orni« r ! D n A n\/ ■J CASES AND OPINIONS ON INTERNATIONAL LAW WITH NOTES AND A SYLLABUS. BY FEEEMAN SNOW, Pn.D., LL.B. INSTRUCTOR IN INTERNATIONAL LAW IN HARVARD UNIVERSITY, BOSTON: THE BOSTON BOOK COMPANY. 1893. na. NfTiaMnMiL Copyright, 1893, By Freeman Sno\«. PRF.S8WORK BT THE t'SIVEKSlTY IMIESS, CAMDKIDG& PREFACE, The design of this work was formed some years since, while teaching the subject of International Law in the United States Naval Academy, and the greater part of the compila- tion was made during a subsequent residence of three years in France, Germany, and England ; but other duties have, till the present time, prevented its completion. The object has been primarily to provide a convenient col- lection of materials relating to International Law, for the use of students. To avoid the method of instruction by lectures alone, and the even less satisfactory method of recitation from text-books, it is believed, that the "case system," introduced into the Harvard Law School a score of years ago, by Professor Langdell, offers a happy substitute. In- deed, having employed that system for the last half dozen years, in classes in International Law, in Harvard University, I am thoroughly convinced that it is well adapted to that subject ; the only drawback has been the difficulty of finding the necessary materials in a convenient form. By this method, the student is called upon to take an active part in the exercises of the lecture room ; he is to report briefly the facts and judgment in a given case, and then is to ex- plain the principles and their application, and must maintain his position against the criticisms of the instructor, and the other members of the class. The student should thus acquire a firmer grasp of the subject than he can get from the study of text-books alone ; he is, moreover, more inter- iv PREFACE. ested in his work. as. I believe, experience has shown wherever the system has been introduced. These cases are, to a large degree, the original sources of the rules of International Law ; and they furnish the opportunity of becoming familiar with the ideas of the eminent men — judges and statesmen — who have controlled the develojDment of this law. Many of the cases, in addition to deciding the single point at issue, are admirable expositions of general principles, and give, besides, a concise histor}^ of the subject. It is not proposed, however, to discard text-books. It is indeed the justly celebrated authors of treatises on Interna- tional Law who have analyzed and systematized the subject, and who have reduced it to a science. A collection of cases and opinions, moreover, must necessarily leave many gaps, to be filled by means of text-books or lectures. And it is the purpose of the syllabus — a leading feature of this book — to make available the opinions of a number of the most eminent writers, of different countries, by grouping references to their works under specific heads. It will thus be made possible to compare their opinions, in many cases, with the sources upon which they all rely. It is thought, further, that a collection of leading cases and opinions may prove to be a convenience for those who are called upon to deal with the practical questions of Interna- tional Law, viz.. Lawyers, Legislators, and Diplomatists. With this end in view, it has been the almost invariable rule to give the decisions of courts in the exact language of the judges, though necessarily leaving out, in some cases, the less pei-tinent parts. In this respect this volume differs radi- cally from Mr. Pitt Cobbett's excellent work upon the same subject. FKEEMAN SXOW. Cambridge, ^Ia-ss., Sept. 1st, 1893. TABLE OF CONTENTS. PAGE. Syxlabl'S xiii INTRODUCTION. § 1. International Law is a Part of the Municipal Law of States 1 PART I. International Relations in Time op Peace. CHAPTEK L STATES — TERRITORIAL RIGHTS. § 2. Definition and Character of Sovereign States 5 § 3. Acquisition of Territory , § 4. Recognition of Independence 13 § 5. Boundaries 14 § 6. The Effect of a Change of Sovereignty 18 (a) Upon Public Riglits and Obligations 18 (h) Upon Private rights 21 § 7. De Facto Governments 24 (a) Recognition of Belligerency 24 (h) Succession to the Rights of Belligerent Communities 28 § 8. Territorial Waters of a State 32 (o) Rivers 32 (b) Straits 41 (c) Bays 44 {d) Marginal Seas 55 CHAPTEK 11. TERRITORIAL JURISDICTION. § 9. Immunities of Foreign Sovereigns 72 § 10. Immunities of Diplomatic Agents 83 (a) Criminal Jurisdiction 83 (b) Civil Jurisdiction 89 Vi TABLE OF CONTENTS. PAGE. § 11. Iiumunitios of Public Ships 103 (a) Ships of War 103 (/<) Other Public Ships 116 § 12. Merchant Vessels 121 § l.J. Right of Asylum 139 (a) In Lejiations 139 (//) On board Ships of War 144 (r) On board Merchant Ships 147 § 14. Extradition 151 § 1."). Jurisdiction of Offenses Committed Abroad 172 § 1(). Extraterritorial Acts by Order of the State 175 § 17. Extraterritorial Acts by a State in Self-defense 177 § 18. Injuries to Foreigners by Mob Violence 181 CHAPTER III. JURISDICTION' OX THE IIIOH SEAS. § 10. Merchant Vessels 184 § 20. Municipal Seizures beyond the Three-mile Limit 193 § 21. Piracy 195 CHAPTER IV. KATIOXALITY. § 22. Indelible Allegiance — Expatriation 213 § 23. Citizenship — ^Naturalization 219 § 2\. Protection to Citizens Abroad 225 § 25. Status of American ludiaus 230 PAIiT II. IXTEUXATIOXAL IvELATIOXS AS MODIFIED HY WaR. CHAPTER I. MEASURES SHORT OF AVAR. § 20. Reprisals 243 § 27. Hostile Embargo 249 § 28. Declaration of War 250 CHAPTER IL EFFECTS OF WAR AS RETWEEX EXEMIKS. § 29. Enemy's Property within the Territory and Debts Due to the Enemy. ... 260 5 30. Private Contracts 270 § 31. Trade with the Enemv 283 TABLE OF CONTENTS. vii PAGE. § 32. Ransom Bills 310 § 83. Cominorciul Doinicil 315 § 34. Ownership of Goods in Transit 339 § 35. Transfer in transltn 359 § 36. Freight Sm § 37. Recapture — Rescue 35s § 38. Hostile Occupation — Conquest 3(34 § 39. Termination of War 385 CHAPTER HI. RELATIONS BETWEEN BELLIGERENTS AND NEUTRALS. § 40. Belligerent Capture in Neutral Waters 393 § 41. Equipment of Vessels of War in Neutral Territory 402 § 42. Aid to Insurgents 435 (m) Loans of Money 438 (b) Ships, Munitions, and other Supplies 443 § 43. Sale of Munitions of War by a Neutral State 459 § 44. Contraband of War 402 § 45. Dispatches and Persons as Contraband 477 § 46. Blockade 49O § 47. Rule of the War of 1756 502 § 48. Continuous Voyages 505 § 49. Visit and Search 515 § 50. Prize Courts 518 APPENDIX. A. The Behring Sea Arbitration .522 B. The Declaration of Paris 529 C. The Declaration of St. Petersburg 530 D. The Geneva Convention 531 E. Instructions for United States Armies 532 F. Code of the Institute for Wars on Land 5,55 G. Instructions for the French Navy 565 TABLE OF CASES. PAGE. Aberdeen, Op. of 148 Adams, J. Q. to Monroe 13 Aertsen v. Ship Aurora 1.32 Alabama, The 425 Alibert's Case 218 Ambassador of Peter the Great .... 89 Amistad de Rues, La 40G Am. Ins. Co. v. Canter 372 Anderson, J., Case of 185 Anemone 1' 124 Ann Green, The .354 Anna Catharina, The 34(3 Anna, The 393 Anne, The 400 Antonia Johanna, The 330 Antoine v. Morshead .308 Atalanta, The (1808) 477 Atalanta, The (1856) 184 Attorney-Gen. v. Weeden 2G1 Baron de Wrech's Case 97 Barrundia's Case 150 Bayard, Op. of 22 Boedus Lust, The 249 Behring Sea Arbitration .521 Belgenland, The 189 Bentzen v. Boyle 330 Betsy, The 492 Bosphorus and Dardanelles, The ... 43 Boussmaker, Ex parte 267 Briggs V. Light-Boats 120 >Brown V. The United States 263 Brown, J., Case of 144 Carlotta, The 360 Carolini, The 177 Cassius, The 405 Castioni, In re 163 Cazo's Case 161 PAGE. Cellamare's Case 88 Charles I., Proclamation of 462 Charming Nancy, Tlie 312 Chavasse, Ex parte 476 Chin King, Ex parte 219 Church i\ Hubbart 193 Cockburn, Op. of 213 Commercen, The 470 Constitution, The 114 Cornu V. Blackburn 310 Creole, The 136 Cross V. Harrison 371 Gushing, Att.-Gen. Op. of 16 Cutting's Case 172 Dana, Op. of 24 De Haber v. Queen of Portugal 76 De Wiitz v. Hendricks 438 Declaration of Paris, The 529 Declaration of St. Petersburg, The. 5.30 Delagoa Bay 11 Dillon's Case 99 Direct U. S. Cable Co. v. Anglo- Am. Tel. Co 45 Don Pacifico, Case of 246 Dubois' Case 98 Elector of Hesse Cassel 381' Elk y. Wilkins 2.30 Ellis V. Mitchell 133 Emanuel, The 504 Emden's Case 223 Emily St. Pierre, The 301 Exchange v. M'Faddon 103 Fish, Op. of 142 Fleming r. Page 365 Florida, The 428 Foreign Enlistment Act, British. . . 403 X TABLE OF CASES. PAGE. Fortima, The (1802) o5T Fortuna, The (1803) KJS Foster v. Xeilson 14 Frienilschaft, The S-M Furtado r. IJodgers 303 General Armstrong, The 396 Geneva Award 431 Geneva Convention 531 Georgia, The 429 Gomez' Case 145) Grant, President, Message of 210 Grapeshot, The 374 Greytown, Bombardment of 248 Griswold V. Waddington 274 Guerin' s Case 375 Guiteau Trial, The 103 Gyllenborg's Case 87 Halleck, Opinion of 5 Hanger v. Abbott 270 Harcourt r. Gaillard 15 Hardy Le v. La Yoltigeante 337 Harmony, The 326 Hausding's Case 222 Helen, The 41)7 Hoop, The 283 Huascar, The 208 Immanuel, The 502 Indian Chief, The 315 Instructions for the French Xavy.. Instructions for U. S. Army 532 Jan Frederick, The 352 Jecker r. Montgomery 373 Jenkins, Sir L., Op. of 105 Johnson r. Mackintosh Joseph, The Brig 292 Kent, Op. of 21 KennetL r. Chambers 441 Kershaw c. Kelsey 295 King of Spain v. Ilullett 82 Koszta's Case 226 Leslie, Bishop of Boss 83 Lilla, The 27 Lindo r. Rodney 250 Louis, Le 209 PAGE. McLeod's Case 175 Madison, Tlie 482 Magdalina Steam Xavigaiion Co. c. Martin 102 Magellan Pirates, The 205 Manchester v. Massachusetts 47 Maria, The 515 Mendoza's Case 85 Mentor, The 385 Meteor, Tlie 418 Mississippi, Navigation of the 33 Mohr & Haas i\ Hatzfeld 377 Montezuma, The 206 Xaney, The 494 Xashville, The 431 Xeptunus, The 490 Xereyda, The 407 X'^eutralitet, The 474 Xeutrality Act, U. S 402 New Orleans Mob, 1891 183 X'ew Orleans Riot, 1851 181 Xewton, The, and The Sally 121 Xitchencoff's Case 103 X'ymph, The 386 X. T. Life Ins. Co. r. Stathem. . . . 278 Occupation of Naples 384 Ocean, The 495 Oregon Territory, The 9 Orozembo, The 483 Packet de Bilboa, The 339 Parlement Beige, The 116 Patrixent, The 313 Perle, The 398 Peterhoff, The 465 Philips r. Hatch 392 Potts r. Bell 287 Prins Frederik, The 115 Prioleau r. U. S. & Andrew John- son 77 Prize Cases, The (1) 254 Prize Cases, The (2) 334 Prize Courts 518 Prize Courts on board ships 519 Protector, The 391 Prussian Subject, Case of 224 Macdonald's Case 214 Queen v. Keyn 55 TABLE OF CASES. XI PAOE. Rapid, The 4S() Regina v. Cunningliam 44 Regina v. Leslie 187 Reliance, The 129 Respublica v. De Longchainps 104 Ricord tj. Bcttenhani, 312 Ripperda, Duke of 13!) Rivers, European, Navigation of . .. 40 Rose V. Hiniely 19."> Rothschild v. Queen of Portugal ... 82 Sa's Case 86 Sale of Arms to France 459 Sally, The 344 Salvador, The 455 San Jose Indiano, The 342 Santa Cruz, The 358 Santa Lucia 12 Santissima Trinidail, The 408 Scotia, The 1 Sea Lion, The 300 Seton V. Low 475 Shenandoah, The 429 Silesian Loan, The 243 Sotello's Case 147 Sound Dues, The 41 Stephen Hart, The 509 St. Albans Raid, The 162 St. Lawrence, Navigation of the. .. 35 St. Lawrence, The 290 St. Marks, Seizure of 178 Sumpter, The 430 Swineherd, The 388 Tacony, The 431 Tallahassee, The 431 Taylor v. Best 90 Tempest, The 122 Terceira Affair, The 421 Teutonia, The 250 Texan Bonds 18 Thetis, The 389 PAGE, Thompson v. Powles 440 Towsig's Case 228 Trent, The 486 Trimble's Case 158 Trois Freres, Lcs 248 United States v. The Ambrose Light 200 United States v. Baker 204 United States v. Dickelman 138 United States v. Grossmayer 298 United States v. Jetf ers 140 United States v. Liddle 104 United States v. Moreno 375 United States v. Ortega 104 United States v. Percheman 21 United States v. Prioleau 28 United States v. Quincy 412 United States v. Raascher 151 United States v. Rice 364 United States v. Smith 196 United States v. Trumbull 443 United States v. Wagner 79 Yavasseur v. Krupp 72 Venus, The 319 Villasseque's Case .380 Virginius, The 179 Volant, U 472 Vrow Henriea, The 3-56 Vrow Margaretha, The 350 Wagner's Case 225 Ware v. Hylton 260 Wheaton's Case 94 Wheaton, Op. of 32 Wildenhus' Case 126 Willendson v. The Forsoket 132 William, The 505 William Bagalay, The 293 Williams, I., Case of 215 Wolff V. Oxholm 268 SYLLABUS. \_Expla7iation of References. — The references in this Syllabus to the standard modern authors, are to the following editions of their works : — Bluntschh, 2d French Ed., translated by M. C. Lardy (1874); Calvo, 5th Ed. (1888) ; Creasey, " First Platform of International Law," (1876) ; Hall, 3d Ed. (1890) ; Halleck, Ed. by Sir S. Baker (1878) ; Helfter, 4th French Ed. by F. H. Geffcken, translated by .J. Bergson (1883) ; Phillimore, 3d Ed. (1879- ) ; AYalker, T. A. "The Science of International Law" (1893); Wheaton, Ed. by Lawrence (1863), and by Dana (1866), referred to by title Wheaton (L) and (D) ; Woolsey, Ed. by T. S. Woolsey (1890); Wharton's "Digest of International Law " will be referred to as " Wharton's Digest." This collection of Cases and Opinions will be cited as Cases and Op.] INTRODUCTION. 1. Definitions of International Law, or the Law of Nations. (Hal- leck, I., 41 ; Wheaton (L), 26, (D), 23 ; Hall, 1 ; Woolsey, 2 ; Creasey, 1 ; Calvo, I., 139.) 2. Origin of the terms " Law of Nations," and " International Law." Compare with the terms " J'M.s- G-entium,^'' "Jus JSfaturale,^^ " Droit des gens, " " Droit international," '' Volkerrecht." (Wheaton (L), 14-21 and notes, (D), 4^Q, 16-21 and note 7 ; Woolsey, 10 ; Creasey, 17-21.) 3. Is International Law a branch of true Law? Objections by Aus- tin and his followers to the term "law" as used in "interna- tional law," on the ground that there is no superior power to enforce it : it has no " sanction." In accordance with this view see, (Austin's Jurisprudence, abridged Ed. , pp. .5-18, hw- 63, Y4, 85 ; Stephen's History of the Criminal Law. II., Z'ietseq.; Holland's "Jurisprudence," 96-97, 291-293.) xiii xiv SYLLABUS. Opposed to this view (Sir Henry Maine : " International Law," Sf>-53 ; T. J. Lawrence : " Essays on International Law"', 1 ; Hall, 1^17 ; Bluntschli, 2-10 ; Woolsey, 26-20 ; Walker, 1-40, 45-56 ; Creasey, To-76.) 4. The Sources and Nature of International Law. (Wheaton, chapter I. ; Halleck, I., chapter II. ; Hall, 1-14 ; Blunt- schli, 1-19 ; Sir H. Maine, 1-25 ; Calvo, I., 139-167 ; Phil- limore, I., chapter III.) 5. Historical sketch of International Law. (Halleck, chapter I., Walker, 57-112; Calvo, I.. 1-137. For extended works, see Ward's Law of Nations ; Wheaton's History of the Law of Nations ; Laurent : L'Histoire de THuma- nit^, etc.) 6. International Law is a part of the law of States. (Cases and Op., 1-4; Woolsey, §29.) 7. The leading writers on International Law. (Calvo, I., 27-32, 45^6, 51-55, 61-63, 70-73, 101-120 ; Halleck, I., chapter I.) ■'^. Private International Law, or the Conflict of Laws. (Hall, 54 ; Woolsey, ^§73-74; Calvo, I., 120-125.) PART I. INTERNATIONAL LAW IN TIME OF PEACE. I. SuvEREiGN States — De facto States. (a) Sovereign States. 9. Sovereign States are the Subjects or Persons of International Law. (Hall. Is-IK; Bluntschli, xVrts. 17-27; Phinimore, I., 79 ; Heffter, 43; Wheat. (D), § 16.) 1". Deflnition and Nature of Sovereign States. (Wheaton (L), 31-33, 5S (D), 29-31 ; Hall, 18-21, 24, 25 ; Bluntschli, Arts, ls-21, 64; Woolsey, 34-36; Halleck, I., 58-59; Phillimore, I., si-85 ; Creasey, 6, 93; Calvo, I., 168- 170; Heffter, 45.) SYLLABUS. XV 1 1 . Distinction between Internal Sovereignty and External Sov- ereignty of States. (Whojiton (D), 31 (L), 35 ; Bluntschli, Art. 04; Holland: Jurisprudence, 40, 276, 29,5.) 12. Internal changes in a State do not affect Its standing in International Law. (Hall, 22, 23 ; Wheaton (L), 30, (D), 33-34 ; Bluntschli, Arts. 39-40; Creasey, 99-109 ; Woolsey, 38, 39 ; Phillimore, I., 202-212.) 13. The fundamental Rights and Duties of States. (Hall, 45-47 ; Halleck, I., SO-82 ; Wheaton (L), 115, (D), 89, 90.) 14. Classification of States: "Centralized States," "Personal Union," " Real Union," (Bunderstaat), " Confederate Union," (Staatenbund), Protected State, Neutralized State. (Hall, 25- 31 ; Bluntschli, Arts. 70-76 ; Wheaton (D), 40-41, 73, 78, 82, and note 32 (L), 7^1-76 ; Halleck, I., 62-66 ; Phil- limore, I., 94-101 ; Calvo, I., 173-179 ; Creasey, 135-142.) 15. The Equality of States. (Wheaton (L), 58, (D), 52 ; Hal- leck, I., 99-123; Heffter, 65-70; Woolsey, § 54; Blunt- schli, Art. 81 ; T. J. Lawrence, Essays, No. 5.) 16. Date of the commencement of States. (Hall, 87-90 ; Wheaton (L), 46-47 ; (D), 41 ; Bluntschli, Art. 29 ; Halleck, I., 74 and note 1.) 17. Effects of the recognition of a new State by the parent State, and by third States. (Hall, 88-93 ; Bluntschli, Art. 30 ; Wheaton (D), 32 ; Halleck, I., 72 and note 1.) 18. "When is the recognition by third States of a new State claiming independence, proper ? (Cases and Op., 13; Hall, 90-93; Bluntschli, Arts. 31-35; Halleck, I., 72-74; Wheaton (L), 46-47 ; (D), 41-46 and note 16 ; Creasey, 677-681 ; Phillimore, II.) 19. Methods of Recognition— The Congo State. (Hall, 88, note 193, § 26.*) 20. The effect of a change of Sovereignty upon public rights and obligations. (Case of the Texan Bonds, Cases and Op., 18, and 20, n.; Opinion of Kent, lb., 21; Hall, 102-103; Xvi SYLLABUS. TVheaton (D), 42-49 ; (L), 48-53 ; Creasey, 144-140 : Phil- limore, I., 211 ; Woolsey, § 38.) 21. Effect of change of Sovereignty upon private rights. (Case of U. S. V. Percliemau, Cases aud Op.. 21 ; Opinion of Bayard, Ih., 22.) ib) De Facto States. 22. What are de facto States, or Belligerent Communities ? *,Hall, 31-33 ; HaUeck, I., 08.) 23. Recognition of Belligerency. (Opinion of Dana, Cases and Op., 24 ; The Lilla, lb., 27 : and see Wheaton (L), 40 note, (D), note 15 ; Hall, 35-37 ; Wharton's Digest, I., §09; Woolsey, § 41.) 24. Have Belligerent Communities any legal right to recognition by Sovereign States ? (Hall, 33-35 ; Bkmtschli, Art. 512, n.) 25. Forms of recognition. (Hall, 37-39; Wheaton (D), 37, n.) 20. Recognition of the Confederate States, 1861. (Hall, 39^2 ; AVoolsey, § 180 ; Bkmtschli, in R. D. J.. II., 402 ; Wheaton (D), 37, note.) 27. Succession to the rights of Belligerent Communities. (U. S. V. Prioleau, Cases and Op.. 2^ ; U. 8. v. McKae, lb., 32, n.) 28. When a Belligerent Community becomes independent, what are its relations to the contract rights and duties of the parent State, as to (1) Treaty obligations, (2) Property, (3) Debts. (Hall, 91-102 ; Bluntschli. Arts., 47, 48.) 29. Right of the United States to the British American Fisheries. (Hall, 97-99 ; Wharton's Digest, HI., § 302.) II. The Territorl\l Property of a State. (a). Extent and Nature of Territorial Property. 30. In what does the territorial property of a State consist ? (Hall, 104, ,^ .30 ; Wheaton (D), iKJ'l.) SYLLABUS. Xvii 31. What is the nature of the proprietary title of a State in (1) the land owned by individuals, (2) public lands, (3) navy yards, arsenals, etc., (4) lakes and rivers, (5) the marginal sea. (Halleck, I., ]i!S-131 ; Bluntschli, Arts. 270- i>77 : AMieaton (D), § 1(54 ; Hall, 151.) 32. Eminent Domain ; "Absolute " and " Paramount " rights in the soil; "Property" and "Domain." (Halleck, I., 128-130 ; Wheatoii (D), § 103.) (b). Acquisition of Territory. 33. Modes of acquiring territory. (Hall, ij 31 ; Halleck, I., 131 ; Wheaton (D), § 101.) 34. Title to territory based on discovery. (Case of Johnson v. jMcIntosli, Cases and Op., 0.) 35. Title to territory, based on prior discovery of the coast, of moiiths of rivers, upon occvipation, exploration, and contiguity. (1) The Oregon Territory, Cases and Op., 9 ; (2) Delagoa Bay, 11)., 11 ; (3) Texas, Hall, 111-113.) 30. Inchoate title acquired by discovery. Occupation, to give title, requires (1) intention to occupy, (2) continuous oc- cupation, (3) to be a State act, or one adopted by the State. (Hall, 100-107 ; Bluntschli, Arts. 278-279 : Phillimore, I., 329 ; Walker, 159, 100.) 37. Abandonment of territory once occupied. (Santa Lucia, Cases and Op., 12 ; Hall, 118.) 38. To what extent inland does the discovery of the coast give rights ? The discovery of the mouth of a river ? (Cases and Op., 12, note ; Hall, 108-110, and 108, note 2 ; Walker, 101.) 39. Tendency to change the law of occupation — Berlin Confer- ence, 1885. (Hall, § 33."^) 4<>. Does prescription give a valid title to territory by the rules of International Law ? (Hall, 121-122, § 30 ; Philli- XAIli SYLLABUS. more, I., 353-3GS ; AVheaton (D), 239, and note 101 (L), 303; Creasey, 249-255.) 41. Acquisition of territory by accretion. (Cases : The ^4»)?f/. Cases and Op.. 393 ; Opinion of Attorney-General Cush- ing, 76., 16; Phillimore, I., 342-345 ; Hall, 123 ; Creasey, 241-249 : Bluntschli, Arts. 294-295.) 42. Acqxiisition of territory by conquest or cession. (Philli- more, I., 3G9-387 : Bhmtschli, Arts., 2S5-28G.J (c) Acquisition of Rights in Foreign Territory. 43. Servitudes in International Law. (Phillimore, I., 388-392 ; Bluntschli, Arts. 353-359 ; Hall, 157, note 2 ; Creasey, 255-259.) 44. The navigation of rivers. (Cases : 1. Opinion of Wheaton, Cases and Op., 32 ; 2. Navigation of the Mississippi, lb., 33 ; 3. Navigation of the St. Lawrence, 76., 35 ; 4. Euro- pean rivers, J6., 40 ; Hall, 131-139 and notes ; Bluntschli, Arts. 311-315 ; Woolsey, 79-83 ; Halleck, I,, 147-152.) 45. Protectorates over semi-civilized peoples. (Hall, 127, § 38.*) id) Boundaries. 40. The Political Department of the Government, in the United States, determines what are the boundaries iinder treaties. (Foster v. Neilson, Cases and Op., 14 ; in re Cooper — The Say ward Case, 143 U. S. Eep., 472.) 47. River boundaries are how determined? (r)pimon of Attorney-General Cushing, Cases and Op., 16 ; Bluntschli, Arts. 298-300.) 4"^. How are boundaries usually determined in the case of lakes and mountains? (Hall, 125-126; Bluntschli, Arts., 297, 3O1-303.) (e). Territorial Wcders of a State. 49. The history of attempts to appropriate the seas, or por- SYLLABUS. xix tions of them ; the contest between mare clausum and mare liberum. (Hall, i;3U-151, §4<); Wheatoii's History of the Law of Nations, 152-1G2 ; Calvo, I., 471-470 ; Phillimore, I., 247-256 ; Creasey, 226-231 ; Woolsey, §59 ; Cauchy (Ed., 1802), II., 92-124 ; Wheaton (D), noteNo. 113 ; Walker, 103-171.) 5(). The origin of the rule limiting the territorial right of a State in the sea to a marine league from the shore. Terrae dominium flnitur ubi finitur armorum vis." (Phillimore, I., 274 et seq.; Hall, 151-153 ; Wheaton (D), § 189 and note No. 105 ; Creasey, 233-240 ; Walker, 171-175 ; The Case of The Queen v. Keyn, Cases and Op., 55 ; Woolsey, 08-70 ; Halleck, I., §§ 13-14 ; Calvo, I., 477-480 ; Wharton's Dig., §32.) 51. Bays, Gulfs, and Straits, which are more than six miles wide. (1, The Sound Dues, Cases and Op. , 41 ; 2. The Bosphorus and the Dardanelles, lb., 43 ; 3. Regina v. Cunningham, Ih., 44 ; 4. Cable Co. v. Telegraph Co., Ih., 45 ; 5 Man- chester V. Massachusetts, lb., 47 ; 6. The Grange, lb., 47 n., see also : Hall, 153-156 ; Bluntschli, Art. 309 ; Perels, 42^6 ; Woolsey, 76-79 ; Halleck, I., 139-145 ; Calvo, I., 480-506 ; Wharton's Dig., § 28, 29.) 52. Interoceanic Canals— Suez Canal neutralized. (Calvo, I., 507- 516 ; Boyd's Wheaton, § 205 b. & c. ; T. J. Lawrence, Es- say^i, 37.) III. Territorial Jurisdiction. (a) Doctrine of Exterritoriality — Exception to the Rule of Exclusive Territorial Jurisdiction. •^3. Sovereigns are exempt in their persons and property from the jurisdictionof foreign courts of law. (1. Yavasseurv. Krupp, Cases and Op., 72; 2. De Haber v. Queen of Portugal, lb., 76 ; 3 Prioleau V. U. S. and Andrew Johnson, lb., 77 ; 4. U. S. V. Wagner, lb., 79 ; 5. other cases, lb., 82, note. And see : Hall, 162-167 ; Phillimore, IL, 133-155 ; Blunt- schli, Arts. 129-134.) 54. Diplomatic Agents— Iramunities from Criminal Jvirisdiction XX SYLLABUS. (1. Bishop of Ross, Cases and Op., 83 ; 2. Mendoza, lb., 85 ; 3. Da Sa. lb., ^Q ; 4. Gyllenborg, lb., 87; 5. Cella- mare, lb.. ^^. And see : Hall, 108-170 ; Halleck, I., 287 298 ; Phillimore, II., 199-218.) 55. Diplomatic Agents— Immunities from Civil Jurisdiction. (1- Am- bassador of Peter the Great, Cases and Op., 89 ; 2. Taylor V. Best, lb., 90 ; 3. Wheaton's Case, lb., 94 ; 4. Baron de Wrech. iZ>., 97; 5 Dubois, B)., 98 ; 6 Dillon. lb., 99; T. Other cases, lb., 102, note. See also : Hall, 170-179 ; Halleck. I., 285-287; Bhmtschli, Arts. 135-153; Philli- more, II.. 219-21(1 : AVheaton. (D), 299-320, (L), 392- 5(5. Armed Forces and Ships of War in foreign territory are not subject to the local jurisdiction. (1. Exchange V. McFaddon, Cases and Op.. 103 : 2. The Constitution, lb.. 114 and 115, note. And see : Hall, 182-195 ; Wheaton (D), § 100 and notes, Xos. 01 and 03 ; Wharton's Dig., § 30 ; Halleck I., 170-19(1 : Bluntschli. Art. 321 : Phillimore. I.. 470-483.) 57. Public ships other than ships of war are not subject to civil pro- cess in foreign ports. ^The Furleuieut Beige, Cases and Op. , 110 and 12(». note ; Hall, § 57.) 58. Merchant vessels are not, as a general rule, exempt from the local jurisdiction, in foreign ports. (1. The A'e^-foii^andthe Sally, Cases and Op., 121 ; 2. The Temj^est, lb., 122 ; 3. U Anemone, lb., 124 ; 4. Wildenhus, lb., 126 ; 5 Ellis v. Mitchell, lb., 133; 0. The Creole, 76., 130; T. Other cases, lb.. 132, note. And see Hall, 198-201 ; HaUeck, I., 190-192 : Bluntschh ; Phillimore, I., 483-487.) 59. Reasons for the fiction of Exterritoriality— The reasons usually given criticised. (Hall, 190, r.t7 ; AVheaton (D), 3()3, 3u4, note.) 00. {h) RigJif of Asj/lum. Legations do not, as a rule, grant asylum to political refugees nor to fugitives from justice- Exception, in the case of Spanish American States. < 1. Duke of Ripperda, Cases and Op., 139; 2. U. 8. V. Jeffers, lb., 140 ; 3. Opinion of Secretary Fish, Ih., 142. See also : Hall, 176-179 ; Bluntschli, Arts. 151, 200, 201.) SYLLABUS. Xxi CI. Whether ships of war may grant asylum to political refugees, opinions diflfer. It is the common practice in Spanish American waters.— (John Brown Cases and Op., 14i and 14»j, note.) 62. Ilerehant ships, having no immunities from foreign jurisdiction, by International Law, cannot properly grant asylum to political or other refugees. (1. Sotelo, Cases and Op., 147 ; 2. Opin- ion of Lord Aberdeen, Ih., 148; 3. Gomez, Ih., 149; 4. Barmndia, Ih., 150, note; J. B. Moore, in the PoUtical Science Quarterly for 1892.) (c) Other Questions of Territorial Jurisdiction. 63. Jurisdiction over passing vessels. (Hall, 201-203 and notes ; The Queen v. Keyn.) 64. Are aliens exempt from military duty? (Hall, 204-206 ; Blunt- schli. Art. 31)1 ; Wharton's Digest, § 202.) 65. Are offenses committed by foreigners, beyond the limits of a State, subject to the Jurisdiction of its Courts ? (Case of Cut- ting, Cases and Op., 172 and 174, note ; Hall, 206-209 and notes ; Wharton's Philosophy of Orim. Law, 309 et seq. ; Fiore, in R. D. I., XL, 302-319.) ^^^. Criminal Jurisdiction of the State Courts in the United States. (U. S. V. Bevans, 3 Wheaton's Rep., 336 at 3st;.) 67. Extradition of fugitives from Justice— 1. It is not a duty under International Law, in the absence of treaty— 2. In the United States it is exclusively a Federal question—S. A person extra- dited is to be tried for that offense only for w^hich he w^as extra- dited. (1. U. S. V. Rauscher, Cases and Op., 151 and 157, note ; 2. Arguelles, Moore, on Extradition, I., 33, Spear, on extradition, 13-14; 3. Ex parte Holmes, Moore L, 55- 58 ; Spear, 20 ; Winslow, Moore, L, 196, 212.) 68. As to the surrender, under extradition treaties, by a State of its own citizens. (Case of Trimble, Cases and Op., 158 and 160, note ; Moore, on Extradition, L, 152-193.) 69. states do not, as a rule, surrender persons charged with poli- tical or military offenses— What is a political offense? (1. Cazo, Cases and Op., 161 ; 2. St. Albans Raid, lb., 162 ; XSU SYLLABUS. 3. In re Castioni, Ih., 103 and 171, note ; Moore, I., 303^ 326 ; Heffter, § 63 ; Bluntschli, Art. 3i»4 ; Walker, 236- 23S.) 7r>. Leading works on Extradition. (Billot: Traite de I'Extra- dition, 1^7-1: ; S. Spear. 1S7!> ; E. Clarke, ; J. B. Moore, lsi>l ; De Stieglitz ; L. Lammasch.) 7 1 . Extraterritorial acts of persons by order of their Government. l^Case of McLeod, Cases and Op., 175 ; Hall, 213-219 ; ^lieaton(L), 1S9, note.) 82. The Extraterritorial acts by a State in self-defense. (1. The Caroline. Cases and Op., 177 ; 2. Seizure of St. Marks, lb., 178 ; 3. The Virginius, lb., 179. See Hall, 265-274.) 73. Responsibility for injury to foreigners by civil commotions and mob violence. (TheXew Orleans Eiot, 1851, Cases and Op., 1>1 : New Orleans Mob, 1891, lb., 183, note ; James Bryce, in the Xew Review for May, 1891 ; Calvo, 4th Ed., III., 142-150 : Bluntschli, Art. 380 bis ; Hall, 218-219.) IV. Jurisdiction on the High Seas. 74. Is the jurisdiction of a State over its citizens and property on the high seas exclusive? (Hall, 243-244 ; Wheaton (D), ^,^ Iu0-lu7). 75. Theory of the territoriality of merchant vessels. (Hall, 244- 251 ; Bluntschli, Art. 317 ; Heffter, ,^ 78.) 76. Impressment of Seamen. (Wheaton (D), § 108-109 and note 07.j I 7. Jurisdiction over merchant vessels on the high seas. (1. The -l/a/a///r(. Cases and Op.. 1^1; 2. John Anderson, lb., 185 ; 3. Regina v. Leslie, lb., ls7 ; 4. The Belgenland, lb., 189.) i 8. Municipal Seizures beyond the Three-mile Limit. (Case of Church v. Hubbart. Cases and (Jp., 193 and 194, note ; Argument of E. J. Phelps before the Behring Sea Tri SYLLABUS. xxiii bnnal Am. Case, 150 ; Act of Congress, March 2, 1797, § 27 ; Dana's note to Wheaton, Xo. lOS ; Boyd's Wliea- ton, §17'Ja, AVharton's Digest, I., pp. 105, lOG, lOD-112.) 79. Piracy— Definition and character of Piracy jure gentium. {I. Opinion of Sir L. Jenkins, Cases and Op., l'.>.j ; 2. U. S. V. Smith, lb., 196 ; 3. Other cases in the U. S. Sup. Court are, U. S. v. Palmer, 3 Wh., 010 ; U. S. v. Klintock, 5 AVh., 152 ; U. S. v. Pirates, lb., 185 ; U. S. v. Hohnes, lb., 412. See also: Lawrence's note to Wheaton, No. 79 ; Hall, 252-201 ; Phillimore, I., 4S9 ef seg. ; Bluntschli, Arts. 313-352.) 80. May Rebels and Insurgents be regarded as Pirates ? Piracy by MunicipalLaw. {\. U. 8. v. The Ainbrose Li> 99-l<»l ; Phillimore, II., 215-21S ; Heffter, 488-400 ; Woolsey, § 97 ; Wheaton (D), §§244-247.) 99. Consuls : Origin of ofifice— Functions— Appointment — Dismissal — Privileges— Consuls Diplomatically accredited— " Lettre de provision "—Exequatur. (^Schuyler's *' American Diplo- macy," 41-104 ; Hall, 314-322 ; Wheaton (D), § 120 ; Phillimore, II., 265-336; Heffter, 555-566; W^oolsey, 152-157; Calvo,III., §1368-1390; Halleck, L, 310-330; Wharton's Digest, §§ 113-124.) 100. Judicial Functions of Consuls in semi-civilized lands. (Phillimore, II. , 3o7-o42 ; Halleck, I., o3u-347 ; Wharton's Dig., §125.) VIII. Treaties. 101. What Treaties are not subjects of International Law ? (Hall, 323 and note ; Bluntsclili, Art. 443.) 1'^'2. Kinds of Treaties— Conditions necessary to the validity of Treaties— Authority of persons contracting— Freedom of Con- sent—Intimidation—Fraud, etc. (Hall, 323-327 ; Heffter, 190-204; Woolsey, 159-104; Wheaton (D), §§252-262; Halleck, I., 234-237 ; Bluntschli, Arts. 402-424, 442 ; Phil- limore, II., 68-83 ; Pomeroy, 340 et seq.) 1 o 3 . Forms— Tacit and express ratification— Refusal to ratify —Com- pletion of ratification. (Hall, 329-334 ; Pomeroy, 332 ; AVheaton (^Dj, ^§ 256-264.) lo4. Interpretation of Treaties. Convention of 1818 between Eng- land and the United States (Fisheries), the Clayton-Bulwer Treaty (1850.) (Hall, 334-342 ; Heffter, § 95 ; Woolsey ]7:M74 : Phillimore, II., 94-125 ; Wheaton (D), § 287.) SYLLABUS. XXvii 105. Conflict between diflferent Treaties, or between different Parts of the same Treaty. (Hall, 340-842; Pliilliniore II., 12G- lo-2 ; Calvo, ^,§ 720-723 ; Bluntschli, Art. 414.) lOG. Treaties of Guarantee. (Hall, 342-345 ; Bluntschli, Arts. 4;]7-44(t ; Pliilliniore, II., 84-93 ; Woolsey, 100-170 ; Heffter, § 97.) 107. Legislation necessary to carry treaties into effect— Is the House of Representatives in the United States under obliga- tion to pass acts necessary to carry treaties into effect ? The Jay Treaty, 1794, The Alaska Treaty, 1867. (Wheaton (D), §200 ; Halleck, I., 222-224; Calvo, III., §§ 1043-1047; Wharton's Dig., § Vila.) 108. A Treaty dates from the time of Signing, not from that of Ratification. 109. The obligation of Treaties— Difference between a void and a voidable Treaty— Test of voidability. (Hall, 351, 359 ; Creasey, 40-44; Phillimore, II., 70; M. Bernard, ''Lec- tures on Diplomacy," 108 ; Heffter, § 98; Bluntschli, Arts. 415, 450-401; Pomeroy, 347; Maine: "Ancient Law," 23; Fiore, Part I., Chapter IV.; Halleck, I., 243, 244 ; Wharton's Dig., 137^?.) 11<». Most favored Nation Clause in Commercial Treaties. (Whar- ton's Dig., § 134.) 111. Renewal of Treaties. (Hall, 117.) IX. Amicable Settlement o^^ Disputes and Attempts to Mitigate the Evils of War. 112. Arbitration-Mediation. (Hall, 301-303 ; Bluntschli, Arts. 488^98 ; Calvo, § 1700 et seq.; Rouard de Card, " L'Arbi- trage International "; Creasey, 397-399 ; Wharton's Dig., § 310 ; Sheldon Amos : " Political and Legal Remedies for War"; R. D. J., VI., 117-128, 421-452, VII., 57-09, 277, 418, 423-420, 708, VIII., 107, X., 001 ; Halleck, I., 413-418 ; Phillimore, III., 1-17.) 113. International acts and movements with a view to mitigate the xxviii SYLLABUS. evils of war. (The " Declaration of Paris," Appendix B ; The -'Dedaration of St. Petersburg," lb., C: The ''Geneva Convention." Il>., D ; The " Brussels Congress," isT-t. See on this Congress : Revue de Droit International, VII., 8", 438 ; Diplomatic Review, III., U et seq.; Halleck, I., 418-421 and notes ; Calvo, lY., § 1898.) 114. Acts of Individuals and Societies: Founding of the "Insti- tute of International Law," 1871, and the "Association for the Reform and Codification of International Law," at about the same time. (Annuaire del'Institute, I.. 27 ; R. D. J., VII., 307. For code of the " Institute," etc., see Appen- dix, F ; " and for Von Moltke's criticism of it, see his letter to Bluntschli, R. D. J., XIII., 79 et seq.) PART II. INTERNATIONAL RELATIONS AS MODIFIED BY AVAR. I. Measures short of War— Definition of War— Declara- tion OF AYar. 115. Reprisals— Retorsion— Pacific Blockade. (1. Silesian Loan, Cases and Op., 243 ; 2. Don Pacifico, lb., 246; 3. Other Cases, lb., 248, note. And see : Hall, 364-373 ; Wheaton (D), §§ 290-292 and note No. 151 ; (L), pp. 505-510 and note No. 168 ; Bluntschli, Arts. 499-508 ; Halleck, L, 422-42S: Phillimore. III., § 18-43 ; Calvo, III., § 1809 et seq.; Heffter, §§ ll'i-ll2 ; Woolsey, 181-187; Walker, 1.54-158.) 11<"'. Hostile Embargo. (The Boedus Lust, Cases and Op., 24". • and note. See also : Hall, 373 ; Wheaton (D), ^ 293 and note No. 152 ; Halleck, I. 433 ; Phillimore, III., 44- 4l> ; Calvo, III., § 1824 et seq. ; Woolsey, 180.) 1 1 7. Declaration of War— War without a Declaration— Civil War- Date of the beginning of a War. ( 1 . The Te utou ia. Cases and Op., 250 ; The Prize Cases, lb., 254. And see : Hall, 374- 382; Heffter, § 121 ; Halleck, L, 474-480; Phillunore, III., 8.5-113 ; Calvo, lY., ^ lSi>9 et seq.) SYLLABUS. xxix lis. Definition of War— Its Object— Causes of War— Kinds of War. (Creasey, 3(;o-8<>2 ; Heffter, ^§ 113, 111) ; Philliiiiore, III., 77-84 ; Halleck, I., 43i)-453, 454-473 ; Bluntsclili, Arts. 510-528 ; Wheaton (D), § 296 ; Calvo, IV., 1-40 a resume of opinions of writers ; Woolsey, 210.) II. Effects of War as between Enemies. (a) LatDS and Usages of War — Conduct of Hostilities. 119. Who are enemies in a war? One theory is that all citizens or subjects of one belligerent state are the enemies of all the citizens or subjects of the other. Another theory is that war is a contest between states, and. that private individuals of the belligerent states are not enemies at all. The first is the old view, and is still supported by the better authority. (Creasey, 376-388 ; Calvo, §§ 2035-2036 ; Halleck, II., 52-53 ; Bluntsclili, Arts. 529-530 ; Woolsey, 550 ; Walker, 273.) 120. All peaceful relations between the belligerent States and their citizens cease on the breaking ovit of war. But modern usage permits alien enemies to remain in the territory unmolested unless their presence becomes dangerous to the state. (Hall, 389-393 ; Heffter, p. 289 and note 9 ; Calvo, §§ 1912-1914; Phillimore, III., 128-130 ; Halleck, I., 483-485.) 121. Who are Non-Combatants ? (Hall, 394-396 ; Woolsey, 216- 221 ; Halleck, II., 2-3.) 122. Who are lawful Combatants ?— Conditions— Authority— Organ- ization— Dress. (Hall, 396, 51J— 525 and notes ; Halleck, II., 6-9 ; Bluntsclili, Arts. 569-573 ; Calvo, §§ 2049-2058 ; Walker, 249 ; Woolsey, 214-215.) 123. Maritime War. — Privateers— Letters of Marque and Reprisal- Volunteer Navy. (Hall, 525-529 ; Wheaton (D), g 358 and note No. 173 ; Wharton's Digest, §§ 383-385 ; Calvo, § 2297ef seg. ; Halleck, II., 9-20 ; Woolsey, 201-208 ; Heff- ter, § 124 ; Declaration of Paris, Appendix B.) 124. Prisoners of War.— Who may be taken prisoners ?— Treatment- Parole— Exchange— Ransom. (Hall, 403-413 ; Halleck, II., 3n., 74-89; Davis, 233-237 ; Creasey, 452-458 ; Calvo, §§ 213.3-2157 ; Bluntsclili, Arts. 593-626.) X XX SYLLABUS. 125. Care of the sick and wounded— Geneva Convention— Red-Cross Society. (^Hall, o;t'.t-4t»o ; Bluntsclili, Arts. 5^tJ-.592 ; Calvo. § 2034 et seq. ; Moynier : "Le Croix Rouge" ; Boyland : " Six Months under the Eed Cross.") 126. Instrumentsof War— Means of Destruction. (Hall. 529-531 ; Halleck. II., 2o-22 ; Woolsey. 211-213; Bluntschli, Arts. 557-500 ; Heffter, § 125 ; St. Petersburg Declaration. Ap- pendix D.) 127. Devastation.— Is it ever lawful ? (Hall, 533-534 ; Halleck, II., 117-llU.) 128. Bombardmentoftowns— Fortified- Open. (Hall, 535 ; Davis, 219-222 : AVoolsey, 223-224 : Bluntschli, Arts. 552-554. his; Calvo ; §§ 2067-2095. All the important cases will be found in Calvo.) 129. Deceit— Spies-BaUoons. CHall. 535-5.3{) ; Halleck, II.. 22- 35 ; Calvo, §.^21uG-212C ; Bluntschli, Arts. 627-636 ; Davis, 241-244.) {h) Effect of War upon Property, and Commercial Relations tvith the Enemy. 130. Wtien war breaks out between two states, the movable or per- sonal property of citizens of either, found in the territory of the other, on land, was by the old and strict rule of war confiscable. Debts due to citizens of the enemy State followed the same rule. But in modem practice this rule has become nearly obsolete. (1. Ware v. Hylton, Cases and Op., 260 ; Brown v. United States, lb., 263 ; Ex parte Boussmaker, lb., 267 : Wolff v. Oxhohn, Ih., 268. See also : Hall, 435-440 ; Halleck, I., 485-492 ; T^Tieaton (D), §§ 298-308 and notes No. 156 and 157 : Phillimore, III., 128-148 ; Woolsey, 194-198 ; Heffter, § 14n ; Calvo, §§ 1915-1925.) 131. Property of the enemy found afloat in ports, on the breaking out of war was generally confiscable as prize until a very recent time. But here. too. later practice would seem to have discarded the harsher rule. Compare with Embargo— case of Boedus Lust. (Phillimore, III., 132 ; Wheaton (D), 389, note i Halleck, I., 491—492 ; The Johanna Emilie, Cases and Op. 270, n.) SYLLABUS. XXX i 132. Debts of a State due to the Enemy and the interest thereon are not confiscable. (Hall, 4:35 ; Woolsey, lUG ; Discussion in the case of the Silesian Loan ; Phillimore, III,, 118.} 133. Immovable property— lands and houses— of the enemy within the limits of the other belligerents are never con- fiscated. (Phillimore, HI., 148.) 134. Property of the enemy fctmd on the sea or in the ports of the enemy, is confiscable as prize of war— Modified by the Declaration of Pans. (Appendix B. Hall, 435, § 143, and 442, §146.) 135. Contracts between enemies made before the war.— 1. Executed Contracts.— 2. Executory Contracts.- Statutes of Limitation.— Interest on Debts.— How affected by war ? (1. Hanger v. Abbott, Cases and Op., 270 ; 2. Griswold V. Waddington, Ih., 274; 3. N. Y. Life Ins. Co. v. Stathem, Ih., 278. See also : Gamba v. Le Mesiirier, 4 East., 407 ; Halleck, I., 481 ; Walker, 276 ; Hall, 388 ; Kent, L, 68.) 136. Effect of war upon treaties between the belligerent States previously existing. (^Wheaton (L), 460-477 iD), 352 and note ; Hall, 382-387 ; Phillimore, III., 792-811 ; Bluntschli, Art. 538 ; Case of the Society for the Propagation of the Gospel V. New Haven, Wheaton's Eep., 494 ; Heffter, 122.) (c) Trade ivith the Enemy. 137. Trade or Intercourse with the enemy is wholly interdicted ; and is in all cases illegal, unless under a license of the State. (1. The Hoop, Cases and Op., 283 ; 2. Potts v. Bell, lb., 287. See also : Hall, 387-388 ; Kent, I., 66-69 ; Halleck, II., 154-158 ; Heffter, § 123 ; Phillimore, III., 116-120 ; Calvo, §§ 1926-1929 ; Woolsey, 255 ; Wheaton (D), §§ 309- 317, and note No. 158.) 138. Licenses to trade.— They must, as a rule, be granted by the Supreme Authority of the State, and must be granted or assented to by both belligerents. (Hall, 553-556 ; Hal- leck, II., 364-379 ; Woolsey, 256. Case of the Sea Lion, XXxii SYLLABUS. Cases and Op., 3(Ki, gives the practice of the United States ; also Cappell v. Hall T Wall., 542.) 139. After the outbreak of war, a citizen may not go or send to the enemy's country to bring away his property. (The Rapid, Cases and Op., 288.) l-lr5). Cases and Op., SS-t. See also : Hall 41^ ; Halleck, II., 173-1:79 ; Phillimore, III., 832-840.;) (h) Tenniitation of War — Conquest — Cession. 168. What marks the date of the end of a War?.— Treaties of Peace— Proclamations in Civil Wars. (1. The Thetis, Cases and Op.. :^;iit : -2. The Protector. 21)., 391. See also : Hall, 557 ; Heffter, § 176 ; Phillimore, III., 770 ; Calvo, §§ 3153-3154.) 169. Effect of Treaties of Peace in settling general rights and obligations of the parties— Effect upon acts done before the war— Upon acts done during the war— Upon acts done subsequently to the treaty of peace. (Hall, 557-565 ; Phillimore. III., 770-784 ; Hefifter, §§ 179-183 ; Woolsey, 203-206 ; Calvo, §§ 3155-3159. Cases : The Mentor, Cases and Op., 385 ; 2. The Nymph, lb., 386; 3. The Sivine- herd, lb., 388.) 17<'. Postliminium— Uti possidetis— How do they apply to terri- tory? (Hall, 486, 568 ; Halleck, II., 512-522 ; Phillimore, III., 010-618 ; Woolsey, 248-252 ; Heffter, §§ 187-191; Bluntschli, Arts. 515, 727-741 ; Calvo, §§ 3150, 3169 et seq.) 171. Conquest— Cession (The Elector of Hesse Cassel, Cases and Op., 3sl ; 2. U. S. v. Moreno, lb., 375 ; Am. Ins. Co. V. Canter, lb., 372. And see : Hall, 565-573 ; Hal- leck, II., 480 et seq.; Heffter, § 133; Dana's Note to Wheaton. No. 169 ; Calvo, §§ 2453-2490.) III. Relations between Belligerents and Neutrals. (o) A General Vieiu of the Relations between Belligerents and Neutrals. 17l'. Historical Sketch of the Subject, i Hall, 576-594; Halleck, II., 173 et seq.; Woolsey, 266-273 ; Wheaton (D), §§ 412- 425 : Creasey, 470-1:82 ; Heffter, §§ 145-148 ; Phillimore, SYLLABUS. XXXVU {b) Neutral Duties. 173. Neutrals are not to permit their Territory to be used for hostile purposes by either belligerent-— Transit of troops- Fitting out hostile expeditions— Capture of vessels in neutral waters. (1. The Amia, Cases and Op., 2!)3 ; '1. The General Annstroiuj, lb., 396 ; 3. The Perle, lb., 31)8 ; 4. The Ann, lb., 400; Other cases, lb., ¥^\, note. See also: Hall, 495-612 ; Halleck, II., 173-181 ; Philliraore, III., 225-236; Heffter, §§ 146-147; Calvo, § 2615 et seq.; Bluntschli, Art. 7"49 et seq.) 174. Equipment of vessels of war in neutral territory. (1. U. S. Neutrality Acts, Cases and Op., 402 ; 2. British Foreign Enlistment Acts, lb., 403 ; 3. La Amistad de Rues, lb., 406 ; 4. The Santissima Trinidad, lb., 408 ; 5. U. S. v. Quincy, lb., 412; 6. The Meteor, lb., 418; 7. The Ter- ceira Affair, lb., 421 ; 8. The Alabama, 425 ; 9. The Florida, lb., 428 ; 10. The Slienandoah, lb., 429 ; 11. The Georgia, lb., 429 ; 12. The Sumpter, etc., lb., 430; 13. The Geneva Award, lb., 431. See also : Hall, 612- 620 ; Halleck, II., 184-195 ; Dana's Note to Wheaton, No. 215 ; Walker, 458-502 ; Phillimore, III., 236 et seq.) 175. Loans of Money to Belligerents. (Hall, 597-599 ; Blunt- schK, Art. 768 ; Halleck, II., 195 ; Phillimore, III., 247.) 176. Sale of Munitions of War by a Neutral State. (Sale of Arms to France, Cases and Op., 459 ; Hall, 599.) 177. Aid to Insurgents— Loans— Munitions of "War. (1. De Wiitz V. Hendricks, Cases and Op., 438 ; 2. Thompson v. Powles, lb., 440 ; 3. Kennett v. Chambers, lb., 441 ; 4. U. S. V. TrmnbuU, lb., 443 ; 5. The Salvador, lb., 455. And see : Phillimore, III., 247-250). (c) Contraband of War. 178. General Law of Contraband. (Hall, 644 ; Halleck, IL, 244 ; Woolsey, 318 ; Phillimore, III.,' 338 ; Wheaton (D), § 476 et seq.) 179. It was formerly the custom to declare by proclamation at the XXXviii SYLLABUS. beginning of a war what articles would be considered Contraband. (^Proclamation of Charles I., Cases and Up., 4G2.) 150. Classification of Contraband — Res ancipitis usus — Occa- sional contraband. (1. The Peterhoff, Cases and Op., 465 2. The Commercen, lb., 470 ; 3. // Volanfe, lb., 472 4. Other cases, lb., 471, note. And see : Hall, (')5S-668 Halleck, II., 251-264; Heffter, § 160; Wheaton (D), §§ 477-500 ; Davies, 340-350 ; Woolsey, 321-329.) 151. Penalty for carrying contraband — Time when penalty attaches— Rule of English and American Courts — French Rvile. (1. The Xeufralitef, Cases and Op., 474 ; 2. Seton V. Low, lb., 475 ; 3. Ex j^cirte Chavasse, lb., 476.) 152. Dispatches and Persons as Contraband. (1. The jLtalcinta, Cases and Op., 477; 2. The Rapid, lb., 4:S0 ; ^. The Madison, lb., 482 ; 4. The Orozembo, lb., 483 : 5. The Trent, lb., 486. And see : Hall, 675-686 ; Halleck, II., 324, note ; Woolsey, 335-339 ; Heffter, § 161 a.) (d) Blockade. 183. The purpose of Blockade— What is an effective Blockade — Notification— De facto Blockade. (1. The Nejjtuu us, Cases and Op., 490 ; 2. The Betsy, lb., 492 ; 3. The Nancy, lb., 494 ; 4, The Ocean, lb., 495 ; 5. Other cases, i7).,496, note. See : Hall, 696-714; Halleck, II., 211-225; Woolsey, 342-350 ; Heffter, §§154-156 ; Wheaton (D), §§ 511-520.) l'^4. Penalty for Breach of Blockade— When does the penalty attach ?— French Rule. (The Helen, Cases and Op., 497. And Hall, 715 ; Woolsey, 350-351.) (e) Ride of the War of 1756. 185. Neutrals may not engage in a trade during war, from which they were excluded in time of peace. (1. The Ininianuel, Cases and Op., 5(i2 ; 2. The Emanuel, lb., 504. See also ; Hall, 6,39-642; Halleck, II., 3.30-339 ; Woolsey, 3.39-342 ; Bluntschli, Art. 800, r. ; Phillimore, III., 370-386.) SYLLABUS. XXXix (/) Continuous Voyages. 186. Colonial Trade, and Coasting Trade— Extension in 1793. (1. The William, Cases and Op., 505; Hall, 672; Woolsey, 355 ; Pliillimore, III., 388.) 187. Applied to the Carriage of Contraband, and the breach of blockade by American Courts. (The Sfephen Hart, Cases and Op., 500. See also : Hall, 673 ; Walker, 514, 515, 525 ; PhilHmore, HI., 301-403. Extract from the Ber- muda, pp. 391-395, from the PeterJwff, pp. 395-396, from Hobhs V. Hemning, pp. 397-403 ; Bluntschli, Art. 835, r. 5 ; Calvo, §§ 2762-2766.) {g) The Bight of Search and Captiire. 188. The Right of Visit and Search is a belligerent right, to which Neutrals are subject— And resistance in any manner to this right entails condemnation. (The Maria, Cases and Op., 515. And see : Hall, 725-731 ; Halleck, II., 267, 268, 283-296 ; Phillimore, III., 522, 544, 550 ; Woolsey, 358, 361 ; Calvo, §§ 2939-3003, as to whole subject of Visit and Search ; Wheaton (D), §§ 525-528 ; Heffter, §§ 167-170.) 189. Formalities of the Exercise of the Right of Search- Grounds of Capture — False Documents— Spoliation of Papers. (Hall, 732-741 ; Halleck, II., 297-299 ; Phillimore, III., 536.) 190. The Right of Visit and Search in time of peace- Impress- ment of Seamen — Slave Trade — Protection of Seals — Piracy. (Halleck, II., 268-282 ; Phillimore, III., 525-529. And see the case of Le Louis, Cases and Op., § 21 c, and p. 518, note ; Woolsey, 365-386 ; The Behring Sea Arbitra- tion, Cases and Op., 521.) 191. The Right to capture Enemy's goods in Neutral vessels, and Neutral goods in Enemy's vessels—" Free ships, free goods "—Declaration of Paris. (Hall, 687-695, 717-723.) {h) Prize Courts. 192. The Constitution of Prize Courts in different Countries. Xl SYLLABUS. r (Phillimore, III., 65S-005 ; Lawrence's AVheaton, 960- 97(3.) 193. The Principles and Practice of Prize Courts. (Phillimore, III., (iOt*,-(;7li.) 194. Decisions of Prize Courts— They are courts of the captors' country. (Decisions of Prize Courts, Cases and Op., 518.) 195. Prize Courts on board ships— Practice of Captain Semmes, ot the Alabama, (^Cases and Op., 519.) CASES AND OPINIONS ox INTERNATI(3NAL LAW. INTRODUCTION. Section 1. — International Law is a part of the Municipal Laav OF States, OPINION OF BLACKSTONE. {Blackstone' s Coiiimoitariea, Book, IV. Chap. IV.) TriE law of nations is a system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world ; in order to decide all disputes, to regulate all ceremonies and civilities, and to insure the observance of justice and good faith, in that intercourse which must frequently occur between two or more " independent states, and the individuals be- longing to each. This general law is founded upon this principle, that different nations ought in time of peace to do one another all the good they can, and in time of war as little harm as possible, without prej- udice to their own real interests. And, as none of these states will allow a superiority in the other, therefore neither can dictate or prescribe the rules of this law to the rest ; -.but such rules must necessarily result from those principles of natural justice, in which all the learned of every nation agree ; or they depend upon mutual compacts or treaties between the respective communities ; in the construction of which there is also no judge to resort to, but the law of nature and reason, being the only one in which all the con- 2 INTRODUCTION. tract in!^ parties are equally conversant, and to which they are equally subject. In arbitrary states this law, wherever it contradicts or is not pro- vided for by the municipal law of the country, is enforced by the royal power ; but since in England no royal power can introduce a new law, or suspend the execution of the old, therefore the law of nations (wherever any question arises which is properly the object of its jurisdiction) is here adopted in its full extent b}'^ the common law, and is held to be a part of the law of the land. And those acts of parliament, which have from time to time been made to enforce this universal law, or to facilitate the exesution of its decisions, are not to be considered as introductive of any new rule, but merely as declaratory of the old fundamental constitutions of the kingdom ; without which it must cease to be a part of the civilized world. Thus in mercantile questions, such as bills of exchange and the like ; in all marine causes, relating to freight, average, demuri-age, insurances, bottomry, and others of a similar nature ; the law merchant, which is a branch of the law of nations, is regularly and constantly adhered to. So too in all disputes relating to prizes, to shipwrecks, to hos- tages, and ransom bills, there is no other rule of decision but this great universal law, collected froai history and usage, and such writers of all nations and languages as are generally approved and allowed of. But, though in civil transactions and questions of property between the subjects of different states, the law of nations has much scope and extent, as adopted by the law of England ; yet the present branch of our inquiries will fall within a narrow compass, as offenses against the law of nations can rarely be the object of the criminal law of any particular state. For offenses against this law are prin- cipally incident to whole states or nations ; in which case recourse can only be had to war ; which is an appeal to the God of hosts, to punish such infractions of public faith as are committed by one independent people against another: neither state having any superior jurisdiction to resort to upon earth for justice. But where the individuals of any state violate this general law, it is then the interest as well as duty of the government, under which they live, to animadvert upon them with a becoming severity, thp.t the peace of the world may be maintained, I-'or in vain would nations in their collective capacity observe these universal rules, if private subjects were at liberty to break them at their own discretion, and involve the two states in a war. It is therefore incumbent upon the nation injured, first to demand satisfaction and justice to be done on the offender, by the state to INTEODUCTION. 3 which he belongs ; and, if that be refused or neglected, the sovereign then avows himself an accomplice or abettor of his subject's crime, and draws upon his community the calamities of foreign war. THE SCOTIA. SUPEEJ^LE COUKT OF THE UxiTED StATES, 1871. (14 Wallace, 170.) Discussion of General Principles. Judgment by Strong, J. : — * * * " Undoubtedly, no single nation can change the law of the sea. That law is of universal obligation, and no statute of one or two nations can create obligations for the world. Like all the laws of nations, it rests upon the common consent of civilized commu- nities. It is of force, not because it was prescribed by any superior power, but because it has been generally accepted as a rule of con- duct. Whatever may have been its origin, whether in the usages of navigation or in the ordinances of maritime states, or in both, it has become the law of the sea only by the concurrent sanction of those nations who may be said to constitute the commercial world. Many of the usages which prevail, and which have the force of law, doubtless originated in the positive prescriptions of some single state, which were at first of limited effect, but which when gener- ally accepted became of universal obligation. The Rhodian law is supposed to have been the first system of marine rules. It was a code for Rhodians only, but it soon became of general authority because accepted and assented to as a wise and desirable system by other maritime nations. The same may be said of the Amal- phitan Table, of the ordinances of the Hanseatic League, and of parts of the marine ordinances of Louis XIV. They all became the law of the sea, not on account of their origin, but by reason of their acceptance as such. And it is evident that unless general assent is efficacious to give sanction to international law, there never can be that growth and development of maritime rules which the constant changes in the instruments and necessities of navigation require. Changes in nautical rules have taken place. How have they been accomplished, if not by the concurrent assent, expressed or understood, of maritime nations ? When, therefore, we find such rules of navigation as are men- tioned in the British orders in council of January 9th, 1863, and in 4 INTKODUCTION. our act of Congress of 1864, accepted as obligatory rules by more than thirty of the principal commercial states of the world, includ- ing almost all which have any shippmg on the Atlantic Ocean, we are constrained to regard them as in part at least, and so far as re- lates to these vessels, the laws of the sea, and as having been the law at the time when the collision of which the libellants com- plain took place. This is not giving to the statutes of any nation extra-territorial effect. It is not treating them as general maritime laAvs, but it is recognition of the historical fact that by common consent of man- kind these rules have been acquiesced in as of general obligation. Of that fact we think we may take judicial notice. Foreign muni- cipal laws must, indeed, be proved as facts, but it is not so with the law of nations." ^ 1 In the case of the Charming Betsy, 2 Cranch, 64, 118, Marshall, C. J., said: '• It has also been observed that an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains, and, con- sequently, can never be construed to violate neutral rights, or to affect neutral commerce further than is warranted by the law of nations as understood in this country." In the case of the Nereid, 9 Cranch, 388, 42-3, the same judge said: " Till such an act [of Congress] be passed, the court is bound by the law of nations, which is a part of the law of the land." See also Talbot v. Seeman, 1 Cranch, 1, 43, and 14 Wallace 170, 188. In the case of Bentzon v. Boyle, 9 Cranch, 191, 198, Marshall, C. J., said ' "The law of nations is the great source from which we derive those rules, respect- ing belligerent and neutral rights, which are recognized by all civilized states throughout Europe and America. This law is in part unwritten, and in part conventional. To ascertain that which is unwritten, we resort to the great princi- ples of reason and justice ; but, as these principles will be differently understood by different nations under different circumstances, we consider them as being, in some degree, fixed and rendered stable by a series of judicial decisions. The decisions of the courts of everj' country, so far as they are founded upon the law common to every country, will be received, not as authority, but with respect. The decisions of tin courts of every country show how the law of nations, in the given case, is understood in that country, and will be considered in adopting the rule which is to prevail in this." Bishop says (Criminal Law, 7th Ed., I. CO): "Doubtless if the legislature, by words admitting of no interpretation, commands a court to violate the law of na- tions, the judges have no alternative but to obey. Yet no statutes have ever been framed in form thus conclusive; and if a case is prima facie within the legislative words, still a court will not take the jurisdiction should the law of nations forbid." Again (p. fiO): " All statutes are to be construed in connection with one another, with the common law. with the constitution, and with the law of nations." PART I INTERNATIONAL RELATIONS IN TIME OF PEACE. CHAPTER I. ST ATES— TERRITORIAL RIGHTS. Section 2. — Definition and Ciiakacter of Sovereign States. HALLECK'S INTERNATIONAL LAW, I. 58. " A State is a body politic, or society of men united togetlier for xnutual advantage and safety. Sucli a society lias affairs and interests [peculiar to itself, and is capable of deliberation and resolution ; it is therefore regarded as a kind of moral person, possessing a will and an understanding, and susceptible of rights and obligations. From the nature and design of such a society, it is necessary that there should be established in it a lyiMic authority, to order and direct what is to be done by each individual in relation to the end and object of the association. This political autliority, whether vested in a single individual or in a number of individuals, is properly the sovereignty of the State. "This term, however, in international law, is usually employed to express the external rather than the internal character of a nation, with respect to its ability or capacity to govern itself, indepen- dently of foreign powers. A sovereign State may, therefore, be de- fined to be any nation or people organized into a body politic and exercising the rights of self-government." 5 STATES. [part I. Section' 3. — Acquisitiox of Tkkkitoky. JOIIXSOX V. McIXTOSII. Sl'pkeme Court of tiik Uxiteu States, 1828. (8 Wlieaton, 533.) Diseoverj' gives a valid title to territory occujiieil by imcivilizeJ peoples. The right of the North American Imliaus to the lauds which they possessed was that of occupancy merely. Judgment — M.viisii.vLL, C. J. — (Only so much of the decision is given as applies to discovery :) " The plaintiffs in this cause claim the land, m their declaration mentioned, under two grants, pui'i)orting to be made, the fu'st iii 1773, and the last in 1775, by the chiefs of certain Indian tribes, constituting the Illinois and the Praukeshaw nations ; and the ques- tion is, whether this title can be recognized in the courts of the United Stiites. " The facts, as stated in the case argued, show the atithority of the chiefs who executed this conveyance so far as it could be given by their own people; and likewise show, that the particular tribes for whom these chiefs acted were in rightful possession of the land they sold. The inquiry, therefore, is, in a great measure, confined to the power of Indians to give, and of private individuals to receive, a title which can be sustained in the courts of this country. " As the rights of society, to prescribe those rules by Avhich prop- erty may be acquired and preserved is not, and cannot be, drawn into question ; as the title to lands, especially, is and must be admitted to depend entirely upon the law of the nation in Avhich they lie, it will be necessary, in pursuing this inquiry, to examine, not singly those principles of abstract justice, which the Creator of all things has impressed on the mind of His creature man, and which are admitted to regulate, in a great degree, the rights of civilized nations, whose perfect independence is acknowledged ; but those princii)les also which our own government has adopted in the [larticular case, and given us as the rule for our decision. "On the discovery of this immense continent the nations of P2in-ope were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offei-ed an amjile field to the ambition and enterprise of all ; and the character and (Jll-Vr. I.] JOHNSON V. MCINTOSH. 7 religion of its inhcabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on tliem civilization and Christianity, in exchange for unlimited independence. But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and conseciuent war with each other, to establish a principle which all should acknowledge as the law by which the rights of acquisition, which they all asserted, should be regulated as between themselves. This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European govern- ments, whicli title might be consummated by possession. " The exclusion of all other Europeans necessarily gave to the nation making the discovery the sole right of acquiring the soil from tlie natives, and establishing settlements upon it. It was a right with which no Europeans could interfere. " It was a right wliich all asserted for themselves, and to the assertion of which, by others, all assented. " Those relations which were to exist between the discoverer and the natives were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them. " On the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded, but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as indepen- dent nations, were necessarily diminished and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it. " "While the different nations of Europe respected the right of the natives, as occupants, tliey asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in posses- sion of the natives. These grants have been understood by all to convey a title to the grantees, subject only to the Indian right of occupancy. " The history of America, from its discoveiy to the present day, proves, we think, the universal recognition of these principles. 8 STATES. [PAP.T I. " Spain did not rest her title solel}^ on the grant of the Pope. Her discussions respecting boundary, with France, with Great Britain, and with the United States, all show that she placed it on the rights given by discovery. Portugal sustained her claim to the Brazils by the same title. " France, also, founded her title to the vast territories she claimed in America on discovery. However conciliatory her conduct to the natives may have been, she still asserted her right of dominion over a great extent of country not actually settled by Frenchmen, and her exclusive right to acquire and dispose of the soil which remained in the occupation of Indians. "^ * * "The States of Holland also made acquisitions in America, and sustained their right on the connnon principle adopted by all Europe. * * * " Xo one of the powers of Europe gave its full assent to this principle more unequivocally than England. The documents upon this subject are ample and complete. So early as the year 149G, her monarch granted a commission to the Cabots, to discover countries then unknown to Chnstian people, and to take possession of them in the name of the king of England. Two years afterwards, Cabot proceeded on this voyage, and discovered the continent of Xorth America, along which he sailed as far south as Virginia. To this discovery the English trace their title. " In this first effort made by the English government to acquire territory on the continent, we perceive a complete recognition of the principle which has been mentioned. The right of discovery given by this commission is confined to countries ' then unknown to all Christian people ; ' and of these countries Cabot was empowered to take possession in the name of the king of England, thus asserting a right to take possession notwithstanding the occupancy of the natives, who were heathen, and, at the same time, admitting any prior title of any Christian people who may have made a previous discovery. * * * " Thus, all nations of Europe, who have acquired territory on this continent, have asserted in themselves and have recognized in others, the exclusive right of the discoverer to appropriate the lands occu- pied by the Indians. * * * " The [)i)wer now possessed by the government of the United States to grant lands, resided, while we were colonies, in the crown, or its grantees. "The validity of the titles given by either has never been questioned ill our courts. It has been exei-cised uniformly over territory in possession of the Indians. The existence of this power must negative CHAP. I.] THE OREGON TERRITOKY. 9 the existence of any rig-lit which may conflict with, and coniidl it. An absolute title to lands cannot exist, at the same time, in ditt'ercnt persons, or in different governments. " An absolute, must be an exclusive title, or at least a title which excludes all others not compatible with it. All our institutions recog- nize the absolute title of the crown, subject only to the Indian right of occupancy, and recognize the absolute title of the crown to ex- tinguish that right. This is incompatible with an absolute and complete title in the Indians." THE OREGON TERRITORY. (Wlieaton'' s Internatiomd Law, Zd. Ed. p. 220.) The claim of the United States to the territory between the Rocky Mountains and the Pacific Ocean, and between the 42d degree and 5-4th degree and 40 minutes of north latitude, is rested by them upon the following grounds : — 1. The first discovery of the mouth of the river Columbia by Captain Gray, of Boston, in 1792 : the first discovery of the sources of that river, and the exploration of its course to the sea by Cap- tains Lewis and Clark, in 1805-G ; and the establishment of the first posts and settlements in the territory in question by citizens of the United States. 2. The virtual recognition by the British government of the title of the United States in the restitution of the settlement of Astoria or Fort George, at the mouth of the Columbia River, which had been captured by the British during the late war between the two countries, and which was restored in virtue of the 1st article of the treaty of Ghent, 1814, stipulating that " all territory, places, and possessions whatever, taken by either party from the other during the war," etc., "shall be restored without delay." This restitution was made without any reservation or exception whatsoever, com- municated at tlie time to the American government. 3. The accpiisition by the United States of all the titles of Spain, Avhich titles were derived from the discovery of the coasts of the region in question, by Spanish subjects, before they had been seen by the people of any other civilized nation. By the 3d article of the treaty of 1819, between the United States and Spain, the boundary line between the two countries, west of the Mississippi, was established from the mouth of the river Sabine, to 10 STATES. [part I. certain i:>oints on the Tied River and the Arkansas, and running alonj; the parallel of 4*2 degrees north to the South Sea ; His Cath- olic Majesty cedhig to the United States " all liis rights, claims, and pretensions, to any territories east and north of the said line ; and " renouncing " for himself, his heirs and successors, all claim to the said territories forever." The boundary thus agreed on with Spain was confirmed by the treaty of 18"28, between the United States and Mexico, which had, in the meantime, become indepen- dent of Spain. 4. Upon the ground of contl(/uit^, which should give to the United States a stronger right to those territories than could be advanced by any other power. " If," said ."Mr. Gallatin, "a few trading fac- tories on the shores of Hudson's Bay have been considered by Great Britain as giving an exclusive right of occupancy as far as the Ivocky Mountains ; if the infant settlements on the more southern Atlantic shores justified a claim thence to the South Seas, and which was actually enforced to the Mississippi ; that of the millions of American citizens already within reach of those seas cannot con- sistently be rejected. It will not be denied that the extent of con- tiguous country to which an actual settlement gives a prior right, must depend, in a considerable degree, on the magnitude and 2)op- ulalion of that settlement, and on the facility with which the vacant adjacent land may, within a short time, be occupied, settled, and cultivated by such population, compared with the probability of its being occupied and settled from any other quarter. This doctrine was admitted to its fullest extent by Great Britain, as appeared by all her charters, extending from the Atlantic to the Pacific, given to colonies established then only on the borders of the Atlantic. How much more natural and stronger the claim, when made by a nation whose population extended to the central parts of the continent, and whose dominions were by all acknowledged to extend to the Rocky Mountains." The exclusive claim of the United States is opposed by Great Britain on the following grounds : — 1. That the Columbia was not discovered by Gray, who had only entered its mouth, discovered four years previously liy Lieutenant Meares of the British navy ; and that the exploration of the interior borders of the Columbia by Lewis and Clark could not be considered as confirming the claim of the L'nited States, becaiise, if not before, at least in the same and subsequent years, the British Northwest Company had, by means of their agents, already established their posts on the head waters or main branch of the river. li. That the restitution of Astoria, in 1818, was accompanied by CriAP. I.] DELAGOA BAY, 1872. 11 express reservations of the claim of Great Britain to tliat territory, upon AAiiich the American settlement must be considered an eu- croachnient. 3. That the titles to the territory in question, derived by the United States from Spain through the treaty of 1819, amounted to nothing more than the rights secured to Spain equally with Great Britain by the Nootka Sound Convention of 1790 : namely, to settle on any part of tliose countries, to navigate and fish in their waters, and to trade with the natives. 