right of free international commerce, is not in the 
 position to grant uncontrolled freedom and pro- 
 tection, and the latter, while admitting the right 
 of the belligerent to watch commerce or even to 
 restrain it for purposes of war, is nevertheless 
 strictly on the look-out to prevent all unneces- 
 sary or arbitrary dealings founded on the pica 
 of the rights of belligerents.
 
 •162 
 
 Chavi. XVI, 
 
 j\»m HI.] MARITIME INTERNATIONAL LAW. [ Cl "ju7 
 
 This constitutes the main principle of neutra- 
 lity which produced a peculiar line of policy, 
 called Armed Neutrality, during the last century 
 and especially since the beginning of the present 
 century. Hence the rights of belligerents and 
 neutrals form the most essential part of the laws 
 of war. These will be treated in Part V. At 
 present we have only to do with that uncontrolled 
 freedom and protection due to the general inter- 
 national commerce which constitutes the blessings 
 of peace and good will among civilized Nations, 
 and proves the universal utility of International 
 Law, through whose rules the common interests 
 of civilization are placed in the safe keeping of 
 Nations during war as well as in times of peace. 
 objects of mari- £ \\q Besides the seeurino- of the perfect free- 
 
 ttm- international 3 O 1 t 
 
 protection. ( \ om an d safety of the open sea by the tacit 
 instrumentality of an international policy regard- 
 ing the high sea, especially with regard to the 
 suppression of piracy and of the slave trade, and 
 the maintenance of free passage on those trade 
 routes which have been declared neutral by com- 
 mon agreement of maritime Powers, * there are 
 other objects which have been placed, by express 
 international agreements, under maritime inter- 
 national protection. The principal objects of 
 this class are rules made to avoid collisions at 
 sea, the international code of maritime signals 
 life-boat institutions, pilotage, sea-fishery, postal 
 and telegraphic communication. 
 
 § 1L7. Rules of the road <<( sea are, as stated 
 above (§77), regulations for preventing colli- 
 sions at sea, by determining, as minutely as 
 possible, the manner in which ships are to be 
 
 * Witli regard to the neutrality of the >n< . ranal, we refer our 
 readers to the discussions of Prof. Holland in the Fortnightly i: 
 of July, 1883, and Prof. Lawrence,in the Law Magazine and Review 
 of February, 1884, 
 
 International 
 rulij of the 
 road at tea.
 
 Part hi ] RULES OF THE ROAD AT SEA. [ Cu [uJ!* L 463 
 
 steered or otlierwise handled when approaching 
 each other so as to be in danger of collision. 
 These regulations refer also to the look-out wliich 
 is to be kept, and to the lights which are to be 
 carried, in order that those on board of either 
 vessel may have timely warning of the approach 
 of the other. To these rules all civilized mari- 
 time Nations have given there adhesion and they 
 may thus be regarded as incorporated in Public 
 International Law. * 
 
 The importance of diminishing as much as 
 poss'ble the risk of collision between ships at sea, 
 which involves so much danger to life and pro- 
 perty, has led to the establishment of this uniform 
 code of rules by general acquiescence. 
 
 The last amended edition of these regulations, 
 viz. thai of 14th August, 1879, coming into oper- 
 ation on 1st of September, 1880. was agreed to by 
 the following States to whose ships these regula- 
 tions are declared applicable, viz., Austria, Bel- 
 gium, Brazil, Chili, Cochin, Denmark, Ecuador, 
 Prance, Germany, Great Britain, Greece, the 
 Hawaiian Islands, Hayti, Italy, Japan, Kattaya- 
 war, Khelat, Kutch, the Netherlands, Muscat, 
 Norway, Peru, Portugal, Russia, Spain, Sweden, 
 Travancore, Turkey, the United States of America 
 and Zanzibar. 
 
 The rules of the road at sea being designed 
 for the navigation of the open sea and interna- 
 tionally free waterways (§§ 90-92), it is under- 
 stood that nothing in them shall interfere with 
 the operation of any special rules made by the 
 respeclive municipal legislatures, relative to th< 
 navigation of any harbour, river or closed bay 
 (§89) or inland navigation, nor with the oper- 
 
 * Richard Lowndes. Admir. Law of Coll. at Sea. Edit. 1867. 
 Introd. Halleck. Vol. I. App. p. 513. Tho Sootia and the Jferk- 
 shire, 14 Wall. 170
 
 XVI. 
 
 4(34 Pa«t III.] MARITIME INTERNATIONAL LAW. [ Cl,A fm* 
 
 ation of any special rules made by tlie Govern- 
 ment of any Nation, with respect to additional 
 signal lights, for two or more ships of war or 
 for ships sailing under convoy. On the other 
 hand, local customs cannot justify departure from 
 the rules of the road at sea, except in cases which 
 appear conspicuously exceptional owing to spe- 
 cial local circumstances. Such exceptions must 
 be as distinct and definite as the general rules, 
 for the liability for damage done by a vessel de- 
 pends upon the laws of the place where the col- 
 lision occurs, when in territorial waters. * Mr. 
 Marsden, in his Treatise on the Law of Collisions at 
 Sea, illustrates the necessity of adhering to the 
 general rules by treating the two cases in which, 
 by British law, damages can be recovered against 
 another ship, apart from the question whether 
 the collision was caused by her fault or not. We 
 reproduce these here as an extension of the rules 
 noted above, with regard to collision, in para- 
 graph 77. Sections 16 & 17 of 36 & 37 Vict, 
 c. 85 determine liability in case of infringement 
 of regulation regarding collision, as follows : — 
 section* i6 & 17 " Section 16. In every case of collision between 
 °. 85. ' * two vessels it shall be the duty of the master or 
 person in charge of each vessel, if and so for as 
 he can do so without danger to his own vessel, 
 crew and passengers (if any ), to stay by the other 
 vessel until he has ascertained that she has no 
 need of further assistance, and to render to the 
 other vessel, her master, crew and passengers 
 (if any), such assistance as may be practicable 
 and as may be necessary in order to save them 
 from any danger caused by the collision; and 
 also to give to the master or person in charge of 
 the other vessel the name of his own vessel, and 
 
 * Richard Lowndes. The Admiralty law of collision at sea, 
 ehapt, HI
 
 Paki in.] RULES OF THE ROAD AT SKA. [ 0a §u7. XV1, '!(».} 
 
 of her port of registry, or of the port or place to 
 which she belongs, and also the names of the ports 
 and places from which and to which she is bound.'' 
 
 " If he fails so to do, and no reasonable cause 
 for .such failure is shown, the collision shall, in 
 the absence of proof to the contrary, be deemed 
 to have been caused by his wrongful act. neglect 
 or default/' 
 
 " Every master or person in charge of a Brit- 
 ish vessel who fails, without reasonable cause, to 
 render such assistance or give such information 
 as aforesaid, shall be deemed guilty of a mis- 
 demeanor * and if he is a certificated officer, an 
 enquiry into his conduct may be held and his 
 certificate may be cancelled or suspended." 
 
 Section 17 states: " If in any case of collision 
 it is proved to the Court, before which the case is 
 tried, that any of the regulations for preventing 
 collision contained in or made under the Mer- 
 chant Shipping Acts 185-1 to 1873, has been in- 
 fringed, the ship by which such regulations have 
 been infringed shall be deemed to be in fault, 
 unless it is shown to the satisfaction of the Court, 
 that the circumstances of the case made departure 
 from the regulation necessarv." 
 
 The first case above mentioned is that where a obligation u> 
 
 , n - . . stand on each 
 
 ship, alter colliding with another ship, neglect s <**«•. af,er 
 
 r' O 1- o collusion. 
 
 to stand by the other alter the accident. 
 
 " The temptation for a ship, says Mr. Marsden. 
 to run away from another with which she has 
 been in collision by her own fault, in the hope of 
 escaping detection, has been found in many cases 
 stronger than the dictates of humanity. ' Stand- 
 ing by' was first made a statutory duty by 25 
 and 26 Yict. c. 63, § 33. Previous to this Act, 
 however, the duty of one ship to render assistance 
 
 * Punishable by tine of £100 or imprisonment for six months, IT 
 & 18 Vict. c. 104. § 518.
 
 466 rua in.] MARITIME INTERNATIONAL LAW. [ CuA ^i^ V1, 
 
 to the other was distinctly recognized by the 
 Admiralty Court, and failure to stand by a ship 
 injured in a collision was punished by compelling 
 the defaulting ship to pay the costs of the suit, 
 although she was free from blame in other re- 
 spects, and successful in the suit." 
 
 " However free from blame a ship may be in 
 other respects, and however wanton the collision 
 on the part of the other ship, the law requires 
 each to stand by the other. If either ship fails 
 to do so, in the absence of proof to the contrary. 
 -lie will be held to be in fault for the collision, 
 and will be unable to recover the whole of her 
 loss." 
 
 ,: The ; person in charge ' mentioned in section 
 16 is the master, although at the time of the 
 collision the ship is in charge of a pilot. If the 
 master is below, the duty to stand by lies on the 
 mate or other person in charge of the deck, until 
 the master comes on deck ; if life or property is 
 still in danger, it is then transferred to the master. 
 Where a collision occurred between a ship in tow 
 and a third ship, it was said by Sir Robert 
 Phillimore that the Act of 1862 required the tug 
 to stand by the ships in collision.'' 
 
 " The penalty for not v standing by ' is strictly 
 enforced. A ship must obey the law although 
 there is some risk to herself, and the other appears 
 to be in no danger. A steam-ship was held in 
 fault for not standing by another with which she 
 had been in collision, although, being in narrow 
 waters, and herself of greath Length ( l.")0 feet), 
 she could not do so without risk of going ashore, 
 and although she had hailed another ship, better 
 able to assist to do bo." 
 ■>/<■>' • Although a vessel which fails to render assist- 
 
 ance to another with which she has been in col- 
 lision breaks the law, it appears that her righl to
 
 Part in.] RULES OF THE ROAD AT SEA. [^{li? 71, I ( >" 
 
 salvage remuneration, where she renders assist- 
 ance to a ship with which she has been in collision 
 by no fault of her own, is not affected by 36 & 
 37 Yict. c. 85, § 16. In a case under the Act of 
 1862, it was held that the right to salvage reward 
 of a tug, whose tow was damaged in a collision 
 with a third ship, for which the latter was in 
 fault, was not affected by the statutory enactment 
 as to standing by." 
 
 The " standing by " section of the Act of 1862 
 was held to apply in the case of collision with an 
 open fishing-boat. 
 
 The other case in which damages can be re- obligation to 
 covered in case oi collision without proof otiatums. 
 negligence on the part of the defendant contrib- 
 uting to the collision, is that referred to in section 
 17 of 36 & 37 Vict. c. 85, as quoted above. The 
 object of that section was to enforce the observance 
 of the regulations and to lessen the difficulty of 
 deciding collision cases upon evidence which is 
 often conflicting. Its effect is to exclude proof 
 that an infringement of the regulations, which 
 might have contributed to the collision, did not 
 in fact do so. The statute, therefore, imposes on 
 the vessel guilty of an infringement the burden 
 of proving not only that it did not, but that it 
 could not, by any possibility, have contributed to 
 the collision. 
 
 "If the regulation which has been infringed, 
 says Mr. Marsden, is one which has no possible 
 connection with the disaster, and which could 
 not by an}^ possibility have contributed to it, the 
 section does not apply. If, for example, a vessel 
 is run into by another approaching her from her 
 port side, she will not be held in fault under sec- 
 tion 17 for having no light on her starboard side. 
 In the case of the Fanny M. Carvill it was held 
 that the other ship, the Peru, was not in fault
 
 & 37 Vict. c. 85 
 
 468 PABTin.] MARITIME INTERNATIONAL LAW. [ ,UA |n* vl - 
 
 under section 17, because her screens were seven 
 inches short of the statutory length (3 feet); it 
 being proved that her lights were not in fact seen 
 across her bow."* 
 
 ippucatkm to With regard to the application of these rales 
 f Kilt/! to foreign ships, Mr. Marsden makes the follow- 
 ing additional remarks. ' ; Nearly all maritime 
 Nations having adopted the regulations, and the 
 Courts of this country (England) being required 
 by the municipal law to apply the regulations to 
 the ships of all Nations that have adopted them, 
 the rule of the road is the same for all ships, and 
 the same rule is recognized alike by international, 
 municipal and maritime law." 
 