4. That the charters granted by British sovereigns to colonies on the Atlantic coasts were nothing more than cessions to the grantees of whatever rights the grantor might consider himself to possess, and could not be considered as binding the subjects of any other nation, or as part of the law of nations, until they had been confirmed by treaties. DELAGOA BAY, 1872. (HalVs International Law., 'id. Ed., 119.) " A SOMEWHAT recent controversy to which title by occupation has given rise turned mainly u[)on the effect of a temporary cessa- tion of the authority of the occupying state. From 1823 to 1875, when the matter was settled by arbitration, a dispute existed between England and Portugal as to some territory at Delagoa Bay, which was claimed by the former under a cession by native chief;i in the first-mentioned year, and by the latter on the grounds, amongst others, of continuous occupation. It was admitted that Portuguese territorj^ reached to the northern bank of the Rio de Espirito Santo, or English River, which flows into a bay, and that a port and village had long been established there. The question was whether the sovereignty of Portugal extended south of the river, or whether the lands on that side had remained in the pos- session of their original owners. England relied upon the facts that the natives professed to be independent in 1823, that they acted as such, and that the commandant of the fort repudiated the possession of authority over them. In the memoi'ials which were submitted on behalf of Portugal, amidst much Avhicli had no special reference to the territory in dispute, there was enough to show that posts had been maintained within it from time to time, and that authority had probably been exercised intermittently over the natives. The area of the territory being small, and all of it being within easy 12 STATES. [part I. reach of a force in possession of the Portuguese settlement, there could be little difficulty in keeping up sufficient control to prevent a title by occupation from dying out. There was, therefore, a pre- sumption in favor of the Portuguese claim. The French govern- ment, which acted as arbitrator, took the view that the interrup- tion of occupation, which undoubtedly took place in 1823, was not sufficient to oust a title supported by occasional acts of sovereignty done through nearly three centuries, and adjudged the territory in question to Portugal." [The award in favor of Portugal was in substance, on the grounds of first discovery, in the 16th century, and of contmued occupation and control of the territory in dispute.] SANTA LUCIA. (Phillimore' s International Law, M Ed., 3G8.) "There was a dispute of long standing between France and England respecting Santa Lucia, one of the Antilles Islands. After the treaty of Aix-la-Chapelle (1748), the matter was referre equivocation here between two distinct natural objects, each of them answering to the descriptive language of a stipulation. It is the Rio Bravo, with a course as definite, and almost as destitute of trib- utaries and embranchments, in its main course, as the Xile. That is a fact which cannot be modified by surveys or reports. " However, the established principles of public law come in here, to settle the question in all its relations. " The respective territories of the United States and of the IMexi- can rJepublic are arcifinious ; that is to say, territories separated not by a mathematical line, but by natural objects of indeterminate natural extension which of themselves serve to keep off the public enemy. Such are mountains and rivers. (Barbeyrac's Grotius, liv. ii., chap. 3, § 16 and note; Coceii Grotius Ulustratus, ibid.) "When a river is the dividing limit of arcifinious territories, the natural changes to which itself is liable, or which its action may produce on the face of the country, give rise to various questions, according to the physical events which occur, and the previous relation of the river to the respective territories. The most simple 2 18 STATES. [r.VKT I. of all the original conditions of the inquiry is where the river apper- tains by convention equally to both countries, their rights being on ^ither side to the^/ihan aquas, or middle of the channel of the stream. That is the present fact. " With such conditions, "whatever changes happen to either bank of the river by accretion on the one or degradation of the other ; that is, by the gradual and, as it were, msensible accession or ab- straction of mere particles, the river as it runs continues to be the boundary. One country may. in process of time, lose a little of its territor}', and the other gain a little, but the territorial relations cannot be reversed by such imperceptible mutations in the course of the river. The general aspect of thmgs remains unchanged. And the convenience of allowing the river to retain its previous function, notwithstanding such insensible changes in its course, or in either of its banks, outweighs the inconveniences even to the injured party ; it is a detriment, which, happening gradually, is inappreciable in the successive moments of its progression. " But, on the other hand, if. deserting its original bed, the river forces for itself a new channel in another direction, then the nation, through whose territor}^ the river thus breaks its way, suffers in- jury by the loss of territory greater than the benefit of retaining the natural river boundary, and that boundary remains in the middle of the deserted river bed. For, in truth, just as a stone pillar con- stitutes a boundary, not because it is a stone, but because of the place in which it stands, so a river is made the limit of nations, not because it is running water bearing a certain geographical name, but because it is water flowing in a given channel, and within given banks, which are the real international boundary." Section 6. — The Effect of a Chaxge of Sovereignty. (") ^'j'on Puhllc Hifjhts and Obligations. TEXAX boxds. (1 Wharton' fs Digest, 20-23.) During the period of Texan independence, that State had issued bonds to the extent of many millions of dollars, secured by the revenues of the State; and in lf>4.j, when Texas was annexed to the United States, her custom houses and the control over customs duties passed to the federal government. Some of these bonds were held in England ; and an attempt was made before the claims commis- CHAr. I.] TEXAN BONDS. 19 sion of lS5o, for the adjnstment of claims between England and the United States, to hold the federal government responsible for the paym(!nt of the Texan bonds. In Ins opinion, 'Mr. Upliam, commissioner said : — " Tlie matter of the indebtedness of Texas was a distinct subject of agreement by the terms of the union. According to those terms tlie vacant and unappropriated lands witliin the limits of Texas were to be retained by her, ' and applied to tlie payment of the debts and liabilities of the Republic of Texas, and the residue of the lands, after discharging these debts and liabilities, was to be disposed of as the State might direct, but in no event were the debts and liabilities to become a charge upon the Government of the United States.' (U. S. Statutes at Large, vol. 5, p. 798.) " The lands of Texas were thus specifically set apart for the pay- ment of the debts of Texas, by agreement of the two Governments, in addition to any separate pledge Texas had previously made of this class of property, for the payment of her debts. " The United States subsequently, by act of Congress, on the 9th of September, 1850, on condition of the cession of large tracts of these lands, agreed to pay Texas $10,000,000, but stipulated ' that $5,000,000 of the amount should be retained in the United States treasury until creditors, holding bonds, for which duties on imports were specifically pledged, should file releases of all claims against the United States.' [U. S. Statutes at Large, vol. 9, ch. 49, p. 446.] " It thus appears that the United States has acted, from the out- set, in concert with Texas, in causing express provision to be made for the payment of these debts. " A difficulty early arose in carrying the law, above cited, into effect, for the reason that the pledge of payment of the debts of Texas was made generally upon her revenues, and was not specific ' on imposts ' eo nomine, and for the further reason that doubts arose whether any portion of the debts could be paid under this contract, unless the whole could be discharged." (Report of the commission of claims under the convention of 1853.) Mr. Dana says of this case : — " It certainly would not be satisfactory to say that the United States discharges its obligation to the creditors of Texas, to whom her customs were pledged, by paying only the amount of the cus- toms received. " The United States determines what those duties shall be, in reference to the interest and policy of the whole Republic. The condition of Texas is changed by her annexation. The new govern- ment has a large control over the material resources of the inhabit- 20 STATES. [PAKT I. ants, in the way of internal revenues, excise or direct taxation, in its demands on tlie services of tlie people, and in the debts it can impose ; in fact, the entire public system of Texas has passed into other hands, and no such state of things any longer exists as that to Avhich the creditor looked. It may be better or worse, but it is not the same ; and, if the duties laid by the United States and collected in Texan ports did not in fact pay the debts, it would be unjust for the United States to limit the payment of the creditor to them. The truth is, by the annexation the United States changed the nature of the thmg pledged, and is bound generally to do equity to the creditor." (Dana's AA^heaton, note 18.) Mr. Lawrence says : " The liability of the United States for the debts of Texas came before the mixed commission, under the con- vention ^^•ith England of 1853, in the case of a British subject who had received before the annexation, bonds secured by a pledge of the faith and revenue of Texas. It was disposed of on the ground that never having been made a subject for international interposition against the United States, it did not fall within the scope of the con- vention ; but it seemed to be admitted that the liability of the United States, if any, arose, not from the merger, but from the transfer, under the Constitution of the United States, to the Federal Govern- ment of the duties on imports. It was said by the American Com- missioner, in announcing his opinion, that it was an inaccurate view of the case to regard this annexation as an entire adoption of one na- tion audits revenues by another. 'Texas is still a sovereign State, Avith all the rights and capacities of government, except that her international relations are controlled by the United States, and she has transferred to the United States her right of duties on imports.' " And he seemed to consider any claim arising from the previous pledge of such duties to be limited to their value. The British commissioner held that the obligation of Texas to pay her debts is not in dispute, nor has it been argued that the mere act of her annex- ation to the United States has transferred her liabilities to the Federal Government, though certainly, as regards foreign govern- ments, the United States is now bound to see that the obligations of Texas are fulfilled. It is the transfer of the integral revenues of Texas to the Federal Govennnent that is relied on as creating the new liability.'*^ (Decisions of the Commission of Claims under the convention of lsr)3, pp. 4(l.5-420. Lawrence's Wheaton, ed. 18G3, p. 54, note). 1 When Loinbardy and Venice were resp.'Ctively acquired by Italy at the close of the wars of is."j;i and 180(» with Austria, the Italian government assumed no part of the general debt of Austria, but only the local debts of the ceded provinces. CHAP. 1.] THE UNITED STATES V. PEUCIIEMAX. 21 OPINION OF CHANCELLOR KENT. {KenV.s Commentaries, I. 25.) " It is well to be understood, at a period when alterations in the constitutions of governments, and revolutions in states, are familiar, that it is a clear position of the law of nations, that treaties are not affected, nor positive obligations of any kind with other powers, or with creditors, weakened, by any such mutations. A state neither loses any of its rights, nor is discharged from any of its duties, by a change in the form of its civil government. The body politic is still the same, though it may have a different organ of communica- tion. So, if a state should be divided in respect to territory, its rights and obligations are not impaired ; and if they have not been apportioned by special agreement, those rights are to be enjoyed, and those obligations fulfilled, by all the parts in common." (b) Upon Private liights. THE UNITED STATES v. PERCHEMAN. SUPEEILE COUKT OF THE UNITED StATES, 1833. (7 Peters, 51, 80.) Juan Percheman claimed two thousand acres of land lying in the territory of Elorida, by virtue of a grant of the Spanish governor of that province made in 1815. After Florida was ceded to the United States by the treaty of 1819, this claim M'as rejected by the United States commissioners appointed to settle claims to territoi-y in Florida; and the question then came before the court for decision. Held that title to private property in the soil is not affected by a cession of territory. Marshall, C. J., delivered the opinion of the court, an extract from which is as follows : — So, in the case of the cession of Alsace and Lorraine to Germany in 1871, no part of the French national debt was assumed by Germany on their accoinit. (IJluiU- schli: Droit International, Article 48.) On the other hand, on the seizure of Schleswig-Holstein by Prussia, in 1800, the debt of Denmark was divided between that country and Schleswig-Holstein; " and in the same year, Italy, by convention with France, took upon itself so nuich of the Papal debt as was proportionate to the revenues of the Papal provinces which. it had appropriated." (Hall's International Law, ;]d ed., 102, note.) 22 STATES. [part I. " It maj' not be unworthy of remark that it is very unusual even in cases of conquest, for the conqueror to do more than to displace the sovereign and assume donmiion over tiie country. The modern usage of nations, which has become law, would be violated ; that sense of justice a,nd of right which is acknowledged and felt by the whole civilized world would be outraged, if private property should be generally confiscated, and private rights annulled. The people change their allegiance ; their relation to their ancient sovereign is dissolved ; but their relations to each other, and their rights of prop- erty, remain imdisturbed. If this be the modern rule even in cases of conquest, who can doubt its application to the case of an amicable cession of territory ? Had Florida elumged its sovereign by an act containing no stiijulation respecting the property of uidividuals, the right of property in all those who became subjects or citizens of the new government would have been unaffected by the change. It would have remamed the same as under the ancient sovereign. * * * "A cession of territory is never understood to be a cession of the property belongmg to its inhabitants. The king cedes that only which belonged to him. Lands he had previously granted were not his to cede. Neither party could so understand the cession. Xeither party could consider itself as attempting a wrong to individuals, condemned by the practice of the whole civilized world. The cession of a territory hy its name from one sovereign to another, conveying the compound idea of surrendering at the same time the lands and the people who inhabit them, would be necessarily understood to pass the sovereignty only, and not to interfere with private property." ^ OPIXIUX OF EAYAPtD, SECRETARY OF STATE. Despatch to Rouerts, Maecu 20, 1886. (1 IVIiarton's Diyest, 16.) In the territory conquered by Chili from Peru in tlae war of 187!>-18S2, citizens of the United States had acquired certain rights from tlie Peruvian government which, after the conquest, the CliiUan government was inclined not to respect. In Mr. Bayard's opinion, rights of individuals acquired under a former govern- ment should be respected in the case even of conquest by another government. " The decision noAv made rests on an alleged rule of interna- tional law whicli, assumed, as it now is, by the Government of Chili, ^ To the same effect in Mutual Asa. Society v. Wntt.s^ 1 Wheaton, 279, 282. CHAr. I.] OPINION OF BAYARD. 23 becomes a proper matter of discussion between ourselves and that Government. It is asserted by tlie Government of Cliili (for, in international relations, and the maintenance of international duties, tlie action of the judiciary in Cliili is to be treated, when assumed by the Government, as the act of the Government) that a sovereign, when occupying a conquered territory, has, by international law, the right to test titles acqidred under his predecessor by applying to them his own municipal law, and not the municipal law of his predecessor under which they vested. * * * "The Government of the United States, therefore, holds that titles derived from a duly constituted prior foreign Government to which it has succeeded are ' consecrated by the law of nations ' even as against titles claimed under its own subsequent laws. The rights of a resident — neutral — having become fixed and vested by the law of the country — cannot be denied or injuriously affected by a change in the sovereignty or public control of that country by transfer to another Government. His remedies may be affected by the change of sovereignty, but his rights at the time of the change nnist he measured and determined by the law under which he acquired them. * * * The Government of the United States is therefore pre- pared to insist on the continued validity of such titles, as held by citizens of the United States, when attacked by foreign Governments succeeding that by which they [were] granted. Title to land and landed improvements, is, by the law of nations, a continuous right, not subject to be divested by any retroactive legislation of new Governments taking the place of that by which such title was law- fully granted. Of course it is not intended here to deny the pre- rogative of a conqueror to confiscate for political offenses, or to with- drav>^ franchises which by the law of nations can be withdrawn by Governments for the time being. Such prerogatives have been con- ceded by the United States as well as by other members of the family of nations by which international law is constituted. What, however, is here denied, is the right of any Government to declare titles lawfully granted by its predecessor to be vacated because they could not have been lawfully granted if its own law had, at the time in question, prevailed. '- This pretension strikes at that principle of historical municipal continuity of Governments which is at the basio of mternaLional law.'' 24 STATES. [rAET I. Section 7. — De Facto Governments. (a) Ktcoijnition of lielligerency. OPIXIOX OY DAXA. (Dana's Edition of JHteaton, p. 34, note.) "The occasion for the accordance of belligerent rights arises when a civil conflict exists within a foreign state. The reason which re- quires and which can alone justify this step by the government of another countr}^ is, that its own rights and interests are so far affected as to require a definition of its own relations to the parties. Where a parent government is seeking to subdue an insurrection by municipal force, and the insurgents claim a political nationality and belligerent rights which the parent government does not concede, a recognition by a foreign state of full belligerent rights, if not justi- fied by necessity, is a gratuitous demonstration of moral support to the rebellion, and of censure upon the parent government. But the situation of a foreign state with reference to the contest and the condition of affairs between the contending parties, may be such as to justify this act. It is important, therefore, to determine what state of affairs, and what relations of the foreign state, justify the recognition. " It is certain that the state of things between the parent state and insurgents nuist amount in fact to a war, in the sense of inter- national law, that is, powers and rights of war must be in actual exercise: otherwise the recognition is falsified, for the recognition is of a fact. The tests to determine the question are various, and far more decisive where there is maritime war and connnercial relations with foreigners, * * * "As to the relation of the foreign state to the contest, if it is solely on land, and the foreign state is not contiguous, it is difficult to imagine a call for the recognition. If, for instance, the United States should formally recognize belligerent rights of an insurgent community at the center of Europe, with no seaports, it would re- quire a hardly supposal)le necessity to make it else than a mere de- monstration of moral support. ]]at a case may arise Avhere a for- eign state nuist decide whether to hold the parent state responsible CHAr. I.] OPINION OF DANA. 2;3 for acts done by the insurgents or to deal with the insurgents as a de facto government. (Mr. Canning to Lord Granville on the Greek War, June 22, 1826.) If the foreign state recognizes belligerency in the insurgents, it releases the parent state from responsibility for whatever may be done by the insurgents, or not done by the parent state, where the insurgent power extends. (Mr. Adams to ]Mr. Seward, June 11, 1861, Dip. Con. 105.) In a contest wholly upon lajid, a contiguous state may be obliged to make the decision whether or not to regard it as war ; but, in practice this has not been done by a general and prospective declaration, but by actual treatment of cases as they arise. Where the insurgents and the parent state are maritime, and the foreign nation has extensive commercial relations and trade at the ports of both, and the foreign nation and either or both of the contending parties have consid- erable naval force, and the domestic contest must extend itself over the sea, then th.e relations of the foreign state to this contest are far different. In such a state of things, the liability to political com- plications, and the questions of right and duty to be decided at once, usually away from home, by private citizens or naval officers, seem to require an authoritative and general decision as to the status of the three parties involved. If the contest is a war, all foreign citizens and officers, ^^'hether executive or judicial, are to follow one line of conduct. If it is not a war, they are to follow a totally dif- ferent line. If it is a war, the commissioned cruisers of both sides may stop, search and capture the foreign merchant- vessel ; and that vessel must make no resistance, and must submit to adjudication by a prize court. If it is not a war, the cruisers of neither party can stop or search the foreign merchant- vessel ; and that vessel may resist all attempts in that direction, and the ships of v/ar of the for- eign state may attack and capture any cruiser persisting in tlie at- tempt. If it is war, foreign nations must await the adjudication of prize tribunals. If it is not war, no such tribunal can be opened. If it is a war, the parent state may institute a blockade jure gentium of the insurgent ports, which foreigners must respect ; but, if it is not a war, foreign nations having large commercial intercourse Avith the country, will not respect a closing of insurgent ports by paper decrees only. If it is a war, the insurgent cruisers are to be treated by foreign citizens and officials, at sea and in port, as lawful belliger- ents. If it is not a war, those cruisers are pirates, and may be treated as such. If it is a war, the rules and risks respecting carrymg contraband, or despatches, or military persons come into play. If it is not a war, they do not. W^ithin foreign jurisdiction, if it is a war, acts of the insurgents in the way of preparation and 'ZQ STATES. [PAP.T I. equipments for hostility, may be breaches of neutrahty laws ; while, if it is not a war they do not come into that category, but into the category of piracy, or of crimes by municipal law. " Xow, all private citizens of a foreign state, and all its executive officers, and judicial magistrates, look to the political department of their government to prescribe the rules of their conduct, in all their possible relations with the parties to the contest. This rule is pre- scribed in the best and most intelligible manner for all possible con- tingencies b}' the simple declaration that the contest is, or is not, to be treated as war. If the state of things requires the decision, it must be made by the political department of the government. It is not fit that cases should be left to be decided as they may arise, by private citizens, or naval or judicial officers, at home or abroad, by sea or land. It is, therefore, the custom of nations for the ijolitical department of a foreign state to make the decision. It owes it to its own citizens, to the contending parties, and to the peace of the world, to make that decision seasonably. If it issues a formal declaration of belligerent rights prematurely, or in a contest with which it has no complexity, it is a gratuitous and unfriendly act. If the parent government complains of it, the complaint must be upon one of these grounds. To decide whether the recognition was uncalled for and premature, requires something more than a consideration of proxi- mate facts, and the overt and formal acts, of the contending par- ties. The foreign state is bound and entitled to consider the pre- ceding histor}^ of the parties ; the magnitude and completeness of the political and military organization and preparations on each side: the probable extent of the conflict by sea and land; the prob- able extent and rapidity of its development; and, above all, the prol^ability tliat its own merchant-vessels, naval officers, and con- suls may be precipitated into sudden and difficult complications abroad. The best that can be said is, that the foreign state may protect itself by a seasonable decision, either upon a test case that arises, or by a general prospective decision ; while, on the other hand, if it makes the recognition prematurely, it is liable to the suspicion of an unfriendly purpose to the parent state. The recogni- tion of belligerent rights is not solely to the advantage of the insurgents. They gain the great advantage of a recognized status, and the opportunity to employ commissioned cruisers at sea, and to exert all the powers known to maritime warfare, with the sanction of foreign nations. They can obtain abroad loans, military, and naval materials, and enlist men, as against everything but neutrality laws ; their flag and commissions are acknowledged, their revenue laws are respected, and they acquire a rjuasi political recognition. CHAP. I.] THE LILLA. 27 On the other hand, the parent government is relieved from respon- sibility for acts done in the insurgent territory ; its blockade of its own ports is respected ; and it acquires a right to exert, against neu- tral commerce, all the powers of a party to a maritime war." THE LILLA. U. S. District Coukt for Massachusetts, 1862. (2 SpragHC'\s Decisions, 177.) The Lilla was condemned by a Prize Court of the Confederate States, and subse- quently sailed under the British flag. Held, that the Federal courts would not acknowledge the validity of the decisions of the prize courts of the Confederacy, although they had recognized the belligerence of that government. This was a jNIaine brig called the Betsy Ames, captured by a Con- federate privateer commanded by IL S. Libby, carried into Charles- ton, S. C, and there condemned and sold, the purchasers being John Fraser & Co. of that city. Iler name was changed to the JMary Wright, and, loaded with cotton, under the command of Libby, she ran the blockade, arrived at Liverpool on the 2d of April, 18(32, and disposed of her cargo. April 24th she was registered as a British vessel, called the Lilla, and in the name of R. G. B., as sole owner. A fortnight later she sailed for Nassau, N. P., under the connuand of A., according to her papers, but really still under command of Libby. There is evidence going to show that it was arranged that Fraser & Co. should have a steamer of theirs follow to Nassau, there take on the Lilla's cargo and proceed to Charleston. Parts of the cargo were falsely documented in the name of R. G. B. for the purpose of deceiving the United States cruisers. The vessel was seized by the United States gunboat Quaker City, brought in, and claimed by her original owners. Sprague, J., decided that R. G. B. lost whatever he possessed in the cargo by reason of his falsely documenting other goods as his own to deceive belligerent cruisers and that the vessel should be restored upon the authority of the Act of 1800, Chap. 14, sees. 1, 2. U. S. Stats, at Large, 16, which provides that when a merchant vessel, belonging to any person under the protection of the United States, shall have been taken by a public enemy, and shall be recaptured by a public armed vessel of the United States, such vessel not having been condennied by competent authority before the recapture, tha same shall be restored to the former owners upon payment of one- 28 STATES. [I'AKT I. eighth part of the true value, for and in lieu of salvage. The oourt also saj's : — " The second ohjection to this claim is also fatal. There is no doubt that this vessel was the property of Maxwell and others, until her capture by a Confederate privateer. But it is contended that she has since been condemned and sold V)y a Prize Court in Cliarleston, S. C, and the purchasers conveyed her to the claimant Bushby. If this were so, of which there is no sufficient proof, still, such proceedings would not divest the title of the original owner. In the case of 'The Amy Waricick, t\\\A Court AeM, that treating the Confederates in some respects as belligerents was not an abandonment of sovereign rights, and by no means precluded us from treating them in other respects as rebels. Most assuredly I shall not recognize the Southern Confederates as a nation, or as having a government com- petent to establish Prize Courts. Xo proceedings of any such sup- loosed tribunals can have any validity here, and a sale under them ■would convey no title to the purchaser, nor would it confer upon him any right to give a title to others. But it is argued that, under the Queen's proclamation, recognizing the Confederates as belliger- ents, a British court would hold a sale to be valid. What the decis- ion of a British Court might be upon that question, we do not know, it never having been there litigated. But such a decision, if made, would be no more binding upon our courts than the political views of the British government would be upon the President or the Consrress." (Jj)Sriccession to tJte Hiyhts of Belligerent Communities. UNITED STATES OP^ AMEPJCA v. PPJOLEAU. ClIAXCEKY, 18GG. (25 Law Journal, Chancery, N. S., 7.) Upon tlie suppression of the Rebellion in 18(3.5, the title to the public property of the Confederate government became immediately vested in the government of the United .States. Toward the end of the civil war in the United States (1861- 18G.5), tlie Confederate government having got possession of 1,365 bales of cotton in Texas, had it shipped from Galveston to Havana, where it w^as consigned to an aGrent of Eraser & Co. On the 10th of CHAP. I.] UNITED STATES OF A3kIERICA V. PRTOLEAU. 20 June, 18G5, the cotton was shipped from Iliivana to Liverpool, con- signed to tlie defendants Fraser, Trenholni & Co. (Prioleau being the English member of the firm), and was of the value of 40,000^. Fraser, Trenholm & Co. had made a contract with one M'Rae, gen- eral European agent of tlie Confederate government, to build eight steamships to be employed in transporting cotton and other produce from the Confederate States. They were to receive all consignments of said merchandise and sell the same according to the instructions they should receive for that purpose. The company were to advance the expenses of transportation, and were then to recoup themselves out of the proceeds of the consignments. They had already expended 20,000/ for sailing expenses, to say nothing of the cost of the ships. When this consignment of cotton arrived in Liverpool, the Con- federate government had been dissolved, and the Confederate States 'had submitted to the authority of the L'nited States government ; and the latter government filed a bill praying to have the cotton delivered up to them, and for an injunction and receiver. Judgment. — Wood, V. C. : " There are one or two points which, I think, are tolerably clear in this case. The first point is with reference to the right of the United States of America, at this moment, to the cotton, suljject to the agreement. I treat it first in that way. It has scarcely been disputed on the present argument, and could hardly be disputed at any further stage of the inquiry, that the right is clear and distinct, because the cotton in question is the admitted result of funds raised by a de facto government, exercising authority in what were called the Confederate States of America ; that is to say, several of those states which, in union, formerly con- stituted the LTnited States, and which now, in fact, constitute them ; and that de facto government, exercising its powers over a consider- erable number of states (more than one would be quite enough), raises money — be it by voluntary contribution, or be it by taxation, is not of much importance. The defendant Prioleau, in cross-exam- ination, admits that they exercised considerable power of taxation ; and with those means, and claiming to exercise that authority, they obtained from several of the States of America funds by which they purchased this cotton for the use of the de facto government. That being so, and that de facto government being displaced, I apprehend it is quite clear that the United States of America (that is to say, the government which has been successful in displacing the de facto government, and whose authority was usurped or dis- placed, or whatever term you may choose to apply to it), the au- thority being restored, stand, in reference to this cotton, in the posi- 30 STATES. [l>ART I. tioii of those who have acquired, on behalf of the citizens of the United States, a public propert}^ ; because otherwise, as has been well said, there would be no body who could sue in respect of, or deal with, property that has been raised, not by contribution of any one sovereign state (which might raise a question, owing to the peculiar constitution of the Union, if it had been raised in Virginia or Texas, or in any given State), but the cotton is the product of levies, voluntary or otherwise, on the members of tlie several states which have united themselves into the Confederate States of America, and which are now under the control of the present plaint- iffs, and are represented, for all purposes, by the present plaintiffs. That being so, the right of the present plaintiffs to this cotton, sub- ject to this agreement is, I think, clear, because the agreement is an agreement purporting to be made on behalf of the then de facto existing government, and not of any other persons. That case of The King of the Tico ^Sicilies and the case of The Kinq of SpaifL and other cases of the same kind, which it is not necessarj'- to go through, show that whenever a government de facto has obtained the possession of property, us a government, and for the purposes of the government de facto, the government which displaces it suc- ceeds to all the rights of the former government, and, among other things, succeeds to the property they have so acquired. "Now I come to the second head of the question, and I confess at this moment, as at present advised, I do not feel much doubt on the subject, namely, the question whether or not, taking this property, they must or must not take it subject to the agreement. It appears to me, at present, they must take it subject to the agreement. It is an agreement entered into by a de facto government, treating with persons who have a perfect right to deal with them. I apprehend if they had been American subjects they might do so. One of them. Prioleau, is not an American subject ; he is a naturalized British subject ; he would have a perfect right to deal with a de facto government ; and it cannot be compared with any one of those cases Mr. Gifford put, of persons taking the property of another with knowledge of the rights of that other. That is a species of argu- ment that cannot be applied to international cases of this descrip- tion, and for a very good reason ; if so, there would be no possibility during the existence of a government de facto of a^ y person dealing with that government in any part of the world. The courts of every country recognize a government de facto to this extent, f^r the purpose of saying — you are established de facto, if you are carrying on the course of government, if you are allowed by those whom you affect to govern to levy taxes on them, and they pay CHAP. I.] UNITED STATES OF AMEKICA V. PKIOLEAU. ol those taxes, and contribution is made accordingly, or yon are acquir- ing i3roprety, and are at war, having the riglits of belhgerents, not being treated as mere rebels by persons who say they are tbe authorized government of the country. Otlier nations can have nothing to do with that matter. They say we are bound to protect our subjects who treat with the existing government ; and we must give to those subjects, in our country, every right wliich the govei-n- ment de facto can give to them, and must not allow the succeeding government to assert any right as against the contracts which have been entered into by the government de facto ; but, as expressed by Lord Cranworth in the case referred to, they must succeed in every respect to the property as they find it, and subject to all the condi- tions and liabilities to which it is subject and by which they are bound. Otherwise, I do not see any answer to Mr. James's illus- tration, and I do not see why there should not have been a bill filed to have the Alabama delivered up; * * * because on the theory of the present plaintiffs, it was their property just as much as their cotton is now. If the case had been this (and it is the only case I can consider as making any difference, but that difference would be fatal to the plaintiffs' case in another point of view) : if they had been a set of marauders, a set of robbers (as was said to be the case in the kingdom of Naples, truly or untruly), devastating the country, and acquiring property in that way, and then affecting to deal with your subjects in England, it would not be the United States, but the individuals who had been robbed and suffered, who could come as plaintiffs. The United States could only come to claim this because it has been raised by public contribution; and although the United States, who are now the government de facto and dejicre, claim it as public property, yet it would not be public property unless it was raised, as I have said, by exercising the rights of government, and not by means of mere robbery and violence. "I confess, therefore, I have so little doubt, that this agreement is one that would be binding on the plaintiffs, that I cannot act against these gentlemen without sectiring to them the reasonable benefit of this agreement ; and I carmot put them under any terms which would exclude them from the reasonable benefit of what they are entitled to, and must be held entitled to, as I think, at the hear- ing of the cause." [The Vice Chancellor then proceeds to decree that the cotton was now the property of the United States Government, but that they must take it subject to the obligations entered into respecting it by the de facto Confederate Government. Tbe defendant Prioleau was appointed receiver, with power to sell 32 STATES. [PAKT I. the cotton, but he was required to give security for its vakie ultra the 20,000^., the amount of the defendant's lien.^] SeCTIOX 8. TEKKITtHilAI, WaTEKS OF A StATE. (a) Rii'e7's. OPIXIOX OF WIIEATOX. (Wheutons International Law, -id Ed., 242.) « The territory of the state includes the lakes, seas, and rivers, entirely inclosed within its limits. The rivers which flow through the territory also form a part of the domain from their sources to their mouths, or as far as they flow within the territory, including the bays or estuaries formed by their junction with the sea. * * * " Things of which the use is inexhaustible, such as the sea and running water, cannot be so appropriated as to exclude others from using these elements in any manner which does not occasion a loss 1 In the case of the United States of America v. McRae, 1869, L. R. 8 Eq. 69. James, V. C, held, " tliat, upon the sitppression of a rebellion, the restored legitimate government is entitled, as of right, to all moneys, goods, and treasure which were public property of the government at the time of the outbreak, such right being in no way affected by the wrongful seizure of tlie property by the usurp- ing government. "But with respect to property which has been voluntarily contributed to, or acquired by, the insurrectionary government in the exercise of its usurped au- thority, and has been impressed in its hands with the character of public property, the legitimate government is not, on its restoration, entitled by title paramount, but as successor only (and to that extent recognizing the authority) of the dis- placed usurping government; and in seeking to recover such property from an agent of the displaced government can only do so to the same extent, and subject to the same rights and obligation^, as if that government had not been displaced and was itself proceeding agxin^t the agent. " Therefore, a bill by the United States Government, after the suppression of the rebellion, against an agent of tlie late Confederate Government, for an account of his dealings in respect of the Confederate loan, which he was employed to raise in this country [England], was dismissel with costs, in the absence of proof that any property to wliich the plaintiffs were entitled in their own right, as distin- guished from their right as successors of the Confederate Government, ever reached the hands of the defendant, and on the plaintiff declining to have the account taken on the same footing as if taken between the Confederate Government and the defendant as the agent of such government, and to pay what, on the footing of such account might be found due from them." (Quoted from 2 Phillimore's Inter- national Law, VA.) CHAP. I.J THE XxiVIGATION OF THE MISSrSSFPIT. 33 or inconvenience to the proprietor. Tliis is what is called an in- nocent use. Thus we have seen that the jurisdiction possessed by one nation over sounds, straits, and other arms of the sea, leading through its own territory to that of another, or to other seas com- mon to all nations, does not exclude others from the right of inno- cent passage through these communications. The same principle is applicable to rivers flowing from one state through the territory of another into the sea, or into the territory of a third state. The right of navigating, for commercial purposes, a river which flows through the territories of different states, is common to all the nations inhabiting the different parts of its banks ; but this right of innocent passage being what the text writers call an hnperfect rir//>(, its exercise is necessarily modified by the safety and convenience of the state affected by it, and can only be effectually secured by mutual convention regulating the mode of its exercise." THE NAVIGATION OF THE MISSISSIPPI. (Mlieaton'' s International Law, otZ Ed., 247.) "By the treaty of joeace concluded at Paris, in 1763, between France, Spain, and Great Britain, the province of Canada was ceded to Great Britain by France, and that of Florida to the same power by Spain, and the boundary between the French and British pos- sessions in North America was ascertained by a line drawn through the middle of the river Mississippi from its source to the Iberville, and from thence through the latter river and the lakes of Maurepas and Pontchartrain to the sea. The right of navigating the Missis- sippi was at the same time secured to the subjects of Great Britain from its source to the sea, and the passages in and out of its mouth, without being stopped, or visited, or subjected to the payments of any duty whatsoever. The province of Louisiana was soon after- wards ceded by France to Spain; and by the treaty of Paris, 1783, Florida was retroceded to Spain by Great Britain. The independence of the United States was acknowledged, and the right of navigat- ing the Mississippi was secured to the citizens of the United States and the subjects of Great Britain by the separate treaty between these powers. But Spain having become thus possessed of both banks of the Mississippi at its mouth, and a considerable distance above its mouth, claimed its exclusive navigation below the point where the southern boundary of the United States struck the river. This claim was resisted, and the right to participate in the navigation of 3 34 STxVTES. [I'Airn. the river from its source to the sea "u-as insisted on by tlie United States, imder tlie treaties of 1763 and 1783, as well as b}^ the law of nature and nations. The dispute was terminated by the treaty of San Lorenzo el Real, in 1795 by the 4th article of which His Catholic Majesty agreed that the navigation of the ^lississippi, in its whole breadth, from its source to the ocean, should be free to the citizens of the United States ; and by the 22d article, they were permitted to deposit their goods at the port of New Orleans, and to export them from thence, without paying any other duty than the hire of the warehouses. The subsequent acquisition of Louis- iana and Florida l)y the L^nited States having included within their territory the whole river from its source to the Gulf of Mexico, and the stipttlation in the treaty of 1783, securing to British subjects a right to participate in its navigation, not having been renewed by the treaty of Ghent, in 1814, the right of navigating the Mississippi is now vested exclusively in the United States. " The right of the United States to participate with Spain in tlie navigation of the river Mississippi, was rested by the American Government on the sentiment written in deep characters on the heart of man, that the ocean is free to all men, and its rivers to all its inhabitants. This natural right was found to be universally acknowl- edged and protected in all tracts of country, united under the same political society, by laying the navigable rivers open to all their hdiabitants. "When these rivers enter the limits of another societ}', if the right of the upper inhabitants to descend the sti-eam was in any case obstructed, it was an act of force b}' a stronger society against a weaker, condemned by the judgment of mankind. * * * "If the appeal was to the law of nature and nations, as expressed by writers on the subject, it was agreed by them, that even if the river, Avliere it passes between Florida and Louisiana, were the exclusive right of Spain, still an innocent passage along it was a liatural right in those inhabiting its borders above. It would, indeed, be what those writers call an imperfect right, because the modifica- tion of its exercise depends, in a considerable degree, on the con- veniency of the nation through which they were to pass. But it was still a rlrjht^ as real as any other right however well defined ; and were it to be refused, or to be so shackled by regulations not neces- sary for the peace or safety of the inhal)itants, as to render its use impracticable to us, it would then be an injury, of which we should be entitled to demand redress. The right of the upper inhabitants to use tliis na-^-igation was the counterpart to that of those possess- ing the shores below, and founded in the same natural relations with the soil and water. * * * CHAr. 1.] THE NAVIGATION OF THE ST. LAAVKENCE. 35 " It ^yas a principle, too, that the right to a thing gives a right to the means witliout which it could not be used, tluit is to say, that the means follow the end. Thus a right to navigate a river draws to it a right to moor vessels to its shores, to land on them in cases of distress, or for other necessary purposes, etc. This principle M'as founded in natural reason, was evidenced by the common sense of manlcind, and declared by the writers before quoted." (Jefferson's instructions to U. S. ministers in Spain, March 18, 1792. Waite's State Papers, vol. x. pp. 135-140.) THE NAVIGATION OF THE ST. LAWREXCE. (mieaton's International Laio, od Ed., 252.) " The relative position of the United States and Great Britain in respect to the navigation of the great northern lakes and the river St. Lawrence, appears to be similar to that of the United States and Spain, previously to the cession of Louisiana and Florida, in respect to the Mississippi; the L'nited States being in possession of the southern shores of the lakes and the river St. Lawrence to the point where their northern boundary line strikes the river, and Great Britain, of the northern shores of the lakes and the river in its whole extent to the sea, as well as of the southern banks of the river from the latitude 45° north to its mouth. " The claim of the people of the Ignited States, of a right to navi- gate the St. Lawrence to and from the sea, was, hi 182G, the subject of discussion between the American and British Governments, » On the part of the Ignited States Government, this right is rested on the same grounds of natural right and obvious necessity wliich had formerly been urged in respect to the river 3Iississippi. The dispute between different European powers respecting the navigation of the Scheldt, in 1784, was also referred to in the correspondence on this subject, and the case of that river was distinguished from that of the St. Lawrence by its peculiar circumstances. Among others, it is known to have been alleged by the Dutch, that the whole course of the two branches of this river which passed within the dominions of Holland was eniivelj artificial ; that it owed its existence to the skill and labor of Dutchmen ; that its banks had been erected and maintained by them at a great expense. Hence, probably, the motive for that stipulation in tlie treaty of Westphalia, that the lower Scheldt, with the canals of Sas and Swin, and other 36 STATES. [I'AKT I. mouths of the sea adjoining them, should be kept closed on the side belonging to Holland. " But the case of the St. Lawrence was totally different, and the principles on which its free navigation was maintained by the United States had recently received an unequivocal confirmation in the solemn act of the principal States of Europe. In the treaties concluded at the Congress of Vienna, it had been stipulated that the navigation of the Khine, the Xeckar, the ]\Iayn, the Moselle, the Maese, and the Scheldt, should be free to all nations. These stipulations, to which Great Britain was a party, might be considered as an indica- tion of the present judgment of Europe upon the general question. The importance of the present claim might be estimated by the fact that the inhabitants of at least eight states of the American Union, besides the territory of Michigan, had an innnediate interest in it, besides the prospective interests of other parts connected with this river and the inland seas through which it communicates with the ocean. The right of this great and growing population to the use of this, its only natural outlet to the ocean, was supported by the same principles and authorities which had been urged by Mr. Jeffer- son in the negotiation with Spain respecting the navigation of the river Mississippi. '.' The present claim was also fortified by the consideration that this navigation was, before the war of the American Revolution, the common propertj'' of all the British subjects inhabiting this con- tinent, having been acquired from France by the united exertions of the mother country and the colonies in the war of 1756. The claim of the United States to the free navigation of the St. Lawrence was of the same nature with that of Great Britain to the navigation of the Mississippi, as recognized by the 7th article of the treaty of Paris, 176.3, when the north and lower shores of that river were held by another power. The claims, whilst necessary to the L'nited States, was not injurious to Great Britain, nor could it violate any of her just rights. " On the part of the British Government, the claim was considered as involving the question whether o, perfect right to the free naviga- tion of the river St. Lawrance could be maintained according to the principles and practice of the law of nations." " The liberty of passage to be enjoyed by one nation through the dominions of another was treated by the most eminent writers on public law as a qualified, occasional exception to the paramount rights of property. They made no distinction between the right of passage by a river, flowing from the possessions of one nation through those of another, to the ocean, and the same right to be en- CHAP. I.] THE NAVIGATION OF THE ST. LAWUENCE. o7 joyed by means of any highway, whether of land or water, generally accessible to the inhabitants of the earth. The right of passage, then, nnist liold good for other pnrposes, besides those of trade, — for objects of war as well as for objects of peace, — for all nations, no less than for any nation in particular, and be attached to artificial as well as to natural highways. The principle could not, therefore, be insisted on by the American Government, unless it was prepared to api)ly the same principle by reciprocity, in favor of British sub- jects, to the navigation of the Mississi[)[)i and the Hudson, access to which from Canada might be obtained by a few miles of land- carriage, or by the artificial communications created by the canals of New York and Ohio. Hence the necessity which has been felt by the writers on public law, of controlling the operation of a prin- ciple so extensive and dangerous, by restricting the right of transit to purposes of innocent nt'ility, to be exclusively determined by the local sovereign. " Hence the right in question is termed by them an imperfect right. But there was nothing in these writers, or in the stipulations of the treaties of Vienna, respecting the navigation of the great rivers of Germany, to countenance the American doctrine of an absolute, natural right. These stipulations were the result of mu- tual consent, founded on consideration of mutual interest growing out of the relative situation of the different states concerned in this navigation. " The same observation would apply to the various conventional regulations, which had been, at ditferent periods, applied to the navigation of the river Mississippi. "As to any supposed right derived from the simultaneous acquisi- tion of the St. Lawrence by the British and American people, it could not be allowed to have survived the treaty of 1783, by which the independence of the United States was acknowledged, and a par- tition of the British dominions in North America was made between the new government and that of the mother country. " To this argument it was replied, on the part of the United States, that, if the St. Lawrence were regarded as a strait connect- ing navigable seas, as it ought properly to be, there would be less controversy. The principle on which the right to navigate straits depends, is, that they are accessorial to those seas which they unite, and the right of navigating which is not exclusive, but common to all nations ; the right to navigate the seas drawing after it tliat of passing the straits. The United States and Great ]]ritain have between them the exclusive right of navigating the lakes. The St. Lawrence connects them with the ocean. " The right to navigate 38 STATES. [pAr.T I. both (the lakes ana the ocean) inchides that of passing from one to the other through the natural hnk. Was it then reasonable or just that one of the two co-proprietors of the lakes should altogether exclude his associate from the use of a common bounty of natui'e, necessary to the full enjoj'ment of them? The distinction bet^A'een the right of passage, claimed by one nation through the territories of another, on land, and that on navigable water, though not always clearly mai-ked by the writers on public law, has a manifest existence in the nature of things. In the former case, the passage can hardly ever take place, especially if it be of numerous bodies, without some detriment or inconvenience to the state whose terri- tory is traversed. 15ut in the case of a passage on water no such injury is sustained. " The American government did not mean to contend for any prin- ciple the benefit of which, in analogous circumstances, it would deny to Great Britain. If, therefore, in the further progress of discovery, a connection should l)e developed between the Mississippi river and Upper Canada, similar to that which exists between the United ^States and the St. Lawrence, the American government would be always ready to apply, in respect to the Mississippi, the same principles it contended for in respect to the St. La\vrence. But the case of rivers, which lise and debouch altogether within the limits of the same na- tion, ougbt not to be confounded with those which, having their sources and navigable portions of their streams in states above, finally discharge themselves within the limits of other states below. In the former case, the question as to opening the navigation to other nations depended upon the same considerations which might influence the regtilation of other commercial intercourse with for- eign states, and was to be exclusively determined by the local sover- eign. But in respect to the latter the free navigation of the river was a natural right in the upper inhabitants, of which they could not be entirely deprived b}^ the arbitrary caprice of the lower state. Xor was the fact of stibjecting the use of this right to treaty regulations, as was proposed at Vienna to be done in respect to the navigation of tlie European rivers, sufficient to prove that the origin of the right was conventional and not natural. It often happened to be highly convenient, if not sometimes indispensable, to avoid controversies by prescribing certain rules for the enjoyment of a natural right. The law of nature, though sufficiently intelligible in its great outlines and general })urposes, docs not always reach every minute detail which is called for by the complicated wants and varieties of modern navi- gation and commerce. "Hence the right of navigating the ocean itself, in many instances, CHAP. I.] THE NAVIGATION OF THE ST. LAWliENCE. 89 principally incident to a state of war, is subjected, l)y innmnerable treaties, to various regulations. These regulations — the transac- tions of Vienna, and other analogous stipulations — should be regarded only as the spontaneous homage of man to the paramount Law-giver of the universe, by delivering his great works from the artificial shackles and seliish contrivances to which they have been arbitrarily and unjustly sul)jected." [By the reciprocity treaty of 1854, the citizens and inhabitants of the United States w^ere permitted to navigate the river St. Lawrence and the Canadian canals betw^een the great lakes and the .Vtlantic Ocean ; and British subjects were granted the right to navigate Lake Michigan. This treaty was abrogated in 18GG. The treaty of Washington of May 8, 1871, provides as follows : ARTICLE XX YL " The navigation of the river St. Lawrence, ascending and de- scending, from the forty -fifth parallel of north latitude, where it ceases to form the boundary between the two countries, from, to, and into the sea, shall forever remain free and open for the purposes of commerce to the citizens of the United States, subject to any laws and regulations of Great Britain, or of the Dominion of Canada, not mconsistent with such privilege of free navigation. "The navigation of the rivers Yukon, Porcuphie, and Stikine, ascending and descending, from, to, and into the sea, shall forever remain free and open for the purposes of commerce to the subjects of Her Britannic Majesty and to the citizens of the United States, sub- ject to any laws and regulations of either country witliin its own territory, not inconsistent with such privilege of navigation." ARTICLE XXYII. " The Government of Her Britannic Majesty engages to urge upon the Government of the Dominion of Canada to secure to the citizens of the United States the use of the Welland, St. Lawrence, and other canals in the Dominion on terms of equality with the inhabitants of the Dominion ; and the Government of the Ignited States engages that the subjects of Her Britannic Majesty shall enjoy the use of the St. Clair Flats canal on terms of equality with the inhabitants of the United States, and further engages to urge upon the state governments to secure to the subjects of Her Britannic Majest)'" the use of the several state canals connected with the navigation of the lakes or rivers traversed by, or contiguous to the boundary line between the possessions of the high contracting parties, on terms of equality with the inhabitants of the L'nited States." 40 STATES. [PAKT I. ARTICLE XXVTIT. " The navigation of Lake Michigan shall also, for the term of years [ten] mentioned in article XXXIIL of this treaty be free and oi>en for the luirposes of commerce to the subjects of Her Britannic Majesty, subject to any laws and regulations of the United States or of the states bordering thereon not inconsistent with such privi- lege of free navigation. — [F. S.] THE XAVIGATIOX OF EUROPEAX RIVERS. {^nieatons International Law, M Ed., 244.) By the treaty of Westphalia, 1G48, confirmed l)y subsequent treaties, * * * the navigation of the river Scheldt was closed to the Belgic provinces, in favor of the Dutch. The forcible opening of this navigation by the French on the occupation of Belgium by the arms of the French Republic, in ITil'J, in violation of these treaties, was one of the principal ostensible causes of the war between France on one side, and Gi-eat Britain and Holland on the other. By the treaties of Vienna, the Belgic provinces were united to Holland under the same sovereign, and the navigation of the Scheldt was i:)laced on the same footing of freedom with that of the Rhine and other great European rivei's. And by the treaty of 1831, for the separation of Holland from Belgium, the free naviga- tion of the Scheldt was, in like manner, sectired, subject to certain duties, to be collec^ted by the Dutch government.^ " By the treaty of Vienna, 1815, the conunercial navigation of rivers which separate different states, or flow through their respect- ive territories, was declared to be entirely free in their whole course, from the point M'here each river becomes navigable to its mouth ; provided that regulations relating to the police of the navigation should be observed, which regulations were to be uniform, and as favorable as possil)le to the commerce of all nations. " By the Annexe XVI. to the final act of the Congress of Vienna, the free navigation of the Rhine is confirmed ' in its whole course, from the point where it becomes navigable to the sea, ascending or descending;' and detailed regulations are provided respecting the navigation of that river, and the Xeckar, the ]Mayn, the Moselle, the 1 By the treaty of May 12, 1803, between Belgium and the Xcthcrlands, the King of tlie Xftherlands renounces the Scliehlt dues for 17,141,040 floruis to be paid by Belgium. See Dana's note to Whcaton. p. 270. CHAP. I.] THE SOUND DUES. 4l Meuse, and the Scheldt, which are declared in like manner to be free from the point where each of these rivers becomes navigable to its mouth. Similar regulations respecting the free navigation of the Elbe were established among the powers interested in the commerce of that river, by an act signed at Dresden the 12th December, 1.S21. And the stipulations between the different powers interested in the free navigation of the Vistula and other rivers of ancient Poland, contained in the treaty of the 3d jMay, 1815, between Austria and Russia, and of the same date between Russia and Prussia, to which last Austria subsequently acceded, are confirmed by the final act of the Congress of Vienna. The same treaty also extends the general principles adopted by the Congress relating to the navigation of rivers to that of the Po." [The Danube was declared free to commerce, under certain restrictions, by the treaty of Paris, in 1856. See further, on the navigation of rivers, Schuyler's American Dii)lomacy ; Calvo's International Law, 4th Ed., T., 451-4G7 ; Ilertslet's Map of Europe by Treaty ; Englehardt, in the Revue de Droit, International, vol. XL, pp. 363-381. F. 8.]^ (b) Straits. THE SOUND DUES. {WheatoJi's hiternntlonal Lnu\ M Ed., 2ol.) " The supremacy asserted by the king of Denmark over the Sound and the two Belts which form the outlet of the Baltic Sea into the ocean, is rested by the Danish public jurists upon immemorial pre- scription, sanctioned by a long succession of treaties with other powers. According to these writers, the Danish claim of sovereignty has been exercised from the earliest times beneficially for the pro- tection of commerce against pirates and other enemies by means of guard-ships, and against the perils of the sea by the establishment of lights and land-marks. The Danes continued for several centuries masters of the coasts on both sides of the Sound, the province of Scania not having been ceded to Sweden until the treaty of Roeskild, in 1658, confirmed by that of 1660, in which it was stipulated that Sweden 1 South American Elvers. — The River La Plata, witli its 1)i-anolies the Parana and the Uruguay, was opened to general commerce during I he period from isru to 1859, and the Amazon, during that from 1858 to 18(57. (Schuyler's American Diplomacy, 319-344.) African Bivers.— By act of the conference of P>erlin, 1885, the principles of free navigation were extended to the Congo antl the Xiger. 42 STATES. [pAliT L should never lay claim to the Sound tolls in consequence of the ces- sion, but should content herself with a compensation for keeping up the light-houses on the coast of Scania. The exclusive right of Den- mark was recognized as early as 1368, by a treaty with the Ilanseatic republics, and by that of 1490, with Henry VII., of England, which forbids P^nglisli vessels from passing the Great Belt as well as the Sound, unless in case of unavoidable necessity ; in which case they were to pay the same duties at Wyborg, as if they Imd passed the Sound at Elsinore. "The treaty concluded at Spire, in 1544, with the Emperor Charles Y., which has commonly been referred to as the origin, or at least the first recognition, of the Danish claim to the Sound tolls, merely stipulates, in general terms, that the merchants of the Lov/ Countries frequenting the ports of Denmark should pay the same duties as formerly. "The treaty concluded at Christianople, in 1G45, between Den- mark and the United Provinces of the Xetherlands, is the earliest convention with any foreign power by which the amount of duties to be levied on the passage of the Sound and Belts was definitely ascertained. A tariff of specific duties on certain articles therein eimmerated was annexed to this treaty, and it was stipulated that, ' goods not mentioned in the list should pay according to mercan- tile usage, and what has been practiced from ancient times.' " A treaty was concluded between the two countries at Copen- hagen, in 1701, by which the obscurity in that of Christianople as to the non-specified articles, was meant to be cleared up. By the third article of the new treaty it was declared that as to the goods not specified in the former treaty, ' the Sound dtities are to be paid according to tJieir value ; ' that is, they are to be vahied accordintj to the place from lohence they come, and one per centum of their value to be paid. "These two treaties of 1645 and 1701, are consequently referred to in all subsequent treaties, as furnishing the standard by which the rates of these dtities are to be meastired as to privileged nations. Those not primleged, pay according to a more ancient tariff for the specified articles, and one and a quarter per centum on unspe- cified articles. "By the arrangement concluded at London and Elsinore, in 1841, between Denmark and Great Britain, the tariff of duties levied on the passage of the Sound and Belts was revised, tlie duties on non- enumerated articles were made specific, and others reduced in aujount, whilst some of the abuses which had crept into the manner of levymg the duties in general were corrected. The benefit of this CHAP. I.] THE BOSPHORUS AND THE DAltDANELLES. 43 arrnngeraent, which is to subsist for the term of ten years, has l)eeu extended to all other nations prioileged by treaty." [The Sound dues became so great a burden to commerce that active opposition to them finally arose both in Europe and America ; and the right of Denmark to collect them Avas warmly disputed, especially in the United States. Denmark tlierefore, in 1855, sug- gested a project of capitalizing the Sound dues ; and in accordance with this suggestion, a European Congress met at Copenhagen, in the winter of 185G, and concluded a treaty, March 14, 1857, by which these dues were forever abolished, in consideration "of a present payment of 35,000,000 rix-dollars. The United States declined to become a party to the treaty, because, as President Pierce said, " Denmark does not offer to submit to the convention the question of her right to levy the Sound dues." And furtlier that the pi-op- osition contemplated a political result — " the balance of power among the governments of Europe." The United States, however, concluded a separate treaty with Denmark, April 11, 1857, by which 717,829 rix-dollars were paid to Denmark, in consideration of her agreement to keep up lights, buoys, and pilot establishments, thus avoiding the recognition of the right of Denmark to collect the dues. See Schuyler's American Diplomacy, 306 ; 11. R. Ex. Doc, Xo. 108, 33d Congress, 1st Sess. and Senate Ex. Doc, No., 28, 35th Cong., 1st Sess. — F. S.] THE BOSPHORUS AND THE DARDANELLES. {Wheaton'' s International Law, o(Z Ed., 230.) " So long as the shores of the Black Sea were exclusively pos- sessed by Turkey, that sea might with propriety be considered a mare dausum ; and there seems no reason to question the riglit of the Ottoman Porte to exclude other nations from navigating the passage which connects it with the Mediterranean, both shores of this passage being at the same time portions of the Turkish terri- tory ; but since the territorial acquisitions made by Russia, and the commercial establishments formed by her on the shores of the Euxine, both that empire and the other maritime powers have be- come entitled to participate in the connuerce of the Black Sea, and consequently to the free navigation of the Dardanelles and the Bos])horus. This right was expressly recognized by the seventh article of the treaty of Adrianople, concluded in 1829, between 4-i STATES. [part I. Kussia and the Porte, both as to IJussian vessels and those of other Euiopean States in amity with Turkey. " The right of foreign vessels to navigate the interior waters of Turkey, which connect the Black Sea with the Mediterranean does not extend to ships of war. Tlie ancient rule of the Ottoman ]Mni)ire, estabhshed for its own security, by which the entry of for- eign vessels of war into the canal of Constantinople, including the strait of the Dardanelles and tliat of the Black Sea, has been at all times prohibited, was expressly recognized by the treaty con- cluded at London the 13th July, 1841, between the five great European powers and the Ottoman Porte. " By the second article, * * * the Sultan reserved the faculty of granting, as heretofore, firmans allowing the passage to light armed vessels employed, according to usage, in the service of the diplo- matic legations of friendly powers." [•'By the treaty of Paris in 1850, as modified by the treaty Lon- don hi isTl, the Black Sea was thrown open to merchant vessels of all nations ; but the streets are closed to ships of war, except that the Sultan has the faculty of opening them in time of peace to the war vessels of friendly and allied powers in case he deems it neces- sary for carrying out the stipulations of the treaty of Paris. The L'^nited States have never adhered to either of these treaties, and have always maintained that their right to send ships of war into the Black Sea cannot be legally taken from them by any arrange- ment concluded by European powers to which they are not pai'ties. Xo attempt, however, has ever been made to exercise these rights. All American ships of war have, while reserving all question of right, asked permission of the Porte to pass the Dardanelles." Schuyler's American Diplomacy, 317.] (r) Jiays. REGINA V. CLTNNINGHAM. COUKT FOR CUOWN CaSES RESERVED, 1850. (J3e//\s Crown Cases, T22.) Tlrfil, that a crime, conimitteil nn a sliip lyiiiL; in llie Bristol riiannol, at a point wlieiv it is niorti than ten miles wide, is oomniitted within tliti bo ly of the adjoin- ing connty, and subject, therefore, to the jurisdiction of the courts of said county. This was an action upon an indictment against the three mates of an American vessel, for feloni(»usly wounding one of their seamen. CHAP. I.] CABLE COMPANY V. TELEGRAPH COMPANY. 4"> The offense cluir<^ed took place in the Penarth IJtjads, ninety miles from the mouth of the Bristol Channel. The venue Avas (Glamorgan- shire — the offense took place three-quarters of a mile from tlie coast of Glamorganshire, at a spot always covered by the tide, but a quarter of a mile from a place which is left di-y Ijy the title. It Avas ten miles to the opposite shore. Tlie exact place was between Glamorganshire and an island called the Flat Holms, pai't of the county of Glamorganshire, and two miles inside that island. Counsel for the prisoners contended that the offense was com- mitted on the high seas — the Crown that it Avas in the county of Glamorgan. The judgment of the court Avas delivered by Cockburx, C. J. — " In this case Ave are of opinion that the conviction is right. The only question Avith Avhicli it becomes necessary for us to deal is Avhether the part of the sea on Avhich the vessel Avas at the time Avhen the offense Avas committed, forms part of the county of Gla- morgan / and Ave are of opinion that it does. The sea in question is part of the Bristol Channel, both shores of Avhich form part of Eng- land and Wales, of the county of Somerset on the one side and the county of Glamorgan on the other. We are of opinion that, looking at the local situation of this sea, it must be taken to belong to the counties respectively by the shores of Avhich it is bounded ; and the fact of the Holms, betAveen which and the shore of the county of Glamorgan the place in question is situated, having always been treated as part of the parish of Cardiff and as part of the county of Glamorgan, is a strong illustration of the principle on Avhicli Ave proceed, namely, that the Avhole of this inland sea betAveen the coun- ties of Somerset and Glamorgan is to be considered as Avithin the counties, by the shores of Avhich its several parts are respectively bounded. We are, therefore, of opinion that the place in question is Avithin the body of the county of Glamorgan." THE DIRECT UNITED STATES CABLE COMPANY v. THE ANGLO-AMERICAN TELEGRAPH COMPANY. Pkivy Council, 1877. (Latu Bejmrts, 2 Aj^p. Cases, 394.) Eeld, that Conception Bay, in Newfoundland, which is something over fif- teen miles wide, and forty to fifty miles long, is a British bay, and a part of the territorial waters of Newfoundland. This suit Avas one in Avhichthe Respondent Company had obtained STATES. [fAET L an injanction against the Appellant Company i>r layiv.'^ a t-r tlierfei;>y infrjugin:^ rights gr^inted b}' the legislature the Respondent Company, The Appellant Company r^i that Conception Bay (which is rather more than twenty 11.^ - . ^.^e at ita fuou;';! aisd runs iniand lj»fetween forty and fifty miles) was not Brit- ish territorial waters, hut apart of the high seas. 11. rad cahles complained of were laid within tl. - ' ■• ^t a dista;. . , than three miles from the shore, The judgment was deliverefl i>y Lord Di,.» ij>i i:x, v' ing the cases under the Common Law of England co:. . oS- ing from the Common Law of England, to the general law of nations^ as indicated hy the text write: find an uijiversal agr**ment tL . I- locked, belong to the territory of the nation which possesses the shores round them, but no agreement as * —■ * ' - - ■ * ■* er- mine what is " a bay " for this jjurpose. " It aeema generally agreed that where the . skms of the l^ay are such as to show that t;-; ..- ._ ..- ; adjoining coasts also occupies the bay. it is part of t. y. and with this idea, most of the writers r?t reici -i- bility from the shore as tfs^ *— * : ; some .. .._. .„-g, therefore, a width of one c . jt from shore to shore, or three miles: some a cannon- or six raOes ; some an arbitrary distance of : .ese are rules which, if adopted, would exclude Conception Bay from the territory of Xew- foumlland, butaLsowr - • • - - ' " rtt Britain, that part of t.. / ■^- ham was decided to be in the county of Glamorgan. On the other hand, the diplomatist- - - t-. . .-. .... . : 1- , :. .3 --,.-. riiorial jurisdiction ov Kent, in his Comment of his authority to this •,. ^. ^..-^ -....,-....... .. .. it altogether unreasonable. It does not appear to their Lr that jurists and text- writers i. dimensions and configui-ation. .._,.,-- tions, would lead to the conclusion that a bay is or is not a part of t; ry of the state p '''.<.< ti' : they can find, ^ al determination- If it was necessary in this case to lay down a mle t:. " ' ' ' • " ' • \ ■ . from a. -ary so to do. It seems t : ict, tiie British Govern- CHAI'. I.J MANCHESTEU V. MASSACHUSETTS. 47 ment has for a long period exercised dominion over this hay, and that their chiiiii has been acquiesced in by other natii)iis, so as to show that the bay has been for a long time occui)ied exelusively by Great Britain, a circumstance which in the tribunals of any country would be very important. And moreover (which in a British tri- bunal is conclusive), the British Legislature has by acts of Parliament declared it to be part of the British territory, and part of the country made subject to the Legislature of Xewfoundland, " Their Lordships, therefore, will humbly recommend to Iler ]\I;ijt'sty tliat tlie order of the Supreme Court of Xewfoundland be iitiirmed and that this appeal be dismissed with costs." ^ .ALVXCIIESTEU v. MASSACHUSETTS. SupREMJo Court of the L'xiteo States, 1890. (i:]9 United States Reports, 240.) Manchester, a citizen of Rhode Island was indicted in Massachusetts for taking fish (Menhaden) in Buzzard's Bay, in contravention of tlie laws of Massachusetts regulating the fishery in that bay. Manchester held a United States license for the Menhaden fishery; and disputed the right of Massachusetts to any jurisdiction over such fisheries. Held that, in the absence of legislation by Congress on this subject, the States may legally make regulations for the fisheries within their territorial waters. Arthur Manchester was charged with fishing with a seine in Buz- zard's Bay, within the jurisdiction of the Commonwealth of 3Iassa- chusetts. The complaint is founded upon an act of the Massachu- sett.s' Legislature (Laws of 1^80, c. 192), entitled " An act for the pro- tection of the fisheries in Buzzard's Bay," Section I. of which is as follows : — "Xo person shall draw, set, stretch or use any drag net, set net or ^ The Granrje (I70o), 1 Op. Att.-Gen. .32. In the case of the British ship Grawje, captured by a French privateer in Delaware Bay, in 1793, Attorney-General Kan- ilolph held that Delaware Bay formed a part of the territorial waters of the Unit-d Slates, and was therefore neutral ground. lie rested his arguments mainly upon the fact that the United States were proprietors of the lands, on both sides of the bay. Every consideration is excluled, " how far the spot of seiziu-e was capable of being defimded by the United States. For, although it will not be conceded th:it this could not be done, yet will it rather appear, that the mutual rights of tlio States of New Jersey and Delaware, up to the middle of the river (or bay), super- sede the necessity of such an investigation." " Xo. The corner-stone of our claim is, that the United States are proprietors of the lands on both sides of the Delaware, from its head to its entrance into the sea." 4.3 STATES. [PART I. gill net, purse or sweep seine of any kind for taking fish anywhere in the waters of Buzzard's Bay within the jurisdiction of this Com- monwealth, nor in any harhor, cove or bight of said bay except as hereinafter provided." Buzzard's Bay, at its mouth, is more than one and less than two marine leagues in width — at the point where the acts complained of took place, it is more than two leagues in width, and the nearest mainland is not over a mile and a quarter away. The defendant requested the Court of Massachusetts for a number of rulings, the first and third of which are (1) The act complained of was on the high seas, and without the jurisdiction of Massachusetts. (3) The defendant cannot be held unless the act complained of was done and committed within the body of a county, as understood at common law. These instructions were refused, and the court told the jury that if they found that the place where the acts were done was within a marine league of the shore, it was Avithin the jurisdiction of the Commonwealth. The decision being against the defendant, he appealed to the Supreme Court of the United States. 3Ir. Justice Blatchford, after stating the case, delivered the opin- ion of the court : " The principal contentions in this court on the part of the defend- ant are that, although Massachusetts, if an independent nation, could have enacted a statute like the one in question, which her own courts would have enforced, and which other nations would have recognized, yet when she became one of the United States, she sur- rendered to the general government her right of control over the fisheries of the ocean, and transferred to it her rights over the waters adjacent to the coast and a part of the ocean ; that, as by the Con- stitution, article 3, section 2, the judicial power of the United States is made to extend to all cases of admiralty and maritime jurisdiction, it is consistent only with that view that the rights in respect of fisheries should be regarded as national rights, and be enforced only in national courts ; that the proprietary right of Massachusetts is confined to the body of the county ; that the offense committed by tlie defendant was committed outside of that territory, in a locality where legislative control did not rest upon title in the soil and waters, but upon rights of sovereignty inseparably connected witli national character, and which were intrusted exclusively to enforcement in admiralty courts, that the Commonwealth has no jurisdiction upon the ocean within three miles of the shore; that it could not, by the statute in question, oust the United States of jurisdiction ; that fish- CHAP. I.] MANCHESTER V. MASSACHUSETTS. 49 ing upon the high seas is in its nature an integral part of national connnerce, and its control and regulation are necessarily vested in Congress and not in the individual states ; that Congress has mani- fested its purpose to take tlie regulation of coast fisheries, in the particulars covered by the Massachusetts statute in question, by the joint resolution of Congress of February 9, 1871 (16 Stat. 59.3), establishing the Fish Connnission, and by title 51 of the Revised Statutes, entitled ' Regulation of I'isheries,' and by the act of Feb- ruary 28, 1887, c. 288 (24 Stat. 434), relating to the Mackerel fisheries, and by acts relating to bounties, privileges, and agreements, and by granting the license under which the defendant's steamer was fish- ing; and that, in view of the act of Congress authorizing such license, no statute of a state could defeat the right of the defendant to fish in the high seas under it. " By the Public Statutes of Massachusetts, part 1, title 1, c. 1, sec- tions 1 and 2, it is enacted as follows : Section 1. ' The territorial limits of this Commonwealth extend one marine league from its seashore at low-water mark. When an inlet or arm of the sea does not exceed two marine leagues in width between its headlands, a straight line from one headland to the other is equivalent to the shore line.' Sec- tion 2. ' The sovereignty and jurisdiction of the Commonwealth extend to all places within the boundaries thereof, subject to the rights of concurrent jui-isdiction granted over places ceded to the United States.' The same Public Statutes part 1, title 1, c. 22, sec- tion 1, contain the following provision: 'The boundaries of coun- ties bordering on the sea shall extend to the line of the Common- wealth, as defined in section one of chapter one.' Section 11 of the same chapter is as follows : 'The jurisdiction of counties separated by waters within the jurisdiction of the Commonwealth shall be concurrent upon and over such waters.' By section 2 of chapter 196 of the acts of Massachusetts of 1881, it is provided as follows : 'Section 2. The harbor and land commissioners shall locate and define the courses of the boundary lines between adjacent cities and towns bordering upon the sea, and upon arms of the sea from high- water mark outward to the line of the Commonwealth, as defined in said section one [section one of chapter one of the General Statutes], so that the same shall conform as nearly as may be to the course of the boundary lines between said adjacent cities and towns on the land ; and they shall file a report of their doings with suitable plans and exhibits, showing the boundary lines of any town by them located and defined, in the registry of deeds in which deeds of real estate situated in such town are required to be recorded, and also in the office of the secretary of the Commonwealth.' 4 • 50 STATES. [part I. " The report of the Superior Court states that the point where the defendant was using the seine was within that part of Buzzard's Bay which the harbor and land commissioners, acting under tlie pro- visions of the act of 1881, had, so far as they were capable of doing so, assigned to and made part of the town of Falmouth ; that the distance between the headlands at the mouth of Buzzard's Bay 'was more than one and less than two marine leagues;' that 'the dis- tance across" said bay, at the point where the acts of the defendant were done, is more than two marine leagues, and the opposite points are in different counties ; ' and that ' the place where the defendant was so engaged with said seine was about, and not exceedmg, one mile and a quarter from a point on the shore midway from the north line of ' the to\\'n of Falmouth ' to the south line ' of that town. " Buzzard's Bay lies wholly within the territory of Massachusetts, having Barnstable county on the one side of it, and the counties of Bristol and Plymouth on the other. The defendant offered evidence that he was fishing for menhaden only, wi th a purse seine ; that 'the bottom of the sea was not encroached upon or disturbed; that it was impossible to discern objects across from one headland to the other at the mouth of Buzzard's Bay ; ' and that the steamer was duly enrolled and licensed at the port of Newport, Rhode Island, under the laws of the United States, for carrying on the menhaden fishery. "By section 1 of chapter 19G of the laws of Massachusetts of 1881, it was enacted as follows: Section 1. ' The boundaries of cities and towns bordering upon the sea shall extend to the line of the Common- wealth as the same is defined in section one of chapter one of the General Statutes.' Section 1 of chapter 1 of the General Statutes contains the provisions before recited as now contained in the Public Statutes, chapter 1, section 1, and chapter 22, sections 1 and 11. Buzzard's Bay was undoul)tedly within the territory described in the charter of the Colony of New Plymouth and the Province charter. By the definitive treaty of peace of September 3, 178-3, between the United States and Great Britain (8 Stat. 81), His Britannic Majesty acknowledged the United States of which Massachusetts Bay was one, to be free, sovereign and independent States, and declared that he treated with them as such, and, for himself, his heirs and successors, relinquished all claims to the government, proprietary and territorial rights of the same and every part thereof. Therefore, if Massachusetts had continued to be an independent nation, her boundaries on the sea, as defined by her statutes, would unquestion- ably be acknowledged by all foreign nations, and her right to con- trol the fisheries within those boundaries would be conceded. The CHAr. I.] MANCHESTER V. MASSACHUSETTS. 51 limits of the right of a nation to control the fisheries on its sea-coasts, and in the bays and arms of the sea within its territory, have never been placed at less than a marhie league from the coast on the o^ien sea ; and bays wholly within the territory of a nation, the headlands of which are not more than two marine leagues, or six geographical miles, apart, have always been regarded as a part of the territory of the nation in which they lie. Proceedings of the Halifax Com- mission of 1877, under the treaty of Waslnngton (jf May 8,1871. Executive Document No. 89, 45th Congress, 2d session. Ho. Keps., pp. 120, 121, 160. " On this branch of the subject the case of The Qxeen v. Keyn^ 2 Ex. D. 63, is cited for the plaintiff in error ; but there the question was not as to the extent of the dominion of Great Britain over the open sea adjacent to the coast, but only as to the extent of the existing jurisdiction of the Court of Admiralty in England over offenses committed on the open sea ; and the decision had nothing to do with the right of control over fisheries in the open sea or in bays or arms of the sea. " In all the cases cited in the opinions delivered in Tlie Queen v. Keyn^ wherever the question of the right of fishery is referred to, it is conceded that the control of fisheries, to the extent of at least a marine league from the shore, belongs to the nation on whose coast the fisheries are prosecuted. " In Direct IT. S. Cable Co. v. An ylo- American Tel. Co.., 2 App. Cas. 394, it became necessary for the Privy Council to determine whether a point in Conception Bay, Newfoundland, more than three miles from the shore, was a part of the territory of Newfoundland, and within the jurisdiction of its legislature. The average width of the bay was about fifteen miles, and the distance between its headlands was rather more than twenty miles; but it was held that Conception Bay was a part of the territory of Newfoundland, because the British government had exercised exclusive dominion over it, with the acquiescence of other nations, and it had been declared by act of Parliament ' to be part of the British territory, and part of the country made subject to the legislature of New- foundland.' " We think it must be regarded as established that, as between nations, the minimum limit of the territorial jurisdiction of a nation over tide-waters is a marine league from its coast ; that bays wholly within its territory not exceeding two marine leagues in width at the mouth are within this limit ; and that included in this territorial jurisdiction is the right of control over fisheries, whether the fish be migratory, free-swimming fish, or free-moving fish, or fish attached to 52 STATES. [part I. or embedded in the soil. The open sea within this limit is, of course, subject to the common right of navigation ; and all governments, for the purpose of self-protection in time of war or for the preven- tion of frauds on its revenue, exercise an authorit}' beyond this limit. Gould on Waters, part 1, c. 1, §§ 1-17, and notes; Xeill v. Duke of Devonshire, 8 App. Cas., 135 ; Gcimrnell v. Commissioners, 3 Macq., 419; Jloicat v. McFee, b Sup. Ct. of Canada, 66; The Queen v. Cuhitt, -l-l Q. B. D., G22 ; St. 46 and 47 Vict. C, 22. '• It is further insisted by the plaintiff in error, that control of the fisheries of Buzzard's Bay is, by the constitution of the United States, exclusively with the United States, and that the statute of Massa- chusetts is repugnant to that Constitution and to the laws of the United States. * * * "Under the grant by the Constitution of judicial jwwer to the United States in all cases of admiralty and maritime jurisdiction, and under the rightful legislation of Congress, personal suits on maritime contracts or for maritime torts can be maintained in the state courts ; and the courts of the United States, merely by virtue of this grant of judicial power, and in the absence of legislation hy Congress, have no criminal jurisdiction whatever. The criminal jurisdiction of the courts of the United States is wholly derived from the statutes of the United States. * * * "In each of the cases of United States v. Bevans, 3 Wheat., 336, and of CommomceaWi v. Peters, 12 Met., 387, the place where the offense was committed was in Boston Harbor ; and it was held to be within the jurisdiction of ^Massachusetts, according to the meaning of the statutes of the United States which punished certain offenses committed upon the high seas or in any river, haven, basin or bay 'out of the jurisdiction of any particular state.' The test applied in Cornrnonii-ealth v. Peters, which was decided in the year 1847, was that the place was within a bay ' not so wide but that persons and objects on the one side can be discerned by the naked eye by persons on the opposite side,' and was therefore within the body of a county. In United States y. Bevaiis, Marshall, C. J., said : 'The jurisdiction of a state is coextensive with its territory ; coextensive with its legislative power. The place described is unquestionably within the origmal territory of Massachusetts. It is then within the jurisdiction of Massachusetts, unless that jurisdiction has been ceded to the United States.' If the place where the offense charged in this case was committed is within the general jurisdiction of Massachusetts, then, according to the principles declared in Smith v. Jfarj/Iand, the statute in question is not repugnant to the constitution and laws of the United States. CHAr. I.] MANCHESTER V. MASSACHUSETTS. 53 "It is also contended that the jurisdiction of a state as between it and tlie United States must be confined to the body of counties ; tliat counties must be defined according to tlie customary English usage at the time of tlie adoption of the Constitution of the United States ; that by this usage counties were bounded by the margin of the open sea ; and that, as to bays and arms of the sea extending into the land, only sucli or sucli parts were included in counties as were so narrow that objects could be distinctly seen from one shore to the other by the naked eye. But there is no indication that the customary law of England in regard to the boundaries of counties was adopted by the Constitution of the United States as a nieasui'e to determine the territorial jurisdiction of the states. " The extent of the territorial jurisdiction of Massachusetts over the sea adjacent to its coast is that of an independent nation ; and, except so far as any right of control over this territory has been granted to the United States, this control remains with the state. In United /States V. Bevans, Marshall, C. J., in the opinion, asks the following questions : ' Can the cession of all cases of admiralt}^ and maritime jurisdiction be construed into a cession of the waters on which those cases may arise? As the powers of the respective Governments now stand, if two citizens of Massachusetts step into sliallow water where the tide flows, and fight a duel, are they not within the jurisdic- tion, and punishable l)y the laws of Massachusetts?' The statutes of the United States define and punish but few offenses on the high seas, and, unless other offenses when committed in the sea near the coast can be punished by the states, there is a large immunity from punishment for acts which ought to be punishable as criminal. Within what are generally recognized as the territorial limits of states by the law of nations, a state can define its boundaries on the sea and the boundaries ox its counties ; and by this test the Common- wealth of Massachusetts can include Buzzard's Bay within the limits of its counties. " The statutes of Massachusetts, in regard to bays at least, make definite boundaries which, before the passage of the statutes, were somewhat indefinite ; and Bhode Island and some other states have passed similar statutes defining their boundaries. Public Statutes of Rhode Island, 1882, c. 1, §§ 1, 2; c. 3, § G; Gould on Waters, § 16 and note. The waters of Buzzard's Bay are, of course, navigable waters of the United States, and the jurisdiction of Massachusetts over them is necessarily limited, Commonwealth v, Kinr/, 1.50 Mass., 221 ; but there is no occasi(jn to consider the power of the United States to regulate or control, either by treaty or legisla- tion, the fisheries in these waters, because there are no existing 54 STATES. [PAIIT I. treaties or acts of Congress which relate to the menhaden fisheries in such a bay. " The rights granted to British subjects by the treaties of June 5, 1854, and 3Iay S, 1871, to take fish upon the shores of the United States, liad expired before tlie statute of Massachusetts (St. 1886, c. 192) was passed, which the defendant is charged with violating. The Fish Commission was instituted ' for the pjrotection and pres- ervation of the food fishes of the coast of the United States.' "Title 51 of the Eevised Statutes relates solely to food fisheries, and so does the Act of 1888. Xor are we referred to any decision which holds that the other acts of Congress alluded to apply to fish- eries for menhaden, which is found as a fact in this case not to be a food fish, and to be only valuable for the purpose of bait and of manufacture into fish oil. '• The statute of Massachusetts which the defendant is charged Avith violating is, in terms, confined to waters, ' within the jurisdiction of this commonwealth ; ' and it was evidently passed for the preser- vation of the fish, and makes no discrimination in favor of citizens of Massachusetts and against citizens of other states. If there be a liberty of fishing for swimming fish m the na\igable waters of the United States common to the inhabitants or the citizens of the United States, upon which we express no opinion, the statute may well be considered as an impartial and reasonable regulation of this liberty ; and the subject is one which a State may well be permitted to regu- late within its territory, m the absence of any regulation by the United States. The preservation of fish, even although they are not used as food for human beings, but as food for other fish which are so used, is for the common benefit ; and we are of opinion that the statute is not repugnant to the constitution and the laws of the United States. " It may be observed that § 4398 of the Revised Statutes (a re-enact- ment of § 4 of the joint resolution of February 9, 1871), provides as follows, in regard to the Commission of Fish and Fisheries : ' The commissioner may take or cause to be taken at all times, in the waters of the sea-coast of the United States, where the tide ebbs and flows, and also in the waters of the lakes, such fisii or specimens thereof as may in his judgment, from time to time, be needful or proi^er for the conduct of his duties ; any law, custom or usage of any state to the contrary notwithstanding.' This enactment may not improperly be construed as suggesting that, as against the law of a state, the Fish Commissioner might not otherwise have the right to take fish in places covered l)y the State law. " The pertinent observation may be made that, as Congress does CHAr. I.] THE QUEEN V. KEYN. 55 not assert, by legislation, a right to control pilots in the bays, inlets, rivers, harbors, and ports of the United States, but, leaves the regulation of that matter to the states, Cooleij v. Board of War- dens, 12 How., 299, so if it does not assert by affiraiative legislation its right or will to assume the control of menhaden fisheries in such bays, the right to control such fisheries must remam with the State which contains such bays. " We do not consider the question whether or not Congress would have the right to control the menhaden fisheries which the statute of Massachusetts assumes to control ; but we mean to say only that as the right of control exists in the State in the absence of the af- firmative action of Congress taking such control, the fact that Con- gress has never assumed the control of such fisheries is persuasive evidence that the right to control them still remains in the State." ^ iln the case of Dunham v. Lainphere, 1855, 3 Gray, 268, before the Supreme Court of Massachusetts, Shaw, C. J., said: "We suppose the rule to be that those limits extend a marine league, or three geograi^hical miles from the shore ; and in ascer- taining the line of shore this limit does not follow each narrow inlet or arm of the sea, but when the inlet is so narrow that persons and objects, can be discerned across it by the naked eye, the line of territorial jurisdiction stretches across from one headland to the other of such inlet." (d) JIarginal Seas. THE QUEEN v. KEYN. Court of Crowx Cases Reserved, 1876. (L. R., 2 Exchequer Dlvinon, 63.) History of the development of the rule fixing the limit of territorial waters at three miles. A foreigner, sailing along the English coast, within this three-mile zone, commits an offense against an English subject. Held, that he was not subject to the juris- diction of the Admiralty, nor its successor the Central Criminal C^ourt, in the ab- sence of an act of Parliament expressly conferring such jurisdiction. The prisoner was indicted at the Central Criminal Court for the manslaughter of Jessie Dorcas Young on the high seas, and within the jurisdiction of the Admiralty of England. The deceased was a passenger on board the Strathcli/de, a British steamer bound from London to Bombay. This vessel, when one and nine-tenths of a mile from Dover pier-head, and within two and a half miles from Dover beach, was run down and sunk by the Franconia^ a German 56 STATES. [PAET 1. steamer. In the collision, the deceased woman was drowned, and the prisoner, the captain of the Franconia, is convicted of man- slaughter; but a question of h\\\ is reserved. An objection was taken on the part of the prisoner that, inasmuch as he was a foreigner, in a foreign vessel, on a foreign voyage, sail- ing upon tlie high seas, he was not subject to the jurisdiction of any court in this country. The Crown contends that inasnuich as, at the time of tlie collision, both vessels Avere within the distance of three miles from the English shore, the offense was committed within the realm of Eng- land, and is triable by the English court. The case was argued before Cockburn, C. J., Lord Coleridge, C. J., Kelly, C. B., Sir R. Fhillimore, Bramwell, Pollock, and Amphlett, B. B., Lush, Brett, Grove, Denman, Archibald,* Field and Lindley, JJ. CocKBURx, C. J ; — " The question is, whether the accused is amenable to our law, and whether there was jurisdiction to try him ? " The legality of the conviction is contested, on the ground that the accused is a foreigner ; that the Franconia^ the ship he com- manded, was a foreign vessel, sailing from a foreign port, bound on a foreign voyage ; that the alleged offense was committed on the high seas. Under these circumstances, it is contended that the accused, though he may be amenable to the law of his own country, is not capable of being tried and punished by the law of England. " The facts on which this defense is based are not capable of being disputed ; but a twofold answer is given on the part of the prosecution: — 1st. That, although the occurrence on which the charge is founded took place on the high seas in this sense that tlu place in which it happened was not within the bodj'' of a county, it occurred within three miles of the English coast ; that by the law of nations, the sea, for a space of three miles from the coast, is part of the territory of the country to which the coast belongs ; that, consequently, the Franconia^ at the time the offense was committed, was in English waters, and those on board were therefore subject to English law. " Secondly. That, although the negligence of which the accused was guilty occurred on b(jard a foreign vessel, the death occasioned by such negligence took place on board a British vessel ; and that, as a British vessel is, in point of law to be considered British territory, the offense, having been consummated by the death of the deceased in a British ship, must be considered as having been committed on British territory. * * * " According to the general law, a foreigner who is not resid- ♦ArchibalJ, J., died after the agumeut and before the judgiueut was delherel. CHAP. I.] THE QUEEN V. KEVN. 57 ing permanently or temporarily in l>ritish territory, or on board a British ship, cannot be held responsible for an infraction of the law of this country. " Unless, therefore, the accused, Keyn, at the time the offense of which he has been convicted was committed, was on Hritisli territoiy or on board a British ship, he could not be pro})erly brought to trial under British law, in the absence of express legislation. * * * " In the reign of Charles II., Sir Leoline Jenkins, then the judge of the Court of Admiralty, in a charge to the grand jury at an Admiralty sessions at the Old Bailey, not only asserted the king's sovereignty within the four seas, and that it was his right and province ' to keep the public peace on these seas '—that is, as Sir Leoline expounds it, ' to preserve his subjects and allies in their possessions and properties upon these seas, and in all freedom and security to pass to and fro on them, upon their lawful occasions,' but extended this authority and jurisdiction of the King. 'To pi'c- serve the public peace and to maintain the freedom and security of navigation all the world over; so that not the utmost bound of the Atlantic Ocean, nor any corner of the Mediterranean, nor any part of the South or other seas, but that if the peace of God and the King be violated upon any of his suV)jects, or upon his allies or their subjects, and the offender be afterwards brought up or laid hold of in any of Ilis Majesty's ports, such breach of the peace is to be inquired of and tried in virtue of a commission of oyer and terminer as this is, in such county, liberty, or place as His Majesty shall please to direct — so long an arm hath God by the laws given to his vicegerent the King.' * * * " Venice, in like manner, laid claim to the Adriatic, Genoa to the Ligurian Sea, Denmark to a portion of the North Sea. " The Portuguese claimed to bar the ocean route to India and the Indian Seas to the rest of the world, Avhile Spain made the like assertion with reference to the West. "All these vain and extravagant pretensions have long since given way to the influence of reason and common sense. " If, indeed, the sovereignty thus asserted had a real existence, and could now be maintained, it would of course, independently of any question as to the three-mile zone, be conclusive of tlie present case. But the claim to such sovereignty, at all times unfounded, has long since been abandoned. No one would now dream of asserting that the sovereign of these realms has any greater right over the surround- ing seas than the sovereigns on the opposite shores ; or that it is the especial duty and privilege of the Queen of Great Britain to keep the peace in these seas; or that the Court of Admiralty coidd try a 68 STATES. [part I. foreigner for an offense committed in a foreign vessel in all parts of the Channel. " Xo writer of our clay, except Mr. Chitt}' in his treatise on the prerogative, has asserted the ancient doctrine. Blackstone, in his chapter on the prerogative in the Commentaries, while he asserts that the narrow seas are part of the realm, puts it only on the gromid that the jurisdiction of the Admiralty extends over these seas. " He is silent as to anj- jurisdiction over foreigners within them. The concensus of jurists, which has been so much insisted on as authority, is perfectly unanimous as to the non-existence of any such jurisdiction. Indeed, it is because this claim of sovereignty is admitted to be untenable that it has been fomid necessary to resort to the theory of the three-mile zone. " It is in vain, therefore, that the ancient assertion of sovereignty over the narrow seas is invoked to give countenance to the rule now sought to be established, of jurisdiction over the three-mile zone. " If this rule is to prevail, it must be on altogether different grounds. To invoke, as its foundation or in its support, an assertion of sover- eignty which, for all practical purposes, is, and always has been, idle and unfounded, and the invalidity of which renders it necessary to have recourse to the new doctrine, involves an inconsistency, on which it would be superfluous to dwell. I must confess myself unable to comprehend liow, when the ancient doctrme as to sover- eignty over the narrow seas is adduced, its operation can be confined to the three-mile zone. If the argument is good for anything, it must apply to the whole of the surrounding seas. But the counsel for the Crown evidently shrank from applying it to this extent. Sueli a pretension would not be admitted or endured by foreign nations. That it is out of this extravagant assertion of sover- eignty that the doctrine of the three-mile jurisdiction, asserted on the part of the Cro^n, and which, the older claim being necessarily abandoned, we are now called upon to consider, has sprung up, I readily admit. * * * " With the celebrated work of Grotius, published in 1609, began the great contest of the jurists as to the freedom of the seas. " The controversy ended, as controversies often do, in a species of compromise. "While maintaining the freedom of the seas, Grotius, in his work De Jure Belli et Pacis^ had expressed an opinion that, while no right could be acquired to the exclusive possession of the ocean, an exclusive right or jurisdiction might be acquired in respect of particular portions of the sea adjoinmg the territory of indi- vidual states. * * * CHAP. 1.] THE QUEEN V. KEYN. 59 "Other writers adopted a similar principle, but with very varying- views as to tlie extent to which tlie right might be exercised. Alberi- cus Gentiles extended it to 100 miles ; Baldus and Bodinus to sixty. " Loecenius (De Jure 3Iaritimo, ch. iv., s. G) puts it at two days' sail ; another writer makes it extend as far as could be seen from the shore. Yalin, in his Commentary on the French Ordinances of 1681 (ch. v.), would have it reach as far as bottom could be found with the lead line. * * * "Differing altogether from these writers as to the extent of maritime sovereignty, Bynkershoek, an advocate, like Grotius, for the mare liberum, and who entered the lists against Selden as to the dominion of England in the so-called English Sea, in his treatise De Dominio Maris, published in 1702, follows up the idea of Grotius as to a limited dominion of the sea from the shore. * * * "After combciting the doctrine of a mare dausion as regards the sea at large, and enumerating these hiconsistent opinions, which he seems little disposed to respect, Bynkershoek continues : ' ITinc videas priscos juris magistros, qui dominium in mare proximum ausi sunt agnoscere, in regundis ejus finibus admodum vagari incer- tos.' ' Quare omnino videtur rectius,' he adds, after disposing of the foregoing opinions, ' Eo potestatem terrse extendi, quo- usque tormenta exploduntur; eatenus quippe, cum imperare, tum possidere videmur. Loquor autem de his temporibus ; quibus illis machinis utimur ; alioquin generaliter decendum esset, potestatem terrse finiri, ubi finitur armorum vis ; etenim haec, ut diximus, pos- sessionem tuetur.' " We have here, for the first time, so far as I am aware, a sugges- tion as to a territorial dominion over the sea, extending as far as cannon-shot would reach — a distance which succeeding writers fixed at a marine league, or three miles. Prior to this, no one had suggested such a limit. " The jurisdiction, assumed in the Admiralty commissions, or exercised l)y the Court of King's Bench in the time of the Edwards, was founded on the King's alleged sovereignty over the whole of the narrow seas ; it had no reference whatever to any notion of a terri- torial sea. To English lawyers the idea of this limited jurisdiction was utterlj' unknown. "With Selden and Hale, they stood up stoutly for the Kings undivided dominion over the four seas. No Enghsh author makes any distinction, as regards the dominion of the Crown, between the narrow seas as a whole and any portion of them as adjacent to the shore. The doctrine was equally unknown to the Scotch lawyers. * * * 60 STATES. [part I. " Even to our times the doctrine of the three-mile zone has never been adopted by tlie writers on Enghsh law. To Blackstone who, in his Ccnnmentaries, treats of the sea with reference to the prerogative, as also to his modern ecUtor, Mr. Stephen, it is miknown ; equally so to Mr. Chitty, whose work on the prerogative is of the present century. It was not till the beginning of this century that any mention of such a doctrine occurs in the courts of this country. But to the continental jurists, the suggestion of Bynkershoek seemed a happy solution of the great controversy as to the freedom of the sea; and the foTmuh\, jyotestas Jtnitu?' ubi Jiirttur anrtoriov r/.s, was a taking one ; and succeeding publicists adopted and repeated the rule which their predecessor had laid down, without nmcli troubling themselves to ascertain or inquire M'hether that rule had Ijeen rec- ognized and adopted by the maritime nations wlio were to be affected by it. * * * " But to what, after all, do these ancient authorities amount ? Of what avail are they towards establishing that the soil in the three- mile zone is part of the territorial domain of the Crown ? These assertions of sovereignty were manifestly based on the doctrine that the narrow seas are part of the realm of England. But that doctrme is now exploded. Who at this day would venture to affirm that the sovereignty thus asserted in those times now exists ? What Eng- lish lawyer is there who would not shrink from maintaining — what foreign jurist who would not deny — what foreign government which would not repel such a pretension? I listened carefully to see whether such an assertion would be made ; but none was made. Xo one has gone the length of suggesting, much less of openly as- serting, that the jurisdiction still exists. It seems to me, that ■\^"hen the sovereignty and jurisdiction from which the property in the soil of the sea was inferred is gone, the territorial property which was sug- gested to be consequent upon it, must necessarily go with it. * * * " It thus appearing, as it seems to me that the littoral sea beyond low-water mark did not, as distinguished from the rest of the high seas, originally form part of the territory of the realm, the question again presents itself, when and how did it become so ? Can a portion of that which was before high sea have been converted into British territory, without any action on the part of the British government or legislature — by the mere assertions of writers on public law — or even by the assent of other nations ? " And when in sup[)ort of this position, or of the theory of the three-mile zone in general, the statements of the writers on inter- national law are relied on, tlie question may well be asked, upon what authority are these statements founded ^ ClIAr. I.] THE QUEEN V. KEYN. 61 "• When and in what manner have the nations, who are to be af- fected by such a rule as these writers, following one another, have laid down, signified their assent to it? to say nothing- of the difficulty which might be found in saying to which of these conflicting o[)in- ions such assent had been given. " For, even if entire unanimity had existed in respect of the im- portant particulars to which I have referred, in place of so much dis- crepancy of opinion, the question would still remain, how far the law as stated by the publicists had received the assent of the civ- ilized nations of the world. "For writers on international law, however valuable their labors may be in elucidating and ascertaining the principles and rules of law, cannot make the law. To be binding, the law must have received the assent of the nations who are to be bound by it. This assent may be express, as by treaty or the acknowledged concurrence of govern- ments, or may be implied from established usage, — an instance of which is to be found in the fact that merchant vessels on the high seas are held to be subject only to the law of the nation under whose flag they sail, while in the ports of a foreign state they are subject to the local law as well as to that of their own country. In the absence of proof of assent, as derived from one or other of these sources, no unanimity on the part of theoretical writers would war- rant the judicial application of the law on the sole authority of their views or statements. Nor, in my opinion, would the clearest proof of unanimous assent on the part of other nations be sufficient to authorize the tribunals of this country to apply, without an Act of Parliament, what would practically amount to a new law. In so doing we should be unjustifiably usurping the province of the legislature. The assent of nations is doubtless suflicient to give the power of parliamentary legislation in a matter otherwise within the sphere of international law, but it would be powerless to confer without such legislation a jurisdiction beyond and unknown to the law, such as that now insisted on, a jurisdiction over foreigners in foreign ships on a portion of the high seas. " When I am told that all other nations have assented to such an absolute dominion on the part of the littoral state, over this por- tion of the sea, as that their ships may be excluded from it, and that, without any open legislation, or notice to them or their sub- jects, the latter may be held liable to the local law, I ask first what proof there is of such assent as here asserted; and, secondly, to what extent has such assent been carried ; a question of infinite im- portance, when undirected by legislation, we are called upon to apply the law on the strenofth of such assent. It is said that \\q are to G2 STATES. [part I. take the statements of the publicists as conclusive proof of the as- sent in question, and much has been said to impress on us the re- spect which is due to their authority, and that they are to be looked upon as witnesses of the facts to which they speak, witnesses whose statements, or the foundation on which those statements rest, we are scarcely at liberty to question, I demur altogether to this position. I entertain a profound respect for the opinion of jurists when dealing with the matters of judicial principle and opinion, but we are here dealing with a question not of opinion but of fact, and I must assert my entire liberty to examine the evidence and see upon what foundation these statements are based. " The question is not one of theoretical opinion, but of fact, and, fortunately, the writers upon whose statements we are called upon to act have afforded us the means of testing those statements by reference to facts. They refer us to two thmgs, and tj these alone — treaties and usage. "Let us look a little more closely into both. " First, then, let us see how the matter stands, as regards treaties. It may be asserted, without fear of contradiction, that the rule that the sea surrounding the coast is to be treated as a part of the ad- jacent territory, so that the state shall have exclusive dominion over it, and that the law of the latter shall be generally applicable to those passing over it in the ships of other nations, has never been made the subject matter of any treaty, or, as matter of acknowledged right, has formed the basis of any treaty, or has ever been the sub- ject of diplomatic discussion. It has been entirely the creation of the writers on international law. It is true that the writers who have been cited, constantly refer to treaties in support of the doc- trine they assert. But when the treaties they refer to are looked at, they will be found to relate to two subjects only — the observance of the rights and obligations of neutrality, and the exclusive right of fishing. In fixing the limits to which these rights should extend, nations have so far followed the writers on international law as to adopt the three miles range as a convenient distance. There are several treaties by which nations have engaged, in the event of either of them being at war with a third, to treat the sea within three miles of each other's coasts as neutral territory, within which no warlike operations should be carried on ; instances of which will be found in the various treatises on international law. Thus for instance, in the treaties of commerce, between Great Brit- ain and France, of September, 178G; between France and Russia of January, 1787 ; between Great Britain and the United States, of October, 1794, each contracting party engages, if at war with any CHAP. I.] THE QUEEN V. KEYX. G3 other nation, not to carry on hostilities within cannon shot of the coast of tlic otlier contracting party ; or, if the other should be at war, not to allow its vessels to be captured within the like distance. There are many other treaties of the like tenor, a list of which is given by Azuni (vol., II p. 78) ; and various ordinances and laws have been made by the different states in order to give effect to them. " Again, nations, possessing opposite or neighboring coasts, border- ing on a common sea, have sometimes found it expedient to agree that the subjects of each shall exercise an exclusive right of fishing to a given distance from their own shores, and here also have accepted the three miles as a convenient distance. Such, for in- stance, are the treaties made between this country and the United States, in relation to the fishery oft' the coast of ISTewfoundland, and those between this country and France, in relation to the fishery on their respective shores ; and local laws have been passed to give effect to these engagements. " But in all these treaties this distance is adopted, not as matter of existing right established by the general law of nations, but as matter of mutual concession and convention. Instead of upholding the doctrine contended for, the fact of these treaties having been entered into has rather the opposite tendency ; for it is obvious that, if the territorial right of a nation bordering on the sea to this por- tion of the adjacent waters had been established by the connnon assent of nations, these treaty arrangements would have been wholly superfluous. "Each nation would have been bound, independently of treaty engagement, to respect the neutrality of the other in these waters as much as in its inland waters. The foreigner invading the rights of the local fisherman would have been amenable, consistently with international law, to local legislation prohibiting such infringement, without any stipulation to that effect by treaty. For what object, then, have treaties been resorted to ? Manifestly in order to obviate all questions as to concurrent or conflicting rights arising under the law of nations. " Possibly, after these precedents and all that has been written on this subject, it may not be too much to say that, independently of treaty, the three-mile belt of sea might at this day be taken as belonging for these purposes, to the local state. " But it is scarcely logical to infer, from such treaties alone, that, because nations have agreed to treat the littoral sea as belonging to the country it adjoins, for certain specified objects, they have there- fore assented to forego all other rights previously enjoyed in connnon. 64 STATES. [part I. and have submitted themselves, even to the extent of the right of navigation on a ]3ortion of the high seas, and the liability of their subjects therein to the criminal law, to the will of the local sovereign, and the jurisdiction of the local state. Equally illogical is it, as it seems to me, from the adoption of the three-mile distance in these particular instances, to assume, independently of everything else, a recognition, by the common assent of nations, of the principle that the subjects of one state passing in ships within three miles of the coast of another, shall be in all respects subject to the law of the latter. It may be that the maritime nations of the world are pre- pared to acquiesce in the appropriation of the littoral sea ; but I can- not think that these treaties help us much towards arriving at the conclusion that this appropriation has actually taken j^lace. At all events, the question remains, whether judicially we can infer that the nations who have been jDarties to these treaties, and, still further, those who have not, have thereby assented to the application of the criminal law of other nations to their subjects on the waters in question, and on the strength of such inference so apply the crimi- nal law of this country. " The uncertainty in which we are left, so far as judicial knowl- edge is concerned, as to the extent of such assent, likewise presents, I think, a very serious obstacle to our assuming the jurisdiction we are called upon to exercise, independently of the, to my mind, still more serious difficult}^ that we should Ije assuming it without legis- lative warrant. " So nmch for treaties. Then how stands the matter as to usage, to which reference is so frequently made by the publicists in support of their doctrine ? " When the matter is looked into, the only usage found to exist is such as is connected with navigation, or with revenue, local fisheries, or neutrality, and it is to these alone that the usage relied on is confined. Usage as to the application of the general law of the local state to foreigners on the littoral sea, there is actually none. Xo nation has arrogated to itself the right of excluding foreign vessels from the use of its external littoral waters for the purpose of navigation, or has assumed the power of making foreigners in foreign ships passing through these waters subject to its law, otherwise than in respect of the matters to which I have just referred, Xor have the tribunals of any nation held foreigners in these waters amenable generally to the local criminal law in respect of offenses. It is for the first time in the annals of jurisprudence that a court of justice is now called upon to apply the criminal law of the country to such a case as the present. CHAP. I.] THE gUEE^■ V. KEYN. 05 " It may well be, I say again, that — after all that has been said and done in this respect — after the instances which have been mentioned of the adoption of the three-mile distance, and the repeated asser- tion of this doctrine by the writers on public law, a nation which slionld now deal with this portion of the sea as its own, so as to make foreigners within it subject to its law, for the prevention and punishment of offenses, would not be considered as infringing the rights of other nations. But I apprehend that as the ability so to deal with these waters would result, not from any original or inherent right, but, from the acquiescence of other states, some out- ward manifestation of the national will, in the shape of open prac- tice or municipal legislation, so as to amount, at least constructively, to an occupation of that which was before Unappropriated, would be necessary to render the foreigner, not previously amenable to our general law, subject to its control. " That such legislation, whether consistent witli the general law of nations or not, would be binding on the tribunals of this country — leaving the question of its consistency with international law to be determined between the governments of the respective nations — can of course admit of no doubt. The question is whether such legislation would not, at all events, be necessary to justify our courts in applying the law of this country to foreigners under entirely novel circumstances in which it has never been applied before. * * * "It is unnecessary to the defense, and equally so to the de- cision of the case, to determine whether Parliament has the right to treat the three-mile zone as part of the realm consistently with international law. " That is a matter on which it is for Parliament itself to decide. It is enough for us that it has, so far as to be binding upon us, the power to do so. The question is whether, acting judicially, we can treat the power of Parliament to legislate as making up for the ab- sence of actual legislation. " I am clearly of opinion that we cannot, and that it is only in the instance in which foreigners on the sea have been made specifically liable to our law by statutory enactment that that law can be applied to them.* * * " Hitherto, legislation, so far as relates to foreigners in foreign ships in this part of the sea, has been confined to the maintenance of neutral rights and obligations, the prevention of breaches of the revenue and fishery laws, and, under particular circumstances, to cases of collision. " In the two first the legislation is altogether irrespective of the 5 66 STATES. [PAET I. three-mile distance, being fonnded on a totally different principle, namely, the right of a state to take all necessary measures for the protection of its territory and rights, and the prevention of any breach of its revenue laws. * * * "It is apparent that, with the exception of the penalties im- posed for violation of neutral duties or breaches of the revenue or fishery laws, there has been no assertion of legislative authority in the general application of the penal law to foreigners within the three- mile zone. The legislature has omitted to adopt the alleged sover- eignty over the littoral sea, to the extent of making our penal law applicable generally to foreigners passing through it for the purpose of navigation. Can a court of justice take upon itself, in such a mat- ter, to do what the legislature has not thought fit to do — that is, make the whole body of our penal law applicable to foreign vessels within three miles of our coast ? " It is further apparent from these instances of specific legislation that, when ascertaining its power to legislate with reference to the foreigner within the three-mile zone, Parliament has deemed it neces- sary, wherever it was thought right to subject him to our law, ex- pressly to enact that he should be so. We must take this, I think, as an exposition of the opinion of Parliament that specific legislation is here necessary, and consequently, that without it the foreigner in a foreign vessel will not come within the general law of this country in respect of matters arising on the sea. "Legislation, in relation to foreign ships coming into British ports and waters, rests on a totally different principle, as was well explained by Dr. Lushington, in the case of The Annapolis} " 'The Parliament of Great Britain it is true,' says Dr. Lushington, ' has not, according to the principles of public law, any authority to legislate for foreign vessels on the high seas, or for foreigners out of the limits of British jurisdiction ; though, if Parliament thought fit so to do, this court, in its instance jurisdiction at least, would be bound to obey. In cases admitting of doubt, the presumption would be that Parliament intended to legislate v/ithout violating any rule of international law, and the construction has been ac- cordingly. " ' Within, however, British jurisdiction, namely, within British territory, and at sea ^^^thin three miles from the coast, and within all British rivers intra fauces^ and over foreigners in British ships, I apprehend that the British Parliament has an undoubted right to legislate. I am further of opinion that Parliament has a perfect right 1 Lush. Adm. 29o. r;iAP. r.] the queen v. keyn. G7 to say to foreign ships that they shall not, without complying with British law, enter into Britisli ports, and that if they do enter they shall be subject to penalties, unless they have previously complied with the requisitions ordained by the British Parliament whether those requisitions be, as in former times, certificates of origin, or cleai- ance of any description from a foreign port, or clean bills of health, or the taking on board a pilot at any place in or out of British juris- diction before entering British waters. " ' Whether the Parliament has so legislated is now the question to be considered.' * * * " In the result, looking to the fact that all pretension to sov- ereignty or jurisdiction over foreign ships in the narrow seas has long since been wholly abandoned — to the uncertainty which attaches to the doctrine of the publicists as to the degree of sovereignty and jurisdiction which may be exercised on the so-called territorial sea — to the fact that the right of absolute sovereignfy therein, and of jienal jurisdiction over the subjects of other states, has never been expressly asserted or conceded among independent nations, or, in ]:»ractice, exercised, and acquiesced in, except for violation of neutral- ity or breach of revenue or fishery laws, which, as has been pointed out, stand on a different footing as well as to the fact that, neither in legislating with reference to shipping, nor in respect of the crim- inal law, has Parliament thought proper to assume territorial sover- eignty over the three-ndle zone, so as to enact that all offenses committed upon it, by foreigners in foreign ships, should be within the criminal law of this country, but, on the contrary, wherever it was thought right to make the foreigner amenable to our law, has done so by express and specific legislation. I cannot think that, in the absence of all precedent, and of any judicial decision or authority applicable to the present purpose, we should be justified in holding an offense, committed under such circumstances, to be punishable by the law of England, especially as in so holding we must declare the whole body of our penal law to be applicable to the foreigner passing our shores in a foreign vessel on his way to a foreign port. * * * " Having arrived at this conclusion, it becomes necessary to con- sider the second point taken on the part of the Crown, namely, that though the negligence of which the accused was guilty occurred on board a foreign ship, yet, the death having taken place on board a British ship, the offense was committed within the jurisdiction of a British court of justice. * * * "The question is— and this appears to me to have been lost sight of in the argument— not whether the death ot the deceased, which no doubt took place in a British ship, was the act of the de 68 STATES. [I'AIJT I. fendant in sucli ship, but whether the defendant, at tlie tmie the act was done, was himself within British jurisdiction. " But in point of fact, tlie defendant was, at the time of the oc- currence, not on hoard the Britisli sliip, tlie Stn(t/ic/>/de, but on a foreign ship, the Franconia. * * * "But in order to render a foreigner liable to the local law, he must, at the time the offense was committed, have been within British territory if on land, or in a British ship if at sea. I cannot think that if two ships of dhferent nations met on the ocean, and a person on board of one of them Avere killed or wounded by a shot fired from the other, the person firing it would be amenable to the law of the ship in which the sliot took effect." Lush, .J., said, in part : " In the reign of Richard II., the realm consisted of the land within the body of the counties. All beyond low-water mark was part of the high seas. " At that period the three-mile radius had not been thought of. International law, which, upon this subject at least, has grown up since that period, cannot enlarge the area of our muncipal law, nor could treaties with all the nations of the world have that effect. That can only be done by Act of Parliament. As no such act has been passed, it follows that what was out of the realm then is out of the realm now, and what was part of the high seas then is part of the high seas now ; and upon the high seas the Admiralty jurisdic- tion was confined to British ships. Therefore, although, as between nation and nation, these waters are British territory, as being under the exclusive dominion of Great Britain, in judicial language they are out of the realm, and any exercise of criminal jurisdiction over a foreign ship in tliese waters must in my judgment be authorized by an Act of Parliament." Lord Coleridge, C. J., dissenting from the opinion of the majority, said, in part * * * " But, first, I think the offense was committed within the realm of England ; and if so, there was jurisdiction to try it. * * * "Now the offense was committed much nearer to the line of low- water mark than three miles ; and therefore, in my opinion, upon English territory. I pass by for the moment the question of the exact limit of the realm of England beyond low-water mark, I am of opinion that it does go beyond low- water mark; and if it does, no limit has ever been suggested which would ex- clude from the realm the place where this offense was committed. But for the difference of opinion of the Bench, and for the great def- erence which is due to those wlio differ from me, T should have said it was impossible to hold that England ended with low-water mark. CHAP. I.] THE QUEEN V. KEYX. 00 I do not of course forget that it is freely admitted to be within the competency of Parliament to extend the realm how far soever it pleases to extend it by enactments, at least so as to bind the tribu- nals of the country ; and I admit equally freely that no statute has in plain terms, or by definite limits, so extended it. " But, in my judgment, no Act of Parliament was required. The proposition contended for, as I understand, is that for any act of violence committed by a foreigner upon an English subject within a few feet of low- water mark, luiless it happens on board a I>ritish ship, the foreigner cannot be tried, and is dispunishable. * * * "By a consensus of writers, without one single authority to the contrary, some portion of the coast-waters of a country is considered for some purposes to belong to the country the coasts of which they wash. * * * "This is established as solidly, as, by the very nature of the case, any proposition of international law can be. Strictly speaking, international law is an inexact expression and it is apt to mislead if its inexactness is not kept in mind. Law implies a law- giver, and a tribunal capable of enforcing it and coercing its trans- gressors. " But there is no conunon law-giver to sovereign states and no tribunal has the power to bind them by decrees or coerce them if they transgress. The law of nations is that collection of usages which civilized states have agreed to observe in their dealings with one another. What these usages are, whether a particular one has or has not been agreed to, must be matter of evidence. Treaties and acts of state are but evidence of the agreement of nations, and do not in this county at le'Ant per se bind the tribunals. Xeither, certainly does a consensus of jurists ; but it is evidence of the agreement of nations on international points ; and on such points, when they arise, the English courts give effect, as part of English law, to such agree- ment. * * * "We find a number of men of education, of many difi'erent nations, most of them uninterested in maintaining any particular thesis as to the matter now in question, agreeing generally for nearly three centuries in the proposition tliat the territory of a mari- time country extends beyond low-water mark. "I can hardly myself conceive stronger evidence to show that, as far as it depends on the agreement of nations, the territory of mari- time countries does so extend. * * * "If the matter were to be determined for the first time, I should not hesitate to hold that civilized nations had agreed to tliis prolongation of the territory of maritime states, upon the authority TO STATES. [PAKT I. of the writers who have been cited in this argument as laying down the affii'mative of this jDroposition. * * * " P'urthermore, it has been shown that EngUsh judges have held repeatedly that these coast waters are portions of the realm. It is true that this particular pomt does not seem ever distinctly to have arisen. But Lord Coke, Lord Stowell, Dr. Lushington, Lord Hatherley, L. C, Erie, C. J., and Lord ^Vensleydale (and the catalogue might be largely extended) have all, not hastily, but in writing, in prepared and deliberate judgments, as part of the reasoning necessary to support their conclusions, used language, some of them repeatedly, which I am unable to construe, except as asserting, on the part of these eminent persons, that the realm of England, the territory of England, the property of the state and Cro\vn of Eng- land over the water and the land beneath it, extends at least so far Ijeyond the Ihie of low water on the English coast, as to include the place \\here this offense was connnitted. * * * The EngUsh and ^Vmerican text writers, and two at least of the most eminent Ameri- can judges, Marshall and Story, have held the same thing. " Further — at least in one remarkable instance — the British Parliament has declared and enacted this to be the law. In the pres- ent reign two questions arose between Her Majesty and the Prince of Wales as to the property in minerals below high-water mark around the coast of Cornwall. The first question was as to the prop- erty in minerals between high and low-water mark arotmd the coasts of that county ; and as to the property in minerals below low- water mark won by an extension of workings begun above low- water mark. " The whole argument on the part of the Crown was founded on the proposition that the fundus maris below low- water mark, and therefore beyond the limits of the county of Cornwall, belonged in property to the Crown. The Prince was in possession of the dis- puted mines ; he had worked them from land undoubtedly his own ; and, therefore, unless the Crown had a right of property in the bed of the sea, not as first occupier — for the Prince was first occupier, and was in occupation — the Crown must have failed. * * * Sir John Patterson * * * thus expressed himself. — 'I am of opinion, and so decide, that the right to the minerals below low-Avater mark remains and is vested in the Crown, although those minerals may be won by workings commenced above low- water mark and extended below it,' and he recommended the passing of an Act of Parliament to give practical effect to his decision, so far as it was in favor of the crown. The Act of Parliament accordingly was passed, the 21 & 22 Vict. c. 109. " "We have therefore, it seems, the exj^ress and definite authority of OriAP. I.] THE QUEEN V. KEYN. 71 Parliament for the proposition that the reahn does not end with low- water mark, but that the open sea and the bed of it are part of the realm and of the territory of the sovereign. If so, it follows that British law is supreme over it, and that the law nuist be administered by some tribunal. It cannot, for the reasons assigned by my Brother Brett, be administered by the judges of oyer and terminer ; it can be, and always could be, by the Admiralty, and if by the Admiralty, then by the Central Criminal Court." The Court quashed the conviction. The majority of the Court was composed of Cockburn, C. J., Kelly, C. B., Bramwell, J. A., Lush and Field, JJ., Sir K. Phillimore and Poll(K'k, B. — Lord Coleridge, C. J., Brett, and Amphlett, J. A., Grove, Denman and Lindley, JJ., dissenting.