 " Foreign ships, equally with British ships. 
 are bound to know and observe local regulations 
 for preventing collisions in force in various rivers 
 and harbours of this country." 
 
 iw The law by which the owners of a ship which 
 lias been in collision are, upon proof of certain 
 circumstances as to infringement of the regula- 
 tions, or not standing by to assist the other ship, 
 made liable for the collision, without further 
 proof of negligence upon the part of their ship, 
 has been laid down in §§16 & 17 of 36 & 37 Vict. 
 c. 85 (quoted above). There seems to be no 
 doubt that this enactment applies to foreign ships. 
 In two cases recently before the Admiralty Divi- 
 sion, it was assumed that it applied to a British 
 ship in collision with a foreigner on the high seas. 
 The wording of 36 & 37 Vict. c. 8.*), § 16, favours 
 the contention that that part of it which relates 
 to presumption of fault applies to foreign as well 
 as British ships. Both sections, moreover, would 
 
 * Reginald G. Maesden. Colliaional sea, Edit. 1880. p. 12, cl 
 pq rh- TYtnny V. fttrrill, L.R I. k. & B, H7-422,
 
 PiM in.] RULES OF THE ROAD AT SKA. f "/"*™ '^ (i 
 
 probably be held to be rules of evidence, or 
 otherwise applicable to foreign ships as lex fori." 
 " It was held by Dr. Lushington in the Zoll- 
 verein, Swab. Ad. 96, that §298 of 17 &18 
 Vict. c. 104, was a lex fori relating to remedies. 
 In that case the section was held not to apply in 
 the case of a collision between a British and a 
 foreign ship on the high seas, so as to prevent 
 the British ship from recovering against the 
 foreigner. The ground of the decision was that 
 the previous section (§ 296), containing the rule 
 of the road, was a municipal law not applicable 
 to foreign ships on the high seas, and that there- 
 fore § 298, which depended on § 296, had no 
 application to the foreign ship. Since, therefore, 
 the foreigner was' not prevented by § 298 from 
 recovering against a British ship that to which 
 by the maritime law he would be entitled, it was 
 held to be unfair to allow the foreigner to avail 
 himself of a breach by the British ship of the 
 municipal law as a defence. But the now exist- 
 ing regulations being international, it is submitted 
 that the decision in the Zollverein, as to the ap- 
 plication of § 298 of the Act of 1854, affords no 
 ground for contending that § 17 of the Act of 
 1873 docs not apply to foreign ships. In the 
 Nevada, I. Asp. Mar. Law, Cas. 477, however, 
 the Vice-Admiralty Court of X. S. Wales held 
 that § 33 of the Act of 1862 did not apply to an 
 American ship. In the Germania, 3 Mar. Law, 
 Cas. 0. S. 140, § 29 of 25 & 26 Vict. c. 63 was 
 applied to a foreign ship ; but in the same case, 
 on appeal (ibid 269), Lord Komilly appears to 
 have considered that § 33 of that Act (as to 
 'standing by') applied only to British ships. 
 In the Thuringia, I. Asp. Mar. Law Cas. 283. 
 nothing was said as to the application of that 
 section to a foreign ship on the high seas. As
 
 470 Paht HI. J MARITIME INTERNATIONAL LAW. [' ""Tu-^' 1 ' 
 
 to the effect of §§ 57 and 58 of the same Act. 
 see the observations of Lord Chelmsford in the 
 Amcdia, I. Moo. P. C. C. N. S. 471, 485." * 
 Ameiimniaws. There is no law in America corresponding to 
 36 & 37 Vict. c. 85, § 17. The Supreme Court 
 has declared that it will not -'accept blindly 
 an artificial rule which is to determine in all cases 
 whether the navigator is liable to the charge of 
 negligence in causing any damage that may 
 happen." The Farragut, 10 Wall. 334. But the 
 burden is on a vessel which has infringed the 
 statutory regulations to prove that the infringe- 
 ment did not contribute to the collision. The 
 Pennsylvania, 19 Wall. 125; the Ariadne, 2 
 Bened. 472. If, however, such proof is forth- 
 coming, a ship will recover fall damages, although 
 she did not comply with the regulations : I. 
 Parsons, on Shipping, ed. 1869, pp. 596 and 
 597 ; Chamberlain v. Ward, 21 Plow. 548, 567 : 
 The Gray Eagle. 9 Wall. 505 ; The Continental, 
 14 Wall. 345; The Sunny side, 1 Otto. 208; The 
 City of Washington, 2 Otto. 31. Blanchard, v. 
 New Jersey Steamboat Co., 59 New York Rep. 
 292, and Whitehall Transport Co. v. New Jersey 
 Steamb. Co., 51 N. Y. Rep. 369 ; and Hoffman v. 
 Union Ferry of Brooklyn, 7 Amer. Rep. 435, arc 
 decisions of the State of New York ( \uirts to the 
 same effect. In the Pennsylvania case a steam- 
 ship and a sailing-ship were in collision. The 
 latter was not sounding her fog-horn, but was 
 ringing a bell, though she was under way. The 
 Supreme Court refused to admit evidence thai 
 flu; bell could be heard farther than the horn, and 
 held that the sailing-ship was in fault for the 
 collision. The following" passage, which occurs 
 in that judgment of the Court, shows thai I he 
 law in America, as to the effeel of an infringement 
 
 * Ma i;-m:\. Page 90. ol peq.
 
 Pabt ni.J INTERNATIONAL SIGNAL CODE. [ CHA §m VI " J 7 1 
 
 of the regulations, is identical with that of Great 
 Britain. "Where a ship, at the time of collision, 
 is in actual violation of a statutory rule intended 
 to prevent collisions, it is no more than a reason- 
 able presumption that the fault, if not the sole 
 cause, was at least a contributory cause of the 
 collision. In such a case the burden rests upon 
 the ship of showing, not merely that her fault 
 might not have been one of the causes, or that 
 it probably was not. but that it could not have 
 been." * 
 
 §118. The International Code of Signals is international 
 
 l'T • ,i II f ' i C T Signal Code. 
 
 likewise to be regarded as forming part ot In- 
 ternational Law, having been adopted by all 
 civilized maritime Xations. 
 
 The attention of the principal maritime Powers 
 have long been directed to the necessity of adopt- 
 ing an international system of signalling at sea. 
 by means of which vessels of all Nations should 
 be able to correspond with or make their wants 
 known to one another, by certain arbitrary signs 
 having a universal signification. When, there- 
 fore, the Governments of France and Great Bri- 
 tain brought the subject prominently forward 
 and invited the attention of the maritime Powers 
 to the manifest advantages which the Code of 
 Signals to be used at sea, as prepared and pub- 
 lished, in April 1857, by the British Board of 
 Trade, afforded for this purpose, the several Gov- 
 ernments, satisfied as to the superiority of this 
 code over every other method of signalling, 
 decided on adopting it for the use of their mer- 
 chant vessels and ships of war. This code 
 has accordingly been adopted by all the civilized 
 maritime Powers in the same manner as the 
 rules of the road at sea, and can rightly be 
 c alled the International Code ; being now exclu- 
 
 * The Peunsvlvania. 3 Mar. Law Cas. 0. S. 177. MABSDEK p. 10.
 
 Institutions 
 
 172 iaki in.] MARITIME INTERNATIONAL LAW. [ Ul 5uV vw 
 
 sively used on board the ships of war and at the 
 signal and semaphore stations of all civilized 
 countries. It has been translated into the -Danish. 
 Dutch, French, German, Italian, Norwegian, 
 Portuguese, Spanish and Swedish languages. * 
 
 § 119. Life- Boat Institution* are also well wor- 
 thy of international acknowledgement and recog- 
 nition, by general convention. 
 
 The life-boat is a boat adapted to "live" in a 
 stormy sea, with a view to the saving of life 
 from shipwreck. Its qualities must be buoyancy, 
 to avoid foundering .when a sea is shipped ; 
 strength, to escape destruction from the violence 
 of waves, from a rocky beach, or from collision 
 with the wreck ; facility in turning ; and a power 
 of righting when capsized. The advantages of 
 the life-boat may be thus summed up. The air- 
 chambers and the light ballast render sinking- 
 impossible ; the keel nearly prevents capsizing, 
 and rectifies it, if it does happen ; while the re- 
 lieving tubes effectually clear off any water that 
 finds its way within. AVith such precautions, 
 the safety of the crew appears almost assured, 
 and, in fact, loss of life in a life-boat is a very 
 rare occurrence. 
 
 The importance of the life-boat in saving life 
 can scarcely be over-estimated. Hundreds of 
 vessels have their crews rescued through its use 
 every year; and, as the different national life- 
 boat institutions obtain funds, life-boat estab- 
 lishments are being gradually extended all round 
 the coasts of all civilized countries, and this 
 humane maritime institution can fairly claim 
 unqualified international protection. 
 
 * The International Code of Signals, for the use of all Nations : 
 prepared under the authority of the British Board of Trade, bj 
 Robert Jackson, Esq., Registrar General of Shipping and Seamen. 
 Published for the Committee of Lloyd's by Spottiswoode & Co., 64 
 < iracecburch Si rcct, London 1882.
 
 i -v..- m.] LIFE-BOAT lXSTHTTIONS. [ C "Ywf VL 47* 
 
 Incorporated life-boat institutions, duly recog- 
 nized by tbeir respective Governments, and whose 
 objects are to provide and maintain, in efficient 
 working order, life-boats of the most perfect 
 description at all parts of the coast, and to pro- 
 vide, through the instrumentality of local com- 
 mittees, for their proper management, should 
 be internationally and expressedly recognized as 
 neutral institutions and their properties respected 
 by all parties, in war as well as in time of peace. * 
 
 Pilotage. 
 
 § 120. Pilotage often forms the subject of con- puotage «««- 
 
 , . i • • o, i 'i •i. sarUy an object 
 
 ventions between co-riparian states, out might of international 
 also be extended to more general maritime inter- agm 
 national treaties for the sake of greater conven- 
 ience and security in navigation and also to settle, 
 by international understanding, questions arising 
 with regard to so-called compulsory pilotage. 
 
 Compulsory pilotage exists in many countries, 
 as in Great Britain, the United States of America, f 
 France J, Germany, the Netherlands, Belgium, 
 Spain, Portugal, Austria and the Argentine Re- 
 public, but with the exception of Great Britain 
 
 * As an illustration of the great international value of Life-boat 
 institutions in general, we quote here some details, showing what one 
 such institution can perform in a civilized country. The Committee 
 of the British Royal National Life-boat Institution, in their Sixtieth 
 Annual Report, state that the number of life-boats now under the 
 management of the Institution is 271. The total number of Life- 
 boat-launches during the year 1883 was 283 ; lives saved 12~> ; and 
 vessels saved 30. In addition to these services. 230 lives were saved 
 from shipwreck by shore boats and other means, which had received 
 rewards from the Institution, making a total of 955 lives rescued 
 during the year 1883. The number of lives saved during the sixty 
 years, from the establishment of the institution to the end of the year 
 1 $83, is 30,563. During the year 1883. the receipts of the institution, 
 in donations, subscriptions and dividends, amounted to £40,250 while 
 the expenditure was £4n. t fl7. 
 
 f See Parsons. On Shipping. Ed. L8G9, II. p. 117. 
 
 J Sec CAUMONT. Abordage Maritime. §§ I'll -194. Sirky et 
 Gilbert. Codes Annotees. C. C. Art. 216, §9. Sibillb. Juris- 
 prudence etc., d'Abordage, p. 280.
 