^ 1 On account of the extreme length of the opinion of tlie Lord Cliief Justice, a considerable part of it — and a part interesting and valuable — lias been necessarily omitted. This is true notably of that jiortion consisting of the anal\'sis of cases, and of the abstract of the opinions of text writers. It is regretted, too, that the opinions of the other judges cannot be given. For criticisms of the judgment in this case, see Stephen's History of the Criminal Law, II., 29— i-2; Maine's International Law, p. 38; Judge Foster, in the Am. Law Eev., July, 1877; Walker's Science of International Law, p. 173. In consequence of the decision in this case, an act was passed in the session of 1878 (41 and 42 Vict. c. 73), which would seem to adopt the view of the muiority of the court. The preamble declares that " the rightful jurisdiction of her Majesty, her heirs and successors extends and has always extended over the open seas adjacent to the coasts of the United Kingdom, and of all other parts of her Majesty's dominions to such a distance as is necessary for the defense and security of such dominions," and that " it is expedient that all offenses committed in the open sea within a certain distance of the coasts of the Ignited Kingdom and of all other parts of her Majesty's dominions, by whomsoever committed, should be dealt with according to law." The act is entitled the Territorial Waters Jurisdiction Act, 1878; and enacts that, " An offense committed by a person, whether he is or is not a subject of her Majesty, on the open sea within the territorial waters of her Majesty's dominions, is an offense within the jurisdiction of the Admiral, although it may have been committed on board or by means of a foreign ship, and the person who committed such offense may be arrested, tried and punished accordingly. " But no proceedings under this act are to be instituted against a foreigner, with- out the consent and certificate of a Secretary of State, or in the case of a colony, the certificate of the Governor. " The Territorial waters of her Majesty's dominions, in reference to the sea, means such part of the sea adjacent to the coast of the United Kingdom, or the coast of some other part of her Majesty's dominions, as is deemed by international law to be within the territorial sovereignty of her INIajesty ; and for the purpose of any offense declared by this act to be within the jurisdiction of the Admiral, any part of the open sea within one marine league of the coast measured from low- water mark shall be deemed to be open sea within the territorial waters of her Majesty's dominions." CHAPTER II. TERRITORIAL JURISDICTION. Sectiox 9. — Immunities of Fokeigx Sovekeigxs. VAVASSEUR V. KRUPP. ClIAXCERY, 1878. (L. 7i., il Chancery Div., 351.) A foreisn sovereign cannot be sued for the infringement of a patent. \Vliere a foreign sovereign has his name added as defendant, in a suit against his agents, in order to be in a position to thus claim his property, he does not thereby subject himself to the jurisdiction of the comt. Josiah Vavasseur, the plaintiff in this case, had brought an action against F. Krupp, of Essen, in Germany, Alfred Longsden, his agent in England, and Ahrens & Co., described as agents for the Government of Japan, claiming an injunction and damages for the infringement of the plaintiff's patent for making shells and other projectiles. The shells in question had been made at Essen, in Germany, had been there Ijought for the Government of Japan, had been brought to this country and landed here in order to be put on board three ships of war wliidi wore being built here for the Govern- ment of Japan, to be used as ammunition for the guns of those ships. On the 18th of January, 1878, an injunction was, without prejudice to any question, granted, restraining the defendants and the owners of the Avharf where the shells lay from selling or delivering the shells to the Government of Japan, or to any person on their behalf, or otherAAise from parting with, selling, or disposing of the shells and projectiles. On the 11th of ]\Iay an application to the court was made on be- half of the Mikado of Ja[)an and his Envoy Extraordinary in this country, that, notwithstanding the injunction, the Mikado and his agents might be at liberty to remove the shells, and that if, and so far as might l)e necessary, the ^Mikado and his Envoj' should for the 72 CHAr. II.] VAVASSEUR V. KKUI'P. 73 purpose of making and being heard upon such application be added as defendants in tlie suit. Upon tliis application an order Avas made by the Master of the Rolls that on the Mikado by his counsel sul)niitting to the jurisdic- tion of this (;()urt and desiring to be made a defendant, and on pay- ment into court by the Mikado of £100 as security for costs the name of the ^likado be added as a party defendant in the action. Xotice of motion was then given on the part of the jMikado that the injunction might be dissolved, and that the Mikado might be at liberty to take possession, and remove, out of the jurisdiction of the court, the shells in question, the property of his Imperial Majesty. James, L. J., Brett, L. J., and Cotton', L. J., concurred, each deliver- ing an opinion. The following is that of Brett, L. J. : — "It does not seem to me that in this ease there is any fact whatever in dispute. " These shells were made by Krupp at Essen. That was no in- fiingement of the plaintiff's patent. In Germany they were sold to the Mikado and paid for by the agents of the Mikado. None of these facts are in dispute ; and this purchase and sale was a perfectly lawful purchase and sale. The Mikado had three sliips of war build- mg in this country, and he desired tliat these shells should be sent to this country and put on board these ships. They were sent to this country by the order and by the authority of the jNIikado, through Ahrens & Co. They were brought into this country, and they Avere deposited on a wharf. The plaintiff then finding these shells in this country, and finding, as he alleges, that they were made according to the process of his patent, asserts that the bringing them into this country by Ahrens & Co. is an infringement of his patent by them ; and thereupon he brings an action against Ahrens & Co., for the in- fringement. In that action he claims an injunction against Ahrens & Co., and it may be that he claims an order from the court to destroy those shells because he says they are an infringement of his patent. In the course of that suit an injunction is obtained against Ahrens & Co., and against others, which injunction in terms forbids them from delivering these shells, which with other things are in their pos- session, to the ships of the Mikado, and in fact forbids them fi'om sending the shells to Japan. To this action the Mikado was no party, but he or his agents here come forward and claim to have the delivery and possession of these shells. The defendants in the action are not unwilling to give the shells to the Mikado, but they say, ' If we do so, it may be said that we have broken the injunction, and we may therefore be liable to certain penalties.' It seems to me 74 TEHiriTOEIAL JURISDICTION. [PART I. bej'ond dispute that this was the purpose for wliich the Mikado came in and desired to be made a party to the suit, and the Master of the Rolls thus describes the purpose. [His Lordship then read the judj^ment of the Master of tlie Rolls.] Now it is said that in the first place there is a dispute whether these shells are the property of the Mikado. It is argued that if he were a private individual, then, althoug-h he has purchased these shells and paid for them, yet, inas- much as there has been an infrmgement of the patent, the property is not in him, because the court may order the shells to be destroyed. Is that argument good or not? To my mind it is utterly fallacious. The patent law has nothing to do with the property. The facts here are undisputed that Krupp made them with his own materials in Germanj^ Avhere he had a right to make them ; that he entered into a contract to sell specific shells to the Mikado ; that that contract was performed, and that the shells were paid for, and that they were delivered in Germany to the Mikado's agent. Well, unless the patent law prevents the property from passing, nobody can doubt that the property passed to the Mikado. Therefore the dispute is not upon facts, but upon a false theory of law, that the patent law prevented the property from passing. I am clearly of opinion that the patent law did not prevent the property from passing. The goods were the property of the Mikado. They were his property ac a sovereign ; they were the property of his countr^'^ ; and therefore he is in the i)Osition of a foreign sovereign having property here. " Wliether the fact of Ahrens & Co. bringing these goods into England mider these circumstances, and with this intention, was an infringement of the patent, I decline to consider. I shall assume for this purpose that it was an infringement, and that we have in this country property of the Mikado which infringes the patent. If it is an infringement of the patent by the Mikado you cannot sue him for that infringement. If it is an infringement by the agents, you may sue the agents for that infringement, but then it is the agents whom you sue. The injunction is against the agents, the Mikado being then no party to the action, and not being forbidden to do anything. He then comes here as a sovereign, and requires the delivery of his own goods. His only difficulty is the injunction against the agents, and for the purpose of enabling the court to make an order, he what is called ' submits himself to the jurisdiction of the court.' I think the interpretation put by the Master of the Rolls upon the order then made is right, and that it was only an order that the Mikado might be made a defendant for the purpose of enabling the court to make the order Mhich the court has made. lie now saj'^s ' I know not, and I care not, whether my agents have infringed your patent law. CHAP. II,] VAVASSEUR V. KUUPP. to I have property in the country, which property is my own. I demand that it sluill be delivered to me, and I nialce myself a defendant in your court merely for thepurpo.se of your modifying the order which you have made, so that my agents may not be injured in con- secpience of their delivering to me my own property.' " And the only order that the Master of the Rolls has made is that these goods may be delivered up to the Mikado; the meaning of which is that the mere fact of the Mikado taking these shells away shall not be considered as against Ahrens ife Co. an infringement of the injunction. That is the whole effect of this order. The ^likado has a perfect right to have these goods ; no court in this country can properly prevent him from having goods wliich are the public prop- erty of his own country. Therefore it seems to me that this order which is really made for the benefit of Ahrens & Co., was an order rightly made, and that this appeal camiot be sustained." In regard to the paint of submission to the jurisdiction, Coytox, L. J., said: — "It is said that although under ordinary circumstances there is no jurisdiction as against a foreign sovereign, yet that in this particular case there is jurisdiction in consequence of the Mikado having come in and obtained the order of the lltli of May. It is said that a sovereign suing submits himself to the court as an ordinary plaintiit", and that the Mikado, in consequence of having obtained this order and acted upon it, puts himself in the position of an ordinary plaintiff. In the first place, there is this fallacy : the Mikado is not now in any way suing in the ordinary sense of the word, nor has he come to the court to establish as against an adverse claim his title to the property, which is reall}'' what is meant by a foreign sovereign coming here to sue to estaljlish his rights. He is simply coming, and saying, 'The order of the court, possibly in- advertently, interferes with my sovereign rights. To prevent any question as to the defendants' connnitting a breach of the injunction by allowing me to remove the property, make an order that they be at liberty, notwithstanding the injunction, to hand them over to me! " So that, in my opinion, the very foundation for the suggestion fails. "But again, even if the Mikado had brought himself into court as an ordinary defendant, that, in my opinion, would not give the court jurisdiction as against the subject-matter, namely, jurisdiction to in- terfere with the public property of Japan, which is represented here by the Mikado. But when one comes to look at the form of the order, the Mikado does not by it come in as an ordinary defendant. By it he simply says 'I wish to bring before the court the facts : that these are my property, that the defendants were not constructing them 76 TERRITORIAL JURISDICTION. [PART I. under a contract for me, or using them under a contract with me I wish to show that they are my property. 1 wish to apply for liberty to remove ihem as the public property of the state of Japan, and for that jmrpose, if necessary, I ask to come in.' " In my opinion, the order taken fairly must be read with reference to the purjiose for which the Mikado applied, and that being so, al- though possibly the form is not very happy, it is like a conditional appearance entered where a defendant who considers himself improp- erly served with any proceeding, has entered a conditional appearance, in order to contest the questions, which he could not do without an appearance of some sort. It cannot, in my opinion, be said that the order puts the ]Mika(lo in the position of a plaintitf or of a person who is made simplidter a defendant. He came in for the p;irticular purpose of raising this question, and the form of the order, in my opinion, ought not in any way to prejudice the rights which he would have had independently of that order." Ja3Les, L. J. : — " This appeal is dismissed with costs." DE HABER v. QUEEX OF PORTUGAL. QuEEx's Bench, 1851. , (17 Queeri'H Bench, 19(5.) A suit cannot be maintained against a foreign sovereign. If such a suit be instituted, the non-appearanj3 of the defendant sovereign does not prejudice liis rights. The plaintiff commenced an action of debt in the court of the Lord Mayor of London against the Queen of Poi-tngal. It appears that he brought action for 12,136/ sterling which lu> had left in llie hands of Ferreiri, a Lisbon banker and which Feireiri paid over to the Portuguese Government. The plaintitf, proceeding according to the custom of foreign attachment in London, sent out a summons for the defendant to appear. The defendant being called and not appearing, the plaintitf alleged that Senhor GaWierne Candida JCairier JJe Hn'to, of London, the garnishee had money and effects of the defendant in his hands, and pi-ayed to attach the defendant by that money. The judge awarded an attachment as prayed. The judgment of tlie court was delivered by C.vmphell, C. J. : — * * * '• Xotwithstanding the dictum of Bynkersh<>el\ and the outlawry of tlie King of Sjiain, supposed to be related by Selden, yy^o, cannot doubt that the awarding of the attachment in the present case by CHAP. II.] PKIOLEAU V. UNITED STATES. 77 the Lord ^Mayor's Court was an excess of jurisdiction, on the f^round that the defendant is sued as a foreign potentate. * * * We have now to consider whether we can grant the proliibition on the ap[)li-- cation of the Queen of Portugal before she appears in the LnTiES of Diplomatic Agents. (a) Criminal Jurisdiction. CASE OF LESLIE, BISHOP OF ROSS, 1571. {Ward's Law of Nations, II., 486.) Is the ambassador of a deposed sovereign entitled to tlie immunites accorded to diplomatic agents ? In the year 1567, Leslie, Bishop of Ross came to tlie court of England, in behalf of Mary Queen of Scots ; who, although she was detained prisoner in England, was allowed to send him to plead be- fore the commissioners appointed to examine into her cause. Noth- ing was determined by the commission : but Leslie continued at court, and exercised the office of ambassador of Mary for the space of one year, when, being concerned in raising a rebellion against the English Government, he was committed to the custody of the Bishop of London. From this he was soon liberated, and returning to his function of ambassador, continued to preserve it near two years longer. At that time, being detected in the attempt to raise a serious conspiracy in favor of Mary, against Elizabeth, he was once more committed ; and the following questions concerning him were pro- pounded to David Lewis, Valentine Dale, William Drury, William Aubrey, and Henry Jones, learned civil lawyers: 1. Whether an ambassador, procuring an insurrection in the Prince's country towards whom he is ambassador, is to enjoy the privilege of an ambassador ? 2. Whether he may not, Ju)'e gentium et cimli Romanorum, be pun- ished as an enemy, traitor, or conspirator against that Prince, not- withstanding he be an ambassador ? To these two questions they answered : " Touching these two questions, we are of opinion, that an ambassador procuring an in- surrection or rebellion in the Prince's comitry towards whom he is ambassador, ought not, jure gentium et civili Ronianoruin, to enjoy the privileges otherwise due to an ambassador : but that he may, notwithstanding, be punished for the same. 3. Whether, if the Prince be deposed by the common authority of the realm, and another elected and invested of that crown, the solic- 84 TERKITOKIAL JURISDICTION. [PART I. itor or doer of his causes, and for bis aid (althougli the other Prince do suffer such one to be in his realm), is to be accounted an ambas- sador, or to enjoy the privilege of an ambassador ? To this the}^ answered : " We do think that tlie solicitor of a Prince lawfully deposed, and another being- invested in his place, cannot have the privilege of an ambassador ; for that none bat Princes, and such other as have s overeigiity, may have ambassadors." 4. Whether a Prince, coming into another realm, and remaining there under custody and guard, ought, or may have there his solici- tor of his causes, and if he have, whether he is to be accounted au ambassador? To this they answered : " We do think that a Prince coming into another Prince's realm, and being there under guard and custody, and reuKiining still a Prince, may have a solicitor there ; but whether he is to be accounted an ambassador, that dependeth on the nature of his commission." 5. \Vhether, if such a solicitor be so appointed by a Prince so flying, or coming into another Prince's realm — if the Prince in whose realm the Prince so in guard, and his solicitor is, shall denounce, or cause to be denounced, to such a solicitor or to such a Prince under cus- tody, that his said solicitor — shall hereafter be taken for no ambas- sador — whether then such solicitor or agent can justly claim the privilege of ambassador ? To this they answered : " We do think that the Prince to whom any person is sent in message of ambassador, may for causes forbid him to enter into his lands, or when he hath received him, command him to depart ; yet so long as he doth remain in the realm, and not exceed the bounds of an ambassador, he may claim his privilege as ambassador, or solicitor, according to the quality of his commission." 6. Whether, if an ambassador be confederate, or aider, or comforter of any traitor, knowing his treason toward that prince, toward whom, and in whose realm he pretendeth to be ambassador, is not punishable by the Prince in whose realm and against whom such treason is committed, or confederacy for treason conspired ? And to this they answered : "We do think that an ambassador aiding and comforting any traitor in his treason toward the Prince with whom he pretendeth to be ambassador in his realm, knowing the same treason, is punishable by the same Prince against whom such treason is committed." These answers of the civilians were supposed to be so decisive in favor of the intentions of the court, that the Bishop was sent for from his confinement in the Isle of Ely, and after being sharply rebuked, was told he should no longer be considered as an ambas- CHAP. TI.] MEXDOZA's CASE. S.> saclor, but severely punished as one who well deserved it. lie, however, answered witli much firmness and apparent knowledge of the law of nations, "that he was the ambassador of an absolute Queen, and of one who was unjustly deposed, and had, according to his duty, carefully endeavored to effectuate tlie delivery of liis I^rin- cess, and the safety of both kingdoms ; that he came into Kngland with the full authority of an ambassador, upon public warrandise, or safe conduct which he had produced ; and that the sacred privileges of ambassadors were by no means to be violated. " Burleigh, in return, observed "that no privilege or public warran- dise could protect ambassadors that offend against the i)ublic majesty of a Prince, but they are liable to penal actions for the same ; otherwise lewd ambassadors miglit attempt the life of Princes without any punishment." Tlie bishop persisted in his positions, and maintained that the privileges of ambassadors had never been violated via juris sed viafacti, not by regular form of trial, but by violence ; his boldness, or the true view which he seems to have taken of this nice subject, appears so far to have weighed with the Ministers of Elizabeth, that they did not dare to put him to death, with the Duke of Norfolk and other conspirators, but after detaining him for some time in prison, banished him the country in 1573. MENDOZA'S CASE, 1584. {Ward's Laio of Nations, II., .522.) An ambassador cannot be punisbed, but may be sent out of the country. In the year, 1584, Mendoza, the Spanish ambassador in England, having conspired to introduce foreign troops, and dethrone the Queen, it was a matter of difficulty how he should be punished. Had the council thought the opinions of Lewis Dale and the other civilians good law, they probably would have acted upon them ; for here was a case precisely similar to that on which they had been consulted. They however took the opinions of the celebrated Alber- icus Gentilis, then in England, and of Hottoman in France, who both asserted that an ambassador, though a conspirator, could not be put to death, but should be referred to his principal for punishment ; or, (according to Hottoman) sent away by force out of the countr}'. In consequence of this, Mendoza was simply ordered to depart the realm, and a commissioner sent to Spain to prefer a complaint against him. (Camden, 296.) 86 TEKlllTUlilAL JUKISDICTION. [PAKT 1. CASE OF DA SA, 1653. {]Va7-(r s Laic of Nations, II., ■>■]".) The brother of an ambassador and a member of his suite, was executed, for sedition and murder. " In 1653, Don Pantaleon Sa, brother to the Portuguese ambassador in England, quarrelled with an Englishman, Colonel Gerhard, about some matter in the new exchange ; a scuffle ensued, in which Ger- hard was severely wounded. The quarrel w^as renew^ed the next day, at the same place ; but this time Sa came with fifty followers, all armed to the teeth, with the deliberate intention of destroying his adversary. The result was, that many English were wounded, and one person (a Mr. Greenway), accidentally present, killed ; that the Guards w^ere called in, and fired upon by the Portuguese, several of whom they took to prison ; the rest, with Sa, took refuge in the hotel of the Portuguese ambassador. The aml)assador w^as after- wards required to deliver up others, of the delinquents, which re- quest he complied with, and his brother was among them. He interceded for his brother ; but Cromwell resolved, if he could, to try him by the law of the land. He, therefore, consulted the most eminent of the professors of the civil law to settle hotc such a bar- barous murder might be punished. But these disagreeing among themselves, he left the decision of the affair to a court of delegates, consisting of the Chief Justice and two other judges, three noble- men, and three doctors of the civil law. Before these Sa w'as examined. " At first he was supposed to be a colleague in the embassy, and he vaunted himself that he w' as the king's ambassador, ' and subject to the jurisdiction of no one else.' He was made, however, to pro- duce his credentials, by Avhich all that could be proved w' as that the king intended in a little time to recall his brother, and to give him a commission to manage his affairs in England. This being judged insufficient to prove him an ambassador, he was, without any further regard to the privilege of that character, ordered, as w^ell as all the rest, to plead to the indictment. " Such is the accurate statement of the affair till it came to a jury, as it appears from the account of Zouch, a civilian of eminence and himself a delegate in the cause. "It is evident, from this account of the matter, and one of more cHAr. 11.] gyllenboiig's case. 87 authority can hardly be met with, that had Sa been actually ma- bassddor, instead of forming a part of the sidte^ the proceedings against him would have been the same with those in the cases cited above. All, therefore, that can fairly be drawn from this precedent, as to the decision of the then existimj law of En(/h(nd, is that the suite of an ambassador, if they committed nnnxler, were liable to be tried for it by the courts of the country. Zouch asserts expressly, that his own opinion upon the main question agreed Avith that of Grotius and the best authors, as to the exemption of ambassadoi-s themselves ; and it should appear from his SoliUio Quaistionis, that if Sa could have proved that he was an actual ambassador, his plea before the delegates would have been allowed." GYLLENBORG'S CASE, 1717. {Ward's Laio of Nfitions, II., 'AS.) It was held in this case, that if an ambassador conspires to overtlirow the gov- ernment to which he is accredited, he may he arrested; and tliat liis papers may- be seized. On the 29th of January, 1717, the government of England having certain information of a conspiracy to invade the country and de- throne the King, contrived by Gyllenborg, the ambassador of Sweden, at that time at peace with Great Britain ; they ordered the arrest of that minister, which was accordingly effected. General Wade and Colonel Blakeney to whom the charge was entrusted, found hiui making up dispatches, which tliey told him they had orders to seize ;. and they even insisted upon searching his cabinet, which, upon the refusal of his lady to deliver the keys, they actually broke open.. Gyllenborg complained of these proceedings, as a direct breach of the law of nations, and some of the foreign ministers at the court of London expressed themselves to the same effect ; upon which the secretaries of state, Methuen and Stanhope, wrote circular letters to them, to assign reasons for the arrest, which satisfied them all except Montleone, the Spanish ambassador, avIio in his answer ob- served, that he was sorry no other way could be fallen upon for pre- serving the peace of the kingdom, than that of the arrest of a public minister, and the seizure of his papers, which are the reposi- tories of his secrets, two facts which seemed sensibly to wound the law of nations. The observation, however, answers itself; since the confession that there was ?^o otherxoay, proves that this extremity was the simple consequence of those universal laws, which ever will 88 TERRITORIAL JURISDICTION. [PART I. and must overcome all other ; I mean legitimate necessity, and self- defence. PRIXCE CELLAMARE'S CASE, 1718. (ilarte)rs Causes Cvlchres, I., 149.) For conspiring against the state, an ambassador was arrested and conducted across the frontier into his own country. Prince Cellamare, the ambassador of Spain at Paris, was the in- strument of Alberoni's hostile intrigues against the regent. He was in close correspondence with many of the malcontent French nobility, but his chief confidants were the Duke and Duchess of Maine, who had never forgiven the Duke's removal from the posts of authority assigned to him by the Avill of Louis XIV. A plot was organized (though it seems doubtful how far the design was seriously entertained) for carrying off the regent into Spain, and placing Philip V. at the head of the French Government. Assistance was expected from Brittany, which was just then in agitation in consequence of an attempt against the ancient priv- ileges of the province ; and a fleet was actually dispatched from Spain to support the insurrection. The confederates, however, were betrayed to Dubois ; an agent of Cellamare was seized at Poitiers on his way to Madrid ; and dispatches of which he was the bearer fully compromised all the principal parties to the scheme. A detachment of troops was sent to guard the hotel of the am- bassador, while the Minister of War, Le Blanc, and the Minister of Foreign Affairs, Dubois, made an examination of his papers. Cellamare appealed to the other ambassadors resident in Paris, but regarding such a conspiracy as depriving him of all privileges, they refused to interfere. On the other hand, to justify these extreme measures, the regent published a circular letter to the foreign ministers setting forth the facts of tlie conspiracy'', and the imminent danger to the state. Some days later, letters of Cellamare were made public, which proved conclusively his part in the conspiracy. Cellamare was then confined in the chateau De Blois, with orders to detain him there till the French ambassador at Madrid should arrive in France. On the news of the arrival of the French ambassador at Bayonne, the order was given to conduct Cellamare to the Spanish frontier, and this order was carried out on the 6th of March, 1719. CHAP. II.] AMBASSADOR OF PETEli THE GREAT. 89 (b) Civil Jurisdiction. THE AMBASSADOR OF PETER TILE GREAT, 1708. (Blackstone'' s Commentaries, Book I., Chap. VII.) Neither an ambassador nor any of liis suite can be prosecuted for any debt or contract in the courts of the country in wliich they reside. "In respect to civil suits, all the foreign jurists agree, that neither an ambassador, nor any of his train or comites, can be prosecuted for any debt or contract in the courts of that kingxiom wherein he is sent to reside. Yet Sir Edward Coke maintains, that, if an am- bassador make a contract which is good Jure gentium, he shall answer for it here. But the truth is, so few cases, if any, had arisen, wherein the privilege was either claimed or disputed, even with re- gard to civil suits that our law-books are, in general, quite silent upon it previous to the reign of Queen Anne ; when an ambassador from Peter the Great, Czar of Muscovy, was actually arrested and taken out of his coach in London, for a debt of fifty pounds wliich he had there contracted. Instead of applying to be discharged upon his privilege, he gave bail to the action, and the next day complained to the Queen. The persons who were concerned in the arrest were examined before the privy council, of which the Lord Chief Justice Holt was at the same time sworn a member, and seventeen were com- mitted to prison : most of them were prosecuted by information in the Court of Queen's Bench at the suit of the attorney-general, and at their trial before the Lord Chief Justice were convicted of the facts by the jury, reserving the question of law, how far those facts were criminal, to be afterwards argued before the judges ; which question Avas never determined. In the meantime the Czar resented this affront very highly, and demanded that the sheriff of Middlesex and all others concerned in the arrest should be pimished with instant death. But the Queen, to the amazement of that despotic court, directed her secretary to inform him ' that she could inflict no pun- ishment upon any, the meanest of her subjects, unless warranted by the law of the land ; and therefore was persuaded that he M'ould not insist upon impossibilities.' To satisfy, however, the clamors of the foreign ministers, who made it a common cause, as well as to appease the wrath of Peter, a bill was brought into parliament, and afterwards passed into a law, to prevent and punish such outrage- ous insolence for the future. And with a copy of this act, elegantly 90 TERRITORIAL JURISDICTIOX. [PART I. engrossed and illuminated, accompanied by a letter from the Queen, an ambassador extraordinary was commissioned to appear at Mos- cow, who declared ' that though her majesty could not inflict such a punishment as was required, because of the defect in that partic- ular of the former established constitutions of her kingdom, yet, with the unanimous consent of the parliament, she had caused a new act to be passed, to serve as a law for the future.' This humil- iating step Avas accepted as a full satisfaction by the Czar ; and the offenders, at his request, were discharged from all farther prosecu- tion. " This statute recites the arrest which had been nuuhi in ' contempt of the protection granted by her majesty, contrary to the law of na- tions, and in prejudice of the rights and privileges, which ambassa- dors and other public ministers have at all times been thereby pos- sessed of, and ought to be kept sacred and inviolable : ' wherefore it enacts that for the future all process whereby the person of any am- bassador, or of his domestic or domestic servant may be arrested, or his goods distrained or seized, shall be utterly null and void ; and the persons prosecuting, soliciting, or executing such process shall be deemed violaters of the law of nations, and disturbers of the public repose ; and shall suffer such penalties and corporal punishment as the lord chancellor and the two chief justices, or any two of them, shall think fit. But it is expressly provided, that no trader within the description of the bankrupt laws, who shall be in the service of any ambassador, shall be privileged or protected by this act ; nor shall anyone be punished for arresting an ambassador's servant, un- less his name be registered with the secretary of state, and by him transmitted to the sheriffs of London and Middlesex. Exceptions that are strictly conformable to the rights of ambassadors as observed in the most civilized countries. And, in consequence of this statute, thus declaring and enforcing the law of nations, these privileges are now held to be part of the law of the land, and are constantly allowed in the courts of common law." TAYLOR V. BEST. CoMMox Pleas, 1S54. (14 Common Bench, 4S7.) A public minister who engages in trade, in the country to which he is accred- ited, does not thereby forfeit the privileges and immunities accorded to diplomatic agents. But when he voluntarily appears, in compliance with a writ, and submits himself to the jurisdiction, the court will not interfere for his relief. CHAP. II.] TAYLOR V. BEST. HI This was an action bronglit l)y the plaintiff af:fainst tlie four defend- ants, to recover 250^ deposited in their hands for sliares in an in- tended Sulphate company, of which they were directors. A writ being issued, the plaintitt''s attorney wrote to the defendant Drouet, asking the name of his solicitor to whom he should send the i:»rocess for an undertaking to appear. — M. Drouet instructs his attor- ney to write to the plaintiff's attorney, rec^uesting that the process be sent to him. The cause came to an issue, notice of trial was given, appearance duly entered and Drouet obtained a rule for a special jury. Two days later Drouet took out a summons on the other parties to the suit to show why all proceedings should not be stayed, or why his name should not be struck out of the proceedings on the groiuid that he was protected from such a suit by reason of his being a public minister, first secretary of the Belgian legation at the court of St. James. The defendant Drouet obtained a rule rn'.n. Jehvis, C. J. : — "This case was very elaborately argued yesterday, and the importance of the subject induced the court to take time to look into the variotts authorities which were referred to. I am of o[)inion that the rtile shotild be discharged. There is no doubt that the defendant Drouet fills the character of a public minister to ^^■hich the privilege contended for is applicable : and I think it is equally clear, that, if the privilege does attach, it is not, in the ease of an am- bassador or public minister, forfeited by the party's engaging in trade, as it would, by virtue of the proviso in the 7 Anne, c. 12, s. 5, in the case of an ambassador's servant. If an ambassador or public minis- ter, during his residence in this country, violates the character in which he is accredited to our court, by engaging in commercial trans- actions, that may raise a question between the government of this country and that of the country by which he is sent ; but he does not thereby lose the general privilege which the law of nations has con- ferred upon persons filling that high character, — the proviso in the statute of Anne limiting the privilege in cases of trading applying only to the servants of the embassy. " For this, Barbuit's Case, Cas. Temp. Talbot, 281, is an authority. " Admitting, then, that M. Drouet is a person entitled to the privileges and immunities which the law of England accords to am- bassadors from foreign friendly courts, and that he does not forfeit them by engaging in commercial ventures, — the question is whether he is, under all the circumstances disclosed by the aflidavit before us, entitled to the privilege which he claims. " Although it is admitted that no process can be available against 92 TEKRITUKIAL JUKISDICTIOX. [l'Ai;T I. the person or the goods of a foreign aml^assador or nihiister, no case has been cited to show that an application in the present form, to stay all proceedings, is available in the courts of this country. On the contrary, in the case of ambassadors' servants, it appears that the practice has been, not to stay the proceedings altogether, but to discharge the party from custody, on entering a commDu appearance. The case of Crosse v. Talbot, 8 Mod. 288, recognizes that as the true principle. The motion on the part of the defendant there was to set aside the bail-bond given upon his arrest, on his filing common bail ; and the rule was discharged, on the ground that the party did not bring himself strictly within the privilege allowed to the servant of an ambassador ; the court holding that, to entitle him to the privilege, he ought to be a domestic servant, and really to exercise the duties of the office, and that his being a mere nominal servant is not enough. And the reporter adds, — ' A great many cases have since been de- termined upon the same principle ; but it was in these cases held, that the idea of a domestic servant was not confined to his living in a foreign minister's house, provided he was a real servant, and actually performed the service.' The course, therefore, seems to have been in these cases, not to move to stay all proceedings, but to move to set aside or cancel the bail-bond, upon the defendant's filing common bail. Xo case has been cited of a motion to stay the pro- ceedings, where the personal liberty of the applicant has not been interfered with. Further, I am aware of no case in which, where there are several defendants, and the action has been allowed to go on to the verge of trial, the proceedings have been stayed upon the application of one of the defendants. " Such a course would be obviously unjust to the other defendants, seeing that the expense they had already incurred would thereby be rendered useless. Without, however, dwelling upon that, it seems to me that this motion nuist fail, upon the merits. "The action is brought against four defendants, — the writ being sued out against M. Drouet and the three others as joint-contractors. No doubt, the plaintiff was bound, at the peril of a plea in abatement, to sue all. The writ being issued, nothing is done upon it which can at all interfere with the exercise by 31. Drouet of his diplomatic functions, or with his personal comfort or dignity. But, knowing that a writ has issued, or having reason to believe that it is about to issue, he causes his attorney to write to the plaintiff's attorney, desiring that the process may be sent to him for an undertaking to appear. He, therefore, voluntarily attorns and submits himself to the jurisdiction of the court. Under these circumstances, I think he cannot be permitted now to complain that the suit has been im- CHAP. II.] TAYLOR V. BEST. 93 properly instituted against him. On the contrary, I think, that, by analogy to the doctrine cited from the learned jurists whose works have been so laboriously consulted, the action may well be main- tained. '^ It is said, — and perhai)s truly said, — that an ambassador or foreign minister is privileged from suit in the courts of the country to which he \.i accredited, or, at all events, from being proceeded against in a maimer which may ultimately result in the coercion of his person, or the seizure of his personal effects necessary to his comfort and dignity ; and that he cannot be compelled, iji invitum, or against his will, to engage in any litigation in the courts of the country to Avhich he is sent. But all the foreign jurists hold, that, if the suit can be founded without attacking the personal liberty of the ambas- sador, or interfering with his dignity or personal comfort, it may proceed. Various passages have been cited to show, that, hi countries, where the Civil law prevails, and where jurisdiction can be founded by a proceeding in rem in the first instance, where there are houses or lands, which are immovable, that may be taken to found the jurisdiction, the suit may proceed. Movable goods, too, which are unconnected with the personal comfort and dignity of the am- bassador, may be taken for the same purpose. "And when we consider the effect of the proceeding, and what may be done by the party sued, there seems to be no substantial distinc- tion between the two modes : because, although it is true, that, in countries where the Civil law prevails, the proceeding is in rem^ and the means of litigation between the parties incidentally established with(^ut any molestation or interference with the person of the de- fendant ; yet if the defendant chooses to appear, for the purpose of protecting his goods and investigating the matter in dispute, he may convert that which was originally a proceeding in rem into a pro- ceeding in personam. And such is commordy the course in the Scotch courts. If, therefore, as in Holland, and in some other countries, where goods may be taken for the purpose of founding jurisdiction, the defendant may come in and convert the proceeding in rem into a proceeding in personcun., and so attorn or submit himself to the jurisdiction, it seems to me that there is no distinction between that case and the present, where there has been no attempt on the part of the plaintiff to disturl) the comfort or interfere with the personal liberty of the foreign minister ; but where there has been the mere issuing of a writ to which he has voluntarily appeared, and thus sub- mitted himself to the jurisdiction, I do not feel myself at all pressed by the argument urged by Mr. Willes, that the privilege in question, being the privilege of the sovereign, cannot be abandoned or waived f4 TERRITOniAL JURISDICTION. [I'ART I. by the ambassador; for, when the authorities upon which that argu- ment is sought to be sustained, come to be examined, tliey do not shew that the ambassador may not submit himself to tlie jurisdiction for the purpose of having tlie matter in difference investigated and ascertained ; but only that the sacred character of the person of the ambassador cannot be affected by any act or consent on liis part ; and that, by interfering with the pei'son of the ambassador, or with the goods which are essential to the personal comfort and dignity of his position, you are in effect attacking the privilege of his master. That, however, is not the case here ; for anything that appears, M. Drouet is sued, — he being a joint-contractor and so a necessary party to the action, — merely for the purpose of ascertaining the lia- bility of the other defendants. If he had not thought fit to attorn to the jurisdiction, but had allowed judgment to go against liim by default, non constat that anything would have been done upon the judgment, otherwise than by enforcing it against the other defend- ants. If any ca. sa. or fi^fa. were issued against him upon the judg- ment, tlie statute of Anne would have applied, and the court might have been called upon to interfere to prevent its being put in force against him. It seems to me that M. Drouet here has courted the jurisdiction, and that we ought not to interfere." Cresswell, J., and Williams, J., concurred. Pearson, for the plaintiff, asked for costs. Per Curiam. — We say nothing about costs. Rule discharged. WIIEATOX'S CASE. {Wheatoii' H International Law, Sd Ed.) Where the laws of a state give to a landlord the right to detain the personal effects of a tenant, for non-payment of rent or for damages to the premises, may this right be enforced against the arabassaJor of a foreign state ? The Prussian Civil Code declares, that " the lessor is entitled, as a security for the rent and other demands arising under the con- tract, to the rights of a Pfandylauhifier, upon the goods brought by the tenant upon the premises, and there remaining at the expiration of the lease." The same code defines tlie nature of tlie right of a creditor whose debt is thus secured. " A real right, as to a thing belonging to an- other, assigned to any person as security for a debt, and in virtue of CHAP. II.] WHEATOX'S CASE. 95 which he may demand to be satisfied out of the substance of the thing- itself, is called CnterpfcDuhrec/U.''' Under this law, the proprietor of the house in which the minister of the United States accredited at the court of Berlin resided, claimed the right of detaining the goods of the minister found on the premises at the expiration of the lease, in order to secure the pay- ment of damages alleged to be due, on account of injuries done to the house during the contract. The Prussian government decided that the general exemption, under the law of nations, of the personal property, of foreign ministers from the local jurisdiction, did not extend to this case, where, it was contended, the right of detention was created by the contract itself, and l)y the legal effect given to it by the local law. In thus granting to the proprietor the rights of a creditor whose debt is secured by hypothecation (Pfandglaubiger,) not only in respect to the rent, but as to all other demands arising under the contract, the Prussian Civil Code confers upon him a -real right as to all the effects of the tenant, which may be found on the premises at the expiration of the lease, by means of which he may retain them, as a security for all his claims derived from the contract. It was stated, by the American minister, that this decision placed the members of the corps diplomatijpie^ accredited at the Prussian court, on the same footing with the subjects of the country, as to the right which the Prussian Code confers upon the lessor of dis- training the goods of the tenant, to enforce the perforniance of the contract. The only reason alleged to justify such an exception to the general principle of exemption was, that the right in question was constituted by the contract itself. It was not pretended that such an exception had been laid down by any writer of authority on the law of nations; and this consideration alone presented a strong objection against its validity, it being notorious that all the excep- tions to the principle were carefully enumerated by the most es- teemed public jurists. ISTot only is such an exception not confirmed by them, but it is expressly repelled by these writers. Nor could it be pretended that the practice of a single government, in a single case, was sufiicient to create an exception to a principle which all nations regarded as sacred and inviolable. Doubtless, by the Prussian Code, and that of most other nations, the contract of hiring gives to the proprietor the right of seizing, or detaining the goods of the tenant, for the non-payment of rent, or damages incurred by injuries done to the premises. But the ques- tion here was, not what are the rights conferred by the municipal laws of the country upon the proprietor, m respect to the tenant 93 TEKKITOIUAL JUKISDICTION. [PAllT I. who is a subject of that country ; but what are those rights in re- spect to a foreign minister, M^liose dwelling is a sacred asylum ; whose person and property are entirely exempt from the local jurisdiction; and who can only be compelled to perform his contracts by an ap- peal to his own government. Here the contract of hiring consti- tutes, 2^^r se, the right in question, in this sense only, that the law furnishes to one of the parties a special remedy to compel the other to perform its stipulations. Instead of compelling the lessor to re- sort to a personal action against the tenant, it gives him a lien upon the goods found on the premises. This lien may be enforced against the subject of the country, because their goods are subject to its laws and its tribunals of justice ; but it cannot be enforced against foreign ministers resident in the country, because they are subject neither to the one nor to the other. To deprive a minister of his privilege in this case would be to deprive him of that mdependence and securitj^ which are indispen- sably necessary to enable him to fulfill the duties he owes to his own government. If a single article of furniture may be seized, it may all be seized, and the minister, with his family, thus be deprived of the means of subsistence. If the sanctity of his dwelling may be violated for this purpose, it may be violated for any other. If his j)rivate property may be taken upon this pretext, the property of his government, and even the archives of the legation, may be taken upon the same pretext. In reply to these arguments it was urged, on behalf of the Prus- sian government, that if, in the present case any Prussian authority had pretended to exercise a right of jurisdiction, either over the per- son of the minister or his property, the solution of the question would doubtless appertain to the law of nations, and it must be deter- mined according to the precepts of that law. But the only question in the present case could be, what are the legal rights established by the contract of hiring, between the proprietor and the tenant. To determme this question, there could be no other rule than the civil law of the country where the contract was made, and where it was to be executed, that is, in the present case, the civil code of Prussia. The controversy having been terminated, as between the j^arties, by the proprietor of the house restoring the effects which had been detained, on the payment of a reasonable compensation for the injur}^ done to the premises, the Prussian government proposed to the American government the following question : " If a foreign diplomatic agent, accredited near the United States, enters, of his own accord, and in the prescribed forms, into a con- CHAP. II.] CASE OF BAUOX DE WnECMT. 97 tract with an American citizen ; and if, nnder snch contract, the laws of the country give to such citizen, in a given case, a rml rhjht {droit reel,) over personal property {hiens mobiliers,) belonging to such agent : does the American government assume tlie right of depriving the American citizen of his real rlfjld, at the simple instance of the diplomatic agent relying upon his extra-territoriality ?" This question was answered on tiie part of the American govern- ment, by assuming the instance contemplated by the Prussian gov- ernment to be that of an implied contract, growing out of the relation of landlord and tenant, by which the former had secured to him under the municipal laws of the country, a tacit h)jpotIieJc or lien upon the furniture of the latter. It was taken for granted that there was no express hypothecation, still less any giving hi pledf/e, which implies a transfer of possession by way of security for a debt. There could be no doubt that, in this last case, the pawnee has a complete right, a real right, as it was called by the Prussian government, or jus la re, not in the least affected by diplomatic immunities. With these distinctions and qualifications, the American govern- ment had no doubt that the view taken by its minister (Wheaton) of this question of privilege was entirely correct. The sense of that government had been clearly expressed in the act of Congress, 1790, which includes the very case of distress for rent, among other legal remedies denied to the creditors of a foreign minister. The Prussian government adhered to its view of the case, and the question, therefore remained unsettled, as between the two govern- ments. CASE OF BAROX DE WRECH, 1772. (Marten^ s Causes Celebres.) Is it an infringement of a ministei-'s diplomatic privileges to withhold ]ii<: pass- ports, until his debts are paid ? In 1772, the Baron de Wrech, Minister Plenipotentiary of the Landgrave of Ilesse-Cassel at the court of Paris, was recalled from his embassy. He was about to quit Paris without paying the debts which he had contracted there. His creditors, especially a Marquis de Bezons, besought the Minister of Foreign Affairs not to grant the Baron his passport. It was accordingly refused. All the corps diplomatique at Paris remonstrated against this act as a violation of International Law. The French Minister, le Due d'Aiguillon, replied in an elaborate 7 98 TERRITORIAL JURISDICTION. [PART I. memoir drawn up 1 )y INI. Pfeffel, upon the Rights of Ambassadors ; defended, upon the authority of Grotius and Bynkershoek, the right of using that species of constraint against an ambassador which did not interfere with the exercise of his functions. He further appealed to the practice of other States, as warranting the step which had been taken, and especially to that of Hesse-Cassel itself, which had impris- oned a Dutch ambassador, in order to compel him to render an account of a charitable institution of which he had been the administrator. It was admitted that this attack on the person of an ambassador was indefensible, but it was added that Holland had not denied the jurisdiction of Hesse-Cassel in the matter. The Landgrave was compelled to make an arrangement with the creditors of the Baron de Wrech, before that minister could obtain his passport. CASE OF DUBOIS, 1856. (.Sen. Ex. Doc. No. 21, ^th Cong., ZCl Sess.) A foreign minister cannot be compelled to appear before a court as a witness. A case of homicide having occurred at Washington, in 1856, in the presence of the Dutch minister, whose testimonj^ was deemed altogether materialfor the trial, "and inasmuch as he was exempt from the ordinary process to compel the attendance of witnesses," an application was made by the district attorney, through the Secre- tary of State, to Mr. Dubois to appear and testify. The minister having refused, by the unanimous advice of his colleagues, in a note of the 11th of May, 1856, to the Secretary of State, to appear as a witness, Mr. Marcy, Secretary of State, instructed. May 15, 1856, Mr. Belmont, minister of the United States at the Hague, to bring the matter to the attention of the Xetherlands Government. Mr. Marcy says, that " it is not doubted that both by the usage of nations and the laws of the United States, Mr. Dubois has the legal right to decline to give his testimony; but he is at perfect liberty to exercise the privilege to the extent requested, and by doing so he does not subject himself to the jurisdiction of the country. The circumstances of this case are such as to appeal strongly to the universal sense of justice. " In the event of M. Van Hall's suggesting that M. Dubois might give his deposition out of court in the case, you will not omit to state that by our constitution, iu all criminal prosecutions, the CHAP. II.] Dillon's case. 09 accused has the right to be confronted with the witnesses against him, iind hence, in order that the testimony shonld he legal, it must be given before the court." M. Van Hall, .June U, ISoG, in a note to Mr. Belmont, declined authorizing the minister to a])pear in court. He said that, "availing himself of a prerogative generally conceded to the members of the diplomatic body, and recognized also by the laws of the Republic;, as adverted to by Mr. Marcy, M. Dubois re- fused to appear before a court of justice ; but being desirous to at once reconcile that prerogative with the requirements of justice, he suggested a middle course of action, and proposed to Mr. Marcy to give his declaration under oath, should he be authorized to that effect by the Government of the Netherlands. After taking the King's orders on the subject, T did not hesitate to give such au- thority to M. Dubois, approving at the same time, and formally, the line of conduct which he pursued on that occasion.'" ^f. Dubois addressed a note to Mr. Marcy, on tlie 21st of June, stating that he was authorized to make his declaration under oath at the Depart- ment of State, adding, " it is understood that, on such an occasion, no mention is to be made of a cross-examination, to which I could not subject myself." The declaration was not taken, as the district attorney stated that it would not be admitted as evidence. DILLON'S CASE, 1854. (1 Wharton's Digest, G65.) The clause in the Constitution of the United States which gives a person accused of a criminal oifense before the Federal courts the right of compulsory process to procure the presence of witnesses in his favor, and to be confronted by the wit- nesses against him, prevails over a treaty which exempts the consuls of a foreign State from appearing before the courts as witnesses. In 1854 Mr. Dillon, then consul of France at San Francisco, was brought into the LTnited States District Court, then sitting, on an attachment for refusing to obey a subpoena duces tecum issued from that court to compel his attendance at a criminal trial then and there pending. Mr. Dillon protested against the process on two grounds: (1) Immunity from such process by international law; (2) immunity under the French- American treaty. The second point was merged in argument in the first, since it was agreed by counsel that the treaty privilege could not stand in the way of a party's con- stitutional right to meet the witness against him face to face, unless that privilege was in accordance with public international law. On this question the court (Hoffman, J.,) spoke as follows: 100 TEiaUTOltlAL JURISDICTIOX. [PART I. " Tf the accused, by virtue of the constitutional provision in this case, can compel the attendance of the consul of France, it seems necessarily to follow the attendance of an ambassador could in like manner be enforced. " The immunity afforded to and personal inviolability of ambassa- dors, now universally recognized by the law of nations, has been deemed one of the most striking instances of the advance of civiliza- tion and the progress of enlightened and liberal ideas. Though resident in a foreign country to which they are deputed (1 Kent. Com., 45), their persons have, by the consent of all nations, been deemed inviolable ; nor can they, says the same high authorit}', be made amenable to the civil or criminal jurisdiction of the country. By fiction of law, tlie ambassador is considered as if he were out of the territory of the foreign power, and, tliough he resides within the foreign state, lie is considered a member of his own countrj-, re- taining his original domicile, and the Government he represents has exclusive cognizance of his conduct and control over his person. (1 Kent's Com., 4G.) " Does, then, the Constitution of the United States, by the provi- sion in favor of persons accused of crime, intend to subject these high functionaries to the process of the courts, and does it authorize and require the courts in case of disobedience to violate their persons and disregard immunities universally conceded to theui by the law of nations, by imprisoning them ? If, as is the received doctrine, the ambassador cannot, even in the case of a high crime committed V)y himself, be proceeded against, it is obvious that for a lesser offense of a contempt or disobedience to an order of a court, lie would (I fortiori not l)e amenable to the law. The only ground upon which the right of a court to compel the attendance of an ambassador b}' its process, and to punish him if he disoljey it, can lie placed, is that the Constitution is in this case in conflict with and paramount to the law of nations, and the immunity usually conceded to ambassa- dors is, by the provision in favor of the accused in criminal cases, taken away. " But the privilege of ambassadors from arrest, under any circum- stances, has Ijeen declared by congress by special legislation. By the twenty-fifth section of the act of congress of April 30, 1790, it is enacted that, ' if any writ or process sue out of anj' courts of the United States, or of a particular State, or by any judge or justice therein respectively, whereby the person of an ambassador may be arrested or imprisoned, or his goods distrained, seized, or attached, such writ and process shall be deemed and adjudged to be utterly null and void to all intents, construction, and purposes whatever.' " CHAr. II.] Dillon's case. lul When the attachment was served on Mr. Dillon, he hauled down the consular flag; and the case was taken up by the French minister at Washington, as involving a gross disrespect to France. A long and animated controversy between IMr. Marcy, then Secretary of State, and the French Government ensued. The fact that an attach- ment had issued under whi(;h Mr. Dillon was brought into court was regarded by the French Government as not merely a contravention of the treaty, but an offense by international law ; and it was argued that the disi'espect was not purged by the subse(pient discharge of Mr. Dillon from arrest. It was urged, also, that the fact that the subpoena contained the clause duces ^ec«/M involved a violation of the consular archives. Mr. Marcy, in a letter of September 11, ls54, to j\[r. Mason, then minister at Paris, discusses these questions at great length. He maintains that the provision in the Federal Constitution giving defendants opportunity to meet witnesses produced against them face to face, overrides conflicting treaties, unless in cases where such treaties embody exceptions to this right recognized as such when the Constitution was framed. One of these exceptions relates to the case of diplomatic representatives. " As the law of evidence stood when the Constitution went into effect," says Mr. ■Nfavc}', "am- bassadors and ministers could not be served with compulsory pro- cess to appear as witnesses, and the clause in the Constitution re- ferred to did not give the defendant the right in criminal prosecutions to compel their attendance in court." This privilege, however, Mr. Marcy maintained, did not extend to consuls, and consuls, therefore, could only procure the privilege when given to them by treatj- which, in criminal cases, was subject to the limitations of the Constitution of the United States. Mr. Marcy, however, finding that the French Goverrunent continued to regard the attachment, with the subpoena duces tecum^ as an attack on its honor, offered, in a letter to Mr. Ma- son, dated January 18, 1855, to compromise the matter by a salute to the French flag upon a French man-of-war, stop[)ing at San Fran- cisco. Count de Sartejes, the French minister at Washington, asked in addition that when the consular flag at San Francisco was rehoisted, it should receive a salute. This was declined by Mr. Marcy. In August, 1855, after a long and protracted controversy, the French Government agreed to accept as a sufficient satisfaction an expression of regret by the Government of the United States, coup- led with the provision that " when a French national ship or squad- ron shall appear in the harbor of San Francisco the United States authorities there, military or naval, will salute the national flag borne by such ship or squadron with a national sahite, at an hour to be specified and agreed on with the French naval commanding officer 102 TEP.RrXOBIAL JURISDICTION^. [PAKT L present, and the French ship or squadron whose flag is thus saluted will return the salute gun for gun." In a dLspat<;h to ^Mason, American minister to France, ^Ir. ^larcy said : . '• The Constitution is to prevail over a treaty where the pro- visions of the one come in conflict with the other. It would be diffi- cult to find a reputable lawyer in this country who would not yield a ready assent to this proposition. Mi\ Dillon's comisel admitted it in his argument for the consul's privilege before the court in Cali- fornia. " The sixth amendment to the United States Constitution gives, in general and comprehensive L\nguage, the right to a defendant in criminal prosecutions to have compulsory process to procure the attendance of witnesses in his favor. Neither Congress nor the ti*eaty-making power are competent to put any restriction on this constitutional provision. There was, however, at the time of its adoption, some limit to the range of its operation. It did not give to such a defendant the right to have compulsory process against all persons whatever but only against such as were subject to subpoena at that time, such as might by existing law be witnesses. " There were then persons and classes of persons who were not thus subject to that process, who, by privileges and mental disqualifica- tions, could not be made witnesses, and this constitutional provision did not confer the right on the defendant to have compulsory process against them. As the law of e\'idence stood when the Constitution went uito effect, ambassadors and ministers could not be served with compulsory process to appear as witnesses, and the clause in the Constitution referred to did not give to the defendant in criminal prosecutions the right to compel their attendance in court. But what was the case in this resx)ect as to consuls ? They had not the diplo- matic privileges of ambassadors and ministers. After the adoption of the Constitution the defendant in a criminal prosecution had the right to compulsoiy process to bring into court as a witness in his behalf any foreign consul whatsoever. " If he then had it, and has it now, when and how has this constitu- tional right Ijeen taken from him? Congress could not take it away, neither could the treaty-making power, for it is not within the com- petence of either to modify, or restrict the operation of any provision of the Constitution of the United States.'** 1 Other cases bearing upon this subject are : — Tlie Mnrjdalina Steam Xarijation Company v. Martin, 2S L. J., Q. B., X. S.. -310, (1859), Lord Campbell, C. J., said : " Tlie question raised by tlus record is whether the public minister of a foreign state, accredited to and received by Her Majesty. having no real property in England, and having done nothing to disentitle him to yjHAP. U.] THE SCHOOiiEli '' EXCH.LNGE " V. m'e.VUUOX. 103 Section 11. — Immunities of Public Siiips, (a) Ships of War. THE SCHOONER " EXCHANGE " v. M'FvM)DON. Supreme Court of the United States, 1812. (T Cranch, IIG.) . It is a principle of public law, that national ships oi war, entering the port of a friendlj- power open to their reception, are to be considered as exempted by the consent of that power from its jurisdiction. Appeal from the sentence of the circuit court of the United States for the district of Pennsylvania. The schooner Exchange^ owned Ijy John M'Faddon and William the privileges generally belonging to such public minister, may be sued, against his will, in the courts of this country for a debt, neither his person nor his goods being touched by the suit, while he remains such public minister." Ileld, that he could not be so sued. Nitchencofi's Ca>ie, 10 Solic. Law Journal, o(J : " The French Court of Cassation lias quashed the appeal of Xitchencoff, the Ilussian sentenced to imprisonment for life foi- a murderous attack upon M. de Balsh, in the house of the Russian Am- bassador in Paris. It will be remembered that this case gave rise to a diplomatic correspondence, the Russian Government having disputed the right of the French courts to try the murderer, and claimed a right to have him given up for trial in Russia. The court laid down the law that " the fiction of the law of nations, according to which the house of an ambassador is reputed to be a continuation of the territory of his sovereign, only protects diplomatic agents and their servants, and does not exclude the jurisdiction of French courts, in case of a crime committed in such a locality by a person not belonging to the embassy, even although he is a subject of the nation from which the ambassador is accredited." TJie Guiteau Trial (1881), 1 Wliarton's Digest, 0G9 :— On the trial of Guiteau, Seiior Camacho, minister from Venezuela, who was present at President Garfield's assassination, was called as a witness for the prosecution. Before he was sworn the following statement was made by the district attorney : " If your honor please, before the gentleman is sworn, I desire to state, or rather I think it due to the witness to state that he is the minister from Venezuela to this 104 TERRITOEIAL JURISDICTION. [PART I. Greetham, sailed from Baltimore, October 27, 1809, for St. Sebastians, in Spain. On the 30tli of December, 1810, she was seized by the order of Xapoleou Bonaparte : and was then armed and commis- sioned as a public vessel of the French government, under the name of Jialaou. On a voyage to the West Indies, she put into the port of Philadelphia, in July, 1811, and on the 24th of August was libelled by the original owners. As no claimant appeared. Mr. Dallas, the attorney of the United States for the district of Pennsylvania filed (at the suggestion of the executive department of the United States, it is believed) a stiggestion that inasmuch as there was peace between France and the United States, the public vessels of the former may enter into the ports and harbors of the latter and depart at will without seizure or detention in any wa5\ The district jtidge dismissed the libel, on the ground that a public armed vessel of a foreign power, at peace with the United States, is not subject to the ordinary judicial tribunals of the country, so far as regards the question of title, by which the foreign sovereign claims to hold her. The libellants appealed to the circuit court, where the sentence was reversed — from the sentence of reversal, the district attorney appealed to this court. Marshall, C. J. : — " This case involves the very delicate and impor- tant inqtiiry, whether an American citizen can assert, in an American court, a title to an armed national vessel, found within the waters of the United States. "The qtiestion has been considered with an earnest solicitude, Govermnent, and entitled under the law governing diplomatic relations to be relieved from service by subptsna or sworn as a witness in anj' case. " Under the instructions of his Government, owing to the friendship of that Government for the United States, and the great respect for the memory of the man who was assassinated, they have instructed him to waive his rights and appear as a witness in the case, the same as anj- witness who is a citizen of this comitry." Respublica v. DeLonychanips, 1 Dallas, 110 (ITS!) : — The defendant threatened to assault the .Secretai-y of the French Legation, the threats being made in the house of the French minister. The defendant was fined 8o00 and imi^risoned two years. Un!