 474 I'am iii. J MARITIME INTERNATIONAL LAW. [* UA /i/,,, M L 
 
 and, to some extent, Germany (Allyeutehies Deut- 
 sche* Handelsgezetsbuch, Art. 740), the principle, 
 that owners are not responsible for the fault of a 
 compulsory pilot, does not prevail. * 
 
 The Spanish Commercial Code (Art. (J76, 691 
 and 693) places the pilot in the position of adviser 
 to the captain, and the ultimate authority and 
 responsibility of the latter is expressly preserved. 
 In America pilots of passenger ships have a special 
 authority; 10 Stat, at Large, Ch. G6, § 28. 
 
 The Canadian Pilotage Act, 36 Vict. c. 54 
 (Canada), makes the payment of pilotage dues 
 compulsory, but expressly provides that no ship 
 need be placed in charge of a pilot (ss. oG. 69 ) 
 and that nothing in the Act shall be deemed to 
 exempt owners from liability for the fault of a 
 licensed pilot (s. 69). 
 prineipiesof With reference to what is stated in section (>8. 
 
 BritisJt law, , . Q i 1 • 1 i 
 
 ding >ub-section zl .. as a general- rule with, regard to 
 
 compulsory . . , . 1 . ,. ' , ., 1 V 
 
 tiiotage, the responsibility ot the pilot in charge, m con- 
 
 nection with the liability of owners, we note here 
 the following rules laid down by English law 
 with regard to compulsory pilotage. 
 
 By the laws of Greal Britain, the principle on 
 which a shipowner is made liable for damages 
 done to another ship by improper navigation on 
 i lie part of the captain or crew, is, that a master 
 is responsible for the misconduct of the servants 
 in liis employ. A pilot who is taken on board 
 l'\ compulsion of Law, and who is consequently 
 not appointed, nor can be dismissed, by the ship- 
 owner, is not considered ;is his servant, in such a 
 sense as to make the shipowner responsible for 
 the pilot's misconduct. Mr. Richard Lowndes 
 makes the following statements wilh regard to 
 this principle of British Statutory Law. 
 
 i pilotage i 'ommittee, 1870,
 
 Pakt hi.] | OMPULSOKY PILOTAGE [' '" V'.V.„ NU - 17 "> 
 
 "It is only by degrees that this principle has 
 come to be recognized by the Admiralty Court. 
 In the earliest reported case on this subject, ir 
 was held by Lord Stowell, that a foreign ship- 
 owner could not claim exemption from liability 
 for a collision, where his ship was in fault, on the 
 plea that the collision was the result of orders 
 given by a regular pilot." 
 
 ' The owners,' said the learned Judge, ' are 
 responsible for the acts of the pilot, and they must 
 be left to recover the amount as well as they can 
 from him.' 
 
 ' ; In the case of the Christiana, there was cited 
 in argument a clan.-'.' of the General Pilot \< ' 
 (6 Geo. IV., c. 125. §25); which enacted that 
 1 no owner or master of any ship or vessel shall 
 be answerable for any loss or damage which shall 
 happen to any person or persons whomsoever, 
 from or by reason or means of any neglect, de- 
 fault, incompetency or incapacity of any licensed 
 pilot acting in the charge of any such ship or 
 vessel under or in pursuance of any of the pro- 
 visions of this act. In the decision of this case. 
 Sir Christopher Robinson held himself to be 
 bound by this clause in the case of a foreign as 
 well as of an English ship. But, in the sub- 
 sequent case of the Girolamo, the same learned 
 Judge considerably narrowed the effect of the 
 Pilot Act, by laying down the positions, that 
 this statute could not affect the jurisdiction 
 of the Court of Admiralty in cases of collisions 
 with foreign ships upon the high seas ; that 
 the clauses in the Act exempting ' owners ' from 
 liability might be read as merely taking away 
 their personal liability, leaving the remedy in 
 rem intact ; and that the taking of a pilot coub 1 
 not be considered compulsory, when there was 
 no penalty attached to a refusal to take him,
 
 76 run in.] MARITIME INTERNATIONAL LAW. [ CnA fiaf VI " 
 
 beyond the liability to pay the regular charge 
 for pilotage, whether a pilot were employed or 
 no. On all these points, as will be seen, the 
 decision in this case has since been overruled. 
 Tn the cases, however, of the Baron Holberg 
 and the Carolus, it was again held, by Sir ( '. 
 Robinson, that the provisions of the Pilot Act 
 could not atfect the position of foreign shipowners 
 in the Admiralty Court." 
 
 •'• The law on this subject was first (so far as the 
 ( Jourt of Admiralty is concerned) placed on its 
 present basis by Dr. Lushington. in the import- 
 ant decision of the Marias case, in the year 
 1839. In this judgment, after a critical review 
 of the previous cases, and particularly of two ap- 
 parently conflicting decisions in the Common 
 Law Courts, the learned Judge came to the con- 
 clusion that, on grounds of natural equity, in- 
 dependently of the provisions of the Pilot Act, 
 the owner of a ship should not be held liable in 
 damages for a collision occasioned by the fault of 
 a pilot compulsorily taken on board. If, he said. 
 •• the taking a pilot on board was compulsory, 
 and the collision was occasioned by the fault of 
 that pilot, I shall hold the owners of the Maria 
 exempt from responsibility, upon general princi- 
 ple, without reference to Acts of Parliament ; for, 
 in that case, the pilot was not their servant, and 
 the maxim ' qui facii per alium facit per s<?,' does 
 not apply. If. on the contrary, the taking a 
 pi]ot was voluntary, then he was the servant of 
 the owners, and the owners are responsible, unless 
 the General Pilot Act, which takes away respon- 
 sibility, applies to a foreign vessel so circum- 
 stanced, and to eases where it is optional to take 
 a pilot or not. The learned Judge then pro- 
 ceeded to give his reasons for coming to the con- 
 clusion that, in the ease before him, the taking
 
 Cll W'T. \\ I. 
 
 paw hi.] COMPULSORY PILOTAGE. [°"§m 
 
 of a pilot was compulsory, and accordingly dis- 
 missing the owners of the Maria from the suit. 
 ' The opinion I have thus formed in this case/ 
 he added ' is founded upon the general principle 
 of reason and justice, that no one should be 
 chargeable with the act of another who is not an 
 agent of his own election and choice, and I fur- 
 ther think that it would be contrary to all sense 
 of equity, to say to the owners of a foreign vessel 
 you shall take a pilot of our selection, of our ap- 
 pointment : be he drunk or sober, negligent or 
 careful, skilful or ignorant, you shall be respon- 
 sible for his conduct, unless you choose to submit 
 to the penalty, and penalty it is. of paying the 
 pilotage for nothing." * 
 
 The principle thus laid down by Dr. Lushing- 
 ton afterwards received the sanction of the English 
 Legislature, in the following clause in the Mer- 
 chant Shipping Act : — " No owner or master of 
 any ship shall be answerable to any person what- 
 ever for any loss or damage occasioned by the 
 fault or incapacity of any qualified pilot acting 
 in charge of such ship, within any district where 
 the employment of such pilot is compulsory by 
 law." 
 
 ,; The exemption thus given by statute is to be 
 construed strictly ; the pilot must be ' acting in 
 charge of the ship,' if his act is to relieve the ship 
 from liability. The statute, however, is merely 
 declaratory of a principle based, as has been said, 
 upon natural equity. Consequently, whether or 
 no the words of the statute are sufficiently ex- 
 tensive to apply to foreign ships colliding on the 
 high seas, such vessels are on general principle- 
 entitled to this exemption." f 
 
 * Maria, IV. Rob. 95. 
 
 f Richard Lowndes. The Adm. Law of Coll. at Sea. p. 102, el 
 seq. Johanna Stall. 1 Lush, '.U2.
 
 478 
 
 Taut III 
 
 •] MARITIME INTERNATIONAL \,\\Y. [' " V,,;^ ' 
 
 BHtuh Pilotage Compulsory pilotage exists in Great Britain 
 
 J uthorities. -. . * * /1 ..,.~ I ..- 1 . 
 
 only m waters within the jurisdiction of a duly 
 constituted pilotage authority and for certain 
 classes of ships on particular voyages. Some 
 of the principal pilotage authorities, such as the 
 mmty nmses. London, Hull, Newcastle, and Leith Trinity 
 Houses, were originally constituted by charter ; 
 but these, as well as various other authorities 
 existing around the shores of the United King- 
 dom, are now regulated by Act of Parliament. 
 The Acts relating to pilotage are general and 
 local. The general law as to pilotage is container i 
 in the Merchant Shipping Ads. 1854-187&. * 
 
 The Acts authorize bye-laws to be made for 
 the regulation of pilotage, which in some cases 
 are required to be approved by Her Majesty in 
 Council. 
 
 To ascertain whether, in a particular case. 
 pilotage is compulsory or not, it is necessary to 
 consider the combined effect of the general and 
 local Acts, and of the bye-laws for the time being 
 in force under them. The question is frequently 
 one of considerable difficulty, f 
 
 The substance of the regulations for the navi- 
 gationofthe Suez Canal (of 1st July, 1878) is 
 as follows (a): — The maximum speed is to be 
 five and a half knots. All ships over 100 ton- 
 are to take pilots ; but the responsibility as regards 
 the management of the ship devolves soldi/ on the 
 captain; yards are to be braced forward; jib- 
 booms to be in; and a kedge ready to let u<> 
 astern; a boat is to be towed astern; watch to 
 be kept by day and night : hands arc to be sta- 
 tioned ready to let go hawsers; navigation at 
 night is at the captain's risk. Ships moored are 
 
 * 17 & 18 Vict. c. 104. Part V. : 25 & 26 Vict. c. (111. §§ 40-42 : 35 
 & 36 Vict. c. 73, §§ 9-11 ; 36 & 37 \ ict. c. 85, §§ lit & 2 I. As to 
 Cinque port pilots, see the unrepealed sections of 16 & 17 Vict, c, 129. 
 
 | \l \i:si>k\. p, I 17. 
 
 Rules of 
 
 Suez Canal 
 Pilotage.
 
 PautIII.] SEA-11SHERY. [°"j '^ L 47!) 
 
 to show a light forward and another alt ; other- 
 wise the usual lights to be carried, except that 
 on the approach of another ship, two white lights 
 are to be shown over the side on which the other 
 is to pass ; whistles are to be blown on ships 
 approaching and passing ; steamships are to stop 
 when the passage is not clear, and to reduce 
 speed when passing craft. ''Whenever a colli- 
 sion appears probable, no ship must hesitate to 
 take the ground, and thus avoid collision. The 
 expenses consequent upon a grounding, under 
 these circumstances, shall be defrayed by the ship 
 in fault." Vessels approaching are to reduce • 
 speed and hug the starboard side, if required to 
 do so by the pilot ; vessels are not to overtake 
 and pass others, except when necessary, and then 
 only at sidings and by the direction of the Canal 
 authorities. * 
 
 Sea -Fishery. 
 §121. Sea-fishery was always an object of net/ague 
 
 ... i 1 1 • l T) ll /> T 7 FisJienj Conven- 
 
 protection by public law. r>y the Ordinance detiononm. 
 (a Marine of 1681, the oth section of which was 
 headed de la piche qui se fait en mer, the principle 
 was upheld that the exclusive right of fishery 
 on the sea-coast of a State, within its territorial 
 waters, qualifies the respective State to maintain 
 an active police supervision on these waters to 
 restrain the trespassing of others on its rights. 
 These principles are developed and defined in 
 the convention, signed at the Hague on the Gth 
 May 1882, between Belgium, France, Germany, 
 Great Britain, Denmark, the Netherlands and 
 Sweden and Norwa}', for the preservation of order 
 among the different nationalities of fishermen in 
 the North Sea outside territorial waters. The 
 principle features of this convention, pour regler 
 
 * See Nautical Magazine. 1878. 572,
 
 480 iakt in.] MARITIME INTERNATIONAL LAW. [ f "YiJL N ' 
 
 la police de la peche dam la mer da Nord en dehorn 
 dcs eaux territoriales, arc the following: — The 
 exclusive right of national fishermen to fish 
 within three miles of their respective coasts (art. 
 2). Outward distinctive tokens to identify each 
 fishing boat of the different nationalities (art. 
 5-13). Regulations with regard to time and 
 mode of fishing and the fishing-apparatus to be 
 used (art. 14-24). The supervision and control 
 to be exercised indiscriminately, by cruisers of 
 the contracting States, with distinction, however, 
 in the case of certain infringements of the rules, 
 which can be adjudged solely by cruisers belong- 
 ing to the same nationality as the transgressor 
 (art. 27-28), while, in any case, the national 
 tribunal has exclusive jurisdiction (art. 36). 
 When the commanding officer of a cruiser, be- 
 longing to any of the contracting States, has 
 reason to believe that an infringement of the 
 rules of the convention has been committed, he 
 can insist on the master of the infringing vessel 
 to lay before him the proofs required to ascertain 
 his nationality, and when, in cases of serious 
 irregularity of conduct, it becomes necessary to 
 act repressively, in order to avoid serious dis- 
 turbances, the commanding officer of the cruiser 
 is justified in taking the offending fishing boat 
 into custody and to conduct her to the nearest 
 port of the State to which the transgressor be- 
 longs (art. 29-30). 
 