(ed Stafes v. Lhldle, 2 Wash. Circ. Ct., 205 (1808) .-—Indictment for assaidt and battery on a member of the Spanish Legation. The law is the same whether the attacked is a private party or an ambassador, viz., if the ambassador was the prior assaulting party, the defendant is excused for his subsequent assaidt. United States v. Orter/n, 4 "Wash. Circ. Ct., 5.31 (1825) : — Indictment for an assault on the Spanish Charge d" Affaires. Cites Liddle's case and affirms it: " A foreign minister, by committing the first assault, so far loses his privilege, that he cannot complain of an infraction of the law of nations ; if in his tiu-n, he should be assaulted by the party aggrieved." CHAP. II.] THE SCHOONER " EXCHANGE " y. m'fADDoN. lO;') that the decision may conform to those principles of national aiul municipal law b}^ which it ought to be regulated. " In exploring an unbeaten path, with few, if any aids, from i>vv- cedents or written law, the court has found it necessary to rely much on general principles, and on a train of reasoning, founded on cases in some degree analogous to this. "The jurisdiction of courts is a branch of that which is possessed by the nation as an independent sovereign power. "The jurisdiction of the nation within its own territory is neces- sarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction u;"on it, deriving validity from an external source, would imply a diminution of its own sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restric- tions. " All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source. " This consent may be either express or implied. In the latter case, it is less determinate, exposed more to the uncertainties of construction ; but, if understood, not less obligatory. " The world being composed of distinct sovereignties, possessing equal rights and equal independence, whose mutual benefit is pro- moted by intercourse with each other, and by an interchange of those good offices which humanity dictates and its wants require, all sovereigns have consented to a relaxation in practice, in cases under certain peculiar circumstances, of that absolute and complete juris- diction within their respective territories which sovereignty confers. "This consent may, in some instances, be tested by connnon usage, and by common opinion, growing out of that usage. " A nation would justly be considered as violating its faith, al- though that faith might not be expressly plighted, which should suddenly and without previous notice, exercise its territorial powers in a manner not consonant to the usages and received obligations of the civilized world. " This full and absolute territorial jurisdiction being alike the at- tribute of every sovereign, and being incapable of conferring extra- territorial power, would not seem to contemplate foreign sovereigns nor their sovereign rights as its objects. One sovereign being in no respect amenaljle to another, and being bound by obligations of the highest character not to degrade the dignity of his nation, by placing himself or its sovereign rights within the jurisdiction of another, 106 TEIIKITOEIAL JURISDICTION. [PART I. can be supposed to enter a foreign territory only under an express license, or in the confidence that the immunities belonging to his in- dependent sovereign station, will be extended to him. " This perfect equality and absolute uidependence of sovereigns, and this connnon hiterest impelling them to mutual hitercourse, and an interchange of good oflBces with each other, have given rise to a class of cases in which every sovereign is understood to "U'aive the exercise of a part of that complete exclusive territorial jurisdiction, which has been stated to be the attribute of every nation. " 1st. One of these is admitted to be the exemption of the person of the sovereign from arrest or detention within a foreign territory. " If he enters that territory with the knowledge and license of its sovereign, that license, although containing no stipulation exempt- ing his person froin arrest, is universally understood to imply such stipulation. " Why has the whole civilized world concurred in this construc- tion ? Tlie answer cannot be mistaken. A foreign sovereign is not luiderstood as intending to subject himself to a jurisdiction incom- liatible with his dignity and the dignity of his nation, and it is to avf)id this subjection that the license has been obtained. The char- acter to whom it is given, and the object for which it is granted, equally require that it should be construed to impart full security to the person who has obtained it. This security, however, need not be expressed ; it is implied from the circumstances of the case. Should one sovereign enter the territory of another, without the consent of that other, expressed or implied, it would present a ques- tion which does not appear to be perfectly settled, a decision of which is not necessary to any conclusion to which the court may come in the cause under consideration. If he did not thereby expose himself to the territorial jurisdiction of the sovereign, whose dominions he had entered, it would seem to be because all sovereigns impliedly engage not to avail themselves of a power over their equal, which a romantic confidence in their magnanimity has placed in their hands. " 2d. A second case, standing on the same principles with the first, is the immunity which all civilized nations allow to foreign ministers. "Whatever may be the principle on which this immunity is established, whether we consider him as in the place of the sovereign he represents, or by a political fiction suppose him to be extra- territorial, and therefore, in point of law, not within the jurisdiction of the sovereign at whose court he resides ; still the immunity itself is granted by the governing power of the nation to which the CHAP. II.] THE SCHOONER ''EXCHANGE" V. M'eADDON. IijT minister is deputed, his fiction of extra-territoriiility could not Ijg erected and supported against tlie will of the sovereign of the terri- tory. He is supposed to assent to it. " This consent is not expressed. It is true that in some countries, and in this among others, a special law is enacted for the case. But the law obviously proceeds on the idea of prescribing the i)unishment of an act previously unlawful, not of granting to a foreign minister a privilege which he would not otherwise possess. "The assent of the sovereign to the very important and extensive exemptions from territorial jurisdiction which are admitted to attach to foreign ministers, is implied from the considerations that, without such exemption, every sovereign would hazard his own dignity by employing a public minister abroad. Ilis minister would owe tem- porary and local allegiance to a foreign prince, aiid would be less competent to the objects of his mission. A sovereign committing the interests of his nation with a foreign power, to the care of a person whom he has selected for that purpose, cannot intend to subject his minister in any degree to that power ; and therefore a consent to receive him, implies a consent that he shall possess those privileges which his principal intended he should retain, privileges Avhich are essential to the dignity of his sovereign, and to the duties he is bound to perform. " In what cases a minister, b}^ infracting the laws of the country in which he resides, may subject himself to other punishment than will be hiflicted by his own sovereign, is an inquiry foreign to the present purpose. If his crimes be such as to render him amenable to the local jurisdiction, it must be because they forfeit the priv- ileges annexed to his character ; and the minister, by violating the conditions under which he was received as the representative of a foreign sovereign, has surrendered the immunities granted on those conditions ; or, according to the true meaning of the original assent, has ceased to be entitled to them. "3d. ^V third case in which a sovereign is understood to cede a portion of his territorial jurisdiction is, wliere he allows the troops of a foreign prince to pass through liis dominions. " In such case, without any express declaration waiving jurisdic- tion over the army to which this right of passage has been granted, the sovereign who should attempt to exercise it would certaiidy be considered as violating his faith. By exercising it, the purpose for Avhich the free passage was granted Avould be defeated, and a pt)r- tion of the military force of a foreign independent nation would be diverted from those national objects and duties to which it was applicable, and would be withdrawn from the control of the sover- 108 TEUltlTORIAL JL'KISDICTIOX. [I'AUT I. eign whose power and whose safety might greatly depend on letain- ing the exckisive command and disposition of this force. The grant of a free passage, therefore, implies a waiver of all jurisdiction over the troops during their passage, and permits the foreign general to use that discipline, and to inflict those punishments which the government of his army may require. "But if, without such express permit, an army should be led through the territories of a foreign prince, might the jurisdiction of the territory be rightfully exercised over the individuals composing this army ? "Without doubt a military force can never gain immunities of any other description than those which war gives, by entering a foreign territory against the will of its sovereign. But if his consent, instead of being expressed by a particular license, be expressed by a general declaration that foreign troops may pass through a specified tract of country, a distinction between such general permit and a particular license is not perceived. It would seem reasonable that every immunity which would be conferred by a special license, would be, in like maimer conferred by such general permit. We have seen that a license to pass through a tei'ritory implies immu- nities not expressed, and it is material to inquire why the license itself may not be presumed ? "It is obvious that the passage of an army through a foreign terri- tory Avill probably l)e at all times inconvenient and injurious, and would often be imminently dangerous to the sovereign through whose dominion it passed. Such a practice M'ould break down some of the most decisive distinctions lietween peace and war, and would reduce a nation to the necessity of resisting by war an act not absolutely hostile in its character, or of exposing itself to the stratagems and frauds of a power whose integrity might be doubted, and who might enter the country under deceitful pretexts. It is for reasons like these that the general license to foreigners to enter the dominions of a friendly power, is never understood to extend to a military force ; and an army marching into the dominions of another sover- eign, may justly be considered as committing an act of hostility ; and if not opposed by force, acquires no privileges by its irregular and im[)roper conduct. It may, however, well be (piestioned whether any other than the sovereign power of the state l)e capable of decid- ing that such military commander is without a license. "But the rule which is applical)le to armies, does not appear to be equally api>licable to ships of war entering the ports of a friendly power. The injury inseparable from the march of an army through an inhabited country and the dangers often, indeed generally, at- CHAP. 11.] THE SCHOONER "EXCHANGE" V. M'FADDON. 100 tending' it, do not ensue from iidniitting- a ship of war, without a s[»ecial license, into a friendly port. A ditl'erent rule, therefore, with respect to this species of military force has been generally adopted. If, for reasons of state, the ports of a nation generally, or any par- ticular ports be closed against vessels of war generally, or the vessels of any particular nation, notice is usually given of such determina- tion. If there be no prohibition, the ports of a friendly nation are considered as open to the public ships of all powers with whom it is at peace, and they are supposed to enter such ports and to re- main in them while allowed to remain, under the protection of the government of the place. " In almost every instance, the treaties between civilized nations contain a stipulation to this effect in favor of vessels driven in by stress of w^eather or other urgent necessity. In such cases the sovereign is bound by compact to authorize foreign vessels to enter his ports. The treaty bids him to allow vessels in distress to find refuge and asylum in his ports, and this is a license which he is not at lil)erty to retract. If would be difficult to assign a reason for withholding from a license thus granted, any immunity from local jurisdiction which would be implied in a special license. " If there be no treaty applicable to the case, and the sovereign, from motives deemed adequate by himself, permits his ports to re- main open to the public ships of foreign friendly powers, the con- clusion seems irresistible, that they enter by his assent. And if they enter by his assent necessarily implied, no just reason is per- ceived by the court for distinguishing their case from that of vessels ^^'hich enter by express assent. In all the cases of exemption which have been reviewed, much has been implied; but the obligation of Avhat was implied has been found equal to the obligation of that which was expi-essed. Are there reasons for denying the applica- tion of this principle to ships of war ? " In this part of the subject a difficulty is to be encountered, the seriousness of which is acknowledged, but which the court will not attempt to evade. " These treaties which provide for the admission and safe depart- ure of public vessels entering a port from stress of weather, or other urgent cause, provide in like manner for the pi'ivate vessels of the nation; and where public vessels enter a port under the general license which is implied merely from the absence of a prohibition, they are, it may be urged, in the same condition with merchant vessels entering the same port for the purposes of trade who cannot thereby claim any exemption from the jurisdiction of the country. It may be contended, certainly with much plausibility if not cor- 110 TERRITORIAL JURISDICTION. [PART I. rectiiess, that the same rule, and same principle are applicable to public and private ships ; and since it is admitted that private ships, entering without special license become subject to the local juris- diction, it is demanded on what authority an exception is made in favor of ships of war. "It is by no means conceded, that a private vessel really availing herself of an asylum provided by treaty, and not attempting to trade, would become amenable to the local jurisdiction unless she committed some act forfeiting the protection she claims under com- pact. On the contrary, motives may be assigned for stipulating a)id according immunities to vessels in cases of distress, which would not be demanded for, or allowed to those which enter voluntarily, and for ordinary purposes. On this part of the subject, however, the court does not mean to indicate any opinion. The case itself may possibly occur, and ought not to be prejudiced. " Without deciding how far such stipulations in favor of distressed vessels, as are usual in treaties, may exempt private ships from the jurisdiction of the place, it may safely be asserted that the whole reasoning upon which such exemption has been implied in other cases, applies with full force to the exemption of ships of \\ar in this. " ' It is impossible to conceive,' says Yattel, ' that a prince who sends an ambassador or any other minister can have any intention of sub- jecting him to the authority of a foreign power, and this considera- tion furnishes an additional argument, which completely establishes the independency of a public minister. If it cannot be reasonably presumed that his sovereign means to subject him to the authority of the prince to whom he is sent, the latter, in receiving the minis- ter, consents to admit him on the foothig of independency ; and thus there exists between the two princes a tacit convention, which gives a new force to the natural obligation.' " Equally impossible is it to conceive, whatever may be the con- struction as to private ships, that a prince who stipulates a passage for his troops, or an asylum for his ships of war in distress, should mean to subject his army or his navy to the jurisdiction of a foreign sovereign. And if this cannot be presumed, the sovereign of the port must be considered as having conceded the privilege to the ex- tent in which it must have been understood to be asked. " To the court, it appears, that where, without treaty, the ports of a nation are open to the private and public ships of a friendly power, whose subjects have also liberty Avithout special license, to enter the country for business or amusement, a clear distinction is to be drawn between the rights accorded to private individuals or CHAP. II.] THE SCHOONER "EXCHANGE" y. m'faDDON. Ill trading vessels, and those accorded to public armed ships which constitute a part of the military force of the nation. " The preceding reasoning, has maintained the propositions that all exemptions from territorial jurisdiction must be derived from the consent of the sovereign of the territory ; that this consent may be implied or expressed; and that, when implied, its extent must be regulated by the nature of the case and the views under which the parties requiring and conceding it must be supposed to act. " When private individuals of one nation spread themselves through another as busniess or caprice may direct, mingling indiscrimhiately with the inhabitants of that other, 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 continual infraction, and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country. Nor can the foreign sovereign have any motive for wishing such exemption. His sub- jects thus passing into foreign countries, are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it. The implied license, therefore, under which they enter, can never be construed to grant such exen.iption. But in all respects different is the situation of a pubhc armed ship. She constitutes a part of the military force of her nation ; acts under the immediate and direct command of the sovereign ; is employed by him in national objects. He has many and powerful motives for preventmg those objects from being defeated by the interference of a foreign state. Such interference cannot take place without affect- ing his power and his dignity. The implied license, therefore, under which such vessel enters a friendly port, may reasonably be construed, and, it seems to the court, ought to be construed, as containing an exemption from the jurisdiction of the sovereign, within whose ter- ritory she claims the rites of hospitality. "Upon these principles, by the unanimous consent of nations, a foreigner is amenable to the laws of the place; but certainly in practice, nations have not yet asserted their jurisdiction over the public armed ships of a foreign sovereign, entering a port open for their reception. " Bynkershoek, a jurist of great reputation, has indeed maintained that the property of a foreign sovereign is not distinguishable by any legal exemption from the property of an ordinary individual and has quoted several cases in which courts have exercised jurisdiction 112 TERRITORIAL JURISDICTION. [PART I. over causes in which a foreign sovereign was made a party defend- ant. " Without indicating any opinion on this question, it may safely be affirmed, that there is a manifest distinction between the private property of tlie person avIio happens to be a prince, and tliat mili- tary force which supports the sovereign power, and maintains the dignity and the independence of a nation. A prince, by acquiring private property in a foreign country, may possibly be considered as subjecting that property to the territorial jurisdiction ; lie may be considered as so far laying down the prince, and assuming the char- acter of a private individual ; but this he cannot be presumed to do with respect to any portion of that armed force, which upholds his crown, and the nation he is intrusted to govern. " The only applicable case cited by Bynkershoek, is that of the Spanish ships of war, seized in Flushing for a debt due from the King of Spain. In that case the states generally interposed ; and there is reason to believe, from the manner in which the trans- action is stated, that, either by the interference of government, or the decision of the court, the vessels were released. This case of the Spanish vessels is, it is believed, the only case furnished bj'- the history of the world, of an attempt made by an individual to assert a claim against a foreign prince, by seizing the armed vessels of the nation. That this proceeding was at once arrested by the govern- ment, in a nation which appears to have asserted the power of pro- ceeding in the same manner against the private property of the prince, would seem to furnish no feeble argument in support of the universality of the opinion in favor of the exemption claimed for ships of war. The distinction made in our own laws between public and private ships would appear to proceed from the same opinion. " It seems, then, to the court, to be a principle of public law, that national ships of war, entering the port of a friendly power open for their reception, are to be considered as exempted by the con- sent of that power from its jurisdiction. " Without doubt, the sovereign of the place is capable of destroy- ing this implication. He may claim and exercise jurisdiction, either by employing force, or by subjecting such vessels to the ordi- nary tribunals. But, until such power be exerted in a manner not to be misunderstood, the sovereign cannot be considered as having imparted to the ordinary tribunals a jurisdiction, which it would be a breach of faith to exercise. Those general statutory provisions, therefore, which are descriptive of the ordinary jurisdiction of the judicial tribunals, which give an individual whose property has been wrested from him, a right to claim that property in the courts of CHAP. H.] THE SCHOONER "EXCHANGE"' ?'. m'fADDuN. llo the country in which it is found, ought not, in tlie opinion of this court, to be so construed as to give them jurisdiction in a case in which the sovereign poAver lias impliedly consented to waive its juris- diction. " The arguments in favor of this opinion which have been drawn from the general inability of the judicial power to enforce its decis- ions in cases of this description, from the consideration that the sovereign power of the nation is alone competent to avenge wrongs committed by a sovereign, that the questions to wiiicli such wrongs give birth are rather questions of policy than of law, that they are for diplomatic, rather than legal discussion, are of great weight, and merit serious attention. But the argument has already been draAvn to a length which forbids a particular examination of these points. " The principles which have been stated will now be ajiplied to the case at bar. " In the present state of the evidence and proceedings, the Ex- change must be considered as a vessel which was the property of the libellants, whose claim is repelled by the fact, that she is now a national armed vessel, commissioned by, and in the service of the Emperor of France. The evidence of this fact is not controverted. But it is contended that it constitutes no bar to an inquiry into the validity of the title, by which the emperor holds this vessel. Every person, it is alleged, who is entitled to property brought within the jurisdiction of our courts, has a right to assert his title in those- courts, unless there be some law taking his case out of the general rule. It is therefore said to be the right, and if it be the right, it is the duty of the court, to inquire wdiether this title has been ex- tinguished by an act, the validity of which is recognized by national or municipal law. " If the preceding reasoning be correct, the Edxhange, being a public armed ship, in the service of a foreign sovereign, with whom the government of the United States is at peace, and having entered an American port open for her reception, on the terms on which ships of war are generally permitted to enter the ports of a friendly power, must be considered as having come into the American territory, under an implied promise, that while necessarily within it, and de- meaning herself in a friendly manner, she should be exempt from the jurisdiction of the country." 114 TEKPaXOKlAL JUlilSDICTION. [PAllT 1, THE "COXSTITUTIOX." High Court of Admiralty, 1879. (48 Law Journal, P. B. & A., 10.) A ship of war of a foreign state cannot be proceeded against in a suit for salvage. The facts are sufficiently stated in tlie opinion. Sir Robert Phillimore : — " In tliis case an application was made to the court to allow a warrant to issue of a peculiar character — a warrant which was to be served upon a ship of war belonging to an independent state at amity with Her Majesty. The court directed the case to stand over, and suggested that it would be proper that notice should be given to his Excellency, the American Minister in London, and to Lord Salisbury, as Secretary for Foreign Affairs. The court has reason to congratulate itself that it took that step, for the result has been that it has had the advantage of hearing the opinion of counsel on behalf of the United States and of the learned gentleman representing the Crown. It appears from telegrams which have passed in the case that a claim has been made by the owner of the tug for 1,500Z., but that the American Consul at Portsmouth has forwarded simply a cheque for 2uOA, in recognition of the services which the tug has rendered. The owner of the tug was dissatisfied with that amount ; and consequently made an application to this court for an order to issue a warrant to arrest the Constitution and her cargo. " The question, therefore, which is raised under these proceedings is whether I have any jurisdiction to permit the arrest of a foreign ship of war belonging to an independent state in amity with our sovereign, and I hardly think that it can be denied that if I were to exercise the jurisdiction which is craved in the present case, I should be doing that for which there exists no direct precedent. On the contrary, I have no doubt as to this general proposition — that ships of war belonging to another nation with whom we are at peace are exempt from the civil jurisdiction of the courts of this countrj^ ; and I have listened in vain for any peculiar circumstances which would take this case out of that general proposition. It has happened to me more than once to have been requested by foreign states to sit as arbitrator, and to make awards in differences which had arisen between them and British subjects. Had such an application CHAP. II.] THE "' CONSTITUTION." 115 been made in the present instance I would have gladly undertaken the duty sought to be imposed upon me; but that is not the state of matters I have now to consider. All that I have now to determine is the simple question of jurisdiction. Various cases have been cited before me in argument, all of which, with one exception, were discussed in the case of the Cliarkieh^ but that was a wholly different case because the Khedive of Egypt was not an independent sovereign, and the CJuirJdeh herself formed one of a fleet of merchantmen. I may in the lengthy judgment which I delivered in that cause, have let drop some expression which may have given rise to an impression that a foreign ship of war is liable to arrest, but, in that case this question, as it is here raised, had not to be decided. Now that it comes before me in this plain and simple form, I feel no doubt that it would be improper for me to accede to the request of the owner of the steam-tug, nor do I think, as I have said above, that the Constitution is liable to the process of this court. In regard to the question of the liability of the cargo, I must say I see no distinction between the issue of a warrant in the case of the ship and in the case of this cargo; it is on board a foreign vessel of war, and is under the charge of a foreign government for pul)lic purposes. So that, having no authority to issue either of the warrants prayed for, and as no precedent exists for such a course, I must dismiss this motion with costs. ^ " ^Mr. Cobbett (Cases on International Law, .35.) says: "Before the decisicn in tlie case of the Constitution, some doubt seems to have existed as to whether salvage proceedings might not be instituted in the English Court of Admiralty against a public vessel. In the case of the Charkicli, Sir R. Philliinore liad said, ' It is by no means clear that a ship of war to which salvage services have been rendered, may not, jure gentiinn, be liable to be proceeded against in the Court of Admiralty for the remuneration due for such services.'' " In a much earlier case, of the Prins Frcdcrik (2 Dods., 4"1), a Dutch man-of- war, whilst on a voyage from Batavia to the Texel, was partially disabled by stress of weather off the Scilly Isles, and was brought into Moimt's Bay with the assist- ance of the master and crew of a British brig, belonging to the port of Penzance. The Prlns Frederik was at the time employed in bringing home a cargo of spice belonging to the Dutch Government, and for this purpose some of her guns had been removed. The salvors instituted salvage proceedings against the vessel, on the ground that she had for the time being, at least, lost the character and privileges of a public vessel, and also on the further ground that such proceedings being in rem, and not against the King of the Netherlands personally, were imder any cir- cumstances admissible. According to Lord Campbell, who quoted this case, in 1851 (17 Q. B., 212), Lord Stowell took a strong view against the asserted jurisdiction. To avoid difficulty, Lord Stowell caused a representation to be made to the Dutch government, who consented to his disposing of the matter as arbitrator. Acting under this authority, Lord Stowell awarded the sum of £800 and costs to the salvors." Mr. Dana, in his note, No. G3, says ; " It may be considered as established law, 116 TEKlilTOKlAL JURISDICTION. [PAIJT I. (h) Other Public S/tips. THE "PARLEMEXT BELGE." Court of Appeals, 1878. (i. 7?., 5 Probate Dk., 197.) A public vessel of a foreign state — not a ship of war — carrying the mails, and also carrying merchandise, is nevertheless exempt from the jurisdiction of the a Imiralty courts, in England. This was an appeal on behalf of the Crown from a decision of Sir K. J. Phillimore. The judgment of the court (James, Baggallay, and Brett, L, JJ.) was delivered by Brett, L. J. " In this case proceedings in. rem on belialf of the owners of the Daring were instituted in the Admiralty Division, in accordance with the forms prescribed by the Judicature Act, against the Parlernent Beljje, to recover redress in respect of a collision. A writ was served in the usual and prescril)ed manner on board the Parlernent Beige. No appearance was entered, but the Attorney-General, in answer to a motion to direct that judgment with costs should be entered for the plaintiffs, and that a warrant should be issued for the Parlernent Behje^ filed an information and protest, asserting that the court had no jurisdiction to entertain the suit. Upon the hearing of the motion and protest the learned judge of the Admiralty Division overruled the protest and allowed the M-arrant of arrest to issue. The Attorney-General appealed. The protest alleged that the Parlernent Beige was a mail packet running between Ostend and Dover, and one of the packets mentioned in article 6 of the convention of the 17th of February, 1876, made be- tween tlie sovereigns of Great Britain and Belgium ; that she was and is the property of his Majesty the King of the Belgians, and in his possession, control and employ as reigning sovereign of the state, and was and is a puldic vessel of the sovereign and state, carrying now, that the public vessels of a foreign state, coming within the jurisdiction of a friendly state, are exempt from all forms of process in private suits. Xor will such ships be seized, or in anj' way interfered with, by judicial proceedings in thf name and by the authority of the state, to punish violations of public laws. In such cases, the offended state will appeal directly to the other sovereign. Any proceedings against a foreign public ship would be regarded as an unfriendly if not hostile act, in the present state of the law of nations." o'HAP. II.] THE ''PAKLEMENT BELGE." 117 his Majesty's royal pennon, and was navigated and employed by and in the possession of sucli government, and was officered hy officers of the Koyal Belgian navy, holding commissions, etc. In answer it was averred on affidavits, which were not eoniradicted, that the packet boat, besides carrying letters, carried merciiandise and passengers and their luggage for hire. * * * "The proposition raised by the first question seems to be as follows : Has the Admiralty Division jurisdiction in respect of a collision to proceed in rem against, and in case of non-appearance or omission to find bail, to seize a\id sell, a ship present in this country, which ship is at the time of the proceedings the property of a foreign sovereign, is in his possession, c(mtrol, and employ as sovereign by means of his commissioned officers, and is a public vessel of his state, in the sense of its being used for purposes treated by such sovereign and his advisers as public national services, it l)eing admitted that such ship, though connnissioned, is not an armed ship of war or employed as a part of the military force of his country ? * * * "It is admitted that neither the sovereign of Great Britain nor any friendly sovereign can be adversely personally impleaded in any court of this country. It is admitted that no armed ship of war of the sovereign of Great Britain, or of a foreign sovereign can be seized by any process whatever, exercised for any purpose by any court of this country. But it is said that this vessel, though it is the property of a friendly sovereign in his public capacity and is used for pur- poses treated by him as public national services, can be seized and sold under the process of the Admiralty Court of this countrj', because it will, if so seized and sold, be so treated, not in a suit brought against the sovereign personally, but in a suit in rem against the vessel itself. This contention raises two questions ; first, sup- posing that an. action in rem is an action against the propert}^ owiv, meaning thereby that it is not a legal proceeding at all against the owner of the property, yet can the property m question be subject to the jurisdiction of the court ? " Secondly, is it true to say that an action in rem is only and solely a legal procedure against the property, or is it not rather a procedure indirectly, if not directly, impleading the owner of the property to answer to the judgment of the court to the extent of his interest in the property? * * * " Having carefully considered the case of the CharJdeh, we are of opinion that the proposition deduced from the earlier cases in an earlier part of this judgment is the correct exposition of the law of nations, viz., that as a consequence of the absolute independence of 118 TEIUaTORIAL JURISDICTIOX. [I'AUT I. every sovereign authority and of tlie international comity which induces every sovereign state to respect the independence of every other sovereign state, each and every one declines to exercise by means of any of its courts, any of its territorial jurisdiction over the person of any sovereign or ambassador of any other state, or over the public property of any state which is destined to its public use, or over the property of any ambassador, though such sovereign, ambassador or property be within its territory, and therefore, but for the common agreement, subject to its jurisdiction. " This proposition would determine the first question in the present case m favor of the protest, even if an action in rem were held to be a proceeding solely against property, and not a procedure directly or indirectly impleading the owner of the property to answer to the judgment of the court. But we cannot allow it to be supposed that in our opinion the owner of the property is not indirectly impleaded. The course of proceeding, undoubtedly, is first to seize the property. It is undoubtedly, not necessary, in order to enal^le the court to pro- ceed further, that the owner should be personally served with any process. In the majority of cases, brought under the cognizance of an Admiralty Court, no such personal service could be effected. ^Vnother course was therefore taken from the earliest times. The seizure of the proj)erty was made by means of a formality which was as public as could be devised. That formality of necessity gave notice of the suit to the agents of the owner of the property, and so, in substance, to him. Besides which, by the regular course of the admiralty, the owner Avas cited or had notice to appear to show cause why his property should not be liable to answer to the com- plainant. The owner has a right to appear and show cause, a right which cannot be denied. It is not necessary, it is true, that the notice or citation should be personally served. But unless it were considered that, either by means of the publicity of the manner of arresting the property, or by means of the publicity of the notice or citation, the owner had an opportunity of protecting his property from a final decree by the court, the judgment in rem of a court would be manifestly contrary to natural justice. In a claim made in respect of a collision the property is not treated as the delinquent perse. Though the ship has been in collision, and has caused injury by reason of the negligence or \\\x\\i of skill of those in charge of her, yet she cannot be made the means of compensation if those in charge of her were not the servants of her then owner, as if she was in charge of a compulsory pilot. This is conclusive to shoAv that the liability to compensate must be fixed not merely on the property, but also on the owner through the property. CHAP. 11.] THE " TARLEMENT BELGE." 119 " If SO, the owner is at least indirectly impleaded to answer to, that is to say, to be affected by, the judgment of the court. It is no answer to say that if the property be sold after the maritime lien has accrued, the property may be seized and sold as against the new owner. " This is a severe law, probably arising from the difficulty of other- wise enforcing any remedy in favor of an injured suitor. But the property cannot be sold as agahist the new owner, if it could not have been sold as against the owner at the time when the alleged lien accrued. This doctrine of the Courts of Admiralty goes only to the extent, that the innocent purchaser takes the property sub- ject to the inchoate maritime lien which attached to it as against him who was the owner at the time the lien attached. The new owner has the same public notice of the suit and the same oppor- tunity and right of appearance as the former owner would have had. lie is impleaded in the same way as the former owner would have been. Either is affected in his interests by the judgment of a court which is bound to give him the means of knowing that it is about to proceed to affect those interests, and that it is bound to hear him if he objects. That is, in our opinion, an impleading. " The case of Tlie Bold Buccleugh does not decide to the contrary of this. It decides that an action in rem is a different action from one in personam and has a different result. But it does not decide that a court which seizes and sells a man's property does not assume to make that man subject to its jurisdiction. To implead an inde- pendent sovereign in such a way is to call upon him to sacrifice either his property or his independence. To place him in that position is a breach of the principle upon which his immunity from jurisdiction rests. We think that he cannot be so indirectly impleaded any more than he could be directly impleaded. The case is, upon this consideration of it, brought within the general rule that a sovereign authority cannot be personally impleaded in any coui-t. " But it is said that the immunity is lost by reason of the ship having been used for trading purposes. As to this, it nmst be maintained either that the ship has been so used as to have been employed substantially as a mere trading ship and not substantial!}'- for national purposes, or that a use of her in part for trading pur- poses takes away the immunity, although she is in j)ossession of the sovereign authority by the hands of commissioned officers, and is substantially in use for national purposes. Botli these propositions raise the question of how the ship must be considered to have been employed. " As to the first, the ship has been by the sovereign of Belgium, 120 TERllITOIUAL JURISDICTION. [PAET I, by the usual means, declared to be in his possession as sovereign, and to be a public vessel of the state. It seems very difficult to say that any court can inquire by contentious testimony whether that declaration is or is not correct. To sul)mit to such an inquiry before tlie court is to submit to its jurisdiction. It lias been held that if the ship be declared by the sovereign authority by the usual means to be a ship of war, tliat declaration cannot be incpiired into. That was expressly decided under very trying circumstances in the case of the E.i'dianye. Whether the ship is a public ship used for national purposes seems to come within the same rule. But if such an inquiry could properly be instituted it seems clear that in the present case the ship has l)een mainly used for the purpose of carrying the mails, and only subserviently to that main object for the purposes of trade. The carrying of passengers and merchan- dise has been subordinated to the duty of carrying the mails. The ship is not, in fact, brought within the first proposition. As to the second, it has been frequently stated that an independent sovereign cannot be personally sued, although he has carried on a private trad- mg adventure. It has been held that an ambassador cannot be personally sued, although he has traded ; and in both cases because such a suit would be inconsistent with the independence and equality of the state which he represents. If the remedy sought by an action in rem against public property is, as we think it is, an indirect mode of exercising the authority of the court against the owner of the property, then the attempt to exercise such an authority is an at- tempt inconsistent with the independence and equality of the state which is represented b^ such owner. The property cannot, upon the hypothesis,be denied to be public property ; the case is within the terms of the rule ; it is Avithin the spirit of the rule ; therefore, we are of opinion that the mere fact of the ship being used subor- dinately and partially for trading purposes does not take away the general imnumity. For all these reasons, we are unable to agree with the learned judge, and have come to the conclusion that the judgment must be reversed." ^ 1 In the case of Bri(/fjs v. Llght-Bnats in the Supreme Court of Massachusetts, 1865 (II Allen, 157), the plaintiff liad huilt some Hoatiiig lights, for the United States government, and had delivered tliem and received the contract price ; and the title to tliem had vested in the United States, subject to the builders lien. The plaintiff now sought to enforce his lien. Gkay, .J., says, in the course of his judgment, "wherever the question has been raised, courts of admiralty have generally declined to take jurisdiction of a libel in re;n against a public ship, without the consent of the government. In every aspect in which we can look at these suits, in the light of principle or of authority, we cannot escape the conclusion that the state courts have no jurisdiction or right to entertain them." ^^HAP. U.] THE "NEWTON," AND THE "SALLY." 121 Section 12. — Merchant Vessels. THE "NEWTON," AND THE " SALLY." CoNSEiL D'Etat, 180G. {Ortolan : Diplomatic de la Met\ I., 450.) This is one of the earliest cases tending to establish what is sometimes called the '' French Rule," as regards the jurisdiction over foreign merchant vessels, by the local courts of the country whose ports they visit. According to this practice the French courts do not take jurisdiction in the case of acts which affect only the foreign vessel and its crew; unless the acts are such as disturb the peace of the port. In 1806, while the Netvton, an American merchant ship, was in the port of Antwerp, a quarrel took place between two sailors in a boat belonging to the ship. About the same time, when the >S<Salli/ and the Xeiclon, by a decree of the Council of State, representing the political department of thegovern- nient, the French courts were prevented from exercising jurisdiction. But afterwards, in 1859, in the case of Sally, the mate of an Ameri- can merchantman, the Tempest^ who had Icilled one of the crew and severely wounded another on board the ship in the port of Havre, the Court of Cassation, the highest judicial tribunal of France, upon full consideration held, while the convention of 1853 was in force, that the French courts had rightful jurisdiction, for reasons whicli sufficiently appear in the following extract from its judgment : "Considering that it is a principle of the law of nations that every state has sovereign jurisdiction throughout its territory ; OHAr. il] the "tempest." 123 " Considering that by the terms of article 3 of the Code Naixileon the laws of police and safety bind all those who inhabit Frencli terri- tory, and that consequently foreigners, even franseuntes, find them- selves subject to those laws ; " Considerhig- that merchant vessels entering the port of a nation other than that to which they belong cannot be withdrawn from the territorial jurisdiction, in any case in which the interest of the state of which that port forms part finds itself concerned, without danger to good order and to the dignity of the government ; " Considering that every state is interested in the repression of crimes and offenses that may be committed in the ports of its terri- tory, not only by the men of the ship's company of a foreign merchant vessel toward men not forming part of that company, but even by men of the ship's company among themselves, whenever the act is of a nature to compromise the tranquillity of the port, or the intervention of the local authority is invoked, or the act constitutes a crime by common law, (droit commun, the law common to all civilized nations,) the gravity of which does not permit any nation to leave it unpun- ished, Avithout impugmng its rights of jurisdictional and territorial sovereignty, because that crime is in itself the most manifest as well as the most flagrant violation of the laws which it is the duty of every nation to cause to be respected in all parts of its territory." [Article VIII. of the Treaty of 1853, referred to, stipulates that, " the respeotive Consuls-General, Consuls, Vice-Consuls, or Consular Agents, shall have exclusive charge of the internal order of the mer- chant-vessels of their nation, and shall alone take cognizance of dift'erences which may arise, either at sea or in port, between tlie captain, officers and crew, without exception, particularly in reference to the adjustment of wages and the execution of contracts. The local authorities shall not, on any pretext, interfere in these differ- ences, but shall lend forcible aid to the Consuls, when they may ask it, to arrest and imprison all persons composing the crew whom they may deem it necessary to confine. Those persons shall be arrested at the sole request of the Consuls, addressed in writing to the local authority, and supported by an oflficial extract from the register of the ship or the list of the crew, and shall be held, during the whole time of their stay in the port, <\.t the disposal of the Consuls. Their release shall be granted at the mere request of the Consuls made in writing. The expenses of the arrest and detention of those persons shall be paid by the Consuls."] ,24 TERRITOKIAL JURISDICIIO:^;. [PAET L - L'AXEMOXE." Supreme Court of Mexico, 1^75. {Journal de Droit International Prive, 1870, p. 41o.) "Wliere murder is committed by one Frenclimin upon another, on board a French merchant vessel, at anclior in a Mexican port ; held, that it is not neces- sarily a disturbance of the peace of the port, and therefore the Mexican courts will not assume jurisdiction of the case. " Vii renquete relative Ti riioinicide coinmis le 3 octobre 1875 an soil', sur la persoiiiie du matelot Auguste Duraiid, pav M. Eugene Antoni, capitaine du batiment franyais VA?ie//iojte, mouille ^ File de Carmen, juridiction de Campeche, et faite en consequence du recours en supplique foruic par ledit capitaine contre la decision du tribunal de circuit de Yucatan, Campeche, Tabasco et Chiapas, declarant que les tribunaux federaux mexicains sont competents pour connaitre du susdit homicide •, vu les requisitions du citoyen Fiscal et la defense du licencie Sanchez Azcona, conseil d' Antoni ; "Considerant qu'il n'est pas etabli que le deht en question ait trouble la tranquillite des habitants du port de Tile de Carmen, ni que les marins et autres personnes qui se trouvaient ^ bord dudit batiment aient demande protection aiix autorites mexicauies, ni forme une accusation d'homicide, mais qu'ils ont simplement porte a terre le cadavre de Durand, afin de rendre compte a I'autorite ; " Qui'l n'existe point de traites entre la Eepublique raexicahie et la France, qu'en consequence le present cas doit Otre regi par le droit de reciprocite ; " Qu' Antoni comme Durand sont de nationalite f ranyaise et que le batiment Wbiernoiie est convert par le pavilion franyais ; que la victime n'est point une personue etrangere a I'equipage ; " D'ou il resulte qu'on ne se trouve en presence d'aucune des cir- constances qui, d'apres le paragraphe 3 de I'article 189 du Code penal et conformement an droit de reciprocite peuvent donner com- petence a la juridiction mexicaine ; "Par ces motifs et conformement aux requisitions du citoyen Fiscal de cette Cour supreme, " Reformons la decision du tribunal de circuit de Yucatan, Cam- peche, Tabasco et Chiapas, en date du 12 novembre 1875, inflrmant celle du tribunal de district de Campeche, du 20 octobre precedent, CHAP. II.] " l'axemoxe." 125 et (lucidons que cette derniere sentence sortira son plein et enlier eifet; en conseqnence declarons les autoritos mexicaines inconi- petentes pour connaitre des faits qui se sont passes il bord du bati- ment franyais VA/temo?ie, niouillo dans le port de Carmen, le 3 octobre dernier au soir; et ordonnons la mise immediate en liberto des i)ersonnes qui out etc arretees par suite des susdits faits ; " Ainsi resolu a la majorite des voix par les citoyens president et conseillers composant la premiere charabre de la C(jur supreme de justice des Etats-Unis mexicains. " Signe : Iglesias. — Altamirano. — Anza. — Echeverria. — Guzman. — Aguilar, secretaire ! " ^ 1 Parasraph 3 of article 189 of the Mexican Penal Code referred to in the decision is as follows : " Sont consideres comme executes sur le territoire de la R^publique : 18 . . . 28 . . . ;38 . . . les delits commis a bord d'un navire marchand etranger mouille dans un port national ou dans les eaux territoriales de la Republique, si le delinquant on I'oflfense ne font pas partie de I'equipage ou s' il y a en perturbation de la tranquillite du port. Dans le cas contraire, on suivra le droit de reciprocite." The Circuit Court had assumed jurisdiction of the case on grounds very similar to those upon which the Supreme Court of the United States decided the case of Wildenhus : " Le tribunal de circuit fondait son infirmation sur les motifs suivants : "Tons les marins de I'c^quipage, au nombre de sept, avaient retire de I'eau le cadavre de la victime et I'avaient porte a terre ; la, ils avaient rendu compte a I'autorite et fait leurs declarations. " Lorsqu'un crime ou delit de droit commun commis a bord d'un navire mar- chand etranger a trouble la tranquillite du port, les autorites du pays sont compe- tentes pour en connaitre. " Ces autorites sont egalement competentes lorsque les interesses ont reclame leur protection. "L'liomicide est un delit public qui, meme commis sur desparticuliers, menace la securite de tons. " Par le seul fait de s'etre adresses a I'autorite locale en lui presentant le cadavre de Durand, pour lui permettre de faire une enquete et de chatier le coupable, les marins ont demande aide et protection a I'autorite du port et se sont soumis a sa juridiction." In comparing this case with that of the Tempest, the counsel for the defense said: " Ce n'est pas comme pour le crime commis au Havre en 1859 a bord du navii'e ame- ricain le Tempest ; la, les autorites fran^aises durent intervenir (tant 1' emotion etait grandel) pour proteger le coupable contre les marins du port et les habitants de la ville qui lui eussent inevitablement fait application de ialoi de Lyuch." 126 TEKKITOUI-iL JUltlSDICTIOX. [PAKT I. CASE OF WILDENHUS. Supreme Coukt of the United States, 1886. (120 U. S. Reports, 1.) Wliere a uierchant vessel is found in a foreign port, it is generally understood that all matters of discipline and all things done on board which affect only the vessel or those belonging to her, or which do not involve the peace or dignity of the country, or the tranquillity of the port, should be left by the local government to be dealt with by the authorities of the nation to which the vessel belongs. But if crimes are committed on board of a character to disturb the tranquillity of the port, the courts of the country should take jtirisdiction. And murder is held to be such a crime. While the Belgian steamer " Xoordland " was moored to a dock in Jersey Citj'-, Xew Jersey, an affray arose between decks in which Joseph AVildenhus killed one Fijeus. Wildenhus Avas ar- rested by the Jersey City authorities ; whereupon the Belgian con- sul applied to the U. S. circuit court for Xew Jersey, for his release upon a writ of habeas corpus. The court refused to deliver the prisoner, and to reverse that decision. An appeal is taken to this court. , Waite, C. J., delivered the opinion of the court, from which the following are extracts. " The courts of the United States have power to issue writs of haheas corpus which shall extend to prisoners in jail when they are in ' custody in violation of the Constitution or a law or treaty of the United States,' and the question we have to consider is, Avhether these prisoners are held in violation of the provisions of the exist- ing treaty between the United States and Belgium. "It is i^art of the law of civilized nations that when a merchant vessel of one country enters the ports of another for the purposes of trade, it subjects itself to the law of the place to which it goes, unless by treaty or otherwise the two countries have come to some differ- ent understanding or agreement. * * * .Vnd the English judges liave uniformly recognized the rights of the courts of the country of which the port is part to punish crimes committed by one foreigner on another in a foreign merchant ship. * * * As the owner has vol- untarily taken his vessel for his own private purposes to a place CHAP. II.] CASE OF WILDENHUS. 127 within the dominion of a government other than his own, and from which he seeks protection during his stay, he owe.s that government such allegiance for the time being as is due for the prijtection to which he becomes entitled. " From experience, however, it was found long ago that it \^-ould be beneficial to commerce if the local government would abstain from interfering with the internal discipline of tlie ship, and the general regulation of the rights and duties of the officers and crew towards the vessel or among themselves. And so by comity it came to be generally understood among civilized nations tliat all matters of discipline and all things done on board which affected only the vessel or those belonging to her, and did not involve the peace or dignity of the country, or the tranquillity of the port, should be left by the local government to be dealt with by the authorities of the nation to which the vessel belonged as the laws of that nation or the interest of its commerce should require. But if crimes are committed on board of a character to disturb the peace and tran- quillity of the country to which the vessel has been brought, the offenders have never by comity or usage been entitled to any exemp- tion from the operation of the local laws for their punishment, if the local tribunals see fit to assert their authority. " Such being the general public law on this subject, treaties and conventions have been entered into by nations having commercial intercourse, the purpose of which was to settle and define the rights and duties of the contracting parties with respect to each other in these particulars, and thus prevent the inconvenience that might arise from attempts to exercise conflicting jurisdictions. * * * "It *** appears that at first provision was made only for giving consuls police authority over the interior of the ship and jurisdic- tion in civil matters arising out of disputes or differences on board, that is to say, between those belonging to the vessel. Under this police authority the duties of the consuls were evidently confined to the maintenance of order and discipline on board. This gave them no power to punish for crimes against the peace of the country. In fact, they were expressly prohibited from interfering with the local police in matters of that kind. The cases of the Sally and the Xeicton are illustrative of this position. That of the Sallt/ related to the discipline of the ship and that of the Newton to the mainte- nance of order on board. In neither case was the disturbance of a character to affect the peace or the dignity of the country. " In the next conventions, consuls were simply made judges and arbitrators to settle and adjust differences between those on board. This clearly related to such differences between those belonging to 128 TERRITORIAL JURISDICTION. [PART I. the vessel as are capable of adjustment and settlement by judicial decision or by arbitration, for it simply made the consuls judges or arbitrators in such matters. That would of itself exclude all idea of punishment for crimes against the state which affected the peace and tranquillity of the port ; but, to prevent all doubt on this sub- ject, it was expressly provided that it should not apply to differ- ences of that character. " Xext came a form of convention which in terms gave the consuls authority to cause proper order to be maintained on board and to decide disputes between the officers and crew, but allowed the local authorities to interfere if the disorders taking place on board were of such a nature as to disturb the public tranquillity, and that is sub- stantially all there is in the convention with Belgium which we have now to consider. This treaty is the law which now governs the conduct of the United States and Belgium towards each other in this particular. Each nation has granted to the other such local jurisdiction Avithin its own dominion as may be necessary to main- tain order on board a merchant vessel, but has reserved to itself the right to interfere if the disorder on board is of a nature to disturb the public tranquillity. " The treaty is part of the supreme law of the United States, and has the same force and effect in Xcav Jersey that it is entitled to elsewhere. If it gives the consul of Belgium exclusive jurisdiction over the offense which it is alleged has been committed, within the territory of Xew Jersey, we see no reason why he may not enforce his rights under the treaty by writ of habeas corpus m any proper court of the United States. This being the case, the only important question left for our determination is whether the thing which has been done — the disorder that has arisen — on board this vessel is of a nature to disturb the public peace, or, as some writers term it, the ' public repose ' of the people who look to the State of Xew Jersey for their protection. If the thing done — ' the disorder,' as it is called in the treaty — is of a character to affect those on shore or in the port when it becomes known, the fact that only those on the ship saw it when it was done is a matter of no moment. Those who are not on the vessel pay no special attention to the mere disputes or quarrels of the seamen while on board, whether they occur under deck or above. Xeither do they as a rule care for anything done on board which relates only to the discipline of the ship, or to the preservation of order and authority. Xot so, however, with crimes which from their gravity awaken a public interest as soon as they become known, and especially those of a character which every civilized nation con- siders itself bound to provide a severe punishment for when com- CHAP. II.] THE " RELIANCE." 129 niitted within its own jurisdiction. In such cases inquiry is certain to be instituted at once to ascertain how or why the tiling was done, and the popular excitement rises or falls as the news spreads and the facts become known. It is not alone the publicity of the act, or the noise and clamor which attends it, that fixes the nature of the crime, but the act itself. If that is of a character to awaken public interest when it becomes known, it is a disorder, the nature of which is to atfect the community at large, and consequently to invoke the power of the local government whoso ijeople have been disturbed by what was done. The very nature of such an act is to disturb the (luiet of a peaceful community, and to create, in the language of the treaty a 'disorder' which will 'disturb tranquillity and public order on shore or in port.' The principle which governs the whole matter is this : Disorders which disturb only the peace of the ship or those on board are to be dealt with exclusively by the sovereignty of the home of the ship, but those which disturb the public peace may be suppressed, and, if need be, the offenders punished by the proper au- thorities of the local jurisdiction. It may not be easy at all times to determine to which of the two jurisdictions a particular act of dis- order belongs. Much will undoubtedly depend on the attending cir- cumstances of the particular case, but all must concede that felonious homicide is a subject for the local jurisdiction, and that if the proper authorities are proceeding with the case in a regular way, the consul has no right to interfere to prevent it. That, according to the petition for the habeas corjyuSj.is this case." THE "RELIAXCE." U. S. Circuit Court for So. Dist. of N. Y., 1848. (1 Abbott's Atlm. Rep., 817.) The Reliance, a British vessel, rescued goods from the wreck of another British vessel; and afterwards arrived in the port of New York, and instituted proceed- ings for salvage. Jurisdiction was refused. This was a libel in rem filed by the owner, master and crew of the bark Reliance against One Hundred and Ninety-four shawls salved by the libellants from the wreck of the Lady Kennewaij to recover salvage compensation. The Reliance was a British vessel which left Liverpool bound to New York. Near the coast of England, she fell in with the Lad\j Kenneioay and boarded her, finding no person on board. The Lady Kenneioay was a British East Indiaman, owned in 130 TEKRITOKIAL JURISDICTION. [fAET L London, on her way to London from Bombay. The master of the Reliance ordered several cases containing shawls to be taken from her, and then abandoned her. The Reliance pursued her way to New York, where she arrived December 1, 1847. A libel was filed against the chief part of the articles brought from the Ladr) Kennexoay. The British consul, by leave of the court, intervened in behalf of the unknown British owners, praying the court to order restitution for their benefit of the property attached, after allowing the libellants a reasonable salvage, if, in the judg- ment of the court, " they proved a case of derelict, and their conse- quent right to salvage." The individual claimants, as well as the consul, set up defenses against the award of salvage, charging waste, damage, and destruc- tion of the apparel and stores of the vessel. It is insisted that the court should decline jurisdiction in the case, because the Lady Kennev^ay was an English vessel, then on a homeward voyage, with her cargo for an English market, and the Reliance at the time, was an English vessel, with a British crew on board, who had signed British articles and that accordingly both vessels and libellants were bound to return to terminate the voyage at a British port. Betts, J. — u * * * ^Ys a general principle, the citizens or subjects of the same nation have no right to invoke a foreign tribunal to adjudicate between them, as to matters of tort or contract solely affecting themselves. It rests in the discretion of the court, whose authority is invoked, to determine whether it Avill take cognizance of such matters or not. * * * " As maritime courts proceed upon a common rule of right and compensation in salvage cases, the question of jurisdiction in that class of actions will seldom l)e raised or regarded before them. " The courts will take cognizance of those cases as matters of course, if either party is territorially within the jurisdiction of the court ; and the property being brought within their jurisdiction, although tlie salvors and claimants may be citizens or subjects of different nations, the court will unhesitatingly dispose of the sub- ject, if satisfied that the whole right is before it, — salvage being essentially a question of W\%jxis gentium. * * * "I find no authority of weight which imposes on the courts of our country the necessity of determining controversies between for- eigners resident abroad, either in common-law actions, transitory in their nature, or maritime proceedings when the remedy is in rem. "If the doctrine were peremptory, imparting to suitors the right to such aid, and imposing on courts the obligation to afford it, CHAr. II.] THE " RELIANCE." 131 actions for supplies and materials, on charter-parties and ])ills of lading, or by mechanics for labor, would be comprehended within the class, equally with suits for wages on bottomry bonds or for salvage compensation. " I am satisfied the law is not so. In my judgment it would be lamentable if courts weve compelled to defer the business of the citizens of the country to bestow their time in litigation between parties owing no allegiance to its laws, and contributing in no way to its support. Should it transpire, in the progress of the litigation, that the law of the domicile of the parties must be ascertained in order to adjudge rightly on their claims, or that witnesses must be examined there to fix the facts in controversy, the court might be compelled to suspend its movement and wait until these cardinal particulars could be supplied from abroad. Every tribunal expe- riences the inconvenience and unsatisfactoriness of so settling con- troversies between those even who can have no other means of re- dress, and will recognize the value of the principle which enables them, in regard to foreigners, to remit their controversies to their home tribunals, where the law is known, and the facts can be more surely determined. This court has, in repeated instances, acted upon this acceptation of the law; and believing it to be the sound and safe rule, I shall adhere to it in all cases authorizing that exer- cise of discretion. "The question to be considered is, whether, in this case, the rights of parties would be best promoted by retaining the case and dispos- ing of the subject here, or by remitting it to the home courts of the salvors and claimants. " The answer advances many grave imputations against the con- duct of the master and seamen on board the wreck and after the property came into their possession, and these charges are not Avith- out color of proof to support them. Their case does not, accord- ingly, come before the court with the most persuasive claims to its I interposition and favor. When salvage services are eminently mer- I itorious, and the only inquiry to be made is the rate of award to be allotted. Admiralty Courts would be solicitous to give every practi- cable despatch to suits by the salvors, and relieve them both from delay and expense in obtaining their just reward. It would scarcely occur that any court would withhold its aid from such suitors. It is quite different when the foreign owner of the property charges his fellow-subject with embezzlement and spoliation, and other wanton misconduct in respect to it, and prays the privilege to con- test his claim to compensation before the authorities of their com- mon country. * * * 132 TERPJTOIUAL JURISDICTION. [PART I, " The termination of the voyage of the Reliance was in England, where it is to be presumed she would arrive within a short period after leaving this port, and it is most fitting that the question of the obligations and privileges of her master and crew, in respect to serv- ices rendered a Biitish vessel, a wreck or in distress on the English coast, should be determined in the courts of that nation. * * * " As tlie libellants may not reclaim the property attached in their behalf, the decree Avill make provision enabling the claimants who have intervened in their own right, and the British Consul in behalf of unknown owners, to take the goods out of court and ship them to their port of destination." ^ 1 In the case of Aertsen v. Ship Aurora (1800), Bee's Adm. Reports, 161, the suit was brought for seamen's wages and to obtain a discharge on account of the captain's ill treatment. In the course of the judgment the judge said : "From this evidence I do not find sufficient evidence to entitle these three men to tlieir discharge (from tlie completion of the voyage). " (1) Because no unlawful weapon was used. " (2) Sufficient provocation for the captain's acts. " Tliis is the case of a neutral vessel, the crew of which are bound by their arti- cles to return to Hamburgli, before they are entitled to receive tlieir wages, and the 12th of tliose articles stipulates that everything not specified therein shall be regu- lated according to tlie marine law of Hamburgh for regulating the conduct cf officers and seamen aboard vessels belonging to that place." The suit was dismissed with costs. In Wlllendtion v. The Forsbket, 1 Peter's Adm., 197, the plaintiff, a sailor on a Danish ship, cited his captain on a claim for wages. The judge, in the course of his opinion, says that his general rule has been not to take cognizance of disputes between masters and crews of foreign ships. "I have," said he, " * * * in peculiar cases * * * compelled the payment of wages * * * assisted in recovering deserters * * * (and in) reducing to obedience perverse and rebellious mariners. " In the case now before me I see no cause to warrant my taking cognizance. It is the duty of the master to return the seaman to his own country. This he offers to do. * * * He must give the sailor a certificate of forgiveness of past offenses, to avail him in his own country. * * * if * « * there shall appear no deception in the present offer (to carry the seaman home) I shall not further inter- fere, but dismiss the suit." Mr. Hamilton Fish, Secretarj^ of State, in a dispatch to General Schenck, Uniteil States Minister in London (Xovember 8, 1873), said : " Referring to the case of Albert Allen Gardner, master of the American ship Anna Camp, tried in the County Court at Liverpool, in May last, copies of certain papers relating to which were forwarded to you by General Badeau, I desire to call your attention to the claim of jurisdiction put forth by the local common-law courts of Great Britain in this and other similar cases. " It seems to be claimed by the courts in question that their jurisdiction extends to the hearing and determining of causes arising upon complaints between masters and mariners of vessels of the United States, not only where the occurrences upon which the complaint may be founded took place within British ports or waters, CHAF. II.J ELLIS V. MITCHELL. 