 International Postal and Telegraphic 
 Communication. 
 
 vnion. vj 1 22. Postal Union. By a Convention, entered 
 into at Paris, in June, 1878, the terms of the 
 Postal Convention of Berne of 1874, were con- 
 siderably extended. The contracting parties 
 
 agreed that they, as well as those States which 
 
 ■
 
 run in] POSTAL UNION. [^jus.*™ 
 
 might join the Convention then .'after, should 
 form, under the name of the Universal Postal 
 Union, a single postal territory for the reciprocal 
 exchange of correspondence by post, while cer- 
 tain stipulations were concluded in that behalf 
 granting uniform postage from and towards the 
 respective postal establishments. 
 
 The countries now comprised within the 
 Universal Postal Union are : — The Argentine 
 Republic, Austria- Hungary, Belgium, Brazil, 
 Bulgaria, Chili, Columbia, Denmark and the 
 Danish Colonies, Egypt, Ecuador, France and 
 the French Colonies, Germany, Great Britain 
 and British Colonies, Greece, Guatemala, Hawaii, 
 Hayti, Honduras, Italy, Japan. Liberia, Luxem- 
 burg, Mexico, Montenegro, the Netherlands and 
 Dutch Colonies, Nicaragua, Norway, Paraguay, 
 Peru. Persia. Portugal and Portuguese Colonies, 
 Roumania. Russia. Salvador, San Domingo, Ser- 
 via, Spain and her Colonies, Sweden, Switzerland, 
 Turkey, the United States of America, Uraguay, 
 Venezuela. 
 
 Regarding mail boats (paquebots poste, Post- 
 dampfer) we have noted already in paragraph 109, 
 page 448, that certain privileges granted to them 
 result from the Postal Convention or from special 
 treaties. * 
 
 Submarine Telegraph Cables. 
 §123. The telegraphic union (Union Telegva-^a^£. 
 
 pldque) was established by an international con- cffSSSlt 
 ference at Paris, in the year 18G9. This union £S1'$. 
 was subsequently confirmed and developed by.JJJJJJSato. 
 
 * By a Postal Convention of 1843, between France and England. 
 it is agreed that, in ease of war. the mail packets between Dover and 
 Calais may continue their navigation until notification be made by 
 either Government, in which case they shall be permitted to return 
 freely to their respective ports. This agreement is extended to all 
 mail packets, of either Government, by Convention of September 24. 
 1856.
 
 482 i'*"' i".] MARITIME INTERNATIONAL LAW. [ ( 
 
 w I. 
 
 successive conferences held at Vienna in 1868, at 
 Rome in 1871, at St. Petersburg* in 1875, in 
 London in 1879. Thus during many years the 
 question regarding the international protection of 
 telegraphic communication has been occupying 
 the leading statesmen of all civilized Nations. * 
 There is, however, a vast difference between the 
 conditions affecting overland telegraphs and 
 oceanic cables. The first establishment of land 
 telegraphs is less expensive and the repairs of 
 damages also are more easily effected than in the 
 case of oceanic telegraphs. In time of peace the 
 land wire is sufficiently protected by municipal 
 legislation, while, in time of war, the destruction 
 is confined to the country in actual occupation 
 of the enemy and rapidly restored on the cessa- 
 tion of hostilities. The destruction of a sub- 
 marine cable, on the other hand, entails far more 
 serious consequences, while, even in time of 
 peace, the protection of the oceanic cable is 
 always very uncertain, owing to the very nature 
 of the neutral zone which it traverses ; for this 
 reason the position of a cable forms an object of 
 international protection in consequence of the 
 very nature of the thing. 
 
 Resolution of the The Iustitut dc Droit International having 
 
 Institut de Droit . . -i • i •,, r '1 
 
 international, appointed a special committee from among its 
 members f to report concerning the protection. 
 in time of peace and war. of those submarine 
 
 * See the essays of C. Assee, Dt Telegraphic en hare regts-gcvol- 
 gen, the Hague 1866; of Dr. P. J). Fishee, Geli. Ober-Postrath, 
 /Jir Telegraphic und das Veelkerrecht, Leipaig, 1876; and of Prof. 
 L. Renault, Eftudcs surlesrappoj'tsinternationanx,&ndi La paste et 
 in telegraphic, Paris 1877, in which works the Legal and international 
 telegraphic questions are elaborately treated. See also: Corres- 
 pondence between tlte Board of 'trade and the Telegraph- Cable Com- 
 panies on the subject of protecting from injuries Submarine Cables 
 and Vessels engaged in laying and repairing Submarine Cables, 
 published by the British Governmenl in July 1882. 
 
 f The members of this committee were: M. M. Renault ( rappor- 
 
 BLUN'Ii SjRAPO] " !. ILAKE.
 
 Paht in.] SUB-MARINE TELEGRAPH CABLES. p'Ti^'' l* : > 
 
 telegraph cables which have an international im- 
 portance, the able report, drawn up by Professor 
 Louis Renault, of Paris, was read during the ses- 
 sions of the fnstitut, held at Brussels in September 
 1879, and after due deliberation the following 
 resolutions were unanimously adopted by the 
 Institut, in the session of 5th September. 
 
 I. 77 serait tres utile que les divers Etats sen- 
 tendissent pour declarer que la destruction, ou la 
 deterioration des cdbles sous-marins en pleine mer est 
 an delit du droit des (/ens, et pour determiner oVune 
 maniere precise le caractere delictueux des faits et 
 les peines applicables; sur ce dernier point, on 
 aiteindrait le degre cVuniformite compatible avec la 
 dirersite des legislations criminelles. 
 
 Le droit de saisir les individus coupables, ou 
 presumes tels, pourrait etre donneaux navires oVEtat 
 de Unites les nations, dans les conditions reglees par 
 les traiies, mais le droit de les juger devrait etre re- 
 serve mix tribunaux nationaux du navire capture. 
 
 II. Le cable telegraphique sous-marin qui unit 
 deux territoires neutres est inviolable. 
 
 II est a de'sirer* quand les communications tele- 
 graphiques doivent cesser par suite de That de 
 guerre, que Ton se borne aux mesures strictement 
 necessaires pour empecher T usage du cdble, et qiHil 
 soil mis fin a ces mesures, ou que Von en repare les 
 consequences, aussitot que le permettra la cessation 
 des hostilites. * 
 
 <$ 124. After several international efforts the international 
 
 . n , . p ,i ... r Convention for 
 
 proiect ot a convention lor the protection of the protection of 
 submarine cables, in time of peace, was provision- graph caius. 
 ally agreed upon by the representatives of the 
 different Maritime Powers, assembled in confer- 
 ence at Paris, on the 2nd November, 1882. This 
 
 * Anmtaire de VInstitut de Droit International, 1S79-18SO, 
 Premiere Partie. i>. :'.!> I .
 
 484 Part HI. J MARITIME INTERNATIONAL LAW. ["'Yi;^' 
 
 project was finally discussed in a subsequent con- 
 ference, held at Paris in October, 1883, and on 
 the 18th of March, 1884, an international con- 
 vention for the protection of submarine cables, 
 in time of peace, was signed at the Department 
 of Foreign Affairs in Paris. The different con- 
 tracting Powers numbered twenty -eight, includ- 
 ing all the States of Europe and America and 
 the civilized Nations of the East. 
 
 The provisions of this convention are as follow. 
 
 Article 1 establishes the scope of the conven- 
 tion which is to embrace all sub-marine telegraph 
 cables, legally established with the sanction of 
 one or more of the high contracting parties, and 
 landing on the territories of one or more of the 
 Powers, including their colonies. The interna- 
 tional agreement is confined to the parts of a 
 cable outside the territorial waters of any State, 
 i. e. where no State has an exclusive jurisdiction. 
 
 Article II declares those who wilfully or 
 through culpable negligence remove, destroy, 
 disturb, obstruct, or injure any oceanic or sub- 
 marine cable not their own, or any part thereof, 
 guilty of a misdemeanor, punishable by criminal 
 law, and the perpetrators are declared liable to 
 damages when such actions have caused any 
 interruptions, partially or totally, in the tele- 
 graphic communication. This rule is not ap- 
 plicable to those cases of compelled rupture or 
 deterioration of a cable, as unavoidable action 
 for the preservation of life or ship, provided all 
 necessary precautions to avoid such extreme 
 alternative have been taken by those implicated 
 and they can prove to have acted through un- 
 avoidable necessity. 
 
 Article III engages, on the other hand, the 
 contracting Powers to impose such conditions, on 
 granting concessions for cables, as may tend to
 
 Pari in.] SUB-MARINE TELEGRAPH CABLES. [ C " A fi-'K '"' 48. 
 
 secure all reasonable precautions to be taken by 
 the respective telegraph cable contractors for the 
 safety of the shipping, as well with regard to the 
 locality where the cable is to be laid and landed, 
 as with regard to the strength and dimensions of 
 the cable. 
 
 Article IV provides for the case of a cable 
 contractor who, while laying his cable, causes the 
 rupture or deterioration of another cable previous- 
 ly laid, by making him liable for all damages aud 
 costs of the repairs and losses, apart from the 
 application against him of the penalty provided 
 for in Article II. 
 
 Article V contains rules with regard to signals 
 to be shown, by day and by night, from a vessel 
 when occupied or in the act of laying down a 
 cable, during the whole time the operation lasts. 
 All other vessels and fishing boats of any nationa- 
 lity are bound to take heed and to keep off, at least 
 at the distance of one mile from the cable vessel, 
 when she is at work, as soon as they observe the 
 signals. Fishing boats are allowed twenty-four 
 hours to remove their nets and fishing apparatus 
 from the neighbourhood of the cable vessel at 
 work. On the other hand, the cable vessel, thus 
 impeding the usual traffic, is obliged to complete 
 her operations in the shortest time practicable. 
 
 Article VI. When observing the buo}^s placed 
 over the cable, when this is being laid or re- 
 paired, all vessels, including fishing boats and 
 their nets, are bound to keep clear of such buoys 
 at a distance of not less than one quarter of a 
 mile. 
 
 Article VII. Owners of vessels or fishing boats 
 who can prove that, in order to avoid damaging 
 cables, they have sacrificed anchors or any fishing 
 apparatus, have a right to indemnification from 
 the respective telegraph -cable company, provider]
 
 :86 rvuTiii.] MARITIME INTERNATIONAL LAW. ['"T^ 1 - 
 
 they enter a written declaration to that effect, 
 accompanied by due evidence, within twenty- 
 four hours after their arrival in any port ; this 
 declaration to be filed at the office of the com- 
 petent local authority, who gives notice of the 
 case to the respective Cons alar officer or to whom 
 it may concern. 
 
 Article VIII. The competent tribunal for the 
 adjudication of telegraph delicts is that of the 
 State to which the person or the vessel or fishing 
 boat belongs, by whom or on board of which the 
 offence prohibited by the Convention has been 
 committed, and the penalty to be inflicted shall 
 be in conformity with existing treaties concluded 
 to that effect or with the laws of each State as 
 applicable to their subjects or citizens respec- 
 tively i.e. the lex fori. 
 
 To this article the International Conference of 
 1883 added the request (vceu) that the different 
 Governments may deem it proper to establish 
 rules by which the conditions are determined 
 under which extradition may be obtained in the 
 case of any person who, having committed acts 
 of destruction or deterioration affecting legally 
 established submarine cables, in contravention 
 of the provisions of the Convention, places him- 
 self, to avoid punishment, outside the j urisdiction 
 of the competent tribunal, by taking refuge in 
 another State. 
 
 Article IX stipulates that, in case of infringe- 
 ment of Articles II. V and VI of the Convention, 
 prosecution shall be instituted by or in the name 
 of the State to which the transgressors resort. 
 
 Article X contains the rules of evidence witli 
 regard to the cases above stated. These rules 
 arc to be in conformity with the modes of proce- 
 dure in criminal cases as laid down by the lex 
 fori. When the commanding officer of vessels
 
 paht ui.]_sub-marine telegraph cables. [ c "\s'i2^ NI ' 487 
 
 of war or of a public vessel of any of the con- 
 tracting Powers, specially commissioned as a 
 cruiser for this service, has reason to suspect 
 that an infringement of the Convention has been 
 committed by any private vessel or fishing boat, 
 he is entitled to require the master of such vessel 
 or boat to exhibit his ship's paper or other docu- 
 ments proving his nationality. Of this act and 
 exhibition of papers a note is made, on the docu- 
 ments produced, by the commanding officer of 
 the cruiser. Besides the verification of the ship's 
 nationality the commanding officer may draw 
 up a written report of the case, mentioning the 
 particulars and circumstances (proces-verbal) and 
 he may do so in the case of any vessel inculpated 
 to whatever nationality she may belong. This 
 report of the commanding officer, signed by 
 himself, may serve as proof or evidence in the 
 case before the competent tribunal, in conformity 
 with the ley fori. The accused and the witnesses, 
 mentioned in the report, are entitled to add on the 
 documents, each in his own national language, 
 all explanations which they might think useful, 
 but such declarations must be signed by them. 
 If the accused cannot write, he may ask any 
 person present to add a declaration on his be- 
 half, and after this has been read and explained 
 to him, he shall put a token or cross to it as 
 customary under his national laws. 
 
 Article XI stipulates that the procedure of 
 adjudication, with regard to infringements of 
 the Convention shall be as simple and summary 
 as the respective legislature may permit. 
 
 Article XII. The high contracting parties en- 
 gage themselves to bring before their respective 
 legislatures, the measures to be adopted for the 
 proper execution of the Convention in general, 
 and especially with regard to the penalties to be
 
 L88 PahtIU.] maritime international LAW. [ Cu \m* Vl 
 
 inflicted in the case of offences committed in 
 contravention of Articles II, V and VI. The 
 penalty to be proposed may be imprisonment and 
 tine, to be applied either separately or jointly. 
 in conformity with the merits of each case. 
 
 Article XIII contains the promise to bring, 
 reciprocally, to each other's notice the law,-, 
 already existing or hereafter to be enacted with 
 regard to anything affecting the objects contem- 
 plated by the Convention. 
 
 Articles XIV, XV and XVI contain the usual 
 treaty clauses with regard to the admission of 
 new parties to the Convention ; the date at which 
 the Convention is to come into effect ; and the 
 period of time during which it is binding on all 
 parties. This time is fixed at five years, after 
 which the Convention continues in force from 
 year to year, but liberty is then given to renounce 
 the pactum, at twelve months' notice, after the 
 expiration of which term any party to the Con- 
 vention may withdraw from it. In this case 
 the renunciation of the Convention shall have 
 effect solely with regard to the individual State 
 concerned. Finally it is stipulated that the rati- 
 fications shall be exchanged at the earliest date 
 practicable. 
 
 Besides the wish or request (voeu), expressed 
 by the Conference of 1883, with regard to extra- 
 dition, as mentioned above under Art. VIII. 
 this Conference has recommended two other 
 measures as expedient for the proper execution 
 of the Convention, viz., the adoption, with 
 reference to Art. V, of uniform signals, to be 
 shown from a vessel while in the act of laying 
 or repairing cables in order that no doubt might 
 be entertained as to her actual occupation, and 
 with reference to Art. VI, of uniform style and 
 shape of buoys (bouees) to indicate the cable
 
 run m.] SUB-MARINE TELEGRAPH CABLES. [^"jiiJ* 1, WWB 
 
 when in process of repair, as well as ' to show 
 the spot where the cable is laid when running 
 it up the shore. This latter spot is to be indi- 
 cated also by the adoption of a uniform sort of 
 beacons (ballses) to be erected on the shore at 
 the place where the cable is landed. 
 
 No provision whatever is made by this Con- 
 vention with regard to the rights and obligations 
 of the contracting parties when in a state of war, 
 and this modern pactum between civilized Na- 
 tions has therefore no other legal element than 
 the normal state of peace. As such, it may be 
 hailed as the emblem of peace and 0/ the vast 
 results of civilization, for, while shutting out the 
 idea of war, it constitutes the most significant 
 object of maritime international protection all 
 over the globe.
 
 4H0 P*m '". | MARITIME INTERNATIONAL LAW. [ ClU {i2* m 
 
 CHAPTEK XVII. 
 
 Historical Sketch oe Maritime and 
 Commercial International Law. 
 
 Sources of Maritime International Late. 
 
 § 125. The term Maritime Law includes the 
 rules and usages evolved in course of time by 
 international maritime intercourse. These rules 
 belong partly to the domain of Private Law. 
 partly to the domain of Public Law. and partly 
 to the domain of International Law. In the 
 latter case those rules constitute what is more 
 pertinently called Maritime International Law. 
 
 With regard to maritime laws and regulations, 
 Sir Robert Phillimore makes the following ob- 
 servations. 
 
 "The marine ordinances or regulations of a 
 State afford valuable testimony, first, as to the 
 practice of the State itself in this branch of Inter- 
 national Law; and also, in some degree, as to the 
 usage of Nations, as generally recognized at the 
 time by the jurists and statesmen and legislative 
 assemblies of the country which issued them.'' * 
 
 " When the institutes of great maritime coun- 
 tries agree upon a question of International 
 Maritime Law, they constitute a tribunal from 
 which there can rarely, if ever, be any appeal. 1 ' 
 
 " Certain of these institutes, independently of 
 their agreement or disagreement with other 
 maritime codes, have always been held in the 
 
 * Wheaton states the same proposition in a less limited shape, 
 |£1< men! - oi Intern, Law. p, 10]
 
 pabthi.] historical sketch. [ CuA K m 49J 
 
 highest respect; and certainly no English writer 
 or j udge can be accused of national partiality for 
 relying upon them." 
 
 " These are the celebrated Consolato del Mare, 
 with the commentary of Casaregis, and the French 
 Ordonnance sur la Marine of 1681, with the com- 
 mentary of Valin; and, due regard being had to 
 the modern practice, the Collection des Lois Mart- 
 times anterieures au XVIII Steele, by Pardessus." 
 
 "The consent of Nations is also evidenced by 
 the decisions of Prize Courts, and of the tribunals 
 of International Law sitting in each country." * 
 
 Under the term Maritime Law are comprehend- 
 ed the legal principles (Reehtsregeln) which have 
 been gradually established through maritime in- 
 tercourse since the earliest time of the development 
 of an international commerce. These principles 
 formed the germ of the Law of Nations, the 
 nucleus around which our present lex mercatoria 
 grew up, and like this latter it is necessarily 
 perceivable in the different branches of legislation 
 described in paragraph 38. 
 
 Historical Sketch of Maritime and 
 Co mmercial La i vs . 
 
 § 126. We have remarked above (<§ 38) on the 
 preponderant influence which the legislation of 
 a State exercises on its international intercourse 
 in general, but this is more particularly the case 
 with its commercial and maritime legislation. 
 
 The commercial and navigation laws, which 
 cover the principal, ground occupied by inter- 
 national intercourse, comprehend, as noted above, 
 all laws made with reference to loan and interest, 
 bills of exchange and negotiable papers, banker's 
 
 * Phillimoke. Vol. I, Edit. 1879, p. 54,
 
 I!*:? PAin in] MARITIME 1XTEUN AT* >NAL LAW. [ ( '" A1 'i^ V " 
 
 notes and papers paj 7 able at sight to bearer, re- 
 claiming or revendication in matters of commerce, 
 bankruptcy and surcease of payment, sea and 
 river fishing, hiring contracts between masters, 
 shipowners, freighters, and mariners connected 
 with trading, sailing, steam- ship and mail com- 
 panies and joint property in ships; also insurance, 
 bottomry and average. 
 
 The aspect under which these laws present 
 themselves to international jurisprudence is that 
 of conflict of laws, and from this point of view 
 they have been treated above in Chapter X, when 
 we considered the rules of Private International 
 Law witli regard to mercantile and maritime laws. 
 
 There is such a variety of circumstances modi- 
 fying the manner in wdiich traffic and navigation 
 is carried on, on the internal water ways of a State 
 or within the maritime jurisdiction along its 
 coasts, by national and foreign vessels of all des- 
 criptions, that special regulations had to be enacted 
 by the legislature of each State to meet these 
 peculiar features of its jurisdiction. Such special 
 enactments belong to the different branches of 
 the Public Law of the State and are collectively 
 called Navigation Laws. This term includes all 
 legislation made with regard to the safety of 
 navigation (rules of the road at sea), pilotage, sani- 
 tary regulations (quarantine), sea-fishery, postal 
 and telegraphic communication (Chapt. XVI). 
 and those municipal revenue laws which are 
 collectively called customs regulations. 
 
 The general principles which regulate all in- 
 ternational commerce by land or sea and all navi- 
 gation of the sea or inland waters for the purposes 
 of international business transactions, collectively 
 constitute, in the case of each Nation making- 
 regulations based on those principles, its Com- 
 mercial Law (lex mercatoria, Handelsrecht), but
 
 PabtHI.] HISTOEICAL SKETCH. [^m™ 493 
 
 that particular portion of those regulations which 
 has regard to navigation in general, and all regu- 
 lations concerning shipping etc., constitute the 
 Maritime Law (Seerecht) of the Nation concerned. 
 
 Early Maritime and Commercial Laws. 
 
 §127. Maritime and commercial laws were 
 made at an early period of the world's history as 
 the result of increasing intercourse between the 
 peoples inhabiting different cities and countries. 
 During the Middle Ages the maritime and com- 
 mercial rules, usages and customs of commercial 
 towns and sea ports were, for the first time, 
 treated as legitimate branches of International 
 Law. 
 
 I. The Rhodzdn Laws or the Maritime Law of 
 the Island of Rhodes, formed one of the most an- 
 cient guide books as regards the legal aspects of 
 commerce and navigation, not merely for the 
 commerce of the Rhodians and the navigation of 
 the Aegean sea, but those laws were in later times 
 generally adopted by the Western Nations of 
 Europe, while those maritime laws which were 
 enacted in the countries afterwards conquered 
 by the crusaders, were observed on the Eastern 
 shores of the Mediterranean. * 
 
 The origin of the Rhodian laws has not been 
 definitely ascertained. They were known to the 
 Romans before the establishment of the Empire. 
 Cicero makes mention of these laws and the Em- 
 peror Augustus incorporated them in the laws 
 of the Empire. 
 