133 ELLIS V. MITCHELL. SUPREMK CoUliT OF HoXG KoNG, 1874. {U. S. Forebjn Relations, 1875, 000.) This was the case of a controversy between a seaman and the master of an American sliip in regard to wages, and some otlier matters in tlie port of Hong Kong. The American consnl at that place undertook to (h^cide the dispute. Ilcbl, tliat, \n tlie absence of express authority under treaty, he could not exercise juris- diction in such matters. .Judj^ineut, Small, C. J. : — "Our decision in this appeal having been for some time come to, we handed to the registrar oar eonchided judgment and hy our direc- tion lie gave it out on the 7th of November last. That decision was in the following terms : ' We have fully considered all the facts in this case and the very able arguments which, on the part of tlie appellant, Mr. Kingsmill submitted to us. The respondent did not appear. We are of opinion that the appellant has failed to show that the decision in the summary branch of this court is wrong. It is our duty, therefore, to dismiss this appeal.' The respondent has incurred no costs ; we say nothing as to costs. Some questions as to the duties and jurisdiction of consuls have arisen in tliis case to which we should wish to advert, but as these questions arise out of this case, rather than lead up to our decision, we purpose at a more convenient opportunity to refer to them. It seems to us that a some- what exaggerated notion as to the duties and jurisdiction of consuls in this colony is prevalent. " The grounds and reasons for the decision in this case were very carefully considered and conferred on between us. We were agreed in the conclusion that the appeal must be dismissed. In order that the parties might not be kept longer in suspense, we directed the decision which I have just read to be given out by the registrar on the but also when the offense which is made the ground of action was connnitled on board the vessel on the high seas, " The exercise of this jurisdiction by the common-law courts at Liverpool has already been the cause of much annoyance and in some instances serious incon- venience to masters and owners of American vessels, and if persisted in may affect injuriously the interests of American shipping." Mr. Fish proceeds to quote from the decision of .Judge Betts, in the case of the Reliance, and to commend the principles there set forth as the only proper rule to be followed. 134 TEIUIITOKIAL JURISDICTION. [PAKT L 7th day of Xoveinber, as I have ah-eady said. There seems to have been a grave misapprehension that this case came before Mr. Justice Snowden as an appeal from the decision of the consul of the United States. " It was not so. From the first it was treated by the learned judge as being untouched by decision, and, indeed, as a matter entirely nltra vires the consul of the United States. True it is that a dis- charge of the plaintiff from the shi^D, and an account taken in xhi presence of the consul of wages earned, were produced and relied on by the defendant, the master of the ship, as an answer to the plaint- iff's claim ; but it was held in the summary branch of this court, upon the evidence before it, that in no way was the consul acting or intervening judicially, either as to the discharge, or as to the account. Xo claim for unlawful dismissal had been raised before the consul. It might have been properly raised before the proper judicial tribunal of and within the United States ; but no evidence was adduced to show that that authority was vested by the law of the United States in the consul here. Even if it had been so vested by any such law of the Union, it required the force of a treaty, and an act of Parliament, or local ordinance, to enable the consul to exercise any extra-territorial judicial power within British territory. Although some instructions to the consuls were produced to the court, no act of Congress was produced, nor was there any evidence that there was any such act, or common-law power in a consul. According to Chancellor Kent's Commentaries, vol. T., p. 50, et seq., ' consuls are commercial agents. * * * In some places they have been invested with judicial powers over disputes between their own merchants in foreign ports ; but in the commercial treaties made by Great Britain there is rarely any stipulation for clothing them with judicial authority, except in treaties with the Barbary powers. And in England it has been held that a consul is not strictly a judicial officer, and they have there no judicial power.' He cites Wahlron v. Combe, 3 Taunton, 162. The words of the Chief-Justice Maxsfield there are, ' The vice consul is no judicial officer.' At page 51 the very learned chancellor proceeds : ' Xo government can invest its consuls with judicial power over their own subjects in a foreign country without the consent of the foreign government, founded on treaty.' At page 52, he says : ' It is likewise made their duty (*. e. of consuls), where the laws of the country per- mit, to administer on the personal estates of American citizens dying within their consulates,' etc. And in note (6) he says, 'American consuls cannot take cognizance of the offenses of seamen in foreign ports, nor exempt the master from his own responsibility.' He cites Ware's Reports (American), 3(37. And to conclude ail, he says at page CHAP. II.] ELLIS V. MITCHELL. 135 5o : ' The consular convention between France and this country (*. e. the United States) in 1778 allowed consuls to exercise police over all vessels of their respective nations within the interior of the vessels, and to exercise a species of civil jurisdiction by determining disputes concerning- wages, and between the master and crews of vessels belonging to their own country. The jurisdiction claimed under the consular convention with France was merely voluntary, and although exclusive of any coercive authority, and we {i. e. the United States) have no treaty at present which concedes even such consular func- tions.' AVe quote the 9th edition of Kent's Commentaries (1858). We have before us the valuable work of Judge Bouvier, the law- dictionary, the 4tli edition of 1872, and in it we find nothing to vary all that Chancellor Kent asserts. Parsons' Law of Sliijjping, pub- lished in 1809, is to the same effect. One quotation from l^arsons, vol. II., p. 56. "He there says, 'a discharge {l. e. of a seaman,) when made in a foreign port, is required to be made before the consul ; but the pay- ment of wages already due is not.' And this to such an extent that the learned author adds, ' and the consul has no right to charge a com- mission for witnessing the settlement,' in other words, he has nothing to do with the settlement of the wages due ; a fortiori he has no author- ity in reference to damages for breach of contract, or otherwise, be- tween the master and the seaman. Now, if the consul has no such au- thority, the authority nuist be somewhere, and it cannot be con- tended, upon any grounds of which we are aware, that this court has not the fullest authority over all such disputes. It is quite clear that the legislature of this country can, by statute or ordinance, give extra- territorial powers to consuls, but as all such powers are in derogation of the royal prerogative all such laws must be construed strictly. It appears to us that ordinance No. 4, of 1850, has no bearing on the ques- tion before us. It relates to cases of desertion from ships, and to nothing else. Ordinance No. 6, of 1802, is prohibitory. It says that no British seaman shall be discharged elsewhere than at the harbor- master's office, and that every seaman discharged from a foreign ship, represented by a consul here, ' shall, within twenty-four hours of being discharged at the office of his consul, or vice-consul, pro- duce at the harbor-master's office a certificate of his discharge.' Now, this is not an enabling statute, and it gives no power to any consul which he had not before. All it does is to assume that every discharge of a foreign seaman will have been given at the office of the consulate of his country. But for legislation the dis- charo:e of a seaman is a matter between master and seaman only. 136 TERRITORIAL JURISDICTION. [PART I. Xo treaty has been produced, no act of Parliament or ordinance other than those above cited, has bi-en brought to the notice of this court. In the absence of any such we are driven back to the international htw, as laid down by Chancellor Kent, page 51, that the consul of the United States is not a judicial officer, 'that they have no judicial power ' and, page 53, that there is no treaty w^tli the United States which authorizes consuls to exercise a species of jurisdiction by de- termining disputes concerning wages between masters and crews belonging to their own country in this colony. We conclude, there- fore, that the consul of the United States has no judicial powers or authority whatever in this colony as to wages or damages for wrongs, between United States masters and seamen, which the judicial authorities here can recognize, but that this court must decide such questions when In'ought before it. "What we have said as to the consul of the United States applies to consuls from all other foreign states. Xo such claim is, w^e believe, set up in any other [)art of theBritisli dominions. In China, every consul of every foreign power has judicial authority over its own subjects ; but this extra-territorial jurisdiction is the result of express treaty, and is conferred on them by the enactments of the legislative authority of each foreign state. The exaggerated notion as to consular authority here has probably arisen from the powers conceded to them in China, but which are not conceded here. " In a colon}'^ so distant as Hong-Kong is from London, convenience has rendered direct communication between the colonial government and consuls here on many subjects properly diplomatic, convenient for all parties. This has probably tended to induce an overestimate of the position of consuls here in reference to judicial authority. We feel great respect for the consuls in this colony, both officially and personally, but w^e must see that the authority of this court is not curtailed beyond what the law permits. If circumstances render it proper or convenient that judicial authority should in this colony vest in consuls, it nmst be obtained by treaty and legislation. This court has no power to concede it." THE "CREOLE," 1841. (mteato)C K Internntional Law, Sth Ed., 1G5, NotP.) " The Vjrig C}-eole, an American merchant vessel, sailed from a port in Virginia in 1841, bound to Xew Orleans, having on board one hundred and thirty-five slaves. A portion of the slaves rose against CHAP. II.] THE " CREOLE." 1S7 the officers and got complete possession of tlie vessel, killing- one passenger and severely Avounding the captain and othei's of the crew, in the struggle. They compelled the mate, under threat of death, to navigate the vessel to Nassau, where she arrived and came to anchor. At the request of the United States consul at Nassau, nine- teen of the slaves, who were identified as having taken part in the acts of violence, Avere arrested by the local authorities, and held to await the decision of the British Government. As to the rest of the slaves, there was a question whether they got on shore and gained their liberty by their own act, or through the positive and officious interference of the colonial authorities, while the vessel was under the control of tlie consul and master. Mr. Webster, Secretary of State, addressed a letter to Lord Ashburton on this subject. His position is, that ' if a vessel of the United States, pursuing lawful voyages from port to port along their own shore, are driven by stress of weather, or carried by unlawful force, into British ports, the government of the United States cannot consent that the local authorities in those ports shall take advantage of such misfortunes, and enter them for the purpose of interfering with the condition of persons or things on board, as established by their own laws. If slaves, the property of citizens of the United States, escape into British territories, it is not expected that they will be restored. In that case, the territorial jurisdiction of England will have become exclusive over them, and must decide their condition. But slaves on board of American vessels lying in British waters are not within the exclusive jurisdiction of England, or under the exclusive opera- tion of English law; and this founds the broad distinction Ijetween the cases. * * * In the opinion of the government of the United States, such vessels, so driven and so detained by necessity in a friendly port, ought to be regarded as still pursuing their original voyage, and turned out of their direct course by disaster or by wrongful violence ; that they ought to receive all assistance neces- sary to enable them to resume that direct course, etc. * * * ' "The United States Government demanded the restoration of the slaves, which was refused by the British Government, on the ground, that, being in fact at liberty within the British dominions, they could not be seized there when charged with no crime against British law, and while there was no treaty of extradition. This case Avas then submitted, as a private claim for pecuniary indemnity, to the com- mission under the convention of Feb. 8, 18.5.S. The connnissioners being unable to agree, it was by the terms of the convention, referred to an umpire, Mr. Joshua Bates, of London. " In deciding the case, Mr. Bates stated two propositions of law : — 138 TEUKITORIAL JURISDICTION. [PAKT I. "1. That, as the shives were perfectly quiet, and on board an American ship under the command of the captain, tlie authorities sliould have seen that the captain was protected hi his rights over tliem. '• 2. That, ' the nuniicipal law of England cannot authorize a magis- trate to violate the law of nations, by invading with an armed force the vessel of a friendly nation that has committed no offense, and forciljly dissolving the relations which, by the laws of his country, the master is bound to preserve and enforce on board.' " ^ 1 Mr. Dana criticises the decision of Mr. Bates iu this case. " It may be con- cedeil, as a general statement," he says, " that local authorities ought to give active aid to a master in defending and enforcing, against the inmates of his vessel, the rights with which his own nation has intrusted him, if these rights are of a char- acter generally recognized among all nations, and not prohibited by the law of the place. But it may well admit of doubt, whether the local authorities must give active aid to the master against persons on board his vessel who are doing no more than peacefully and quietly dissolving, or refusing to recognize a relation which exists only by force of the law of tlie nation to which the vessel belongs, if the law is peculiar to that nation, and one which the law of the other country regards as against common right and public morals. The local authorities might not interfere to dissolve such relations, where the peace of the port or the public morals are not put in peril ; but they might, it would seem, decline to lend force to compel their continuance. See also the adverse criticism of Hall (Int. Law., od Ed., p. 199). In the case of the Fortuna, 1803 (5 C. Rob., 27), the ship was proceeded against for a violation of the blockade of the Weser. The master of the captured vessel gave as an excuse for entering the blockaded place, the want of provisions, and a strong westerly wind. Sir W. Scott held that " want of provisions " was not such an "imperative and over-ruling compulsion"' as to excuse a breach of blockade. But on the other ground, after further proof, the vessel was restored. In the case of United States v. Bickelman, IST-j, 92 U. S., .520, the Supreme Court emphatically affirmed the rule that merchant vessels are subject to the local jurisdiction when in foreign ports. Waite, C. J., in giving the opinion of the court said : " As to thegeneral law of nations, the merchant vessels of one country visiting the ports of another for the purposes of trade subject themselves to the law^s which govern the port they visit, so long as they remain ; and this as well in war as iu peace, unless it is otherwise provided by treaty." CHAP. II.] DUKE or KiiTEKDA'S CASE. 139 Section 13. — Right of Asylum. (a) In Legations. DUKE OF RIPPEKDA'S CASE, 1726. (^Martens: Causes Celebres, I., 178.) Right of asylum in tlie Britisli legation in Madrid denied by the government of Spain. Baron Ripperda had been a colonel in the service of the States- General of the United Provinces, and had been sent by them as minister plenipotentiary to the court of Madrid. After two years of lesidence at this court, he had so captivated the mind of Philip v., tliat that monarch took him into his service, made him minister of finance and of foreign affairs, and conferred upon him the title of Duke. Accused by the Imperial Ambassador at Madrid of secretly favoring the interests of Holland and England, he was finally deprived of his offices, though granted a pension by the King. Fearing, as he said, the enmity of the populace, he took refuge in the hotel of the English AmV)assador, Lord Stanhope. Tlie Spanish government would seem at first to have acquiesced in this arrangement, but learn- ing that the Duke had important state pa[)ers in his possession, it demanded his delivery. Not meeting with a compliance to this de- mand, the question was referred to the Council of Castile, whether, without violating the law of nations, the Duke of Ripperda could be forcibly taken from the house of the English Ambassador. The Council replied in the affirmative : " To act otherwise would be to employ a system which had been adopted to facilitate the inter- course of sovereigns, for the destruction and ruin of their authority. To extend the privileges accorded to the hotels of ambassadors in favor of merely ordinary offenses to persons intrusted with the finances, the powers, and the secrets of a state, when they have be- trayed the duties of their office, would be to introduce into the world a principle most injurious to all nations. If this maxim were to become the rule, sovereigns would be obliged to see maintained at their own courts those persons most actively engaged in machina- tions for their ruin." Lord Stanhope's house had already been under strict surveillance ; and, on the receipt of the opinion of the council, the Spanish govern- 140 TERRITORIAL JURISDICTION. [PART I. ment, without further notice to tlie ambassador, forced an entrance and arrested the Duke of Kipperda. Tlie Englisli g-overnment protested vigorously, and particularly as to the manner of the pro- ceedings ; and the incident aggravating the already strained relations between the two countries, finally resulted in war the next year.^ rXITED STATES v. JEFFERS. U. S. Circuit Court for Dist. of Washixgtox, 1833, (4 Crunch, C. C. Rep., 704.) A slave who liaJ escaped from his master, ha;l taken service in the house of the Secretarj' of the British Legation in Washington. An otficer of the District of Columbia, who removed the slave and restored him to his master, was, by order of the Court, dismissed from office. Francis S. Key, Attorney of the United States for the District of Columbia, having laid before the court a letter to him from the Sec- retary of State, wherein it appeared that a constable, Madison Jeffers, had removed from the house of Mr. Bankhead, the British Secretary of Legation, a colored lad employed for hire in his family in order to restore the said lad to his master ; it was, on the motion of said attorney of the United States, ordered, that the said Madison Jeffei's be removed from the office of constable of the County of Washing- ton, unless he show cause to the contrary on the thirty-flrst day of ]\Iay instant, provided, etc. " By order of the court. May oUth, 1836." Tlie rule having been duly served, the said Madison Jeffers appeared on the 31st of ^lay and, by way of showing cause, filed his atTidavit admitting the facts, but alleging his ignorance of the diplomatic 1 Vattel, writing thirty years later, says of the opinion of the Council of Castile. "On ne pent rien dire de plus vrai et de plus judicieux sur cette matiere." Merlin said, " On voit par ces details, que le droit d'asyle est, a Tegard des hotels des anibassadeurs, une source perpctuelle de dissensions et de querelles. Le bien des nations denianderait, sans donte, qu'on TaboKt tout-a-fait : et cela parait d'autant plus raisonable, qu'il ya plusiem-s etats danslesquels il n'est point connu." In 1747, a Swedish merchant of the name of Springer, accused of higli-treason, took refuge in the hotel of the English Ambassador, Colonel Ouideckens, at Stock- holm. The ambassador refused to surrender him ; the Swedish government sur- rounded his house with troops, searched everybody who entered it, and caused the carriage of the ambassador, when he left the hotel, to be followed by a guard, (^iuideckens surrendered Sprinirer under a protest as to the violence done to his am- bassadorial privilege. England demanded reparation, and Sweden steadily refused ic give it, and the ambassadors from the two courts were mutually withdrawn. CHAP. II.] UNITED STATES W. JEFFERS. 141 privileges, and his belief that he was executing his duty lawl'ully, in arresting- a fugitive slave, and disclaiming all intentional disre- spect to Mr. Bankhead. His counsel, Mr. W. L. Brent, contended that Jeffers, as the agent of the owner of the slave, had a right to take hiui anywhere ; and also that, as a constable, he had a right to take up a runaway, that the diplomatic privilege extends only to foreign ministers and upon certains terms ; and not to servants of a secretary of legation. That the servant had not been registered according to the Act of Congress of 30th of April, 1790, § 26 (Stat, at Large, 112), and there- fore Jeffers had a right to arrest him ; because the act of Congress for punishing the violation of privilege does not extend to those who may arrest a servant not registered. By not registering his servant, the minister has waived his privilege, Seacourt v. Bowlney, 1 Wils., 20. The court stopped Mr. Key in reply. Thurston, J., said he wished no further time or argument. He was of opinion that Jeffers should be dismissed from office. MoESELL, J., concurred. Craxch, C. J., would have taken time to consider ; but said that his present opinion coincided with that of the court. Vrhereupon the court passed the following order : " Madison Jefters, upon whom a rule was laid on the 30th of May last, to show cause why he should not be removed from the office of constable for the county of Washington, upon the grounds tiierein stated, appeared and filed his affidavit, and the same was read and heard, and he was further heard by his counsel whereupon " It is considered by the court, that the said Madison Jeffers was guilty of a violation of the privileges of His Britannic Majesty's Envoy Extraordinary and Minister Plenipotentiary, as stated, in his letter to the Secretary of State referred to in the said rule ; and the said Madison Jeffers, having shown no sufficient cause to the contrary, it is thereupon considered by the Court, this 7th day of June, 1836, that the said ]Madison Jeffers be, and he is hereby, removed from his said office of constable for the county aforesaid." 142 TEItrJTOELVL JUEISDICTION. [PART T. OPIXION OF Mil. FISH, SECRETARY OF STATE. Letter TO Mk.Prestox, Dec. 11, 1875. {U. S. Foreign lidnl ionf<. ISl'i. p.. '^,A'^,.) A criticism of tlie practice of granting asylum to political refugees, bj" foreign legations, in the Spanish American States. "The right to grant asj-him to fugitives is one of the still open questions of pul)lic law. The practice, however, has been to tolerate the exercise of that right, not only in American countries of Spanish origin, but in Spain itself, as well as in ITayti. This practice, how- ever, has never addressed itself to the full favor of this Government. In withholding approval of it, we have been actuated by respect for consistency. " It is not probable that the practice would ever be attempted in this country, or, if attempted, could be tolerated, and the discoun- tenance which the United States extends to the practice is upon the principle of doing to others as we would they should do unto us, so that when we acknowledge the sovereignty of a foreign state bj'- con- cluding treaties with and by accrediting diplomatic officers to its Government, we impliedly, at least, acknowledge it as a political equal, and we claim to extend to all the political prerogatives and immunities which we may claim for ourselves. " We sincerely desire that it may be universally recognized that foreign legations shall nowhere be made a harbor for persons either charged with crimes or who may fear that such a charge may be made. " Prominent among the reasons for objection on our part to giving asylum in a legation, especially in the Governments to the south of us, is that such a practice obviousl\' tends to the encouragement of offenses for which asylum may be desired. "There is cause to believe that the instability of the Governments in countries where the practice has been tolerated may in a great degree be imputed to such toleration. For this reason, if for none other, the Government of the United States, which is one of law and order and of constitutional observance, desires to extend no encour- agement to a practice which it believes to be calculated to promote and encourage revolutionary movements and ambitious plottings. " Instances, too, have occurred where asylum having been granted CHAP, II.] OPIXIOX OF MR. FISH, SECRETARY OF STATE. 143 with impunity, has been grossly abused to tlie defeat of justice, not only against [tolitical offenders, but also against persons charged with infamous crimes. Such abuses are plainly incompatible -with the stability and the welfare of (governments, and of society itself. " Temptations sufficient to lead to an abuse of the practice cannot fail to abound in most persons who may exercise it. Such tempta- tions are incident to human nature, and in countries where political revolutions are of frequent occurrence one must be gifted with un- common self-denial to be wholly free from their influences. " It is believed, however, to be sound policy not to expose a min- ister in a foreign country to the embarrassments attendant upon the practice. Still, this Government is not, by itself, and independently of all others, disposed to absolutely prohibit its diplomatic repre- sentatives abroad from granting asylum in every case in Miiich application therefor may be made. " We do not, however, withhold from them our views of the prac- tice, and will expect that, if they do exercise the prerogative, it will be done under their own responsibility to their own Goverinnent. We would prefer, therefore, not formally to assent to the proposi- tions contained in the memorandum above referred to without ascer- taining the views of the other Governments concerned in regard to them, " Some, at least, of those propositions appear to be fair enough ; but as the circumstances of cases in which asylum may be granted greatly vary, it would, in the opinion of the undersigned, be prefer- able, until an understanding and an approach to accord of views as to the future practice in this regard can be had by the other powers, that every such case should be treated according to its merits, rather than that we should be fettered in advance by rules which may be fotuid not to be practically applicable or useful." ^ ^ The printed personal instructions of the governinent of the United States to its diplomatic agents of date of 1885, contains the following clause : — " In some countries, where frequent insurrections occur and consequently in- stability of government exists, the practice of exterritorial asylum has become so firmly established, that it is often invoked by unsuccessful insurgents, and is prac- tically recognized by the local government to the extent even of respecting the premises of a consulate in which sucli fugitives may take refuge. Tliis Govern- ment does not sanction the usage, and enjoins upon its representatives in such countries the avoidance of all pretexts for its exercise. While indisposed to direct its agents to deny temporary shelter to any person whose life may be threatened by mob violence, it deems it proper to instruct its representatives that it will not countenance them in any attempt to knowingly harbor offenders against the laws from the pursuit of the legitimate agents of justice." 144 TEEEITOEIAL JUEISDICTIOX. [PAET I. (h) On Board Ships of War. CASE OF JOHN BROWN. Opinion of Siij William. Scott, IS'lO. {IIalleck\'< International Laic, I., 1S5.) In the opinion of Sir William Scott, the right of asylum as regards political refugees does not properly belong to ships of war. In 182t>, John Brown, a British subject, commanded a vessel en- gaged in the revolt against the Spanish Colonies. He was taken prisoner by the Spaniards, but escaped from prison, and took refuge on board H. M. S. " Tyne," lying in the port of Lima. Sir William Scott, being requested by the Admiralty, gave his opinion on the question, as follows : — " Sir, — I have to acknowledge the receipt of your letter dated the 25th ult., enclosing copies of a letter, and its enclosures from Captain Falcon, of H. M. S. ' Tyne,' and of the case and opinion of the King's Advocate, relative to 3Ir. John Brown, a native of Ireland, who, being a prisoner, in the hands of the Spaniards, effected his escape and came on board the 'Tyne' at Callao, and has since arrived on board the same within the realm of England (having claimed the protection of the flag), and accpiainting me that their Lordships conceiving that they had no authority to detain him, and being supported in that opinion by the concurrence of the King's Advocate, had allowed him to depart without restraint. L'pon this statement I have no observation to make, not being desired by their Lordships to make any ; but if my opinion had been required, it would have coincided with what has been advised and done. A more extensive and important question is proposed to me, viz. : ' Whether any British subject coming on board any of H. M.'s ships of war, in a foreign port and from the judicature of the State within whose terri- tory such port may be situated, is entitled to the protection of the British flag, and to be deemed as within the Kingdom of Great Britain and Ireland ? ' L'pon this question proposed generally I feel no hesitation in declaring that I know of no such right of pro- tection belonging to the British flag, and that I tliink such a pre- tension is unfounded in point of principle, is injurious to the rights of other countries, and is inconsistent with those of our own. The CHAP. II.] CASE OF JOHN 15UOWN. 145 rights of territories are local and are fixed by known and determined limits. Sliips are mere movables and are treated as sneh in the general purchase of nations. It is true that armed neuti'alities have attempted to give them a territorial cliaractei', but the attempt when made has been always most perseveringly, and at all hazards, re- sisted and defeated by the arms of our country, as inconsistent with the rights of hostility and capture. No such character is allowed to protect ships of war, when offending against the laws of neutrality upon the high seas, where no local authority wliatever exists ; still less can it be claimed where there is a visible and acknowledged authority, belonging to an independent State in amity with the nation of which the ships of war l)elong. Such a claim can lead to nothing but to the confusion and hostility which wait upon conflicting rights. The common convenience of nations has for certain reasons, and to a certain extent, established in favor of for- eign ships of war, that they themselves shall not be liable to the civil process of the country in whose ports they are lying, though even the immunity has been occasionally questioned. J^ut that individuals, merely belonging to the same country with the ships of war, are exempt from the civil and criminal process of the country in its ordinarj^ administration of justice by getting on board such ship, and claiming what is called the protection of the flag, is a pre- tension which, however heard of in practice occasionally, has no existence whatever in principle. If the British flag converts a man-of-war into a British territory, the flag of other nations must be allowed to possess the same property in their marine ; for there is no principle whatever that can be appropriated exclusively to the British flag. "It therefore must be allowed reciprocally that a Spaniard getting on board a Spanish ship of war lying in Portsmouth harbor shall be protected from British justice. I believe the administration of that justice would return a very speedy and decisive negative tO' any such pretension on behalf of Spaniards charged with being amenable to British law. . " But the inconvenient effects of considering such a ship a Spanish territory would go much further — to the extent of protecting a British criminal who found his wny into her. For no process of British justice can be executed on a British subject in a Foreign territory. When I give this as my decided persuasion upon tliis subject generally, I do not mean to say that in the infinite possi- l)ility of events cases may not arise in which such a protection might be indulged. " But such cases are justified only by their own peculiar and ex- 10 146 TERRITORIAL JURISDICTION. [PART I. traordinary circumstances, which extend no further than to those immediate cases themselves, and furnish no rule of general practice in such as are ordinary. How far the case of 3Ir. Brown comes within such a description I am not enabled to state confidently by any exact knowledge of the facts, and particularly of the nature and validity of that authority under Avhich the acts charged upon him by the Spaniards are said to have been committed. It would be improper in me to define what the British Government had not thought proper to define. Holding the opinion that before any Act of Parliament or proclamation issued, it was unlawful for a British subject to accept a hostile commission from any persons either in war or rebellion against a State in amity with the Crown of Great Britain, I am led to think that the Spaniards would not have been chargeable with illegal violence if they had thought proper to employ force in taking this person out of the vessel (British), and I add that it was certainly very undesirable to furnish occasions for the lawful use of force in the intercourse of friendly nations. Taking the authoritj^ under which Brown acted to be clearly invalid (which I do not mean to assert), I think it might possibly apj)ear that Captain Falcon's conduct was more to be commended for its humanit}- and spirit than for its strict legality. —William Scott, Grafton Street, 28th Xovember, 1820." ^ 1 On the receipt of this oi)inion a copy thereof was forwarded to the Foreign Office, and Lord Castlereagh, in a letter dated the 20th of December, 1820, addressed to the British minister at tlie Court of Spain, tlius expressed himself : — " Your Excellency will find it easy from these papers, to give such an explana- tion of the circumstances which attended the liberation in England of this indi- vidual, as will be satisfactory to the Spanish minister. You will at the same time, on the part of your Court, disavow Captain Falcon's conduct in rescuing Brown on board his ship within a Spanish port, and not delivering him up, upon the requisi- tion of the local authorities. The officer, no doubt, acted upon a good motive, but in assuming that the British flag could protect him against the legal process of the territorial jurisdiction within which the parties then were, was to maintain a prin- ciple, which the British Government desires distinctly to disclaim as not consistent with their uniform practice, or with the Law o.f Xations." (Report of Royal Commission on Fugitive Slaves, p. LXXVII). On the other hand, a directly opposite view was expressed by Lord Palmerston, in 1849. Mr. Addiugton, writing to the Secretary of the Admiralty, August 4th, said : — "Viscount Palmerston directs me to request that you will acquaint the Board of Admiralty that his Lordship is of the opinion that it would not be right to receive and harbor on board a British ship of war any person flying from justice on a criminal charge, or who was escaping from the sentence of a cotirt of law. But a British man-of-war has always and everywhere been considered a safe place of refuge for persons of whatever country or party who had sought shelter under the British flag from persecution on account of their political conduct or opinions : CliAr. 11.] SOTELO'S CASE. 147 (c) On Board Merchant Ships. SOTELO'S CASE, 1840. (Cnli-o: Droit International, 4th Ed., I, .509.) Tlie right of granting asylum to political refugees does not belong to merchant vessels, in the ports of such refugees' coimtry. "En 1S40 le paqiiebot a vapeur fran9ais V Ocean, qui faisait des voyages reg'ulier.s entre Marseille, la cote d'Espagne et Gibraltar reyiit a son bord, au niouillage de Grao (Valence), M. Sotelo, ex-niinistre espagnol, poursuivi pour cause politique. Ayant remis en mer sans qu'on se fut inimediatement aperyu du nombre et de la personnalite des passagers qu'il avait enibarques, le navire se rendit a Alicante ; niais la, au moment meme de la visite de douane et de police, 31. Sotelo fut reconnu, saisi, emmene a terre, puis emprisonne. Le anil this protection has been equally offered, whether the refugee was escaping from the arbitrary acts of a monarchical government, or from the lawless violence of a revolutionary committee. * * * " Although the commander of a ship of war should not seek out or invite polit- ical refugees, yet he ought not to turn away or give up any who may reach his ship and have obtained admittance on board. Such officer must of course take care that such refugees shall not carry on from on board his ship any political correspondence with their partisans on shore, and he ought to avail himself of the earliest opportunity to send them to some place of safety elsewhere." (Rep. of Royal Comm. on Fug. Slaves, p. 1.5.5). For a full discussion of the question of the extemtoriality of ships of war, see the separate reports of Lord Chief Justice Cockburn, and Mr. Rothery, in the " Report of the Royal Commission on Fugitive Slaves," 1876. Mr. Rotheiy takes strong ground against the right of asylum on such ships. Sir James Fitzjames Stephen, another member of the commission, takes similar ground. (Stephen's History of the Criminal Law, II., .57). As to American practice, Attorney-General Bradford held, in 17!)4, that a " writ of habeas corpus may be awarded to bring up an American subject unlawfully detained on board a foreign ship of war, the commander being amenable to the usual jurisdiction of the state where he happens to be, and not entitled to claim the extraterritoriality which is annexed to a foreign minister and his domicil."' (Whartons Digest, L, 1.38.) But in 185.5, Attorney-General Gushing— a high authority— held, that a " prisoner of war on board a foreign ship of war, or of her prize, cannot be released hj habeas corpu.'i Issuing from courts of the United States or of a particular State.'" And again, in 18-56, " ships of war enjoy the full rights of extraterritoriality in foreign ports and territorial waters." (Wharton's Digest, I., 138.) It would seem to follow, therefore, that right of asylum could be granted on American ships of war. In South American ports it has frequently been done. 148 TEKRITOKIAL JURISDICTIOX, [CHAP 11. capitaine de V Ocean protesta centre ce qu"il qualifiait de violation de pavilion, et reclama vaineraent la niise en liberte de son passager, en invoquant ji la fois le droit d'asile et le principe d'exterritorialite, " Ses communications diplouiatiques echangees au sujet de cette affaire entre le gouvernement de France et celui d'Espagne etablirent •de la maniere la plus peremptoire que la conduite des autorites d" Alicante etait a Tabri de tout reproclie ; que nulle atteinte n'avait ete portce au respect du pavilion, puis(pril s'agissait d'un navire marcliand ordinaire et d'une mesure de haute i)olice executee dans I'interieur du port; que 31. Sotelo, emljarque subrepticement a Valence, port espagnol, avait pu regulierement etre saisi et arrete a })Ovd de V Ocean dans un autre port du meme pays; enfin que la c-irconstance d'avoir navigue en pleine mer pendant un certain temps, avant d'atteindre Alicante ne pouvait altorer la nature du fait delictueux accompli au point de depart et constate au point d'arrivee sous I'empire des memes lois de la meme legislation territoriale." OPIXIOX OF LORD ABERDEEX, 1S44. (Rep. of lioyal Comin. on Fu'/ltive Slaves, VA.) Merchant vessels possess no right of asyhiu]. Viscount Canning writes to the Secretary of the Admiralty, March 20, 1844, as follows:— " Sir, — I have laid before the Earl of Aberdeen Sir J. Barrow's letter of the 9th instant, from which it appears that the Lords Com- missioners of the jVdmiralty wish to know what line of conduct should be pursued by the commanders of the hired vessels which convey the mails between this country and the Peninsula, if it should happen that the authorities of Vigo should attempt to remove from any of these vessels a Spanish subject who may have embarked at Lisbon, being provided with a Portuguese passport, countersigned by the British, French, and Belgian Legations at Lisbon. " In answer to the above inquiry, I am directed by Lord .Vberdeen to acquaint you, for the information of the Lords Commissioners of the Admiralty, that there is no stipulation in the existing treaties between this country and Spain which can be deemed sufficient to debar the Spanish Government from exercising the right which, in his Lordship's opinion, appertains to that. government of claiming its own suljjects Avhen they may be found in a Spanish port as pas- sengers on board vessels hired to convey the mails between this countrj'' and the Peninsula." CHAP. II.] CASE OF GOMEZ. 149 CASE OF GOMEZ. Bayakd, Sicc. OF St., to IIaix, Maucii 12, 1884. (U. S. Forcifjn Relatione, 1885, ^j. 82). Merchant vessels possess no right of asyhnii. "Sir, — T have to acknowledge the receipt of your No. 316, of the loth ultimo, ill which you enclose copies of the correspondence between the legation at Gnateniala and 3Ir. Leavitt, the United Stat(?s consul at Managua, respecting the case of Jose Dolores Gomez, and request more definite instructions for such cases. "It appears that Mr. Gomez, who is said to be a political fugitive from Nicaragua, voluntarily took passage at San Jose de Guatemala for Punta Arenas, Costa Rica, on board the Pacific Mail steamship Honduras with the knowledge that the vessel would enter en route the port of San Juan del Sur, Nicaragua. " The government of Nicaragua upon learning of this fact ordered the commandant of the port of San Juan del Sur, to arrest Gomez upon the arrival of the Honduras at that port. "The minister for foreign affairs of Nicaragua informed Mr. Leavitt, United States consul at ]Vlanagua, of the action of the gov- ernment by a telegram, as follows : "'Government has ordered the commander of port San Juan del Sur to arrest Jos6 Dolores Gomez, a fugitive prisoner, mIio is on board of the steamer Honduras, now en roicte to that port. I sup- pose the captain wall not interfere with the action of the com- mander, but to avoid whatever difficulties likely to arise I suggest you to send a telegraphic message to the captain of the Honduras, at San Juan del Sur, stating that the order has been issued by the government and recommending him to support the commander as there is no ground on the part of the captain to hinder the execution of the government order.' "It appears that, before Mr. Leavitt had an opportunity to act upon this request, you telegraphed him as folloAvs : " 'Reported here arrest of a transit passenger bound to Panama on board steamer Honduras at San Juan del Sur. Say respectfully to Nicaragua!! minister of foreign affairs that our government never has consented and never will consent to the arrest and removal from an American vessel in a foreign port, of any passenger in tran- sit, much less if offense is political.' 150 TEKKITORIAL JURISDICTION. [PAKT I. " It appears that Mr. Leavitt declined to comply with the request of the minister of foreign ati'airs, and followed your instructions by submitting a copy in writing to the minister. " P^'rom the brief outline given by the consul of the subsequent proceedings, it appears that the government authorities at San Juan del Sur, upon the arrival of the Honduras at that port, re- quested the captain to deliver up jNIr. Gomez. This he declmed to do, and set sail without proper clearance papers. " The consul reports that for these offenses the captain has been tried by the Nicaraguan goveriunent and found guilty, and although he has not been able to learn the nature of the sentence, he is con- vinced, from the present attitude of the government, that the sen- tence Avill be executed in case of the return of the captain or the vessel within the jurisdiction of the Government of Nicaragua. " As the nature and character of the proceedings against the cap- tain of the Honduras are not known to this Department, a full and detailed report should be made as early as practicable. It is clear that Mr. Gomez voluntarily entered the jurisdiction of a country whose laws he had violated. * * * " It may be safely affirmed that when a merchant vessel of one country visits the ports of another for the purposes of trade, it owes temporary allegiance and is amenable to the jurisdiction of that country, and is subject to the laws which govern the port it visits so long as it remains, unless it is otherwise provided by treaty. " Any exemption or immunity from local jurisdiction must be de- rived from the consent of that country. Xo such exemption is made in the treaty of connnerce and navigation concluded between this country and Nicaragua on the 21st day of June, 1807." ^ ' In the similar case of BaiTuiidia, ISOO, tlie government of the United States set up a different rule. Barrundia was a political refugee from Guatemala who took passage, at a Mexican port, on the Pacific Mail Steamship Acapulco (American) for Salvador. The steamer was to call on the way at several ports of (iuatemala; and on learning of the movements of Barrundia, the government of Guatemala proposed to arrest him. That it could legally do so was the opinion of the American Minister, Mizner, and the American Consul-General, Hosmer, and they so advised the captain of the Acapulco, and the authorities of Guatemala. In the attempt to arrest Barrundia on board the steamship, he resisted and was killed. For his part in the affair, Mr. Mizner was severely censured, and recalled from his post. Commander Kelter of the U. S. ship of war, Rftivjei; who was present in the port at the time, was also sent into disgrace for not interfering to prevent the arrest. In his dispatch to Mr. Mizner of Xovemher 18, 1S90, Mr. Blaine reviews the facts and the law of the case; much of his argument has no bearing on the case, and many of his citations go to disprove his own view of it. It is hardly too much to say that there is no foundation in International Law for the position of the CHAP. II.] UNITED STATES V. KAUSCHEU. I'd Section 14. — Extuaditiox. UNITED STATES v. RAUSCIIER. Supreme Court of tiik United States, 1886. (119 United State.s Exports, 401.) There is no rule of international law recjuirlng States to deliver up fugitives from justice from other States. In the United States, extradition is exclusively a Federal question. A person extradited under treaty can be tried for that offense only for which he was extradited. Jiulg'inent. — Miller, J. ; — " This case comes before us on a certificate of division of opinion between the judges holding tlie Circuit Court of tlie United States for the Soutliern District of New York arising after verdict of guilty, and before judgment, on a motion in arrest of judgment. "The prisoner, William Rauscher, Avas indicted by a grand jury, for that on the 9tli day of October, 1884, on the high seas, out of the jurisdiction of any particular state of the United States, and within the admiralty and maritime jurisdiction thereof, he, the said William Rauscher, being then and there second mate of the ship J. F. Chap- man, unlawfully made an assault upon Janssen, one of the crew of the vessel of which he was an officer, and unlawfully inflicted upon said Janssen ci-uel and unusual punishment. This indictment was found under § 5347 of the Revised Statutes of the United States. * * * " The prisoner having been extradited upon a charge of murder on the high seas of one Janssen, under § 53.39 Rev. Stat., had the Circuit Court of the Soutliern District of New York jurisdiction to put him to trial upon an indictment under § 5347 Rev. Stat., charging him with cruel and unusual punishment of the same man, he being one of the crew of an American vessel of which the defendant was an officer, and such punishment consisting of the identical acts proved in the extra- dition proceedings ? United States Government in this affair. The only possible excuse for it is the assertion that the Spanish American States do not possess all the rights of sover- eign states, and that there should be an exceptional rule adopted in their case, in regard to asylum on merchant ships, as there is in the case of legations. For a careful study of the right of asylum, see an article by Professor J. B. Moore, in the "Political Science Quarterly" for 1892. See also, 1 " Wharton's Digest of International Law," § 104. 152 TERItlTOPvIAL JURISDICTION. [tAKT 1. " The treat}^ with Great l]ritain, under which the defendant was siu-- rendered b}' tliat government to ours upon a cliarge of nutrder, is tliat of August 9, 1842. * * * The tenth article of tlie treaty is as follows ; ' It is agreed that the United States and her Britannic JNIajestj'^ shall, upon mutual requisitions by them, or their muiisters, officers, or au- thorities, respectively made, deliver up to justice all persons aa'Iio, being charged with the crime of murder, or assault with intent to commit nmrder, or piracy, or arson, or robbery, or forgery, or the utterance of forged paper, committed within the jurisdiction of either, sliall seek an asylum, or shall be found, within the territories of the other: provided that this shall only be done upon such evidence of criminality as, according to tlie laws of the place where the fugitive or person so charged shall be found, would justifj^ his apprehension and commitment for trial, if the crime or otfense had there been com- mitted ; and the respective judges and other magistrates of the two Governments shall have power, jurisdiction, and authority, upon com- l)laint made under oath, to issue a warrant for the apprehension of the fugitive or person so charged, that he may be brought before such judges or other magistrates, respectively, to the end that the evidence of criminality may be heard and considered ; and if, on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examming judge or magistrate to certify the same to the proper executive authority, that a warrant may issue for the surrender of such fugitive.' " Xot only has the general subject of the extradition of persons, charged with crime in one country, who have fled to and sought refuge in another, been matter of much consideration of late j-ears by the executive departments and statesmen of the governments of the civilized portion of the world, by various publicists and writers on international law, and by specialists on that subject, as well as by the courts and judicial tribunals of different countries, but the precise questions arising under this treaty, as presented by the certificate of the judges in this case, have recently been very much discussed in this country, and in Great Britain. " It is only in modern times that the nations of the earth have im- posed upon themselves the obligation of delivering up these fugitives from justice to the states where their crimes were committed, for trial and punishment. This has been done generally by treaties made by one independent government with another. Prior to these trea- ties, and apart from them, it may be stated as the general result of the writers upon international law, that there was no well-defined obligation on one country to deliver up such fugitives to anotlier, and though such delivery was often made, it was upon the principle of niAP. TI.] UNITED STATES V. RAUSCHER. lo3 comity, and within the discretion of the government whose action was invoked; and it has never been recognized as among those ol)li- gations of one government towards another wlii(;h rest U[)(jn estab- lislied principles of international law. '• Whelher in the United States, in the absence of any treaty on the subject with a foreign nation from whose justice a fugitive may be found in one of the states, and in the absence of any act of Con- gress upon the subject, a state can, through its own judiciary or execu- tive, surrender him for trial to such foreign nation, is a (question Avhich has been under consideration by the courts of this country without any very conclusive result. * * * "There can be little doubt of the soundness of the opinion of Chief-Justice Taney, that the power exercised by the governor of Vermont is a pai't of the foreign intercourse of this country, AAliich has undoubtedly been conferred upon the Federal government ; and that it is clearly included in the treaty making power and the cor- responding power of appointing and receiving ambassadors and other public ministers. There is no necessity for the states to enter upon the relations with foreign nations which are necessarily implied in the extradition of fugitives from justice found within the limits of the state, as there is none why they should, in their own name, make demand upon foreign nations for the surrender of such fugitives. " At this time of day, and after the repeated examinations which have been made by this court into the powers of the Federal govern- ment to deal with all such international questions exchtsively, it can hardly be admitted that, even in the al)sence of treaties or acts of Congress on the subject, the extradition of a fugitive from justice can become the subject of negotiation between a state of this Union and a foreign government. "Fortunately, this question, with others which might arise in the absence of treaties or acts of Congress on the subject, is now of very little importance, since, with nearly all the nations of the world with Avhom our relations are such that fugitives from justice may be found within their dominions or within ours, we have trea- ties Mdiich govern the rights and conduct of the parties in such cases. These treaties are also supplemented by acts of Congress, and both are in their nature exclusive. "The case we have under consideration arises under one of these treaties made between the United States and Great Britain, the country with which, on account of our intimate relations, the cases requiring extradition are likely to be most numerous. This treaty of 1842 is supplemented by the acts of Congress of August 12, ls48, 9 Stat., 302, and March 3, 18G9, 15 Stat., 337, the provisions of which 154 TEREITORIAL JURISDICTION. [PART I. iiro embodied in §§ 5270, 5272 and 5275 of the Ilevised Statutes, under Title LXVI., Extradition.* * * " Tlie treaty of 1842 being, therefore, the supreme law of the land, whieli the courts are bound to take judicial notice of and to enforce in any appropriate proceeding the rights of persons growing out of that treaty, we proceed to inquire, in the first place, so far as per- tinent to the question certified bj'' the circuit judges, into the true construction of the treaty. We have already seen that, according to the doctrine of publicists and writers on international law, the country receiving the offender against its laws from another country had no right to proceed against him for any other offense than that ft)r which he had been delivered up. This is a principle which com- mends itself as an appropriate adjunct to the discretionary exercise of the po\\er of rendition because it can hardly be supposed that a government which was under no treaty obligation nor any absolute obligation of public duty to seize a person who had found an asy- lum within its bosom and turn him over to another country for trial, would be willing to do this, unless a case was made of some spe- cific offense, of a character which justified the government in depriv- ing the party of his asylum. It is unreasonable that the country of the asylum should be expected to deliver up such person to be dealt with by the demanding government without any limitation, im})lied or otherwise, upon its prosecution of the party. In exercising its discretion, it might be very willing to deliver up offenders against such laws as were essential to the protection of life, liberty and person, while it would not be willing to do this on account of minor misdemeanors or of a certain class of political offenses in which it would have no interest or sympathy. Accordingly, it has been the policy of all governments to grant an asylum to persons who have fied from their homes on account of political disturbances and who might be there amenable to laws framed with regard to such sub- jects, and to the personal allegiance of the party. In many of the treaties of extradition between the civilized nations of the world, there is an express exclusion of offenders against such laws, and in none of them is this class of offenses mentioned as being the founda- tion of extradition proceedings. Indeed, the enumeration of offenses in most of these treaties, and especially in the treaty nov/ under con- sideration, is so specific, and marked by such a clear line in regard to the magnitude and importance of those offenses, that it is impos- sible to give any other interpretation to it than that of the exclusion of tlie right of extradition for any others, " It is, therefore, very clear that this treaty did not intend to depart in tills respect from the recognizetl public law which had prevailed CHAP. II.] UNITED STATES V. RAUSCHEK. 155 in the absence of treaties, and that it was not intended that this treaty should be used for any other purpose than to secure the trial of the person extradited for one of the offenses enumerated in the treaty. This is not only api)arent from the general principle that the specific enumeration of certain matters and things implies the exclusion of all others, but the entire face of the treaty, including the processes by wliich it is to be carried into effect, confirms this view of the subject. It is unreasonable to suppose that any demand for rendition framed upon a general representation to the govern- ment of the asylum (if we may use such an expression) tliat the party for whom the demand was made was guilty of some violation of the laws of the country which demanded him, without specifying any paiticular offense with which he was charged, and even without si)ecifying an offense mentioned in the treaty, would receive any serious attention ; and yet such is the effect of the construction that the party is properly liable to trial for any other offense than that for which he was demanded, and wliich is described in the treaty. There would, under that view of the subject, seem to be no need of a description of a specific offense in making the demand. But, so far from this being admissible the treaty not only provides that the party shall be charged with one of the crimes mentioned, to wit, nmrder, assault with intent to commit murder, piracy, arson, rob- bery, forgery or the utterance of forged paper, but that evidence sliall be produced to the judge or magistrate of tlie country of which such demand is made, of the commission of such an offense, and that this evidence shall be such as according to the law of that country would justify the apprehension and commitment for trial of the person so charged. If the proceedings under which the party is arrested in a country where he is peaceably and quietly living, and to the protection of whose laws he is entitled, are to have no influ- ence in limiting the prosecution in the country where the offense is charged to have been committed, there is very little use for this par- ticularity in charging a specific offense, requiring that offense to be one mentioned in the treaty, as well as sufficient evidence of the party's guilt to put him upon trial for it. Xor can it be said that, in the exercise of such a delicate power under a treaty so well guarded in every particular, its provisions are obligatory alone on the State which makes the surrender of the fugitive, and that that fugitive passes into the hands of the country which charges him with the offense, free from all the positive requirements and just impli- cations of the treaty under Avhich the transfer of his person takes place. A moment before he is under the protection of a govern- ment which has afforded him an asvlum from which he can onlv bj 156 TERRITORIAL jrRISDICTIOX. [PART I. taken under a very limited form of procedure, and a moment after he is found in the possession of another sovereignty by virtue of that proceeding, but divested of all the rights which he had the moment before, and of all the rights which the law governing that proceeding was intended to secure. '• If upon the face of this treaty it could be seen that its sole object was to secure the transfer of an individual from the jurisdiction of one sovereignty to that of another, the argument might be sound ; but as this right of transfer, the right to demand it, the obligation to grant it, the proceedings under which it takes place, all show that it is for a limited and defined purpose that the transfer is made, it is impossible to conceive of the exercise of jurisdiction in such a case for any other purpose than that mentioned in the treaty, and ascertained by the proceedings under which the party is extradited, without an implication of fraud upon the rights of the party extra- dited, and of bad faith to the country which permitted his extra- dition. Xo such view of solemn public treaties between the great nations of the earth can be sustained by a tribunal called upon to give judicial construction to them. '' The opposite view has been attempted to be maintained in this country upon the ground that there is no express limitation in the treaty of the right of the country in which the offense was com- mitted to try the person for the crime alone for which he was ex- tradited, and that once being within the jurisdiction of that country, no matter by what contrivance or fraud or by what pretense of establishing a charge provided for by the extradition treaty he may have been brought within the jurisdiction, he is, when here, liable to be tried for any offense against the laws as though arrested here originally. This jn-oposition of the absence of express restriction in the treat}^ of the right to try him for other offenses than that for which he was extradited, is met by the manifest scope and object of the treaty itself. The caption of the treaty, already quoted, declar- ing that its purpose is to settle the boundary line between the two governments ; to provide for the final suppression of the African slave trade ; adds, ' and for the giving up of criminals, fugitive from justice, in certain cases? The treaty, then, re(piires, as we have alread}'^ said, that there shall be given up, upon requisitions respect- ively made by the two governments, all persons charged with any of the seven crimes enumerated, and the provisions giving a party an examination before a proper tribunal, in which, before he shall be delivered up on this demand, it must be shown that the offense for which he is demanded is one of those enumerated, and that the proof is sufficient to satisfy the court or magistrate l>efore whom CHAP. 11.] UNITED STATES V. EAUSCHER. 1 )( this exiuniiiation takes place that he is guilty and such as the law of State of the asylum requires to establish such guilt, leave no rea- son to doubt that the fair purpose of the treaty is, that the person shall be delivered up to be tried for that offense and for no other. " If there should remain any doubt upon this construction of the treaty itself, the language of two acts of Congress, heretofore cited, incorporated in the Revised Statutes, must set this question at rest. Rev. Stat. §§ 3272, 3275. * * * " The obvious meaning of these two statutes, which have reference to all treaties of extradition made by the United States, is that the party shall not be delivered up by this government to be tried for any other olfense than that charged in the extradition proceedings ; and tliat, when brought into this country upon similar proceedings, he shall not be arrested or tried for any other offense than that with Avhicli he Avas charged in those proceedings, until he shall have had a reasonable time to return unmolested to the country from which he Avas brought. This is undoubtedly a congressional construction of the purpose and meaning of extradition treaties such as the one we have under consideration, and whether it is or not, it is conclusive upon the judiciary of the right conferred upon persons bought from a for- eign country into this under such proceedings. " That right, as we understand it, is that he shall be tried only for the offense with which he is cliarged in the extraditicm proceedings, and for which he was delivered up, and that if not tried for that, or after trial and acquittal, he shall have a reasonable time to leave the country before he is arrested upon the charge of any other crime committed previous to his extradition. * * * " Upon a review of these decisions of the Federal and State courts, to which may be added the opinions of the distinguished writers which we have cited in the earlier part of this opinion, we feel author- ized to state that the weight of authority and of sound principle are in favor of the proposition, that a person who has been brought within the jurisdiction of the court by virtue of proceedings under an extradition treaty, can only be tried for one of the offenses de- scribed in that treaty, and for the offense with which he is charged in the proceedings for his extradition, until a reasonable time and oppor- tunity have been given him, after liis release or trial upon such charge, to return to the country from whose asylum he had been for- cibly taken under those proceedings." Wa^t, C. J., dissented from the opinion of the court.