 II. The Rooles or Jugemens d'Oleron, also called 
 Roles des Jugements, are collections of the mari- 
 time laws and usages of Venice and other Medi- 
 
 * Pardessus. Collection of Maritime Laws .interior to the 
 Eighteenth Century.
 
 HAIL \\ II. 
 
 494 i-akt in.] MARITIME INTERNATIONAL LAW. [ Ch *|m! 
 
 terranean States. It is supposed that those laws 
 were drawn up by order of Queen Eleanor, Du- 
 chess of Guienne. Being promulgated for use in 
 the Western seas, by her son Richard L, Duke 
 of Guienne and King of England, those laws 
 received the name of Queen Eleanor's residence, 
 the island of Oleron (situated on the West coast 
 of France, opposite the mouth of the river Cha- 
 rente). 
 
 The Code of maritime laws celebrated under 
 this name is however ascribed by others to the 
 reign of St. Louis of France. Copies of the 
 Jugements d 'Oleron are appended to some ancient 
 editions of the Coutumier de Normandie. * 
 
 III. The laws more particularly in vogue 
 throughout the Northern countries of Europe, 
 during the period which elapsed from the twelfth 
 to the sixteenth centuries, are the Jugemens de 
 Damme, so named after a sea port of Flanders. 
 forming the port of Brugge. These laws were 
 also called Lois de West-Capelle. 
 
 IV. The so-called Continues d 1 Amsterdam also 
 constituted a code of maritime laws. 
 
 V. The Laws of Antwerp form another well 
 known code. 
 
 VI. The famous maritime laws of Wisby, so 
 named after an island of Gothland in Sweden 
 (Wisbische Seerechten) were for some time a 
 celebrated code in that part of Europe, and all 
 along the shores of the North Sea, in the Nether- 
 lands, the Baltic and the towns of Wisby, Liibeck, 
 Dantzig. Thorn, Riga, Reval Und Narva, and all 
 over Sweden and Norway. 
 
 VII. In the ConsoJato del Mare, also called 
 Bonnes Coutumes de la Mer (so-called from the 
 opening words of this compilation, id commen- 
 
 * Chambeks's Encyclopedia. Article Oleron. American Edition 
 of 1881.
 
 Part ill.] HISTORICAL SKETCH. [ CHA §U7. VU ' t95 
 
 cent les bonnes coutumes de la uta-). we have the 
 first and practically successful attempt at a codi- 
 fication of International Law and the first code 
 of maritime laws that treats of the rights of 
 neutrals in war. 
 
 This able compilation first appeared at Barce- 
 lona, about the middle of the fourteenth century * 
 and contained a resume of the maritime laws in 
 vogue at the time, especially in the towns of the 
 Lancme d'Oc, as Barcelona, Marseilles and Va- 
 lencia, with reference to commerce, navigation 
 and peaceable intercourse, including also rules 
 concerning maritime warfare, the mutual rights 
 of belligerents and neutral vessels, the jurisdic- 
 tion of prize-courts, etc. 
 
 Written by able jurisconsults, who were versed 
 in the Roman Law and acquainted with the legis- 
 lation of the different maritime towns of France, 
 Spain and the Levant, and who used the Spanish 
 dialect, which was practically the commercial 
 language of that time (the Lingua Romana, the 
 present Catalonia dialect), the Comolato del Mare 
 rapidly gained in popularity. Amid the ever shift- 
 ing principles, continually undergoing changes 
 through treaties of commerce concluded between 
 the maritime Powers of Europe, the Comolato 
 del Mare came to be regarded, especially since the 
 last and the beginning of the present century, 
 as the only standard system of Maritime Inter- 
 national Law, and it maintained this position 
 until the Declaration of Paris, of 1856. reo-ardinu' 
 privateers, blockades and neutral commerce. 
 
 With regard to neutral navigation in time of 
 war the Consolato maintained the following prin- 
 ciples to be followed in the treatment of ships 
 and goods. 
 
 * Parbessus. Collection des Lois Maritimes anterieures sw 
 XVIII ciecle. Vol. II. Chapt. XII,
 
 JW(> 'via 111. J MARITIME INTERNATIONAL LAW. [' 
 
 UAH. XVII. 
 
 §127. 
 
 1 °. When both the vessel and her goods belong 
 to the enemy, the whole is good prize, as a mat- 
 ter of course. 
 
 2°. When the vessel belongs to a neutral and 
 the cargo to the enemy, the neutral captain can 
 be enjoined to conduct ship and cargo to a port 
 belonging to the belligerent captor, where he 
 will receive due and full freight for the cargo as 
 originally agreed upon, the cargo alone being 
 subject to confiscation and the vessel set free. 
 
 3°. In case the vessel belongs to the enemy 
 and the cargo to neutrals, a transaction is allowed 
 with the captor to buy the cargo, or, if no agree- 
 ment can be arrived at, the cargo is taken by the 
 captor, in the confiscated vessel, to one of his 
 ports and landed there after payment to the 
 captor of the original amount of freight which 
 would have been payable if the cargo had arrived 
 at its original destination. * 
 
 VIII. The Guidon de la Mer. a French com- 
 pilation, appeared about two centuries after the 
 Consolato del Mare, during the latter half of the 
 sixteenth century. It was the work of a private 
 jurisconsult, whose name has not come down to 
 posterity. Though devoid of any official sanc- 
 tion Avhatever, this compilation enjoyed great re- 
 spect as an authority on jurisprudence in matters 
 of Private Maritime Law. the principles of which 
 were better understood since the publication of 
 the Consolato del Marc, especially with reference 
 to marine insurance and other maritime con- 
 tracts, f 
 
 The decision contained in the Guidon dela Mer 
 with reference to letters de morgue, maritime 
 prizes and represaffles (chapt. vi, x. & xi). us 
 
 * Whkaton. Histories. Vol. I. p. 72. 
 
 f IWitnr.ssrs, Vol, II. |'[i, '■''''! 374,
 
 Pari in.] HISTORICAL SKETCH. [^"{u?™ 49! 
 
 also its formulation of the law of maritime con- 
 tracts, Lave been borrowed almost literally and 
 passed into law by the Ordonnance de la Marine 
 of 1681. The principles of maritime contracts 
 as laid down in the Guidon form the bases of the 
 present commercial code of France. * 
 
 IX. The Ordonnance de la Marine of 1(>8J, is 
 the French Code of Maritime Law, promulgated 
 by order of Louis XIY. This code embodies 
 not only all the maritime laws and regulations 
 of France, enacted since the reign of Charles VI. 
 in 1400, but also the maritime customs contained 
 in the Consolato del Mare and Guidon de la Mer, 
 forming thus a systematic compilation of princi- 
 ples and rules relative to maritime prizes and other 
 matters regarding the right of neutrals at sea. 
 
 With regard to neutral navigation, however, 
 the Ordonnance did not follow the liberal princi- 
 ples of the Consolato del Mare. On this head the 
 Ordonnance enacted the following rule, in Art. 7. 
 
 " Tons navires qui se trouveront charges oVeffets 
 appartenpnt a nos ennemis, et les merchandises de 
 nos sujets on allies qui se trouveront dans un navire 
 ennemi, seront pareHlement de bonne prise." 
 
 This rule revived the ancient principle of the 
 Ordinances of Francois I. of the year 1533 and 
 1543 and of Henry III. of 1584, contained in the 
 formula ' ; enemy's ship, enemy's goods" and in 
 the rule of Roman Law, " la robe d ennemi con- 
 Jisgue celle <Fami" By this rule, which makes not 
 only neutral goods carried in enemy's ship liable 
 to confiscation, but also neutral vessels when 
 laden with enemy's goods, the commerce of neu- 
 trals is limited to the carrying of their own goods 
 by their own vessels. 
 
 * Wheatox. Histoire du Droit des Gens etc. Edit, 1853. Vol, I 
 page 83.
 
 4!>N Part III.] MARITIME INTERNATIONAL LAW. [ CB ^f Vn ' 
 
 This rule was, however, uot applied to the ves- 
 sels or goods of any Nation excepting those with 
 which France had no treaty on this subject. The 
 treaties concluded between France and other 
 Nations generally adopted the two rules " free 
 ship, free goods " and " enemy's ship confiscable 
 goods" which rules were, after the peace of Utrecht 
 (1713), generally accepted by nearly all of the 
 Maritime Powers. This Code, which was after- 
 wards supplemented by the Ordinance of 21st 
 of October 1744, with regard to a distinction to 
 be made, in neutral trade, between trade carried 
 on with an enemy's port and the trade between 
 neutral ports, obtained great respect as an author- 
 ity for prize-courts and it was generally viewed 
 as authoritative in the tribunals of most maritime 
 States of Europe and especially in England. * 
 
 The foregoing codes, compilations and ordi- 
 nances on matters of Maritime Law form the 
 basis of most of the commercial codes and navi- 
 gation acts of the present century in Europe and 
 America, f 
 
 * Wheaton. Histoire du Droit des Gens etc. Edit. 1853. Vol. I. 
 pp. 149-153. Calvo. Le Droit International. Edit 1870. Vol. I. p. 32. 
 j A complete treatise of the old Maritime Laws is to be found in 
 the work of J. A. Engelbrecht. under the title, Corpus Jmis Xautici. 
 mlcr Sammltmg aller Seerechteder behanntesten handeJnden Nationen 
 alter and ncuer Zeiten, nebst den Assecuranz, Havarcy, und anderen 
 zii, den SeerecMen gehorenden Ordnunyen. Zummmenyctragcv und 
 zwm Theil ins Deutsche ilbcrsetzt. Liibeek. 1790. 
 The table of contents is as follows : — 
 I. Rhodian Maritime Law. 
 
 II. Collection of Maritime Rules of the Roman Law. 
 III. Maritime Law of Oleron. 
 VI. Maritime Law of Wisby. 
 V. Maritime Law of the German Free Towns (Deutsche Freie 
 Reichstjidtc). 
 VI. The Hanseatic Maritime Law. 
 
 VII. The Navigation Laws of King Peter of Arragon. Regulations 
 
 of Barcelona and Florence. 
 
 VIII. The old Maritime Law of Riga. 
 IX. The Danish Maritime Law. 
 
 X. The Consolato del Man . 
 XI. Rules for armed cruisers,
 
 TABLE OF CONTENTS.
 
 \ r OL. I. 
 
 Prefatory Note. 
 Part I. 
 GENERAL PRINCIPLES. 
 
 CHAPTER 1. 
 
 Origin of Law. Pages. 
 
 §1. The Universal Law of Nature. The Spirit of Crea- 
 tion or Universal Cause. Hypotheses in general. The forces 
 of Nature. Hypothetical Demonstration of the Universal 
 Law of Nature in its course of Evolution. Stages of Crea- 
 tion. The Physico-mental Organism and the Moral-mental 
 Organism of Man. Matter. Struggle between the Moral 
 and the Material Elements. Martyrdom. Materialism. Origin 
 of Species. The Links of Evolution. Impossibility of De- 
 monstrating the Primary Motor of Evolution. Intellect. 
 Hypothesis regarding Intuition. Feeling. Feeling versus 
 Imagination. The Soul. The Moral Law of Nature is the 
 Origin of Law (Jus. Droit, Recht) 3-18 
 
 CHAPTER II. 
 Development ok the Moral Law and Civilization. 
 § 2. Primary Truths. The Good. The Moral Sense-. 
 viz.: Conscience and Sympathy. Righteousness. The Stand- 
 ard of the Good. §3. Origin of Evil and its control. Reli- 
 gion. Moral Doubt. Manifestation of the Soul. Christianity. 
 The Creator. The " Occasions of Stumbling." § 4. Influence, 
 of the Moral Law of Nature on the general welfare and the 
 material development of Society. § 5. Moral and Physical 
 Truths. The " Law of the Conditioned." §6. Conscience. 
 § 7. The Law of Conscience. § 8. Craving after Rules for 
 International Conduct. §9. Cause of that Craving. Grotius. 
 §10. The Popular Conscience. §11. The National Spirit of 
 Law. § 12. Common Sense. § 13. The Empirical School. 
 §14. The International Spirit of Law. § lo. The Philosophy 
 of Law and the Historical School. 19-53
 
 CHAPTER HI 
 
 International Law and its Jurisprudence. Page*. 
 
 §1(3. Origin of States. Natural and Political Nationality. 
 Conditions for the Political Individuality of States as Persons 
 of International Law. § 17. Rights and Obligations of States. 
 International Morality. § 18. The dealings of State towards 
 State tested by the Moral Law of Nature. § 19. International 
 Law. International Jurisprudence. Diplomacy. § 20. In- 
 ternational Legislation supplied by International Jurisprudence. 
 §21. Present Condition and Definition of International Law. 
 State Policy. Justice versus Power. § 22. The Ethico- 
 Historical system of International Jurisprudence. The Phi- 
 losophical or Idealistic School and the Historico-Pratical 
 School combined in the Ethico-Historical Theory 54-76 
 
 CHAPTER IV. 
 History of International Law. 
 • § 23. Historical Sketch of the development of Interna- 
 tional Law 77-78 
 
 Part II. 
 
 THE INDIVIDUAL RIGHTS OF STATES 
 
 AND THE MODIFICATIONS 
 
 OF THESE RIGHTS. 
 
 CHAPTER V. 
 
 The Sovereignty Rights of States. 
 
 §24. Sovereignty and Autonomy. Government, Sover- 
 eign States. Right to Recognition. Union of Crowns (LTnio 
 Personalis). Neutral States. Protected Sovereignty. Colonial 
 Protectorates. Tributary Stales. Difference between Pro- 
 tectorate and Tributary Obligations. § 2.5. Union of Sovereign 
 States. Perfect and Imperfect Union, Federal and Confede- 
 rate Unions. Distinction between a Confederacy (Staaten- 
 bund) and a Federal Union (Bundesstaat). § 2b\ The differ- 
 ent Rights of Soverign States, and their Classification as 
 Fundamental or Absolute and Conditional or Occasional Rights. 
 These Rights enumerated. §27. Rights of Existence, from
 
 which devolve those of Self-preservation and Self-defence. Pages. 
 § 28. Right of Independence. § 29. Right of Equality. 
 Right of Respect and Reputation. Mutual understanding 
 with regard to the Right of Respect. Comity between indivi- 
 dual States. International Comity 81-95 
 
 CHAPTER VI. 
 
 Right of Property and Territorial Rights. 
 § 30. Private and Public State Property. Eminent Do- 
 main. Territorial Rights. Alienation of Territorial Rights. 
 § 31. Legal Modes of Acquisition of Territorial Rights by a 
 State. § 32. Right of Occupation. Usucapion and Pre- 
 scription ; Acquisition by Prescription. § 33. The Fait- 
 accompli 96-102 
 
 CHAPTER VII. 
 
 Colonial Possessions. 
 § 34. Origin of Colonization. § 35. Principles of Modern 
 Colonial Policy. Acquisition of Trans-Oceanic Possessions. 
 War with Savages. Punishment of same. § 36. Responsi- 
 bilities and Rights of Colonial Powers, 103-109 
 
 CHAPTER VIII. 
 
 Right of Legislation and Jurisdiction. 
 
 § 37. General Principles of the Legislation and Jurisdic- 
 tion of a state. Public Law. Law of Persons. Private Law. 
 Civil Law. Political Law ( Staatsrecht). Public Law in- 
 cludes Public International Law. Civil Law includes Private 
 International Law. § 38. Legislation and Jurisdiction of a 
 State with regard to its external relations. External relations 
 of the Public Law of a State. International conflict of Laws.... 1 10-1 16 
 
 CHAPTER IX. 
 
 .Jurisdiction of Persons. Determination 
 of Nationality. 
 
 § 39. Determination of Nationality. Natural or Tribal 
 Nationality and Political Nationality. § 40. Nationality of 
 Domicile. Domiciliation and its effects. § 41. Obligations of 
 a State with regard to Foreigners temporarily domiciled in it, or 
 passing through its territories. The Foreigners' Right. § 42. 
 Naturalization and Expatriation. § 43. Emigration. § 44. 
 Droit d'Asile and Extradition. Military and Naval Deserters. 
 Simple and Qualified Desertion. Rules regarding the Re-inte- 
 gration of Seamen, deserting their vessels in the territorial 
 waters of a Foreign State. § 45. Modifications of the Sever-
 
 eignty Righf of Jurisdiction. § 46. Exterritoriality. § 17. Pout*. 
 Self-jurisdiction. §-18. Abandoned Jurisdiction. §49. Con- 
 current Jurisdiction 1 17-1 41 
 
 CHAPTER X. 
 
 Pbivate International Law. 
 I. — General Observations. 
 § 50. International Usages with regard to conflict of Laws. 
 Definition of Private International Law. Difference between 
 Private International Law and Comity. Locus regit actum. 
 Sources of Private Internal ional Law. Subject-matter of 
 Private International Law treated in this Chapter. Works on 
 Private International Law 142-150 
 
 II. — Personal Status. 
 
 §51. Personal Status (Statuta Personalia). Personal 
 Slums of Corporations. Personal Status of the Alien. Per- 
 sonal Status of the Foreigner in the time of Grotius. Personal 
 Status of Domiciled Foreigners under the present state of In- 
 ternational Law. Litigation between temporary residents. 
 Suits with regard to properties outside the State. Personal 
 Status of domiciled Foreigners in the United States of 
 America 150-158 
 
 III.— The Lex Fori. 
 
 § 52. Competency of Foreign Law Courts (the lex fori). 
 Ordinatoria and Decisoria Forms. International Treaties 
 belonging to the lev fori 158-160 
 
 IV. — Marriage and Divorce. 
 
 § 53. Marriages and Divorces follow the rule lex loci 
 regit actum. Nuptial Contracts. Foreign Divorces. Hus- 
 band and Wife. Parent and Child. Guardian and Ward. ...160-169 
 
 V. — Ileal and Movable Property. 
 
 § 54. Peal Property. Personal Property. Lex loci ret 
 sitce. Lex Domicilii. Instruments relating to personal pro- 
 perty are governed by the lex domicilii. Litigation with regard 
 to properties deal or personal) situated in foreign countries.... 170-1 71 
 
 VI. — Legal Obligations and Contracts. 
 
 ^.~)~>. Legal Obligations. The Law of Contracts. Ex- 
 ceptions on the rule lex loci contractus 172-17* 
 
 V 1 1. — Limitation and Prescription. Legal Remedies. 
 §56. Limitation and Prescription, Legal Remedies 177-180
 
 V1JI. — Wills and Succession. 
 
 § 57. Wills. Intestacy. Succession, testamentary and Pages. 
 ab-intestato. American Laws 180-185 
 
 IX. — The Lex Mercatoria. 
 
 § 58. Commercial Laws. Lex Mercatoria ((he law 
 merchant). Traders and acts of Commerce. Objects of the 
 lex mercatoria. Partnership and Corporations. American 
 Laws on Public Companies. Professor von Bar's opinion on 
 the status of foreign Corporations. Mr. Gillespie's note on 
 Corporations. Justice Lindley's opinion. Principles of the 
 German Conns. Convention between the Netherlands and 
 Italy with regard to mutual recognition of Societes Anonymes. 
 Merchant's Books. Merchant's Books, as evidence in Law 
 Courts. Laws governing the status and legal capacity and 
 competency of Traders. Legal interest 185-202 
 
 X. — Bills of Exchange. 
 
 § 59. Nature of the Contract of Exchange. Legal aspects 
 of the Bill of Exchange. Re-exchange. Conflict of Laws 
 with regard to the contract of Exchange. The German and 
 the French systems. Laws of Great Britain and of the United 
 •States of America. The lex loci contractus and the lex loci 
 solutionis with regard to Bills of Exchange. Protest of Bills. 
 Moratorium with regard to Bills of Exchange. Rules with 
 regard to Protest and Re-exchange. Opinion of Professor von 
 Bar. : .....202-217 
 
 XL — Stoppage in Transitu. 
 
 § GO, Revendication in matter of Commerce. Sir Robert 
 Phillimore's statements on Stoppage in transitu, English 
 decision,-. What law governs the right of stoppage in transitu. 
 German decision. Stoppage in transitu by the buyer 217-224 
 
 XII. — Insurance. 
 
 §61. General Principles. Subjects of Insurance. Ge- 
 neral Rules. Contract of Insurance. The Policy. Beginning, 
 duration and end of the risk... .221-231 
 
 § 62. Marine Insurance, the Policy. Insurance ou the 
 Ship. On Goods. On Ship and Goods. Insurance of Bot- 
 tomry and Respondentia. Valuation of Goods including the 
 Insurance premium, Freight and Customs Duties. Insurance 
 of expected profits and commissions. Valuation of expected 
 profits. Insurance of Freight , 231--MJI
 
 XIII. -Average. 
 
 §63. General Principles. General Average. Voluntary Pages. 
 Stranding. Particular Average Loss. Average with regard 
 to Goods in lighters. Average for which the Masteris liable. 
 Average Accustomed. (Petty Averages). Arnould's prin- 
 ciple of Average. Total loss on goods. Goods warranted 
 free of Average. Adjustment of Damages, Rules for deduct- 
 ing one third new for old, except in the ease of iron ships. 
 Cases where repairs exceed three-fourths of the value, or other 
 portion as stated by the lex loci contractus. Aggregation of 
 losses 249-263 
 
 § 61. Assessment and Apportionment of Gross or General 
 Average. Place of adjustment of General Average! Jettison. 
 Valuation of Jettison. Duck Cargo. Ship after Jettison. 
 Assessment on Goods lost by the fault of the Shipper. Goods 
 rescued after Jettison. General Average according to English 
 Law. The place of destination is the place at which the 
 Average is to be adjusted and conformable to the laws of that 
 place. Sir Robert Phillimore's statements 264-272 
 
 XIV. — Abandonment. 
 
 § 65. Reasons of Abandonment. Abandonment of ship. 
 Of Goods. Total loss ; constructive total loss. Opinion of 
 Arnould with regard to constructive total loss 272-277 
 
 XV. — Shipping Laics. 
 
 §66. Sea-going vessels. Registration and transfer of 
 sea-going Vessels. Privileged debts 278-282 
 
 § 67. Owners, Managers and Joint-owners. The mana- 
 ger or Ship's Husband. Claims of a discharged Master on 
 the Ship's Husband 282-286 
 
 XVI. — Shipmasters, Officers and Crete. 
 
 §68. The Masters. • Provisional receipt for shipped 
 goods. Ship's papers. Report to Manager. Responsibility 
 of the Pilot. Unsafe Ports. Master's duty in case the flag 
 be unfree. Master's duty in eases of Seizure of the vessel, 
 [n case of Average; Jettison. In case of Blockaded Ports. 
 In case of want of provisions al sea. Liability of the Master 
 when acting without instructions from owners. Report from 
 Poit of shelter. Reporl of Voyage before the Consul or other 
 competent authority. Sea-protest. Master's Account. Set- 
 
 tlemenl of Masters claims 286-296 
 
 , §69. Extra Repairs and accessaries during the voyage, 
 nippliecl on fhe authority nf the master ■ 296- '. M, T
 
 §70. Ship's officers and Seamen ; their rights and duties, 'Pages. 
 The Ship's articles. Ship's discipline. Liability to damages. 
 Liabilities of the Chief -Officer. Rules concerning wages. 
 Profits and indemnities. Freight earned is accountable for 
 wages, when proceeds of wreck are insufficient. Extra services 
 to be rewarded. Sick and wounded in ship's service to be 
 properly cared for. The effects of deceased seamen to be taken 
 care of. Discharge of seamen. Lawful reasons for discharge. 
 Lawful reasons for declining service. Lawful reasons for 
 complaints. Paying off at the end of the voyage. Obligation 
 of the ship's officers and crew after the completion of the 
 voyage, or when ship is lost or captured. Barratry 297-310 
 
 XVII. — Freighting and Charter-party . 
 
 §71. Freighting and Charter-party. Lay-days and de- 
 murrage. Capacity of the ship. Time and mode of charter- 
 ing and payment 310-313 
 
 § 72. Rights and obligations of parties to the Contract of 
 affreightment. Laws which govern the Contract of affreight- 
 ment. Dissolution of contracts of affreightment 313-321 
 
 § 73. Nature and legal aspects of the bill of Lading. 
 Rules with regard to the bill of lading 324-330 
 
 XVIII. — Passengers. 
 § 71. Rules regarding Passengers and Passage-money.... 330-332 
 
 X IX. — Bottomry. 
 