^ ^ The decision in Rauscher's case put an end to a controversy between tlie United States and England, of some years' standing, as to the interpretation of the extradi- tion clause of the treaty of 1S42. England had contended that a person surrendered 158 TEKKITOKIAL JURISDICTION. ['P^UT 1. TRDIBLE'S CASE, 1884. (Moort OH Extradition, I., 160.) The question as regards the power aud duty of a State to surrender its own /•itizt'iib un(h?r treaties of extradition. The question of the power of the government of the United States to surrender its citizens under tlie treaty witli Mexico of ISGl, was discussed in 1884, in tlie case of Alexander Trimble, an American citizen, whose extradition was demanded on charges of robbery and nuu'der. The first article of the treaty stipulates that the contracting parties shall, on requisition " deliver up to justice persons, who, etc." But in the sixth article, it is further declared that "neither of the con- tracting parties shall be bound to deliver up its own citizens under the stipulations of this treaty." The government of the United States declined to order the sur- render of the prisoner, on tbe ground that, as the treaty negatived any obligation to do so, the President was not invested with legal authority to act. Mr. Frelinghuysen said, " It appears that, by the opinions of several Attorneys-General, by the decisions of our courts, and by the rulings of the Department of State, the President has not, independent of under the treaty, could be tried for no offense except the specific one for which extradition was accorded. The government of the United States liad insisted, on the other hand, tliat a person once extradited could be indicted and trie.l for offenses other than that charged in the demand for extradition. (See the cases of Law- rence aud Winslow, Moore's Extradition, I., 196-219 ; Wharton's Digest, II., §270 ; U. S. Foreign Relations, 1876.) The Supreme Court, in Kanscher's case, upholds the English view of the question. Previous to this authoritative decision, judicial opinion had been divided. In accord with this decision : Com. v. Ilawes, 1877, 13 Bush., 697; lilanford v. The State, 1881, 10 Texas App., 627; WatVs Case, 1882, 14 Fed. Rep., 139; State v. Van- derpool, 1881, 39 Ohio State, 237. Contra : CaldweWs Case, 1871, 8 Blatch, 131 ; La'jarve's Case, 1873, 14 Abb. Pr. (N. S.), 333; In re Miller, 1885, 23 Fed. Rep., 32; Ex parte Ilihbs, 1886, 26 Fed. Rep., 422. The decisions of the French court of Cassation are in accord with that of tlie United States Supreme Court: Dalloz, 1S67, p. 281, Xo. 6, and lb., 1874, p. 502 and notes. In Rauscher's case, the Supreme Court expressed the opinion lliat. in the absence of treaty, there was under international law no right of extradition. And further that, in the United States, extradition is a matter exclusively in the control of the Federal government. (See Ex parte Holmes, 1840, 12 Vt., 631; Holmes V. JeiUiisoh, 14 Peters, 540; People v, Curtis, 50 X. Y., 321.) CHAP. 11.] tremble's case. 1;J9 treaty provision, the power of extraditing an American citizen; and the only question to be considered is wlietlier the treaty witli Mexico confers that power. " By the treaty with Mexico proclaimed June 20, 1SG2, tliis country places itself under obligations to Mexico to surrender to justice persons accused of enumerated crimes committed within the jurisdic- tion of Mexico who shall be found Avithin the territory of the United States; and further provides that that obligation shall not extend to the surrender of American citizens. The treaty confers upon the President no affirmative power to surrender an American citizen. The treaty between the United States and Mexico creates an oljliga- tion on the part of the respective governments, and does no more, and where the obligation ceases the power falls. It is true that treaties are the laws of the land, but a statute and a treaty are sub- ject to different modes of construction. If a statute by the first section should say, The President of the United States shall sur- render to any friendly power any person who has committed a crime against the laws of that power, but shall not be bound so to sur- render American citizens, it might be argued, perhaps correctly, that the President had a discretion whether he would or would not sur- render an American citizen. But a treaty is a contract, and must be so construed. It confers upon the President only the power to perform that contract. I understand the treaty with Mexico as read- ing thus : The President shall be bound to surrender any person guilty of crime, unless such person is a citizen of the United States. " Such being the constrtiction of the treaty, and believing that the time to prevent a violation of the law of extradition was before the citizens left the jurisdiction of the United States, I telegraphed the Governor of Texas that an American citizen cf)uld not legally be held under the treaty for extradition. " It would be a great evil that those guilty of high crime, whether American citizens or not, should go unpunished ; but even that re- sult could not justify an usurpation of power. "On further reflection, in view of the fact that fourteen of our treaties with other nations contain provisions identical with that con- tained in our treaty with Mexico, and impressed also with the fact that the safety and peace of society on the frontier would be greatly injured if criminals, because citizens of this country, could here find an asylum and go unpunished, I concluded that the question was one of too much importance to l>e settled by the dictum of any individual, but should receive judicial determination, and to this end I telegraphed the ofiBcers to hold the accused until they received other direction. The accused had, however, after my first telegram, been discharged 160 TERRITORIAL JURISDICTION. [PART I. " T now propose to iiiforiii the ofQcers in Texas, who, subject to the supervision of tlie President, are autliorized to determine wliether a surrender of the accused should be made, that if another arrest is made and a case of guilt is made out, the President will not, on the ground of citizenship, interfere Avith an order of surrender if such be made, but requires that the accused be informed that if he or they wish a hearing before the Supreme Court of the United States on habeas corpus as to the poAver of the President in the matter of ex- tradition, or as to the true construction of the treaty before the sur- render be actually made, every facility for such hearing will be afforded. Should the court hold that the President has a discre- tionary power of extraditing citizens proven guilty of crime, the evil apprehended will not be realized ; and should the court hold that the President has the power to extradite only when Ijound l)y treaty to do so, Congress can then, if it should l)e its pleasure, by statute confer the discretionary power.'' ^ ^ In a similar case, in 1893, not yet reported, it is understoo 1 that the Federal District Court of Texas discharged the jjrisoner, on the grounds stated by Mr. Frelinghuysen, thus preventing a review of the question by the Supreme Court. " The exemption of citizens from extradition has been maintained on various grounds. The only one which need seriously be noticed is that by the laws of most countries provision is made for the trial an 1 punishment of their citizens for offenses committed abroad, and that a State should not deliver up one of its citi- zens to be tried before a foreign tribunal when he can be punished at home under its own laws. By England and the United States alone are offenses, even when committed by their citizens or subjects, trer,ted as entirely local." (Moore's Ex- tradition, I., 153.) In negotiating extradition treaties these two states have therefore been willing to stipulate for the rendition of their own subjects or citizens. Indeed, the United States for a time refused to enter into extradition treaties on any other basis; but since 1S52 this objection appear.i to have baen waived, and a large number of our treaties of extradition, as that witli Mexico, exempts each party from the obliga- tion to surrender its own citizens. But as this exemption fro.u thi obligation to surrender citizens was doubtless inserted in these treaties in deference to the opinion of other states, it is not prob- able that it was intended as an absolute prohibition upon the President of the United States; indeed, the wording of the clause would seem to imply a discretion on the part of the contracting parties. In 1S80, the Institute of International Law, after an exh::M3'ive discussion of the subject of extradition, adopted a series of resolutions, the sixth of which was as follows: — " Between countries whose criminal legislation rests on similar foundations, and which have confidence in each others ju licial institutions, the extradition of their own citizens would be a means of securing the good administration of criminal justice, because it ought to be desirable that the authorities of i\\Q forum delicti commissi should, if possible, be called upon to try the case." See on this subject: Moore's Extradition, I., 152; Dana's Wheaton, pp. 189-191, notes. CHAP. II.] CASE OF CAZO. 101 CASE OF CAZO, 1SS7. (Moore on Eztrivlltion, I., 324.) What constitutes a political offense ? On February .3, 1887, the Mexican minister presented a request for the extradition of one "Francisco J. Cazo and his accomplices," charged with murder, assault with intent to commit murder, and robbery, committed in the town of Af^ualeguas, in the state of Xuevo Leone, 3Iexico, on the Uth, 12th, and 13th of July, 1886, who had taken refuge in Texas. The evidence disclosed that three or four days previously to the 11th of July, it was reported that Cazo was coming to attack the town. Just before midnight on the 10th of July, a number of per- sons ware observed to leave the place armed, and about two o'clock on the morning of the 11th an attack was made by a party of thirty or more persons, who could not be identified, but who kept shouting, " Hurrah for Don Francisco J. Cazo, and death to the Garra pai-ty ! " The raiders kept possession of the town for nearly three days, during which time they had armed encounters with the inhabitants, seized horses and other property, and committed other acts of violence. When they departed, Cazo left a proclamation with a citizen of the town with directions to publish it. In reply to the application for extradition, Mr. Bayard, then Secretary of State, on February 7, 1887, wrote as follows : " After a careful examination of the papers enclosed in your note, I am unable to avoid the conclusion that the acts of Cazo and his associates, who were about thirty or forty in number, were clearly of a political character, and consequently, under the express terms of article VI. of the treaty above mentioned, are not a proper basis for extradition. The character of the outbreak, the kind and quantity of the property taken, and the mode of attack all lead to that con- clusion. "Although the first assault of Cazo's party was made in the night, there was no effort to conceal the personal identity of the leader, and such property as was seized was taken manifestly for the pur- l-)ose of military equipment, for which it Avas adapted. The evidence offered of the fact that Cazo led the attack is the testiin-^ny of several witnesses that the assailants cried, ' Hurrah for Don Francisco J. Cazo! " and at least one witness testifies to the additional andaccom- 11 162 TEiUlITOIlIAL JUKISDICTION. [PAET I. pan3ing exclamation of, ' Death to the Garra party ! ' Another wit- ness states that Cazo left a proclamation in the hands of a resident of Agnaleguas, with a view to its publication. Indeed, all the cir- cumstances point to the conclusion that the atfair was an avowed, partisan political conflict." THE ST. ALBAXS RAID, 1864. {Moore on Extradition, I. 322.) "Wliat constitutes a political offense ? On October 19, 18G4, one Bennett H. Young and thirteen or four- teen associates, all of whom had come over from Canada for the pur- pose, raided the town of St. Albans, in the State of Vermont ; pil- laged the bank ; set fire to several buildings ; took and held a number of citizens as prisoners ; and committed other acts of violence. While in possession of the bank they seized a man named Breck, who had entered on private business, and b}- threats of violence compelled him to give up a sum of mone}^ which he had in his possession. They were finally driven away by the citizens of the town, one of whom was killed. On October 25 and •29, andXovember 1, 1864, Mr. Seward made requisitions for their surrender on charges of murder, assault with intent to commit murder, and robbery. They were all arrested in Canada, and lodged in jail at ^Montreal. Passing over other pro- ceedings, which will be noticed in their proper place, they were brought before Justice Coursol, of the city of Montreal, by whom they were, on December 13, 1864, discharged on the ground that, as there was no warrant from the Governor-general to authorize their arrest, as required by the Imperial extradition act then in force, there was no jurisdiction to hear the case, and no justification for the fugi- tives' further detention. Immediately upon their discharge, a war- rant was issued by 3Ir. Justice Smith, of the superior court, for their re-arrest. On this warrant only five of the fugitives were taken, and these were brought back to Montreal and lodged in jail. Their ex- amination was proceeded M'ith before Judge Smith from time to time until March 25, when he discharged them. Various grounds were taken on behalf of the prisoners. The only one to be noticed in this place is the claim made that the acts with which they were charged were belligerent, and therefore not within the extradition treaty. It was shown that Young held a commission as a first lieutenant in the army of the Confederate States, under an appointment by President CHAP. II.] IN KE CASTIOXI. 1G3 Davis, dated June 16, 1864, and signed by Jas. A. Seddon as Secretary of War. It was contended that in the attack on St. Albans he was acting as an officer under his commission, and that the other prisoners were soldiers of the Confederate army, acting under his command. After an extended discussion of the facts and the law. Judge Smitw states his conclusions in the following language ; — " I am therefore constrained to hold that the attack on St. Albans was a hostile expedition, authorized both expressly and impliedly by the Confederate States; and carried out by a commissioned officer of tlieir army in command of a party of their soldiers. And, therefore, that no act connnitted in the course of, or as incident to, that attack can be made the ground of extradition under the Ashburton treaty. And that if there had been any breach of neutrality in its inception, upon which point I state no opinion, it does not afi'ect this appli- cation, which must rest entirely upon the acts of the prisoners within the territories of the state demanding their extradition, and upon their own status and authority as belligerents." ^ In Be CASTIONI. Queen's Bench, 1890. ( L. R. Queen's Bench T>iv., 149.) What constitutes a political offense ? On an application for a writ of habeas corpus, the motion was made on behalf of Angelo Castioni, for an order nisi calling upon the solic- itor to the Treasury, Franklin Lushington, Esq. , a metropolitan police magistrate, and the consul-general of Switzerland, as repre- sentative of the Swiss Repul)lic, to show cause why a writ of habeas corpus should not issue to bring up the body of Castioni in order that he might be discharged from custody. The prisoner Castioni had been arrested in England on the requi- sition of the Swiss Government, and brought before the magistrate at the police court at Bow Street, and by him committed to prison for the purpose of extradition, on a charge of willful murder, alleged to have been committed in Switzerland. The facts, which were contained in depositions sent from Switzer- land, in the depositions taken before the magistrate at Bow Street, ^ In the case of Builey, 1864, who was charged with similar hostile acts against United States vessels on Lake Erie, the accused was arrested in Canada, and sin-ren- dered up to the United States. But on his trial, in Ohio, the court held that his acts were belligerent and not committed animo furandi. (Moore's Extradition, I., ol'J.) 164 TERRITORIAL JURISDICTION. [PAKT t and in affidavits used on the hearing of the motion were sliortl}- as follows : — The prisoner was charged with the murder of Luigi Rossi, by shoot- ing him with a revolver on September 11, 1800, in the town of Bel- linzona, in tlie canton of Ticino, in Switzerland. The deceased, Rossi, \\"as a member of the State Council of tlie canton of Ticino, and was about twenty-six years of age. The prisoner, Castioni, was a citizen of the same canton ; he liad resided for seventeen years in England, and arrived at Ijellinzona on Septeml)er 10, 1890. For some time previous to this date much dissatisfaction had been felt and expressed by a large number of the inhabitants of Ticino at the mode in wlncli tlie political party then in power were conducting the government of the canton. A request was presented to the Government for a I'evision of tlie constitution of the canton, under art. 15 of the consti- tution, which provides that " The constitution of the canton may be revised wholly or partially. * * * (b) at the request of 7,000 citizens presented with the legal formalities. In this case the council shall wdthin one month submit to the people the question whether or not they wish to revise the constitution," and a law of May 9, 1877, prescribes the course to be adopted for the execution of letter (b) of art. 15, The Government having declined to take a popular vote on the question of the revision of the constitution, on September 11, 1890, a number of the citizens of Belliiizona, among whom was Castioni, seized the arsenal of the town, from which they took rifles and am- munition, disarmed the gendarmes, arrested and bound or handcuffed several persons connected with the Government, and forced them to march in front of the armed crowd to the municipal palace. Ad- mission to the palace was demanded in the name of the people, and was refused by Rossi and another member of the Government, who were in the palace. The crowd then broke open the outer gate of the palace, and rushed in, pushing before them the Government officials whom they had arrested and bound; Castioni, who was armed with a revolver was among the first to enter. A second door, which was locked, was broken open, and at this time, or immediately after, Rossi, who was in the passage, was shot through the body with a revolver, and died very soon afterwards. Some other shots were fired, but no one else was injured. Two witnesses, wiio were present Avhen the shot was fired, and were called before the magis- trate at Bow Street, identified Castioni as the person who fired the shot. One of the Avitnesses called for the prisoner was an advocate named Bruni, who had taken a leading part in the attack on the municipal palace. In cross-examination he said : " The death of CHAr. II.] IN RE CASTIONI. 1G,3 Rossi was a misfortune, and not necessary for the rising." There was no evidence tliat Castioni had any previous knowledge of liossi. The crowd then occupied the pahice, disarmed tlie gendarmes wlio were there, and imprisoned several members of the Government. A provisional Government was appointed, of which IJruni was a member, and assumed the Government of the canton, which it re- tained until disi)ossessed by the armed intervention of the Federal Government of the llepublic. The magistrate was of opinion that the identification of Castioni was sufficient, and held upon the evidence that the bar to extradition specified in § 8 of the Extradition Act, 1870: "A fugitive criminal .shall not be surrendered if the offence in respect, of which his sur- render is demanded is one of a political character, or if he prove to the satisfaction of the police magistrate, or the court before whom he is brought on habeas-corjrus, or to the Secretary of State, that the requisition for his surrender has in fact been made with a view to try or punish liim for an offence of a political character," did not exist, and committed Castioni to prison. By the extradition treaty with Switzerland, dated Nov. 26, 1880, article 11 : "A fugitive crim- inal shall not be surrendered if the offence in respect of which his surrender is demanded is one of a political character, or if he prove that the requisition for his surrender has in fact been made with a view to try and punish him for an offence of a political character." Sir Charles Russell, for the prisoner; the Attorney-General, for the Crown. Dexmax, J. : — " Looking at the extreme importance of this case, I should have been disposed, if I had felt any serious doubt as to the course we ought to pursue, to have taken time, not so much to con- sider what our judgment should be, as to take care to put it in the best possible shape, or even to reduce it to writing. But there are many considerations which apply to cases of this sort. One is, that here is a man in custody who has been in custody for a considerable time, and no greater delay than is reasonably necessary ought to be interposed if our decision should be one to the effect that he ought not to be in custody any longer. I am unable to entertain a doubt that this is a case in which we ought to order that the prisoner be discharged. "There has been no legal decision as yet upon the meaning of the words contained in the act of 1870, upon the true meaning of which this case mainly depends. We have had many definitions sug- gested, and great light has been thrown upon the possible and prob- able meaning of the words by the arguments that have 1)een ad- dressed to us, applying not only the language of judges, but language 1G6 Ti:i;i:iTOKiAL jueisdictiox. [part l used in text-books, language used by great political authorities, and in one case by a most learned philosopher. I think it has been useful in such a case as this that we should hear a discussion as to the pos- sible meaning of the words, as it has occurred that they ought to be construed to people such as those whose opinions have been cited, and especially I may apply that observation to the case of my very learned brother whose assistance we have on this occasion in deciding the present case. I do not tlmik it is necessary or de- sirable that we should attemjat to put into language, in the shape of an exhaustive definition, exactly the whole state of things, or every state of things which bring a particular case within the description of an offence of a political character. I wish, however, to express an opinion as to one matter upon which I entertain a very strong opinion. That is, that if the description given by Mr. John Stuart ]Mill, ' Any offence committed in the course of or furthering of civil war, insurrection, or political commotion,* were to be construed in the sense that it really means any act which takes place in the course of a political rising without reference to the object and hiten- tion of it, and other circumstances connected with it, I should say that it was a wrong definition and one which could not be legally ap- plied to the words in the x\ct of Parliament. Sir Charles Russell suggested that ' in the course of ' was to be read with the words fol- lowing, ' or in furtherance of,' and that ' in furtherance of is equiv- alent to ' in the course of.' I cannot quite think that this was the intention of the speaker, or is the natural meaning of the expression ; but I entirely concur with the observation of the Solicitor-General that in the other sense of the words, if they are not to be construed as mere! 3' equivalent expressions, it would be a wrong definition. I think that in order to bring the case within the words of the Act and to exclude extradition for such an act as murder, which is one of the extradition offences, it must at least be shown that the act is done in furtherance of, done with the intention of assistance, as a sort of overt act in the course of acting in a political matter, a polit- ical rising, or a dispute between two parties in the state as to which is to have tlie government in its hands, before it can be brought within the meaning of the words used in the act. " Sir Charles Russell has argued that in every case it is for the party seeking extradition to bear the onus of affirmatively bringing it within the meaning of those words. On the other hand, it has been contended tliat if there be an extraditable offence, the onus is upon tlie person seeking the benefit of those words to show a case in which extradition can be avoided. I do not myself think tlr.vt it is possible to decide a case such as this, or the true meaning of taose CHAP. II.] IN RE CASTIONl. l('iT words, l)y applyinc^ any such test as on whom is the onus. I do not tliiidc it is intended that a scrap oi a ^^rima /acie case on tlie one side sliould have tlie effect of tin-owing upon the other side the onus of proving or disproving liis position. I hjok at tlie words of the act themselves and I think that they are against any such narrow technical mode of dealing with the case. The words of s. 3, subd. 1, are 'a fugitive criminal shall not be surrendered if the offence in respect of which his surrender is demanded is one of a political character.' The section itself begins : ' The following restrictions shall be observed with respect to the surrender of fugitive criminals.' There is nothing said as to upon whom is the 07ius prohandl, or that it shall be made to appear by one side or the other in such a case. It is a restriction upon the surrender of a fugitive criminal, and however it appears, if it does appear, that the act was, in the judg- ment of the court, an offence which would otherwise be an offence according to the laws of this country, but an offence of a political character, then wholly irrespective of any doctrine of onus on the one side or the other, that is within the jurisdiction, and he caimot be surrendered. It was at first contended, in opposition to the application for a Jiaheas corinis, that if the magistrate upon this question once made up his mind, the court had no jurisdiction to deal with it. It appears to me that this proposition cannot be maintained on the very face of the act itself, which requires by s. 11 that the magistrate shall inform the prisoner that he may apply for a habeas co)-pus, and if he is entitled to apply for a habeas corjnis, I think it follows that this court must have power to go into the whole matter, and in some cases, certainly if there be fresh evidence, or perhaps upon the same evidence, might take a different view of the matter from that taken V>y the magistrate. " It seems to me that it is a (piestion of mixed law and fact — mainly indeed of fact — as to whetlier the facts are such as to bring the case within tlie restriction of s. 3, and to show that it was an offence of a politiiial character. I do not think it is disputed, or that now it can be looked upon as in controversy, that there was at this time existing in Ticino a state of things which would certainly show that there was more than a mere small rising of a few people against the law of the State. I think it is clearly made out by the facts of this case, that there was something of a very serious character going on — amounting, I should go so far as to say, in that small com- munity, to a state of war. There was an armed body of men who had seized arms from the arsenal of the State ; they were rushing into the municipal council chamber in which the government of the State used to assemble ; they demanded admission; admission was 168 TERRITORIAL JURISDICTION. [PART I. refused ; some firing took place ; the outer gate was broken (Io\mi ; and I think it also appears perfectly plain from the evidence in the case that Castioui was a person who had been taking part in that movement at a much earlier stage. He was an active party in the movement ; lie had taken part in the binding of one member of the government. Some time before he arrived with his pistol in his hand at the seat of government, he had gone with multitudes of men, armed with arms from the arsenal, in order to attack the seat of government, and I think it must be taken that it is quite clear that from the very first, he was an active party, one of the rebellious party who was acting and in the attack against the government. Now, that being so, it resolves itself mto a small point, depending on the evidence which Avas taken before the magistrate, and any- thing that we can collect from the evidence that we have before us and from the whole circumstances of the case. " Before dealing with the evidence, I will say one thing about the message which was objected to and which was read after a slight discussion, upon the understanding that we were not going to use that document as evidence of any particular fact, but that it would be only used as an important document showing that the govern- ment of the country liad themselves looked upon this as a serious political rising, and a serious state of violence by a very large body of the people against the government. I mean so to use it, and I have never thought of using it in any other way. I think that was the understanding upon which we allowed it to be read, and I feel that I am not justified in using it for any other purpose. Then it is reduced to the question of whether, upon the depositions sent over, and upon the depositions before the magistrate and upon the fresh facts, if there be any, which are brought before us on the afiidavits, we think that this was an act done, not only in the course of a po- litical rising, but as part of a political rising. Here I must say at once that I assent entirely to the observation that we cannot decide that question merely by considering whether the act done at the moment at which it was done was a wise act in the sense of being an act which the man who did it would have been wise in doing with tlie view of promoting the cause in wliich he was engaged. I do not think it would be at nil consistent with tlie real meaning of the words of tlie statute if we were to attempt so to limit it. I mean, I do not think it wc^uld be right to limit it in the way suggested by the cross-examination of Bruni, namely, by considering whether it was necessary at tliat time that the act should be done. The ques- tion really is whether, upon the facts, it is clear that the man was acting as one of a number of persons engaged in acts of violence of CHAP. II.] IN RE CASTIONI. IG'J ii politic-ill character with a pohtical object, and as part of the poUtical moveiueiit and rising in which he was taking p;irt. Now, the only shadow of a suggestion of evidence to the contrary, I tliink, is the suggestion wliieh a[)[)ears on the face of some of the documents that he said something about his brother having been assassinated some years before. It was said in the message, Avhich I have already said I do not rely upon as a statement of fact, that he did at the time he fired use the expression, ' My brother's death cries for vengeance!' That is in the document, and is a statement of fact which I do not rely upon, and I do not think that I am justified in relying upon it, though if I commented on that, I should certainly say it was quite as capable of the construction put upon it by Sir Charles Ilussell, that he Avas not intending to nmrder Rossi, of whom he knew nothing, and of A\hose connection with any injury towards his brother there is not the slightest par- ticle of evidence, as that it means anything of the kind suggested. Then it amounts to a very little, and it comes to discussion as to the facts of the case, and as to what was taking place at the exact mo- ment at which the shot Avas fired. I have carefully followed the discussion as to the facts of the case, and if it were necessary I could go through them all one by one, and point out, I tliink, that, looking at the way in which that evidence was given, and at the evidence itself, there is nothing in my judgment to displace the view which I take of the case, that at the moment at which Cast ion i tired the shot, the reasonable presumption is, not that it is a matter of absolute certainty (we cannot be absolutely certain about anything as to men's motives) but the reasonable assumption is that he, at the moment knowing nothing about Rossi, having no spite or ill- will against Rossi, as far as we know, fired that shot ; that he hred it thinking it would advance, and that it was an act Avhich M'as in furtherance of, and done intending it to be in furtherance of the very ol)ject which the rising had taken place in order to promote, and to get rid of the Government, who, he might, until he had ab- solutely got into the place, have supposed were resisting the en- trance of the people to that place. That, I think, is the fair and rea- sonable presumption to draw from the facts of the case. I do not know that it is necessary to give any opinion as to the exact mo- ment when the shot was fired ; there is some conflict about it. There is evidence that there was great confusion ; there is evidence of shots hred after the shot which Castioni fired ; and all I can say is, that looking at it as a question of fact, I have come to the coneln- sion that at the time at which that shot was fired he acted in the fur- therance of the unlawful rising to which at that time he was a pariy, irO TEIUMTOKIAL JURISDICTION. [PART I. and an active party — a person who had been doing active work from a very nuicli earUer period, and in wliich he was still actively en- gaged. That being so, I thuik the writ ought to issue, and that we should be acting contrary to the spirit of this enactment, and to the- fair meaning of it, if we were to allow him to be detained in cus- tody longer." Hawkins, J., said, among other things, " Now what is the meaning of crime of a political character ? I have thought over this matter very much indeed, and I have thought whether any definition can be given of the political character of the crime — I mean to say, in language which is satisfactory. I have found none at all, and I can imagine for myself none so satisfactory, and to my mind so complete, as that which I find in a work which I have now before me, and the language of which for the purpose of my present judgment I en- tirely adopt, and that is the expression of my brother Stephen in his History of the Criminal Law of England in vol. ii., pp. 70, 71. I will not do more than refer to the interpretations, other than those with which he agrees, which have been given upon this expression, ' political character ' ; but I adopt his definition absolutely. ' The third meaning which may be given to the words, and which I take to be the true meaning, is somewhat more complicated than either of those I have described. An act often falls under several differ- ent definitions. For instance, if a civil war were to take place, it would be high treason by levying war against the Queen. Every case in which a man was shot in action would be murder. When- ever a house was burnt for military purposes arson would be com- mitted. To take cattle, etc., Ijy re([uisition would be robbery. Ac- cording to the common use of language, however, all such acts would be political offences, because they would be incidents in carrying on a civil war. I think, therefore, that the expression in the Extradi- tion Act ought (unless some better interpretation of it can be suggested) to be interpreted to mean that fugitive criminals are not to be surrendered for extradition crimes, if those crimes were incidental to and formed a part of political disturbances. I do not wish to enter into details beforehand on a subject which might at any moment come under judicial consideration.' The question has come under judicial consideration, and having had the opportunity before this case arose of carefully reading and considering the views of my learned brother, having heard all that can be said upon the subject, I adopt his language as the definition that I think is the most perfect to be found or capable of l)eing given as to what is the meaning ts against the life of the Emperor of Russia or the m 'mbers of his family arj to b9 considered as extraditable offences. And further, " the fact that the crime or offence, in respect Mdiereof extradition is demande 1, has been committed for a political object, shall in no case be a reason for refusing extradition." (Lowe's Life of Bismarck, II., 19.) On this subject, see Moore's Extradition,, I., 303-320. 172 TERKITOPvIAL JUKI8DICTI0X. frAKT I, Section 15. — Jurisdiction of Offenses Committed Abroad. CUTTING'S CASE, 1886. (Report on the Cuttiny Cane, by J. B. Moore, 1887.) May the courts of a State take jurisdiction iu tlie case of offenses against its citizens, eoiumilted by foreigners iu foreign countries ? A. K. Cutting, a citizen of tlie United States, was arrested in Paso del Xorte, Mexico, on the 28d of June, 1886, for the publication iu Texas of a libel against a jMexican citizen. Cutting had been for some time a resident of Paso del Xorte, engaged in editing a news- paper called El Centtnela, in a recent number of which he had reflected upon the character of one Medina, a Mexican, who proposed to start a rival newspaper in the same town. For this publication Cutting was, at the instance of Medina, arrested, brought before a local court, and required to sign a " reconciliation," which is in the nature of a compromise or settlement between the parties, in con- sideration of which the party who feels himself aggrieved abandons penal proceedings. Cutting then had the following notice inserted in the El Paso ITerald, in Texas : " To Emigdio Medma, of El Paso del Xorte : " El Paso, Texas, June 18th, 1886. " In a late issue of El Centinela., published in Paso del Xorte, 3Iex- ico, I made the assertion that said Emigdio Medina was a ' fraud ' and that the SiKinish newspaper he proposed to issue in Paso del Xorte was a scheme to swindle advertisers, etc. This morning said Medina took the matter to a Mexican court, and I was forced to sign a reconciliation. " Now I do herebj^ reiterate my original assertion that said Emig- dio Medina is a fraud and add 'dead beat' to the same. Also that his taking advantage of tlie Mexican law and forcing me to a 'recon- ciliation ' was contemptible and cowardly and in keeping with the odorous reputation of said Emigdio Medina. " And should said Medina desire American satisfaction for this reiteration, I will be pleased to grant him all he may desire, at any time, in any manner. "A. K. Cutting." CHAP. II.] cutting's case. 173 Article 186 of the Mexican Penal Code, under wliicli Cutting was arrested, is as follows : Penal offenses committed in a foreign country by a Mexican against Mexicans or foreigners, or by a foreigner against Mexicans, may be punished in tlie llepublic (Mexico) and according to its laws, subject to the following conditions : I. That the accused be in the Republic, whither he iias come voluntarily or has been l)rought by extradition proceedings, II. That, if the offended party be a foreigner, he shall have made proper legal complaint, III. That the accused shall not have been definitively tried in the country where the offense was committed, or, if tried, that he shall not have been acquitted, included in an amnesty, or pardoned. IV. That the breach of law of which he is accused shall have the character of a penal offense, both in the country in which it was committed and in the Republic, V. That by the laws of the Republic the offense shall be subject to a severer penalty than that of " arresto mayor" (detention for from one to eleven months). Notwithstanding the demand of the United States (July 19th) for the " instant release " of Cutting, "now unlawfully imprisoned at Paso del Xorte," the court at that place proceeded to try Cutting ; and on the Gth of August sentenced him to serve a year at hard labor and pay a fine of 6000. On appeal to the supreme court of Chihuahua, that court on the 21st of August, fully approved the decision of the lower court; but the prisoner w^as released on the ground that the plaintiff having withdrawn from the prosecution of the suit, the principal motive of its continuance had ceased to exist, it appearing, moreover, that the withdrawal had " for its principal object tlie quieting of the alarm consequent upon his complaint." The government of the United States then demanded an indemnity, for the imprisonment of Cutting ; and further, requested of Jlexico the abolishment or modification of the offensive article of her code. Mr. IJayard, Secretary of State, wrote : "This government is still compelled to deny, what it denied on the lOtli of July, 1880, and what the Mexican government has since executively and judicially maintained, that a citizen of the United States can be held under the rules of International Law to answer in Mexico for an offense com- mitted in the United States, simply because the object of that offense happened to be a citizen of Mexico. The government of ^Mexico has endeavored to sustain this pretension on two grounds: First that such a claim is justified by the rules of International Law and the positive legislation of various countries ; and, secondly, on the ground 174 TEURITOKIAL JURISDICTION. [PART I. that such a claim l)eing made in the legislation of ^fexico, the ques- tion is one solely for the decision of the Mexican tribunals." Again, " there is no principle better settled than that the penal laws of a country have no extraterritorial force. Each may, it is true, provide^ for the punishment of its own citizens for acts committed by them outside of its territory ; but this makes the penal law a personal statute, and while it may give rise to inconvenience and injustice in many cases, it is a matter in which no other government has the right to interfere. To say, however, that the penal laws of a coun- try can bind foreigners and regulate their conduct, either in their ovm. or any other foreign country, is to assert a jurisdiction over such countries, and to impair their independence. Such is the con- census of opinion of the leading authorities on International Law at the present day." ^ '^ Jurisdiction of extraterritorinl offenses. — The position of the government of the United States in the Cutting case, that tlie Mexican law giving to its coin-ts the jurisdiction of extraterritorial offenses, is contrary to custom and international law, and that the principles involved in it are practically obsolete in practice, would seem not to be borne out by facts. Aside from the question whether the common- law doctrine of territorial jurisdiction is the more expedient practical nile, it may at least be said that it is by no means so universally prevalent as to warrant the assertion that it has become a rule of 5nternational law. Xot only are there many codes which go quite as far in the direction of extraterritorial jurisdiction as that of Mexico, but there is probably not a state which adheres strictly to the territorial theoiy. In the first place, practically, all states punish their own citizens for offenses of one kind or another committed in foreign countries. Even England punishes not only for treasonable acts, but also for bigamy, murder, and manslaughter com- mitted abroad by her subjects. The laws of the United States, too, provide for the punishment of certain offenses committed abroad by their citizens. (Revised Statutes, § .5:^35; and see acts of Aug. IS, IS^jG, and Feb. 25, ISfiS). Secondly, In regard to foreigners, there is a large number of codes which take jurisdiction of offenses against the state committed by them in foreign states: and a lesser number which go further, and extend their jurisdiction to offenses against individuals. Of this number, are Austria, Hungary, Italy, Norway, Sweden, Russia, Greece, and Brazil, as well as Mexico. Again, there are many cases in the state courts of the United States, where acts, done by persons without the state but which take effect within the state, are held to be done by persons constructively within the state, and jurisdiction is assumed. Thus, if a man in one state fires a gun over the boundary line and kills a man in another state, he is triable in the latter state. (United States v. Davis, 2 Sumner. 482; State v, Wyckoff, 2 Yroom, X. J., G8; Com. v. Macloon, 101 Mass., 1). So. the author of a libel, uttered by him in one country, and published by others in another country, is triable in the latter country. (Com, v. Blanding, 3 Pickering (Mass.), .304; B. v. Johnson, 7 East., m). The Cutting case is similar to that of Com. v. Blanding, being a libel uttered in Texas, but being circulated and having its effect in Mexico; is the offense different in principle from that of wounding a man in one state by firing across the boundary from another state ? CHAP, n.] Mcleod's case. Section 16. — Extraterritorial Acts by Order of the State. McLEOD'S CASE, 1837. {Ilalleck^s International Law, I., 420.) An individual is not to be lield personally responsible for acts done by him in a foreign State by order of his government. "During the disturbances in Upper Canada, in the winter of 18.37, a steamboat called the ' Caroline,' belonging to an American owner, had been actively engaged in conveying arms and stores from the American side of the river to the Canadian rebels, who were in possession of Navy Island, and had been boarded in the night time by a party of Canadian Tioyalists, while she was lying within the jurisdiction of the territory of Xew York, set on fire, and sent down the stream, when she was precipitated over the falls of Xiagara and dashed to pieces. An American citizen, named Durfee, was killed in the affray, and several otliers wounded. "In the month of January. 1841, a British subject domiciled in Canada, named Alexander McLeod, was suddenly arrested while engaged in some business, within the territory of the State of Xew York, and thrown into prison by tlie authorities, on the charge of having been concerned in the destruction of the ' Caroline ' and the alleged murder of Durfee. " McLeod was, in the month of May, removed by habeas corjnis from Lockport to New York, in the custody of the sheriff of Xiagara County. Previously to this, the following note, dated March 12, 1841, was sent by Mr. Fox to Mr. Webster, the new American Secretary of State : — "'Her Majesty's Government have had under consideration the subject of the arrest and imprisonment of Alexander McLeod, on a pretended charge of arson and murder ; and I am directed to make known to the Government of the Ignited States, that the British Government entirely approved of the course pursued by him. I am Among jurists there is a wide difference of opinion in regard to the merits of the two systems — the "territorial" and the "personal" theories of jurisdiction. (T. E. Holland: Jurisprudence, 2d Ed., p. 318; F. Wharton: Philosophy of Criminal Law, p. 309, et seq.; L. Bar : Private International Law, Translation by G. R. Gillespie, p. 620 et seq.; Wharton's Conflict of Law, § 1810; " Ca^^e of \. K. Cutting, by the Minister of Foreign Relations of the Republic of Mexico, "" 1S£>6.) 176 TERRITORIAL JURISDICTION. [PART I. instructed to demand formally, and in the name of the British Government, the immediate release of Alexander McLeod, for the reason that the transaction was of a public character, planned and executed by persons duly authorized by the Colonial Government^ to take such measures as might be necessary for protecting the property and lives of Her Majesty's subjects ; and being, therefore, an act of public duty, they cannot be held responsible to tlie laws and trilumals of any foreign country.' "3Ir. Webster, in his correspondence with 3Ir. Fox, the British minister, said that ' Tlie Government of the United States enter- tains no doubt that, after the avowal of the transaction as a puV)lic transaction, authorized and undertaken by the British authorities, individuals concerned in it ought not, by the principles of public law and the general usage of civilized States, to be holden personally responsible in the ordinary'' tribunals of law for their particii^ation in it. And the President presumes that it can hardly be necessary to say that the American people, not distrustful of their ability to redress public wrongs by public means, cannot desire the punish- ment of individuals when the act complained of is declared to have been an act of government itself. * * * "'The indictment against McLeod is pending in a State court, but his rights, whatever they may be, are no less safe, it is to be pre- sumed, than if he were holden to answer in one of the courts of this government. He demands impunity from personal responsibility, by virtue of the law of nations, and that law, in civilized States, is to be respected in all courts.' " The Supreme Court of the State of Xew York (25 Wend. R., 483), held that a subject of a foreign State was liable to be pro- ceeded against individually, and tried on an indictment in the criminal courts for arson and murder, notwithstanding the acts for which the indictment was made had been subsequently avowed by his government, and it, consequently, refused to discharge him from custody. The opinion of the court was delivered by Mr. Justice Cowen, and is of great length. So far as the question of national law is concerned, the opinion rests upon the proposition, that till war is declared by the war-making power, the officers or citizens of a foreign government, who enter our territory, are as completely obnoxious to punishment by our law as if they had been born and always resided in this country ; that while two nations are at peace with each other, the acts of hostility by individuals must be regarded as private and not public acts, and that the courts will hold the par- ties individually responsible, notwithstanding the avowal of such acts by their government." CHAr. 11.] THE "CAKOLINE." 177 [McLeod was therefore put upon his trial, but the failure of the jur}' to convict him, on the evidence, put a practical termination to tlie matter. But to prevent tlie recurrence of such controversies in the future, by which the action of one of the States might jeopardize the foreign relations of the federal government, the act of August •29, 1S42 (IT. S. Stat, at Large, V., 539), was passed by Congress for bringing such cases, by writ of habeas corpus, under the cognizance of the courts of the United States at the inception of the proceed- ings.— P\ S.] Section 17. — Extbateeritorial Acts by a State, ix Self-defexse. THE "CAROLINE," 1837. (Wbartoyi's Di'jest, § 50 c.) A violation of foreign territory niaj^ be justified on the CTOund of the necessity of self-defense. In 1837 an insurrectionary movement was made in U"pper Canada, having in view a reform in the Government of that province. A proclamation had been issued from Xavy Island, in the Niagara River, signed by William Lyon Mackenzie, chairman ^^?*o tern, of the provisional government, calling upon the reformers to make that island their place of rendezvous, and to aid otherwise in revolu- tionizing the province. It stated that the command of the forces was given to General Van Rensselaer, a son of General Solomon Van Rensselaer, of Albany. The sympathy manifested by some citizens of the United States with the Canadian insurgents, induced the governors of New York and Vermont to issue proclamations, Avarn- ing the citizens of these states to refrain from any unlawful acts within the territory of the LTnited States. Notwithstandmg these proclamations, the insurgents were joined by citizens of the L'^'nited States; whence also they received arms and munitions of war. The steamboat Caroline owned by an American citizen, Avas said to be engaged in transporting recruits and supplies to the rendezvous on Xavy Island ; and it was further presumed that this boat would be the means of transferring the expedition to the Canadian shore. Under these circumstances, the British officer in command deter- mined to destroy the Caroline. A force was accordingly despatched tor that purpose on the night of the 29th of December, 1837. Not findmg her at Navy Island, the party proceeded to her moorings at 12 1T8 TERRITORIAL JURISDICTION. [PART I. Sclilosser on the American shore, attacked the crew, one of Avliom was killed, took the boat into the stream and left it to be carried over Xiagara Falls. A proclamation was promptly issued (January 5, 1838), by President Van Buren, enjoining on all citizens obedience to the laws and warning them that the violation of our neutrality would -subject the offenders to punishment. General Scott was forthwith ordered to the Canadian frontier to assume the military command there; and requisitions were made upon the Governors of New York and Vermont for such militia force as General Scott might require for the defense of the frontier. On the other hand, the act was made a subject of complaint by the American government, on the ground of a violation of territory ; but it was justified by Great Britain on the ground of the necessity of self-preservation. The question remained unsettled till 1842, when ^Nlr. "Webster, in correspondence -uith Lord Ashburton, contended, that for such an infringement of territorial rights, the British government must show " a necessity of self-defense, instant, overwhelming, and leaving no choice of means and no moment for deliberation ; " and it should further appear that the Canadian authorities, in acting under this exigence, " did nothing unreasonable or excessive, since the act, justi- fied by the necessity of self-defense, must be limited by that neces- sity and kept clearly within it." Lord Ashburton admitted the correctness of Mr. Webster's doctrine, and asserted that the destruc- tion of the Caroline came fully within its limits : and, though the act was justifiable, an apology for the violation of territory should have been made at the time. This was accepted by the L^nited States as satisfactory, and the subject was allowed to drop. (Par- liamentary Papers, 184.3, Ixi. 46—51 ; "Wharton's Digest of Interna- tional Law, I., § 50 c ; Benton's Thirty Years in the Senate, IL, 289, 45.5.) SEIZUPtE OF SAIXT MxVRirS. ( 1 Wharton'' a Li'/est, 224.) Necessity justifies an invasion of foreign territory so as to subdue an expected assailant. In 181.5, under orders of Mr. Monroe, measures were taken for the destruction of a fort held by outlaws of all kinds on the Appalachi- cola River, then within the Spanish territory, from which parties had gone forth to pillage within the L^nited States. Tlie governor of Pensacola had been called upon to suppress the evil and punish CHAP, n.] THE " Vir.GT>'IUS." 170 the marauders, but had refused; and on his refusal, the Spanish territory was entered, and the fort attacked and destroyed on the ground of necessity. General Jackson put his seizure and occupation of the fort at Saint ^Mark's, which was within Spanish territory, expressly on the ground of necessity. In his letter to tlie governor of Saint Mark's, he de- clared that the Spanish garrison, from its feebleness, would be un- able to resist the attacks of Indians who intended to make it a base for their operations against the United States. " To prevent the recurrence of so gross a violation of neutrality, and to exclude our savage enemies from so strong a hold as Saint ^Mark's, I deem it expedient to garrison that fortress with American troops until the close of the present war. This measure is justifialjle on the immutable principles of self-defense, and cannot but be satis- factory, under existing circumstances, to his Catholic Majesty the King of Spain. Under existing treaties between the two govern- ments, the King of Spain is bound to preserve in peace with the citizens of the United States, not only his own subjects, but all Indian tribes residing within his territory. AYhen called upon to fulfill that part of the treaty in relation to a savage tribe who have long depredated with impunity on the American frontier, incompe- tency is alleged, with an acknowledgment that the same tribe have acted in open hostility to the laws, and invaded the rights of his Catholic ]\Iajesty. As a mutual enemy, therefore, it is expected that every facility will be afforded by the agents of the King of Spain to chastise these lawless and inhuman savages. In this liglit is the possession of Saint Mark's by the American forces to be viewed." ^ THE " YIRGIXIUS," 1873. {U. S. Foreign Relations, 1874; Pari. Papers, 1874, vol. 76.) Seizure, on the high seas, of a vessel carrying a foreign flag, on the ground of self-defense. The Vtrgimus was registered in the United States and carried the American flag; but, as it eventually appeared, she was reall.y the property of certain Cuban insurgents, and was employed in aid of the rebellion in Cuba. On the 9th of July, 1873, she arrived at Kings- ton, Jamaica, and on the 23d of October she cleared ostensibly for 1 The seizure of Amelia Island, in 1817, by authority of the government of the United States, was put upon similar ground. ( 1 Wharton's Digest, § 50 a.) 180 TEEKITOUIAL JURISDICTION. [PAET I. Limon Bay in Costa Rica, but really for the coast of Cuba. Being chased by a Spanish war-ship, she put into Port-au-Prince, Ilayti. Thence she proceeded again to the coast of Cuba, and was again chased by a Spanish war-vessel the Tornado and was captured ten or fifteen miles from the coast of Jamaica, on the 31st of October. She was taken to Santiago de Cuba, where a court was assembled for the trial of the persons found on board — 155 in number: Of these four were tried on the od of November, and shot on the 4th, thiity- seven on the 7th, and sixteen on the 8th. Among those executed were nine Americans and sixteen British subjects. The government of the United States supposing that its rights on the high seas had been violated, demanded reparation. And by an agreement of the •29th of November, Spain stipulated to restore the Virginiits and the survivors of the passengers and crew, and to salute the flag of the United States on the 25th of December follow- ing, unless Spain should in the meantime prove that the vessel was not entitled to carry said flag. The matter was submitted to the Attorney-General of the United States, who, after careful examina- tion, reported on the 12th of December, that the registry of the Virr/imus was fraudulent, and that she had therefore no right to carry the American flag. But he added, " I am also of opinion that she was as much exempt from interference on the high seas by any other power, on that ground, as though she had been lawfully registered. Spain, no doubt, has a right to capture a vessel, witli an American register, and carrying the American flag, found in her own waters assisting, or endeavoring to assist, the insurrection in Cuba, but she has no right to capture such a vessel on the high seas upon an apprehension that, in violation of the neutrality or naviga- tion laws of the United States, she was on her way to assist said rebellion. Spain may defend her territory and people from the hostile attacks of what is, or appears to be an American vessel ; but she has no jurisdiction whatever over the question as to whether or not such vessel is on the high seas in violation of any law of the United States." Spain having proved her point, the salute to the flag was dispensed with. The vessel was delivered to the United States authorities on the 16th of December, 1873; but on her way north, sank, off Cape Fear, on the 2Gth of that month. Both the United States and England demanded reparation for the persons of their respective nationalities aaIio had Ijeen executed by the captors of the Virr/inius; and this Spain eventually agreed to make. Even assuming that the vessel was lawfully seized, it was contended that there could be no justification of the summary execu- tion of foreigners by order of a drum-head court-martial. V^HAP. II.] NEW ORLEANS KIOT. 181 The position of the Attorney-General, that Spain had no riglit to capture such a vessel on the high seas, etc., has called forth niucli adverse criticism. Both Woolsey and Dana justilicd the capture at the time. " Tlie register of a foreign nation," said Dana, " is not, and by tlie law of nations is not recognized as being, a national voucher and guaranty of national character to all the world, and nations having cause to arrest a vessel, would go beliind sucli a document to ascertain the jurisdictional fact which gives character to the document, and not the document to the fact." It was the duty of the Spanish captain, says Woolsey, to defend the coasts of Cuba against a vessel which was known to be under the control of the insurgents, for which he had been on the lookout, and against whicli the only effectual security was capture on the high seas. ( Woolsey 's International Law, 6th Ed., pp. 868, 369). In a pamphlet on the " Case of the F^V(/^/^^■^eculiar fitness in giving the power to define as well as to punish ; and there is not the slightest reason to doubt that this consideration had very great weight in producing the jjhraseology in question. " But, supposing Congress were bound in all the eases included in the clause under consideration to define the offence, still there is nothing which restricts it to a mere logical enumeration in detail of all the facts constituting the offence. Congress may as well define by using a term of a known and determinate meaning, as by an express enumeration of all the particulars included in that term. That is certain which is by necessary reference made certain. When the act of 1790 declares, that any i>erson who shall commit the crime of rob- bery, or murder, on the high seas, shall be deemed a pirate, the crime is not less clearly ascertained than it would l>e by using the defini- tions of these terms as they are found in our treatises of the com- mon law. In fact, by such a reference, the definitions are necessarily included, as nmch as if they stood in the text of the act In respect to murder, where 'malice aforethought' is of the essence of the offence, even if the common-law definition were quoted in express terms, we should still \je driven to deny that the definition was perfect, since the meaning of ' malice aforethought ' would remain to \je gathered from the common law. There would then be no end to our difficulties, or our definitions, for each would involve some terms which might still require some new explanation. Such a CHAr. III.] UNITED STATES V. SMITH. 199 construction of the Constitution is, therefore, wholly inadvisable. To define piracies, in the sense of the Constitution, is merely to enumerate the crimes which shall constitute piracy ; and this may be done, either by a reference to crimes having a technical name, and determinate extent, or by enumerating the acts in detail, upon which the punishment is inflicted. " It is next to bo considered, whether the crime of piracy is defined by the law of nations with reasonable certainty. What the law of nations on this subject is, may be ascertained by consulting the works of jurists, writing professedly on public law ; or by the general usage and practice of nations ; or by judicial decisions recognizing and en- forcing that law. There is scarcely a writer on the law of nations, who does not allude to piracy as a crime of a settled and determinate nature ; and whatever may be the diversity of definitions in other respects all writers concur, in holding that robbery, or forcible de- predations upon the sea, animo furamU, is piracy. The same doc- trine is held by all the great writers on maritime law, in terms that admit of no reasonable doubt. " The common law, too, recognizes and punishes piracy as an offence, not ag.iinst its own municipal code but as an offence against the law of nations (which is part of the common law), as an offence against the universal law of society, a pirate being deemed an enemy of the human race. Indeed, until the statute of 28th of Henry VIII., ch. 15, piracy was punished in England only in the admiralty as a civil law offence; and that statute, in changing the jurisdiction, has been universally admitted not to have changed the nature of the offence. Sir Charles Hedges, in his charge at the admiralty sessions, in the case of Rex v. Dmoson, 5 State Trials, declared in emphatic terms that 'piracy is only a sea term for robbery, piracy being a robbery committed within the jurisdiction of the admiralty.' Sir Leoline .Jenkins, too, on a like occasion, declared that ' a robbery, when com- mitted upon the sea, is what we call piracy ; ' and he cited the civil- law writers, in proof. "And it is manifest from the language of Sir William Blackstone, 4 Bl. Comm., 78, in his comments on piracy, that he considered the common law definition as distinguishable in no essential respect from that of the law of nations. So that, whether we advert to writers on the common law, or the maritime law, or the law of nations, we shall find that they universally treat of piracy as an otience against the law of nations, and that its true defhiition by that law is robbery upon the sea. And the general practice of all nations in punishing all persons, whether natives or foreigners, who have committed this offence against any persons whatsoever, 200 JURISDICTION OS THE HIGH SEAS. [PART J. with whom they are in amity, is a conclusive proof that the offence is supposed to depend, not upon the particular provisions of any municipal code, but upon the law of nations, both for its definition and punishment. We have, therefore, no hesitation in declaring- that piracy, by the law of nations, is robbery upon the sea, and that it is sufficiently and constitutionally defined by tlie fifth section of the act of 1819. " Another point has been made in tliis case, which is, that the special verdict does not contain sufficient facts upon which the court can pronounce that the prisoner is guilty of piracy. We are of a ditt'erent opinion. The special verdict finds that the prisoner is guilty of the plunder and robbery charged in the indictment ; and finds certain additional facts from which it is most manifest that he and his associates were, at the time of committing the offence, free- booters upon the sea, not under the acknowledged authority, or de- riving protection from the flag or commission of any government. If, under such circumstances, the offence be not piracy, it is difficult to conceive any which would more completely fit the definition. "It is to be certified to the Circuit Court, that upon the facts stated, the case is pirac}', as defined by the law of nations, so as to be punishable under the act of Congress of the 3d of March, 1819." Mr. Justice Livixgstoxe dissented, on the ground that the act of Congress did not contain such a definition of piracy as the Consti- tution requires. UXITED STATES v. THE " AMBROSE LIGHT." U. S. DiSTPJCT COUKT FOK So. DiST. OF X. Y., 1885. (2.5 Federal Beporter, 408.) Hehl, by District Court, Judge Brown, that a vessel found on the high seas in the hands of insurgents who have not been recognized as belligerents by any inde- pendent nation, may be regarded as piratical. The libel in this case was filed to procure the condemnation of the Ijrig Amhrose Lif/Jit, which was brought into this port as prize on June 3, 1885, by Lieut. Wright and a prize crew, detached from the L'nited States gun-boat Alliance^ under Commander Clarke, by whose orders the brigantine had been seized on the tw'enty-fourth of April. The seizure was made in the Caribbean sea, about twenty miles to the westward of Cartagena. CHAP. III.] UNITED STATES V. THE "AMBROSE LIGHT." 201 The communder was looking for the insurgent Preston, hy \vliose order Colon had shortly before been fired, to the great loss and injury of our citizens. Observing the brigantino displaying a strange flag, viz., a red cross on a white ground, he bore down upon her, and brought her to l)y a couple of shots across her bows. Before coming to, she exhibited the Colombian flag. On examination, some sixty armed soldiers were found concealed below her decks, and one cannon was aboard, with a considerable quantity of shot, shell, and annnunition. Preston was not found. Her papers purported to commission her as a Colombian man-of-war, and I'ead as follows: (Translation.) " I, Pedroa Lara, governor of the province of Barrantpiilla, in the state of Bolivia, in the United States of Coloml)ia, with full powers conferred by the citizen president of the state, I give to whom ii may concern this pateate of the sailing vessel Ambrose Li'jht^ that she may navigate as a Colombian vessel-of-war in the waters touching the coast of this republic, in the Atlantic ocean. " Therefore, the general commandants and captains of the vessels of war of the friendly nations of Colombia are requested to give this vessel all the consideration that by right belongs to the vessels of the class of the Ambrose Lujht of all civilized nations. In the faith of which we have given these jDresents, and signed with rul)]-ic with the secretary of my office, in the city of Barranquilla, on the eight- eenth day of the month of April, 1885. (Signed) " Pedroa Lara The Secretary [Sig.], " R. A. Del Valle. (Indorsed : ) " Office of the Military, " Barranquilla, April 18, 1885. " Registered and noted in folio and book, respectively. " The General in Chief, N. Juneno Collante. " Adjutant and Secretary, A. Solanom." Believing this commission to be irregular, and to show no lawful authority to cruise as a man-of-war on the high seas. Commander Clarke reported her under seizui-e, in accordance with the naval regulations, to Admiral .Jowett, commanding the North i\tlantic squadron, then cruising in the Central American waters, and the admiral directed the vessel to be taken to New York for adjudication as prize. The vessel was at first supposed to belong to citizens of the United States. The proofs showed that she had been sold to, and legally belonged to, Colente, (me of the chief military leaders of the insurgents at Barranquilla. None of her officers or crew were citizens of the ITnited States. She was engaged upon a hostile expedition against Cartagena, and designed to assist in the blockade l02 JUUISDICTION ON THE HIGH SEAS. [PART L and siege of that port by the rebels against the estabhshed govern- ment of the United States of Colombia. She had left Sabanilla on April 20th, bound for Baru, near Cartagena, where she expected the soldiers aboard to disembark. She Avas under the orders of the colonel of the troops, whose instructions were to shoot the captain if disobedient to his orders. Further instructions were to fight any Colombian vessel not showing the white flag with a red cross. Sabanilla. and a few other adjacent sea-ports, and the province of Barrampiilla, including the city of Barranquilla, had been for some months previous, and still were, under the control of the insurgents. The proofs did not show that any other depredations or hostilities were intended by the vessel than such as might be incident to the struggle between the insnrgents and the government of Colombia, and to the so-called blockade and siege of Cartagena. As respects any recognition of the insurgents l)y foreign powers, it did not appear in evidence that up to the time of the seizure of the vessel, on April 24, 1885, a state of war had been recognized as exist- ing, or that the insurgents had ever been recognized as a de facto government, or as having belligerent rights, either by the Colombian government, or by our own government, or by any other nation. The claimants introduced in evidence a diplomatic note from our Secretary of State to the Colombian minister, dated April 24, 1885, which, it was contended, amounted to a recognition by implication of a state of war. The government claimed the forfeiture of the ship as piratical, under the law of nations, because the was not sailing under the authority of any acknowledged power. The claimants contended that, being actually belligerent, she was in no event piratical by the law of nations; but if so, that the subsequent re- cognition of belligerency by our government by implication entitles her to a release. Judgment. — Broa\'x, J., (extracts) : — " 6. That recognition b}' at least some established government of a ' state of war,' or of the bel- ligerent rights of insurgents, is necessary to prevent their cruisers from being held legally piratical by the coui'ts of other nations injuriously affected, is either directh^ affirmed, or necessarily implied from many adjudged cases; and I have found no adjudication in which a contrary view is even intimated. '• This great weight of authority, drawn from every source that authoiitatively makes up the law of nations, seems to me fully to warrant the conclusion that the public vessels of war of all nations, for the preservation of the peace and order of the seas, and the security of their own commerce, have the rif/ht to seize as piratical all vessels carrying on, or threatening to carry on, unlawful private CHAP. 111.] UNITED STATES V. THE "AMBROSE LIGHT." 