 § 75. Bottomry and Respondentia. Nature and legal 
 aspects of the Bottomry Contract. Rules with regard to 
 Bottomry and Respondentia. Bottomry Contracts are governed 
 by the lex loci contractus and by the laic of the fiag. Liabil- 
 ity of owners. Order of Preference 332-338 
 
 XX. — Prescription of Maritime Contracts. 
 
 § 76. General principles with regard to the Prescription 
 of Maritime Contracts .'. , 338-340 
 
 X XI . — Collision. 
 
 § 77. Collision. Rules with regard to the adjudication 
 of collision. Rules for the adjustment of damages. Liability 
 of Owners. Sir Robert Phillimore's opinion. English Law. ...340-344 
 
 XXII.— Salvage. 
 
 § 78. Salvage. Wrecks and Casualties. Salvage in 
 cases of shipwreck and Flotson at Sea. Salvage in cases of 
 Stranding and goods washed on shore. Receiver of Wreck.
 
 Duties of the respective Consuls. Distinction between Re- Page*. 
 numeration for Help and Salvage-money. Adjudication of 
 remuneration for help and salvage-money 344-351 
 
 XXIII. — Insolvency and Bankruptcy. 
 
 §79. Objects of Bankruptcy laws. Comparative legisla- 
 tion^ Bankruptcy. Insolvency. Bankruptcy. simple Bank- 
 ruptcy. Fraudulent Bankruptcy. G-enoral Rules with regard 
 to Insolvent or Bankrupt Estates. Filing Declaration of In- 
 solvency. Petition of Creditors for adjudication of Insolvency. 
 Insolvent estate of a deceased ! ;al effects of I 
 adjudication of insolvency ; Effecl upon execution by seizure 
 of goods ; Effecl upon suits; upon sales begun with; upon 
 transactions commenced shortly before the declaration of in- 
 solvency; upon monies, >■ - or pledges. Donatio] 
 Deeds. Debts exigible after time; Conditional properties of 
 estate. Conditional del red by pledge. Debts secured 
 by mortgage. Annuities and Life 351-362 
 
 §80. Curators or Assignees in the insolvent estate. 
 Arrest of the bankrupt and his release on bail. Right of 
 appeal of the debtor and of his creditors. Duties of Curat* 
 or Assignees. Places and modes of publication with regard 
 to the insolvent estate. The seals. Carrying on of the trade. 
 Inventory of the estate. The Balance-sheet. Witnesses to 
 be heard. Household support during liquidation. Verifica- 
 tion of claims'. List of acknowledged creditors, 362-369 
 
 §81. Composition in Insolvency. Discharge on granting 
 the Composition .369-372 
 
 § 82. Adjustment of the Insolvent Estate. Rank and 
 Classification of Creditors. Publishing the Statement of 
 Classification. Claims of the wife outside the community 
 of goods. International Usages of Law Courts, with regard 
 to the power of Curators or Assignees 372-377 
 
 §83. Rehabilitation of the Insolvent. Certificates of 
 Discharge. Certificates of discharge with regard to Interna- 
 tional usages 377-379 
 
 XXIV. — Surcease of Payment. 
 §81. Surcease of payment a personal moratorium 379-380 
 
 XXV. Foreign Judgments and Foreign Legal Instru- 
 ments. Evidence of Foreign Laics. 
 Commissions Rogatoires. 
 
 §85. Judgment of Foreign Courts (Res Judicata). Ex- 
 territorial operation of Foreign Judgments. In Criminal Cases. 
 In Personam. Ad rem. Opinions of Halleck and Wheaton 380-383
 
 § 86. Evidence of Foreign Laws, Wills, Contracts and Pages. 
 other Instruments. Legalisation of Signatures 3>f3-384 
 
 §87. Commissions Rogatoires. Hearing of Witnesses; 
 nerving of Writs, Citations, etc. Rules proposed by the Insti- 
 tut de Droit International 384-391 
 
 Part III. 
 
 MARITIME AND COMMERCIAL 
 INTERNATIONAL LAW. 
 
 CHAPTER XL 
 
 The Open Sea, Maritime Domain* and Territorial 
 
 Waters and their Jurisdiction. 
 
 § 88. Mare Liberum 395-398 
 
 § 89. Maritime Domain (Mare Clausum). The King's 
 Chambers .....396-399 
 
 § 90. Territorial Waters (Adjacent Seas) Maritime Ter- 
 ritorial Jurisdiction. 399-401 
 
 § 91. Narrow Seas. Canals. Boundary of Territorial 
 Waters in narrow channels 401-403 
 
 § 92. International character of rivers, lakes and inland 
 Bsas. The Thalweg 403--404 
 
 § 93. What is meant by Internationally free navigation. 
 Coast-fishery, (peche-cotiere, Kustenfischerei). Coast trade 
 navigation (cabotage, Kusten f'rachtfarht) 404-405 
 
 § 94. Search to execute revenue-law; in adjacent waters,... 405-406 
 
 CHAPTER XII. 
 
 International Police and Control on Seas 
 
 without Jurisdiction. 
 
 §95. The Open Sea subject to International Law 407-408 
 
 § 96. Every vessel navigating the Sea must belong to an 
 
 acknowledged nationality 408-409 
 
 §97. The Right of Approach (Droit cVEnquete du 
 Pavilion). Mr. Hall's opinion with regard International 
 Police and control in places not within the territory of any 
 State. Rights from which the Right of Approach is evolved. 
 Decision of the Supreme Court of the United States of 
 America with regard to the right of approach.... , 409-412
 
 CHAPTER XIII. 
 Piracy. 
 
 § 98. Definition of Piracy. General character of pirat- Pages. 
 ical acts. The Barbary States. Opinion of Bynkershoek, 
 Are the crews of rebel vessels pirates ? The Cruisers of the 
 late Confederate States. The Permian Insurgent vessel 
 Huascar 413-420 
 
 CHAPTER XIV. 
 
 Slave Trade. 
 
 § 99. Treaties for the suppression of the slave trade. Treaty 
 between Great Britain and France regarding Right of Visit. 
 Instruction to Commanding Officers of Cruisers. Treaty be- 
 tween Great Britain and the United States of America settling 
 the question of visit and search 421-425 
 
 § 100. Fugitive Slaves. Report of the Commissioners on 
 Fugitive Slaves. Circular of the British Admiralty of August 
 16, 1879, with regard to Fugitive Slaves 425-431 
 
 § 101. Municipal legislation with regard to the suppres- 
 sion of the slave trade. Grotius 431-432 
 
 CHAPTER XV. 
 
 National Character and Jurisdiction or Vessels. 
 
 I. — Nationality of Private or Merchant Vessels, 
 
 §•102. Private or Merchant Vessels 133-43! 
 
 II. — Outward tokens of Nationality. 
 
 §103. Flag. Name 434-435 
 
 III. — Sh ip's Papers. 
 § 101. Papers carried by Private Vessels in evidence of 
 their nationality and other documents to be kepi on board. ... 136- 138 
 
 IV.— Public Vessels. 
 
 § 10.~>. Public Vessels. Vessels of War 138-440 
 
 § 106. Vessels <>f recognized ]Taeht-Clubs 110 
 
 § 107. Privileges of Public Vessels in foreign territorial 
 waters Ill 
 
 V, — The International Status of Public uu<t 
 Private Vessels compared. 
 § 108. Essentia] distinction betweeu Public or State Ves- 
 md Private Vessels with regard to national jurisdiction 
 
 and International Statue Ill 
 
 §10!). Distinction between the respective characters of 
 
 Public and Private Vessels. 4.ctg committed on the high -en 
 
 on board a IVr ate Vessel. Actions arising from collision and 
 
 ■ Hnimfl with regard to Private vesnelfl and with regard
 
 to Public Vessels. Obligations) of foreign vessels in the terri- 1 ":/>«. 
 tonal waters <>l' a friendly State. Mail Boats (Paque-bots- 
 Poste). Private vessels subject to local jurisdiction in foreign 
 territorial waters. Ortolan's opinion with regard to the 
 juridical character of private vessels. Chief Justice Marshall's 
 opinion. Mr. Hall's opinion 113-452 
 
 VI. — Concurrent Jurisdiction orcr Foreign Private 
 Vessels in Territorial Waters. 
 
 § 110. Concurrent Consular Jurisdiction 452-454 
 
 §111. Consular Protection. Consular Jurisdiction with 
 regard to foreign members of the Crew of Vessels of Consul's 
 Nationality, and likewise in the condition of Exterritoriality or 
 Capitulation 451 
 
 VII. — Droit (VAsile and Extradition with regard to 
 vessels in territorial waters in time of peace. 
 
 § 112. General remarks 454-455 
 
 §113. Inviolability of territorial waters by foreign re- 
 venue cruisers. Exception of this rule -1.56-157 
 
 § 111. Asylum claimed by revenue cruisers (guardacosta) 
 with vessels in custody. Different aspects: — a, both the revenue 
 cruiser and the vessel in her custody belong to the same na- 
 tionality; b, the arrested vessel belongs to the nationality of 
 the State in whose territorial waters the foreign arresting 
 revenue cruiser or public vessel takes refuge with her prisoner; 
 c, the arrested vessel belongs to the nationality of a third 
 friendly Power 157-460 
 
 CHAPTER XVI. 
 
 Objects of Maritime International Protection. 
 
 § 115. Principle of Maritime International Protection. ...461-462 
 
 §116. Objects of Maritime International Protection 462 
 
 § 117. International rules of the Road at Sea, Sections 
 16 and 17 of 36 and 37 Vict. c. 85. Obligation to stand by 
 each other after collision. Salvage after collision. Obligation 
 to observe regulations. British statutory rule as to presump- 
 tion of fault when regulations are infringed (§§ 16 and 17 of 36 
 and 37 Vict. c. 85). Application of these rules to foreign 
 
 vessels. American Laws 462-471 
 
 § 118. The International Code of Signals 471-172 
 
 § 119. Life Boat Institutions 472-473 
 
 § 120. Pilotage necessarily an object for International 
 agreement. Compulsory Pilotage with different Stales. Prin- 
 ciples of British Law regarding Compulsory Pilotage. Com- 
 pulsory Pilotage in the Suez-Canal > , 473—479
 
 S 1 1 
 
 § 121. Sea Fishery. The Hague Fishery Convention Page*. 
 of 1882 '. .. 479-480 
 
 International Postal and Telegraphic 
 
 Communication. 
 
 §122. Universal Petal Union 480-481 
 
 §123. Telegraphic Union. Resolution of the Institut de 
 
 Droit International with regard to Submarine Telegraph 
 
 Cables 481-483 
 
 § 121. International Convention of 18th March, 1884, for 
 the protection of Submarine Cables in time of peace 483-489 
 
 CHAPTER XVII. 
 
 Historical Sicetcd: of Maritime and Commercial 
 
 International Law. 
 
 § 125. Sources of Maritime International Law 490-491 
 
 § 126. Historical Sketch of Maritime and Commercial 
 
 Laws 491-493 
 
 § 127. Early Maritime and Commercial Laws 493-498 
 
 End of Vol. I. 

 
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