203 warfare to their injury ; and that privateers, or vessels of war, sent out to hlockade ports, under the commissions of insurgents, unrecog- nized by tlie government of any sovereign power, are of that char- acter, and derive no protection from sucli void connnissions. "It thus appeals iliat tlie rules laid down and implied in the decis- ions of our supreme court in the cases of Jiose v. IL'jnel;/ and V. S. v. Palmer, nearly 70 years ago, have been since almost universally followed. The practical responsibility of determining whether in- surgent vessels of war shall be treated as lawful belligerents, or as piratical, rests where the supreme court then in effect decided that it ought to rest, viz., with the political and executive departments of the government. These departments have it in tlieir power, at any moment, through the granting or withholding of recognition of bel- ligerency, and through the extent of such recognition as they may choose to accord, virtually to determine how such cruisers shall be treated by tlie courts. " Even after judgment and sentence the prisoners may, like Smith and his associates, convicted before Mr. Justice Grier, be treated, and exchanged, as prisoners of war. And it is with those dei)art- ments, exclusively, that the discretion ought to rest to determine when and how its technical rights against rebel cruisers shall be enforced. Its naval regulations will be framed accordingly ; and any seizures made under such regulations may be enforced, or at any moment remitted, at the pleasure of those departments. " Where insurgents conduct an armed strife for political ends, and avoid any infringement or menace of the rights of foreign nations on the high seas, the modern practice is, in the absence of treaty stipu- lations or other special ties, to take no notice of the contest. One of the earliest applications of this rule that I have met is in the answer of the states-general to Sir Joseph York's demand in 1779 for the surrender of Paul Jones' prizes as piratically captured, in which their Mightinesses say that 'they had for a century past strictly observed the maxim that they will in no respect presume to judge of the legal- ity or illegality of the actions of those who, upon the open sea, have taken any vessels that do not belong to this country.' On this point Prof. Lawrence, in his recent Iland-book of Int. Law (London, 1884), says : "' When a community, not being a state in the eye of international law, resorts to hostilities, it may, in respect of war, be endoAved with the rights and subjected to the obligations of a state if otlier powers accord it what is called recognition of belligerency. Neutral powers should not do this * * * unless it affect by the sti'ugglethe interests of the recognizing state. If the struggle is maritime, recognition ij i:04 JUrJSDICTIOX ON THE HIGH SEAS. [PAUT I. almost a necessity. The controversy of ISGl illustrates the whole question.' "Tlie practice is stated by Hall as follows: 'When, however, piratical acts have a political object, and are directed solely against a particular state, it is not the practice for states other than that attacked to seize, and still less to punish, the persons committing them. It would be otherwise, so far as seizure is concerned, with re- spect to vessels manned by persons acting with a political ol)ject, if the crew, in the course of carrying out their object, committed acts of violence against ships of other states than that against whicli their political operation was aimed ; and the mode in which the crew were dealt with would probably depend on the circumstances of the case.' Int. Law, § 81, p. 223. '• Whether a foreign nation shall exercise its rights only when its owu interests are immediately threatened, or under special provoca- tions only after uijuries inflicted by the insurgents, as in this case, at Colon, is a question purely for the executive department. l>ut when a seizure has been made by the navy department, under the ivgula- tions, and the case is prosecuted before the court by the goverinnent itself, cliihmng summumjus, — its extreme rights — the court is Ijound to apply to the case the strict technical rules of international law. Tlie right here asserted maybe rarely enforced; the very knowledge that the right exists tends, effectually, in most cases, to prevent any violation of it, or at least any actual interference by insurgents with the rights of other nations. But if the right itself were denied, the counnerce of all nations would be at the mercy of every petty con test carried on by irresponsible insurgents and marauders under the name of war. " In the absence of any recognition of these insurgents as belliger- ents, I therefore hold tlie Ambrose Light to have been lawfully seized, as l)ound upon an expedition technically piratical." ^ [On the other ground, however, that the Secretary of State, l)y his note to the Colombian ■Minister, April 24, iSSo, had recognized by iiiil)lieation a state of war, the vessel was released.] 1 The judgment in the case of the Amhrom Light has called forth much adverse criticism; and on the whole the weight of opinion would seem to be against the position, that insurgent vessels not molesting the ships of other nations may be treated as pirates. See a criticism of this case by Mr. Francis Wharton, in :) Wharton's Digest, 409. In thecase of United Statesw Baker, 1861, 5 Blatch., G, Judge Xelsox charged the jury that "if it were necessary on the part of the government to bring the crime charged against the prisoners (officers of the privateer .SVa-anua/i, within the definition of robbery and piracy as known to the connnon law of nations, there would be great difficulty in so doing, perhaps, upon the counts, certainly upon the CHAP. III.] THE MAGELLiV^^ PIKATES. 205 THE MAGELLAN PIRATES. ECCL. AXD Al)M. COUKT, 1853. (1 Spink!<' Eccl. & Adiu. Hep., 81.) Insurgents may become, by depreilations against third powers, pirates as 'U'ell as insm'gents. LusiiiiVGTON, J. (extract) ; — " I apprehend that iu the admmistration of our criminal law, generally speaking, all persons are held to be pirates who are found guilty of piratical acts, and piratical acts are robbery and murder upon the high seas. I do not believe that, even where human life was at stake, our courts of common law ever thought it necessary to extend their inquiry further, if it was clearly proved against the accused that they had committed robbery and murder upon the liigh seas. In that case they were adjudged to be pirates, and suli'ered accordingly. * * * It was never, so far as I am able to find, deemed necessary to inquire whether the parties so convicted had intended to rob or to murder on the high seas indiscriminately. Tliough the municipal law of different countries may and does differ in many respects as to its definition of piracy, yet I apprehend that all nations agree in this, that acts such as those which I have mentioned, when committed on the high seas, are piratical acts, and contrary to the evidence. For that shows, if anytliing, an intent to depredate upon the vessels and property of one nation only, the United States, which falls far short of the spirit and intent which are said to constitute the essential elements of the crime. But the robbery charged in this case is that which the act of Congress (1820) de- scribes as a crime, and may be denominated a statute. offence as contra-distin- guished from that known to the law of nations. The act declares the person a pirate, punishable by death, who commits the crime of robbery upon the high seas, against any ship or vessel, etc." The jury did not agree in this case. But in Philadelpliia four individuals were convicted for the same offence.— These arrests led to retaliatory action on the part of the Confederate States. And on the 81st of January, 1862, an order was issued by the Secretary of State, to the marshals, directing the transfer of all prisoners chargeil with piracy, including those who had been convicted at Philadelphia, to a military prison for the purpose, it was understood, of exchanging them as prisoners of war. (Lawrence's Wheaton, 1863, p. 253, note ; 3 Wharton's Digest, p. 465., For other judicial decisions touching the status of the rebels in the civil war in the United States, see the Golden Rocket cases— viz.. Dole v. The N. E. M. M. Ins. Co., 1 Allen, 392 ; and same in U. S. Circuit Court for Massachusetts ; in which it was held that the rebels iu that war were not pirates jure (jentium. 206 JURISDICTION ON THE HIGH SEAS. [PAIIT I. law of nations. * * * I think it does not follow that, because persons who are rebels and insurgents may commit against the ruling powers of their own country acts of violence, they may not be, as well as insurgents and rebels, pirates also ; pirates for other acts committed towards other persons. It does not follow that rebels and insurgents may not commit piratical acts against the subjects of other States, especially if such acts were in no degree with the insurrection or rebellion. Even an independent State may, in my opinion, be guilty of piratical acts. "What were the Barbary tribes of olden times ? wliat are many of the African tribes at this moment ? It is, I believe, notorious that tribes now inhabiting the African coast of tlie ]Mediterranean will send out their boats and catch any ships becalmed upon their coasts ? " Are they not pirates because, perhaps, their sole livelihood may not depend upon piratical acts ? I am aware that it has been said that a State cannot be piratical, but I am not disposed to assent to such dictum as a universal proposition." THE "3I0NTEZUMA," 1877. {Cah-n: Droit Internatlonul, ith Ed., I., 591.) Ships belonging to insurgents, and confining tlieir liostile acts to the parent government, are not to be treated as pirates by foreign powers. "Le vapeur J/o7iteznniSinr/, 10 Sawy., 3.53 ; 21 Fed. Rep., 905 ; Z>/nch v. Clarke, 1 Sandf. Ch., 583. In the latter case it was held that Julia Lynch, who was born in New York in 1849, of alien parents during a temporary sojourn by them in that city, and returned with them the same year to their native country, where she resided until her death, was an American citizen. "The vice-chancellor, after an exhaustive examination of the law, declared that every citizen honi within the dominion and allegiance of tlie United States was a citizen thereof, without reference to the situation of his parents. " This, of course, does not include the children born in the United States of parents engaged in the diplomatic service of foreign gov- ernments, whose residence, in contemplation of jtublic law, is a part of their own country. " The rule of the common law on this subject has been incorpo- rated into the fundamental law of the land. " The fourteenth amendment declares : ' All persons born or natu- ralized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the state wherein they reside.' " In /// re Look Tin Siin/, 10 Sawy., 353 ; 21 Fed. Rep., 905, it was held tliat a person born within the United States, of Chinese parents, CHAP. IV.] EX TAKTE CHAN SAX HEE. 221 not eno-aged in any diplomatic or official capacity under the emperor of China, is a citizen of the United States. The case is similar to that of the petitioners. The party in question was born in California in 1870, of Chinese pai-ents. In 1879, he went to China, and returned to California in 1884, without the certificate provided for in the re- striction act of 1882, or that of 1884, and was therefore denied the right to land. "Mr. Justice Field, in delivering the opinion of the court, in which Sawyer, Sabin, and Hoffman concurred, says (p. 359) : ' The inability of persons to become citizens under those laws (of naturalization) in no respect impairs the effect of their birth, or of the birth of their children, upon the status of either, as citizens of the United States.' " The only point made by the district attorney against the peti- tioners on the question of their citizenship is that they left this country without, as he claims, any definite or fixed purpose to return. " But I think the evidence does not Avarrantso strong a statement. For aught that appears they intended to return; and the fact that they have returned gives strength to the inference. The most that can be said is, there was no time fixed for their return. And that is the case with hundreds of minor American citizens, who go abroad yearly for nurture and education. But it seems that the citizenship of the petitioners would not be affected by the fact, if they had never come back, unless it also appears that they had in some formal and affirmative way renounced the same. " However, in my judgment, a father cannot deprive his minor child of the status of American citizenship, impressed upon it by the circumstances of its birth under the Constitution and within the jurisdiction of the United States. "This status^ once acquired, can only be lost or changed by the act of the party when arrived at majority, and the consent of the government. " By section 2 of article 4 of the Constitution it is provided : ' The citizens of each state shall be entitled to all privileges and innnuni- ties of citizens in the several states.' " It has always been held that the privileges and innuunities there referred to are fundamental ; and that a citizen of one state may at least, under this provision, pass through or reside in any other state of the union for the ordinary pursuits or purposes of life. Corfield\. Coryell, 4 Wash. C. C, 380 ; Faidv. Virginia, 8 Wall., 180. "The action of the collector in these cases has the effect, and is so intended, to deny these citizens of the United States the right of free locomotion within the same,— the right to come into, pass through, 222 NATIONALITY. [part I. or reside in this state, and is therefore contrary to and in viohition of the constitutional provision guaranteeing such right to every citizen. Sections 751, 752, and 753 of the Revised Statutes provide, in effect, that tlie courts of the United States and the judges thereof shall have power, by Jiabeas corpus^ to deliver a person held in custody or restrained of liis liberty in violation of the Constitution or of a law or treaty of the United States. " The petitioners, as we have seen, are restrained of their liberty in violation of the Constitution, and therefore this court has juris- diction to discharge them on Juiheas corpi/s. " The petitioners are discharged from custody." IIAUSDIXG'S CASE. Fkelixghtjtsex, Sec. of State, to Kasson^, 1885. (2 MliartoiisDlrjest, 399.) Children born in the United States of aUen parents, and never dwelling in the United States are not citizens thereof. The "case of Ludwig Hausding, appears to have been decided according to the law and the facts. It is stated that having been born in the United States of a Saxon subject, he was removed to his fathei-'s native land, where he has ever since remained, although his father has subsequently become a citizen of the United States. You refused a passport on the ground that the applicant was born of Saxon subjects, temporarily in the United States, and was never ' dwelling in the United States,' either at the time of or since his parent's naturalization, and that he was not, therefore, naturalized by force of the statute, section 2172, Revised Statutes. " It does not appear from your statement whether Wilhelm Haus- ding, the father, had declared his intention to become an American citizen before the birth of Ludwig. While this, if it were established, would lend an appearance of hardship to an adverse decision upon his claim to be deemed a citizen, yet, even in this case, as the stat- utes stand, your decision would conform to the letter of the law, section 2168, which admits to citizenship, on taking the oath pre- scribed by law, the widow and children of an alien who has declared his intention but dies Itefore completing his naturalization. " By providing for special exemption excludes the idea of any other exemption, as for instance in the case of the non-completion of CHAP. IV.] EMDEN'S CASE. 223 the father's naturalization before the permanent removal of the minor son from the jurisdiclion of the United .States. "Not being naturalized by force of the statute, Ludwig Ilausding could only assert citizenship on the ground of birth in the United States ; but this claim would, if presented, be untenable, for by sec- tion 1992, Revised Statutes, it is made a condition of citizenship by birth that the person be not subject to any foreign power. " This last consideration serves only to answer the ' quaere ' ^\■hieh you annex to your statement of the Ilausding case. " You ask : ' Can one, born a foreign subject, but williiii the United States, make the option after his majority, and Avliile still living abroad, to adopt the citizenship of his birthi)lace? It seems not, and that he must change his allegiance by emigration and legal process of naturalization.' Sections 1992 and 1093 of the I revised Statutes clearly show the extent of existing legislation ; that the fact of birth, under circumstances implying alien subjection, estab- lishes of itself no right of citizenship ; and that the citizenship of a person so born is to be acquired in some legitimate manner through the operation of statute. No statute contemplates the acquisition of the declared character of an American citizen by a person not at the time within the jurisdiction of the tribunal of record which con- fers that character. " EMDEN'S CASE. Porter, Actixg Sec. of State, to Wixchesteb, 1885. (2 ]]ltarton's Dlypst, 410.) Children born abroad of citizens of the United States and continuing to reside abroad, are not citizens thereof unless they elect to become such on coming of age. rjobertEmden was born in Switzerland, in 1SG2, and at the time of his application in 1885 for a passport, had never been in the I'nited States. His father, a Swiss by origin, was naturalized in New Vork in 1854, but soon afterwards returned to Switzerland, where he con- tinued afterwards to reside. " Undoubtedly, by the law of nations, an infant child partakes of his father's nationality and domicile. But there are two difficul- ties in the way of applying this rule to the present case. In the first place a parent's nationality cannot, especially when produced by naturalization, be presumed to be adhered to after a residence in the country of origin for so long a period as in the present case. 224 NATIONALITY. [PAET I. " In the second place, the rule as to children only applies to minors, since when the child becomes of age he is required to elect between the country of his residence and the country of his alleged technical allegiance. Of this election two incidents are to be observed : when once made it is final ; and it requires no formal act, but may be inferred from the conduct of the party from whom the election is required. "Applying these tests to the present case it can hardly be said that Mr. Robert Emden's claim to be a citizen of the United States is, as a matter of international law, made out. Tiie burden of proof is always on the applicant for the passport, and here there is no evidence to prove either his father's non-abandonment of his United States citizenship, or his own election of such citizenship, save the applications of father and son for passports." A PRUSSIAN SUBJECT. Opixiox of the Att.-Gexeral, 1875. (2 Wharton's Dlyest, 412.) Under the treaty between the United States and the North German Confedera- tion of 1808, a Prussian by birth, natiu'alized in the United States, is jiresumed to have renounced his American citizenship, if he returns to Prussia, and resides there two years. " A Prussian subject by birth emigrated to the Ignited States in 1848, became naturalized in 1854, and shortly afterwards returned to Germany w'ith his family, in which was a son born in the United States, and became domiciled at "Wiesbaden, where, together with his family, he has since continuously resided. The son having reached the age of twenty years, has been called upon by the Ger- man Government for military duty. The father invoked the inter- vention of the United States legation at Berlin, but declined in be- half of the son to give any assurance of intention on the part of the latter to return to the United States within a reasonable time and assume his duties as a citizen. " Article IV. of the naturalization treaty between the United States and Xorth Germany of 18G8, reads as follows : ' If a German natur- ahzed in America renews his residence in Xorth Germany without intent to return to America, he shall be held to have renounced his naturalization in the United States. * * * The intent not to return may be held to exist when the person naturalized in the one coun- try resides more than two years in the other country.' CHAP. TV.] WAGNEIl's CASE. 225 " It was held (1) that under the al)Ove article, the father must be deemed to have abandoned his American citizenship and to have re- sumed the German nationality; (2) that the son, bein-,^ a minor, ac- quired under the laws of Germany the nationality of his father, but did not thereby lose his American nationality; (;}) that upon attain- ing his majority, the son may, at his own election, return and take; the nationality of his birth or remain in Germany and retain his ac- quired nationality ; (4) yet that dui'ing his minority and while domi- ciled with his father in Germany, he cannot rightfully claim exemp- tion from military duty there." Section 24. — Protectiox to Citizens Abroad. WAGNER'S CASE. Feelinghuysen, Sec. of State, to Hunt, 1883. ( 2 Wharton's Digest, ;192.) What are the rights of a foreign minor mIio emigrates to tlie United States, and becomes naturaHzed there, and tlien returns to his native land ? May he be forced to serve in tlie army of his original State ? " From the responses previously made to your inquiries in Mr. Wagner's behalf, it appears that the brunt of the charge against him was that he, a minor, quitted Russian jurisdiction in advance of attaining the age when he might have been called upon for military service. He Avas born at Lodz, 1852, and in 1874 became liable to military service. He came to the United States in 18G9, five yeais before the liability could rest upon him. When the technical of- fense, styled evasion of military duty, which is the sole charge against him, began to exist as a tangible accusation, Reinhardt Wagner had already, by residence in the United States for more than three years preceding his majority, acquired under our statutes the preliminary rights of citizenship. No nation should assert an absolute claim over one of its subjects under circumstances like these, audit is thought improbable that Russia will persist in such a claim, even if made. There would be no limit to such a pretension, for the taking of a male infant out of Russia might be regarded with equal propriety as an ' evasion ' of eventual military service. " It is tantamount to asserting a right to punish any male Rus- 15 226 NATIONALITY. [PART I. sian who, having quitted "Russian territory and become a citizen of another state, may afterward return to Russia. " This claim is different from that put fortli by some governments for the completion of military duty fully accruing while the subject is within their jurisdiction, and actually left unfulfilled. It is, for example, claimed that a subject who leaves the country when called upon to serve in the army, and becomes a citizen or subject of an- other state, may, if he returns to the former jurisdiction while yet of age for military duty, be compelled to serve out his term. This rule appears harsh to us, and yet it goes no further, as a matter of fact, than a contention that an obligation of service accruing and unpaid while the subject is a resident of the country, continues, and is to be extinguished in kind by performance of the alleged defaulted service. " But, harsh as it is, it is wholly different from the infliction of vindictive punishment, as, for instance, exile for the constructive evasion of an inchoate obligation. To exact the fulfillment of an existing obligation is one thing ; to inflict corporal punishment for not recognizing a future contingent obligation is another." KOSZTA'S CASE. {Cockhnrn's yafionality, 118.) Status of a foreigner who has "declared his intention " to become a citizen of the United States, and wlio has a domicil in the country, when he is temporarily out of their jurisdiction. Koszta was a Hungarian, and one of the refugees of 1848-9. He went to Turkey, where he was arrested and imprisoned at Kutahieh, but released on condition of leaving the country. He went to the United States and made the usual declaration of an intention to be- come naturalized. In 1853 he returned to Turkey, and went to Smyrna on commercial business, and there obtained from the United States' Consul a traveling pass, stating that he was entitled to American protection. On the 21st of June, 1853, he was seized by some persons in the pay of the Austrian Consulate and taken out into the harbor in a boat ; he was then thrown into the sea, and was picked up by a boat from the Austrian man-of-war " Hussar." The United States Consul Avent on board to remonstrate, but the Captain of the " Hussar " persisted in retaining Koszta. Thereupon the United States' Charge d' Affaires at Constantinople requested CIlAr. IV.] KOSZTA'S CASE. 227 the Captain of the United States' ship of war " St. Louis " to demand Ivoszta's release, and, if necessary, to have recourse to force. The "St. Louis " accordingly went to Smyrna, and the Captain in pursuance of his instructions, stated to the Commander of the " Hussar " that unless Koszta was at once delivered to him he should take him by force of arms. As a conflict between the two ships of war would have been attended with great danger to the shipping in the port and to the town, the French Consul offered his mediation, and Koszta was then given over to his care to be kept until the decision of the respective governments was ascertained. On the 29th of August, 1853, the Austrian Charge d' Affaires at Washington presented a formal remonstrance to the United States Government, protesting against the claim of the United States to afford protection to Koszta, and calling on them to disavow the con- duct of their agents and to grant reparation for the insult oft'ered to the ^Vustrian flag. Mr. Marcy replied on the 26th of September, 1853, contending, first, for the general right of every citizen or subject, "having faith- fully performed the past and present duties resulting from his rela- tion to tlie Sovereign Power, to release himself at any time from the obligation of allegiance, freely quit the land of his birth and adop- tion, seek through all countries a home, or select anywhere that which offers him the fairest prospect of happiness for himself and his pos- terity ; " secondly, that Koszta was not an Austrian subject, as by a "decree of the Emperor of Austria of the 24th of March, 1832, Aus- trian subjects leaving the dominions of the Emperor without permis- sion of the magistrate and a release of Austrian citizenship, and with an intention never to return, become ' unlawful emigrants,' and lose all their civil and political rights at home." Thirdly, Mr. Marcy put forward the somewhat startling proposition that although Koszta had not yet been naturalized and become a citizen of the L'nited States, yet having become domiciled in the latter country, he was entitled to be treated in all respects as a citizen of the United States. In support of this proposition ]Mr. Marcy writes as follows : — " It is an error to assume that a nation can properly extend its protection only to native-born or naturalized citizens. This is not the doctrine of international law, nor is the practice of nations cir- cumscribed within guch narrow limits. This law does not, as has been before remarked, complicate questions of this nature by respect for municipal codes. In relation to this subject it has clear and dis- tinct rules of its own. It gives the national character of the country, not only to native-born and naturalized citizens, but to all residents 228 NATIONALITY. [l^VKT I. in it ^ho are there with, or even -vvitliont, an intention to become citizens, provided they have a domicile therein. Foreigners may, and often do, acqnire a domicile in a country, even though they have entered it with the avowed intention not to become naturalized citizens, but to return to their native land at some remote and un- certain ]KM-iod, and whenever they aequii-e a domicile, international law at once impresses upon them the national character of the country of that domicile. " It is a maxim of international law that domicile confers a national character ; it does not allow any one who has a domicile to decline the national character thus conferred ; it forces it upon him often very much against his will, and to his great detriment. International law looks only to the national character in determining what country has the right to protect. If a person goes from this country abroad, with the nationality of the United States, this law enjoins upon other nations to respect him, in regard to protection, as an American citizen. It concedes to every country tlie right to protect any and all who may be clothed with its nationality." TOUSIG'S CASE, 1854 (Laivrence'a Wheaton, Ed. of ISm. 929.) A foreigner who has "declared his intention '' to become a citizen of the United States is not entitled to their protection if he returns to his native country. Tousig, a native of Austria, had acquired a domicile in the United States, but had not become naturalized. Tie returned to Austria, with an American state passport, and was arrested on the charge of offenses committed before leaving Austria. lie appealed tc the United States ^Minister for protection, and the latter having brought the case before the state department, Mr. Marcy, on the lOtli Jan- uary, 1854, writes to Mr. Jackson, Charge d' Affaires at Vienna, as follows : — "I have carefully examined your despatches reflating to the case of Simon Tousig, and regret to find that it is one whieli will not au- thorize a more effective interference than that which you have already made in his behalf. It is true he left this country with a passport issued from this department ; but as he was neither a native-born nor naturalized citizen, he was not entitled to it. It -is only to citi- zen that passports are issued. " Assuming all that could possibly belong to Tousig's case, — that CHAP. IV.] tousig's case. 229 he had a domicile here and was actually clothed with the nationality of the United States,— there is a feature in it which distinguishes it from that of Koszta. Tousig voluntarily returned to Austria, and placed himself within the reach of her municipal laws. He went hy his free act under their jurisdiction, and thereby subjected himself to them. If he had incurred penalties or assumed duties while under these laws, he might have expected they would be enforced against him, and should have known that the new political relation he had acquired, if indeed he had acquired any, could not operate as a release from these penalties. Having been once subject to the municipal laws of Austria, and while under her jurisdiction violated these laws, his withdrawal from that jurisdiction and acquiring a different national character would not exempt him from their operation whenever he again chose to place himself under them. Every nation, whenever its laws are violated by any one owing obedience to them, whether he be a citizen or a stranger, has a right to inflict the pen- alities incurred upon the transgressor, if found within its jurisdiction. The case is not altered by the character of the laws, unless they are in derogation of the well-established international code. No nation has a right to supervise the municipal code of another nation, or claim that its citizens or subjects shall be exempted from the operation of such code, if they have voluntarily placed themselves under it. "The character of the municipal laws of one country does not fur- nish a just ground for other states to interfere with the execution of these laws, even upon their OA^n citizens, when they have gone into that country and subjected themselves to its jurisdiction. If this country can rightfully claim no such exemption for its native-born or naturalized citizens, surely it cannot claim it for those who have at most but inchoate rights of citizens. "The principle does not at all interfere with the right of any state to protect its citizens, or those entitled to its protection, when abroad, from wrongs and injuries, — from arbitrary acts of oppression or deprivation of property, as contradistinguished from penalties and punishments incurred by the infraction of the laws of the country within whose jurisdiction the sufferers have placed themselves. I do not discover any principle in virtiiPi of which this government can claim, as a matter of right, the release of Tousig. " He has voluntarily placed himself within the jurisdiction of the laws of Austria, and is suffering, as appears by the case as you pre- sent it, for the acts he had done in violation of those laws while he was an Austrian subject." 2o0 ^-ATIONALITY. [PART I. Sectiox 25. — Status of American Indians. ELK V. WILKIXS. SFPEEiiE Court of the United States, 1884. (112 United States Reports, 94.) This \vas an action brought by an Indian in the Circuit Court of the United States for the District of Xebraska, against the registrar of one of the wards of the city of Omaha, for refusing to register him as a qualified voter therein. Mr. Justice Gray delivered the opmion of the court, extracts from which are as follows : "* * * The question then, is, whether an Indian, born a member of one of the Indian tribes within the United States, is, merely by reason of his birth within the United States, and of his afterwards voluntarily separating himself from his tribe and taking up his residence among white citizens, a citizen of the United States, within the meaning of the first section of the Fourteenth Amendment to the Constitution. "Under the Constitution of the United States, as originally estab- lished, ' Indians not taxed,' were excluded from the persons according to whose numbers representatives and direct taxes were apportioned among the several states; and Congress had and exercised the power to regulate commerce with the Indian tribes, and the members there- of, whether within or without the boundaries of one of the States of the Union. The Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states ; but they were alien nations, distinct political communities, with whom the United States might and habitually did deal, as they thouglit tit, either through treaties made by the President and Senate, or through acts of Congress in the ordinary forms of legislation. The members of those tribes owed immediate allegiance to their several tribes, and were not part of the people of the United States. They were in a dependent condition, a state of pupilage resembling that of a ward to his guardian. Indians and their property exempt from taxation by treaty or statute of the United Stales, could not be taxed by any State. General acts of Congress did not apply to Indians, unless so expressed as to clearly manifest an intention to include them. Con- CIIAI'. IV.] ELK V. WILKINS. 231 stitution, art. 1, sees. 2, 8 ; art. 2, sec. 2 ; Cherokee Mition v. Georgia, 5 Pet. 1 ; Worcester \. Georgia, 6 Pet., 515; . . . Croio Dog's Case, 10!^ U. S. 556 . * * * "The alien and dependent condition of the members of the Indian tribes could not be put off at their own will, without the action or assent of the United States. They were never deemed citizens of the United States, except under explicit provisions of treaty or stat- ute to that effect, either declaring a certain tribe, or such members of it as chose to remain behind on the removal of the tribe westward, to be citizens, or authorizing individuals of particular tribes to be- come citizens on application to a court of the United States for naturalization and satisfactory proof of fitness for civilized life. * * * " Chief Justice Taney, in the passage cited for the plaintiff from his opinion in Scott v. Sandfo7'd, 19 How., 393, 401, did not affirm or imply that either the Indian tribes, or individual members of those tribes, had the right, beyond other foreigners, to become citizens of their own will, without being naturalized by the United States. His Avords were : 'They ' (the Indian tribes) 'may without doubt, like the subjects of any foreign government, be naturalized l)y the authority of Congress, and become citizens of a State, and of the United States ; and if an individual should leave his nation or tribe, and take up his abode among the white population, he would be entitled to all the rights and privileges which would belong to an emigrant from any other foi'eign people.' But an emigrant from any foreign state can- not become a citizen of the United States without a formal renun- ciation of his old allegiance, and an acceptance by the United States of that renunciation through such form of naturalization as may be required by law. " The distinction between citizenship by birth and citizenyhip by naturalization is clearly marked in the provisions of the Constitution, by which 'no person, except a natural born citizen or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President ; ' and 'the Congress shall have power to establish an uniform rule of naturalization.' Constitu- tion, art. 2, sec. 1 ; art. 1, sec. 8. " By the Thirteenth Amendment of the Constitution slavery was prohibited. The main object of the opening sentence of the Four- teenth Amendment was to settle the question, upon which there had been a difference of opinion througliout the country and in this court, as to the citizenship of free negroes, Scott v. Saiulford, 19 How., 393 ; and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or natui-alized in the United States, and owing no allegiance to any alien power, should be citizen.s •232 NATIONALITY. [PART I. of the United States and of the State in which they reside. Shiugh- Ur House C'rt^e*', 16 Wall., 8<3, 73 ; IStrauder\. We^t Vltyinia, iiOO U. S., 303, 306. " This section contemplates two sources of citizenship, and two sources onl}'; birth and naturalization. The persons declared to be citizens are ' all persons born or naturalized in the United States, and subject to the jurisdiction thereof,' the evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their IDolitical jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus sub- ject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either indi- vidually, as by proceedings under the naturalization acts, or collec- tively, as by force of a treaty by which foreign territory is acquired. " Indians born within the territorial limits of the United States, members of, and owing allegiance to, one of the Indian tribes (an alien, though dependent, power), although in a geogi-aphieal sense l)orn in tlie United States, are no more ' born in the United States and subject to the jurisdiction thereof,' within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within tlie domain of that government, or the children born \^ithin tlie United States, of am- bassadors or other public ministers of foreign nations. * * * "Such Indians, then, not being citizens by birth, can onh^ become citizens in the second way mentioned in the Fourteenth Amendment, by being ' naturalized in the United States,' by or under some treaty or statute. * * * " The act of July 27, 1868, ch. 240, declaring the right of expatriation to be a natural and inherent right of all people, and reciting that 'in the recognition of this principle this government has freely received emigrants from all nations, and invested them with the rights of citizenship,' while it affiiins the right of every man to expatriate himself from one country, contains nothing to enal)le him to become a citizen of another, witliotit being naturalized under its authority. 15 Stat., 223 ; Rev. Stat., § 1099. "The provision of the act of Congress of ]\Iarch 3, 1871, ch. 12(i, that ' hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe or power with Mhoin the Ignited States may contract by treaty,' is coupled with a provision tliat the obligation of any treaty already lawfully made is not to be thereby invalidated or im- OHAP. IV.] UNITED STATES V. KACAMA. 233 paired, and its utmost possible effect is to require the Indian triljes to be dealt Avith for the future through the legislative and not through the treaty-making power. 16 Stat., 5(56; Kev. Stat., § 2079. * * * " 'llie [)laintift', not being a citizen of the United States under the Fourteenth Amendment of the Constitution, has been depi'ived of no right secured by the Fifteenth Amendment, and cannot maintain this action. "Judgment attiimed." UNITED STATES v. KAGAMA. Supreme Court of the United States, 1886. (US United States Reporta, 375.) Mr. Justice Miller delivered the opinion of the court. " The case is brought here by certificate of division of opinion between the Circuit Judge and the District Judge holding the Cir- cuit Court of the United States for District of California. "The questions certified arise on a denuirrer to an indictment against two Indians for murder committed on the Indian reservation of Iloopa Valley, in the State of California, the pei'sun nnirdered being also an Indian of said reservation. Though there are six ques- tiorjs certified as the subject of difference, the point of tliem all is well set out in the third and sixth, which are as follows : "Whether the provisions of said section 9 (of the act of Congress of March 3, 1885), making it a crime for one Indian to commit murder upon another Indian, upon an Indian reservation situated wholly within the liinits of a State of the Union, and making sucli Indian so committing the crime of murder within and upon such Indian reservation 'subject to the same laws' and subject to be ' tried in the same courts, and in the same manner, and subject to the same penalties as are all other persons' committing the crime of mui'der ' within the exclusive jurisdiction of the United States,' is a consti- tutional and valid law of the United States?' " '6. Wliether the courts of the United States have jurisdiction or authority to try and punish an Indian belonging to an Indian tribe for committing the crime of murder upon another Indian be- longing to the same Indian tribe, both sustaining the usual tribal relations, said crime having been committed upon an Indian reserva- tion made and set apart for the use of the Indian tribe to which said Indians both belone:?' 234 NATIONALITY. [PART I. " The indictment sets out in two counts that Kagama, alias Pactah Billy, an Indian, murdered Tyouse, alias Ike, another Indian, at Hum- boldt county, in the State of California, within the limits of the Hoopa Valley Reservation, and it charges Mahawaha, alias Ben, also an Indian, with aiding and abettijig in the murder, " The law referred to m the certificate is the last section of the Indian appropriation act of that year, and is as follows : " ' 9. That immediately upon and after the date of the passage of this act all Indians committing against the person or property of another Indian or other person any of the following crimes, namely, mnider, manslaughter, rape, assault with intent to kill, arson, burg- lary and larceny, within any territory of the United States, and either within or without the Indian reservation, shall be subject therefor to the laws of said Territory relating to said crimes, and shall be tried therefor in the same coui'ts and in the same manner, and shall be subject to the same penalties, as are all other persons charged with the commission of the said crimes, respectively ; and the said courts are hereby given jurisdiction in all such cases; and all such Indians committing any of the above crimes against the person or property of another Indian or other person, within the boundaries of any State of tlie United States, and within the limits of any Indian reservation, shall be subject to the same lav/s, tried in the same courts and in the same manner, and suV)ject to the same penalties, as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States., 23 Stat. Ch., 341, 36-2, § 9, 385. "The above enactment is clearly separable into two distinct defini- tions of the conditions under whic-li Indians may be punished for the same crimes as defined by the cftmmon law. The first of these is where the offence is connnitted within the limits of a territorial gov- ernment, whether on or off an Indian reservation. In this class of cases the Indian charged with the crime shall be judged by the laws of the Territory on that subject, and tried by its courts. This propo- sition itself is new in legislation of Congress, which has heretofore only undertaken to punish an Indian who sustains the usual relation to his tribe, and who commits the offence in the Indian countrj^ or on an Indian reservation, in exceptional cases; as where the offence was against the person or property of a white man, or was some vio- lation of the trade and intercotirse regulations imi)Osed by Congress on the Indian tribes. It is new, because it now pn)])oses to punish these offences wlien they are committed by one Indian on the person or property of another. "The second is where the offence is committed bv one Indian CHAr. IV.] UNITED STATES V. KAGAMA. 235 against the person or property of another, within the limits of a State of the Union, but on an Indian reservation. In this case, of wliich the State and its tribunals would have jurisdiction if the offence was committed hy a white man outside an Indian reservation, tlie courts of tlie United States are to exercise jurisdiction as if the offence had been committed at some place within the exclusive jurisdiction of the United States. The first clause subjects all Indians guilty of these crimes, committed wdthin the limits of a Territory, to the laws of that Territory, and to its courts for trial. The second, whicli applies solely to offences by Indians which are committed within the limits of a State and the limits of a reservation, subjects the offenders to the laws of the United States passed for the government of places under the exclusive jurisdiction of those laws, and to trial by the courts of the United States. This is a still further advance, as assert- ing this jurisdiction over the Indians within the limits of the States of the Union. "Although the offence charged in this indictment was connnitted within a State and not within a Teriitoi-^-, the considerations A\hieli are necessary to a solution of the problem in regard to the one nmst in a large degree affect the other. '' The Constitution of the United States is almost silent in regard to the relations of the government which was established by it to the numerous tril)es of Indians within its borders. " In declaring the basis on which representation in the lower l)ranch of the Congress and direct taxation should be apportioned, it was fixed that it should be according to numbers, excluding Indians not taxed, which, of course, excluded nearly all of that race, but which meant that if there were such Avithin a State as were taxed to support the g(ivernment, they should be counted for representation, and in the computation for direct taxes levied by the United States. This expression, excluding Indians not taxed, is found in the XI Vth amend- ment, where it deals with the same su'oject under the new conditions produced by the emancipation of the slaves. Neither of these shed much light on the power of Congress over the Indians in their exist- ence as tribes, distinct from tlie ordinary citizens of a State or Ter- ritory. " The mention of Indians in the constitution which has received most attention is that found in the clause which gives Congress ' power to regulate commerce with foreign nations and among the several States, and with the Indian tribes.' " This clause is relied on in the argument in the present case, the proposition being that the statute under consideration is a regulation of commerce with the Indian tribes. But we think it Avould be a 238 NATIONALITY. [PART I. very strained construction of this clause, that a system of criminal laws for Indians living peaceably in their reservations, which left out the entire code of trade and intercourse laws justly enacted under that provision, and established punishments for the common- law crimes of murder, manslaughter, arson, burglary, larceny, and the like, without any reference to their relation to any kind of com- merce, was authorized by the grant of power to regulate commerce with the Indian tribes. While we are not able to see, in eitlier of these clauses of the Constitution and its amendments, any delegation of power to enact a code of ci'iminal law for the punishment of the worst class of crimes known to civilized life when committed by Indians, there is a suggestion in the manner in which the Indian tribes are introduced into that clause, which may have a bearing on the subject before us. The commerce with foreign nations is dis- tinctly stated as submitted to the control of Congress. "Were the Indian tribes foreign nations ? If so, they came within the first of the three classes of commerce mentioned, and did not need to be repeated as Indian tribes. Were they nations, in the minds of the framers of the Constitution ? If so, the natural phrase would have be^n ' foreign nations and Indian nations,' or, in the terseness of language uniformly itsed by the framers of the instrument, it would naturally have been ' foreign and Indian nations.' And so in the case of Tlie Cheronee JSTation v. The State of Geor(ji((^ 5 Pet., 1, 20, brought in the Supreme Court of the United States, under the declaration that the judicial jDower extends to suits between a State and foreign states, and giving to the Supreme Court original juris- diction where a State is a party, it was conceded that Georgia as a State came within the clause, but held that the Cherokees were not a State or nation within the meaning of the Constitution, so as to be able to maintain the suit. " But these Indians are within the geographical limits of the United States. The soil and the people within these limits are under the political control of the (Government of the United States, or of the States of the Union. There exist within tlie broad domain of sovereignty but these two. There may be cities, counties, and other organized bodies with limited legislative functions, but thej' are all derived from, or exist in, subordination to one or the other of these. The territorial governments owe all their powers to the statutes of the United States conferring on them the powers which they exercise, and wliich are liable to be withdrawn, modified, or repealed at any time by Congress. What authority the State governments may have to enact criminal laws for the Indians will be presently considered. But this power of Congress to organize territorial governments, and CHAP. lY.] UNITED STATES V. KAGAMA. 237 make laws for their inhabitants, arises not so much from the clause in tl]e Constitution in regard to disposing of and making rules and i-egulations concerning the Territory and other property of the United States, as from the ownership of the country in which the Territories are, and the right of exclusive sovereignty wliich nuist exist in the National Government, and can be found nowhere else. Marplvi V. liaiiisey, 114 U. S., 15, 44. "In the case oi American Ins. Co. v. Canter, 1 Pet., 511, 54:^, in wliicli the condition of the people of Florida, then under a territorial government, was under consideration, Marshall, Chief Justice, said : ' Perhaps the power of governing a Territory belonging to the United States, which has not, by becoming a State, acquired the means of self-government, may result necessarily from the fact that it is not within the jurisdiction of any particular State, and is within the powei' and jurisdiction of the United States. The right to govern may be the inevitable consequence of the right to acquire Territory. Whichever may be the source whence the power is derived, the possession of it is unquestioned.' " In the case of the United States v. Rogers, 4 How., 567, 572, where a ^^ liite man pleaded in abatement to an indictment for murder committed in the country of the Cherokee Indians, that he had been ado[)tedby and become a member of the Cherokee tribe. Chief Justice Taxey said : ' The country in which the crime is charged to liave been committed is a part of the territory of the United States, and not Vv'itliin the limits of any particular State. It is true it is occupied by the Cherokee Indians. But it has been assigned to them by the United States as a place of domicil for the tribe and they hold with the assent of the United States, and under their authority,' After referring to the policy of the European nations and the United States in asserting domhiion over all the country discovered by them, and the justice of this course, he adds : ' But had it been otherwise, and were the right and the propriety of exercising this power now open to question, yet it is a question for the law-making and political de- partments of the government, and not for the judicial. It is our duty to expound and execute the law as we find it, and we think it too firmly and clearly established to admit of dispute, that the Indian tribes, residing within the territorial limits of the United States, are subject to their authority, and when the country occupied by one of them is not within the limits of one of the States, Congress may by law punish any offence committed there, no matter whether the offender be a white man or an Indian.' " The Indian reservation in the case before us is land bought by the United States from Mexico by the treaty of Guadaloupe Hidalgo, 2SS NATIONALITY. [l'A[:T I. and the whole of California, with the allegiance of its inhabitants, many of whom were Indians, was transferred by that treaty to the United States. " The relation of the Indian tribes living within the borders of the United States, both before and since the Kevolution, to the people of the United States has always been an anomalous one and of a complex character. " Following the policy of the European governments in the dis- covery of America towards the Indians who were found here, the colonies before the Revolution and the States and the United States since, have recognized in the Indians a possessory right to the soil over which they roamed and hunted and established occasional vil- lages. But they asserted an ultimate title in the land itself, by which the Indian tribes were forbidden to sell or transfer it to other nations or people without the consent of this paramount authority. When a tribe wished to dispose of its land, or any part of it, or the State or the United States wished to purchase it, a treaty with the tribe was the only mode in which this could be done. The United States recognized no right in private persons, or in other nations, to make such a purchase by treaty or otherwise. With the Indians them- selves these relations are equally difficult to define. They were, and always have been, regarded as having a semi-independent posi- tion when they preserved their tribal relations; not as States, not as nations, not as possessed of the full attributes of sovereignty, but as a separate people with the power of regulating their internal and social relations, and thus far not brought under the laws of the Union or of the State within whose limits they resided. " Perhaps the best statement of their position is found in the two opinions of this court by Chief Justice JMarshall in the case of the (J lierokee Nations. Georf/ia, 5 Pet., 1, and in the case of Worcester \. ^Hate of Georgia, 6 Pet., 515, 53G. These opinions are exhaustive; and in the separate opinion of Mr. Justice Baldwin, in the former, is a very valuable resume of the treaties and statutes concerning the Indian tribes previous to and during the confederation. " In the first of the above cases it was held that these tribes were neither States nor nations, liad only some of the attributes of sov- ereignty, and could not be so far recognized in that capacity as to sustain a suit in the Supreme Court of the United States. In the second case it was said that they were not subject to the jurisdiction asserted over them by the State of Georgia, which, because they were within its limits where they had been for ages, had attempted to extend her law^s and the jurisdiction of her courts over them. " In the opinions in these cases they are spoken of as ' wards of CHAP. IV.] UNITED STATES V. KAGAMA. 239 the nation,' ' pupils,' as local dependent communities. In tliis spirit the United States has conducted its relations to them from its organization to this time. But, after an experience of a hundred years of the treaty-making system of government, Congress has determined upon a new departure — to govern them l)y acts of Con- gress. This is seen in the act of March 8, 1871, embodied in § 2079 of the Revised Statutes : "'Xo Indian nation or tribe, within the territory of the United States shall be acknowledged or recognized as an independent na- tion, tribe, or power, with whom the United States may contract by treaty; but no obligation of any treaty lawfully made and ratified with any such Indian nation or tribe prior to ]\Iarch third, eighteen hundred and seventy-one, shall be hereby invalidated or impaired.' " The case of Croio -Dor/, 109 U. S., 55G, in which an agreement with the Sioux Indians, ratified by an act of Congress, was supposed to extend over them the laws of the United States and the jurisdic- tion of its courts, covering murder and other grave crimes, shows the purpose of Congress in this new departure. The decision in that case admits that if the intention of Congress had been to punish, by the United States courts, the murder of one Indian by another, the law would have been valid. But the court could not see, in the agreement with the Indians sanctioned by Congress, a purpose to repeal § 2146 of the Revised Statutes, which expressly excludes from that jurisdiction the case of a crime committed by one Indian against another in the Indian country. The passage of the act now under consideration was designed to remove that objection, and to go further by including such crimes on reservations lying withhi a State. " Is this latter fact a fatal objection to the laAv? The statute itself contains no express limitation upon the powers of a State or the jurisdiction of its courts. If there be any limitation in either of these, it grows out of the implication arising from the fact that Congress has defined a crime committed within the State, and made it punishable in the courts of the United States. But Con- gress has done this, and can do it, with regard to all offences relat- ing to matters to which the Federal authority extends. Does tliat authority extend to this case ? " It will be seen at once that the nature of the offence (murdei-) is one which in almost all cases of its commission is punishable by the laws of the States, and within the jurisdiction of their courts. The distinction is claimed to be that the offence under the statute is committed by an Indian, that it is committed on a reservation set 240 NATIONALITY. [PART I. apart within the State for residence of the tribe of Indians b}' the United States, and the fair inference is that tlie offending Indian shall belong- to that or some other tribe. It does not interfere with the process of the State Courts within the reservation, nor with the operation of State laws upon white people found there. Its effect is confined to the acts of an Indian of some tribe, of a criminal char- acter, committed within the limits of the reservation. "It seems to us that this is within the competency of Congress. These Indian tribes are the wards of the nation. The}^ are com- mmiities dependent on the United States. Dependent largely for their daily food. Dependent for their political rights. They owe no allegiance to the States, and receive from them no protection. Because of the local ill-feeling, the people of the States where they are found are often their deadliest enemies. From their very weak- ness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the Executive and by Congress, and by this Court whenever the question has arisen. '• In the case of Wojxester v. The State of Georgia^ above cited, it Avas held that, though the Indians had by treaty sold their land within that State, and agreed to remove away, which they had failed to do, the State could not, while they remained on those lands, extend its laws, criminal and civil, over the tribes ; that the dut}^ and power to compel their removal was in the United States, and the tribe was under their protection, and could not be subjected to the laws of the State and the process of its courts. " The same thing was decided in the case of Fellows v. BlacJcsmith and Others^ 19 How., 366. In this case, also, the Indians had sold their lands under supervision of the States of Massachusetts and of Xew York, and had agreed to remove within a given time. When the time came a suit to recover some of the land was brought in the Supreme Court of Xew York, Avhich gave judgment for the plaintiff. But this court held, on writ of error, that the State could not enforce this removal, but the duty and the power to do so was in the United States. See also the case of the Jvansas Indians, 5 "Wall, 737; Xcio York Indians, 5 ^Vall., 761. " The power of the General Government over these remnants of a race once powerful, now weak and diminished in numbers, is nec- essary to their protection, as well as to the safety of those among whom the}' dwell. It must exist in that government, because it never has existed anywhere else, because the theater of its exercise is within the geographical limits of the United States, because it has CHAP. lY.] UNITED STATES V. KAGAMA. 241 never been denied, and because it alone can enforce its laws on all the tribes. « We answer the questions propounded to us, that the 0th section of the act of March, 1885, is a valid law in both its branches, and that the Circuit Court of the United States for the District of Cali- fornia has jurisdiction of the offence charged in the indictment in this case." 16 PART II. INTERNATIONAL RELATIONS AS MODIFIED BY WAR. CHAPTER I. MEASURES SHORT OF WAPu § 26, — Repeisals. SILESIAN LOAN, 1752. (Martens: Causes CeVebres, II., 97.) The controversy in this case was as regards tlie riglit of a State to confiscate, for any reason, its public debt, held by foreign creditors. In 1735 the Emperor Charles VI. borrowed of several London merchants the sum of 1,000,000 ecus (3,000,000 francs), and as secur- ity for repayment, gave them a mortgage on the revenues of the Province of Silesia. After the death of the Emperor (1740) Frederick II. of Prussia seized Silesia, which Maria Theresa was consti-ained to formally cede to him by the treaties of Breslau and Berlin, 174-J. Frederick agreed, however, to assume the debt of the province and to pay the English creditors. In 1744 war broke out between England on the one side and France and Spain on the other. And during the next four years the English seized eighteen Prussian vessels and thirty-three other neutral vessels, freighted in whole or in part by Prussian subjects, and laden with merchandise on account of French subjects. These ships and their cargoes were seized for carrying contraband of war or goods belonging to the enemy. The government of England having refused to listen to tin- demand of the Prussian govei'nment fur an indemnity to the claimants, 243 244 MEA^^UREO SHORT OF WAR. [PART II. Frederick TI. fippointed a commission in 1751 to examine these claims and compensate tlie claimants out of the Silesian loan, the paj-- ment of which had been withheld for this purpose. The next year the commission gave judgment, transferring the English mortgage on the Silesian revenues to the Prussian claimants as indemnity for the seizure of their propert3^ The contention of the Prussian government was that England had acted illegally in capturing the property of her enemies on neutnil A'essels, — that the rule, supported by the practice of most of th;- nations of Europe, was " free ships, free goods ; " and further that the treaties of England with the neutral powers, confirmed by the declarations of the English ministry to diplomatic agents of Prussia, had exempted such goods from capture. According to the law of nature, say the Prussian commissioners, the vessel of a neutral is his property wherever it may be found (i. e. on the high seas), and a belligerent has no more right to enter it to seize the goods of his enemy, than he has to enter a neutral port and seize the vessels of his enemy therein anchored. As to contraband of war, the general rule of international law limited it to munitions of war, the only exception being things of ancipitis nsus destined to a beseiged or blockaded port. Ic was shown that England herself had made several treaties in which jiro- visions and articles of naval construction were expressly excluded from the list of contraband. Finalh', it was asserted, that the English admiralty court had no right of jurisdiction over Prussian vessels or cargoes seized in jjlaces not within English territory ; and that these unjust confiscations furnished a just cause for reprisals on the part of Prussia. The matter was referred by the English government to a commis- sion, composed of Sir R. Lee, judge of the Supreme Court, Dr. Paul, the King's Advocate-General in the civil courts. Sir Dudley Pyder, the Attorney- General, and ^Ir. William Murray, Solicitor-General (celebrated later as Lord ]\Iansfield). The report of this commission is mentioned by Montesquieu as rcponse sans rejjlique. The follow- ing propositions were laid down : — (1) "When two powers are at war, each has the right to seize as prize of war, the ships and merchandise of the other, but the prop- erty of neutrals should not be captured so long as they preserved their neutrality. It follows, therefore, (2) That the goods of an enemy on board a neutral vessel may be seized. (-8) That neutral goods, not contraband, on board tlie vessel of an enemy, should be leleased. (4) That contraband goods, although belonging to a neutral, may be seized as prize of war. (5) Before appropriation of CHAP. I.] SILESIAN LOAN. 245 captured goods, there must be condemnation by a court of admiralty, judg'ing according to the law of nations and treaties. (0) The only competent court for that purpose is the court of the captor. (7) All proofs, in the first instance, should come from the vessel seized, such as the ship's papers and the depositions of the master and principal officers of the ship, (8) Every vessel must be furnished with the customary papers. (9) If a seizure is made without sufficient grounds, the captor is to be coiidennied in damages and expenses. (lU) Finally, the law of nations permits reprisals in only two cases; First, in the case of a violent wrong directed and supijorted by the sovereign, or second, of an absolute denial of justice on the part of all the tribunals, and the sovereign himself, in a matter that admits of no doubt. The report then takes up the cases of the captured vessels in detail, and shows that they were judged with the utmost impartiality. It would seem that all the Prussian vessels were restored, and all the cargoes in both classes of vessels save fifteen were likewise restored. The Prussian arguments are then ansAvered seriatim, and shown to be without foundation in law or custom. Perhaps the weakest part of the report is the answer to the Prussian contention that contra- band was limited to munitions of war. The question, says Wheaton, Tv'as at that time in litigation between England and the states of the north who had an interest in the free exportation of the products of their soil, as naval stores and provisions. The commissioners only said that Prussia could not claim the advantage of modifications of international law which had been the result of mutual concessions between England and certain neutral states. As to the Silesian loan, the King of Prussia had pledged his royal word to pay the debt due to private individuals. This debt --A-as negotiable, and a large part of it may have been transferred to sub- jects of other states. It would be difficult to find a case where a sovereign had ever seized by way of reprisal a debt which he owed to private individuals. When individuals lend money to a sovereign, they have to trust to his honor ; for a sovereign may not, like other men, be sued, and forced to pay by the interposition of courts of law. England, France, and Spain, it was asserted, had adhered religiously to the principle of the inviolability of the public faith. The dispute was finally settled l>y a clause of the treaty of West- minster, January 16, 1756, by which Frederick stipulated to pay the English creditors, and the English government agreed to pay 20,000 pounds sterling to satisfy the Prussian claimant. (Wheaton : Ilis- toire du Droit des Gens, I., 260.) The importance of this case rests, more upon the able exposition of 246 MEASURES SHORT OF ^'AR. [PART II. the la\v of maritime capture by tlie English commissioners, than upon the question of reprisals. The report of this commission was generall}' accepted as a correct statement of the law of prize as then existing ; and indeed, it so continued with little change till 1856. On the other hand, the Prussian contention was an attempt to establish the principle of " free ships," free goods, wliich was not realized till a hundred years later. As to the question of reprisal, England virtually yielded the point ni controversy in consenting to indemnify the Prussian claimants. Perhaps political reasons may have influenced the final action. The alliance between France and Austria at this time forced England and Prussia into a counter-alliance, and their minor differences were smoothed over rather hastily. CASE OF DOX PACIFICO, 1850. {Brit, and For. Stat. Pap., vol. 39, pji. 333-932.) Is a state responsible for the lawless actions of its citizens, to foreign statei; whose citizens suffer injury ? England so held ni this case, and proceeded to re- prisals to enforce her position. David Paciflco was a Jew, born at Gibraltar, but in 1847 resident at Athens. By virtue of his birth, he was entitled to the character of a British subject ; he had represented himself in that character and had a British passport. It was customary in Greece for the people to signalize the festival of Easter by burning an effigy of Judas Iscariot; but out of a regard for Mr. Charles de Pothschild, who was at Athens in April, 1847, the police were ordered to prevent this popular ceremony in that year. The mob, attributing this action of the Athenian authorities to the influence of the Jews, was highly incensed against that sect; and proceeded to attack and plunder the house of M. Paciflco, Avhich hap- pened to stand near the place where the effigy was wont to be burned. While his house was being plundered, the family of M. Paciflco received the grossest ill-treatment. M. Paciflco lodged a comjilaint with the procureur-general of the king, who, on the very day of the riot, held an inquest on the spot, and heard the testimony of the injured parties, but the Greek government took no further action in the matter. M. Paciflco, believing that, by reason of the odium in which his race was held in Greece, he would not be likely to obtain redress through his own efforts, applied to the British minis- CHAP. I.] CASE OF DOX PACIFICO. 247 ter at Athens, Sir Edmund Lyons. This gentleman called the atten- tion of the Greek government to the facts of the ease; but his note was left unanswered for nme months, although he wrote several times subsequently, and when, in January, 1848, he finally received an answer, it was (juite unsatisfactoiy. The government of Greece suggested that M. Pacifico should collect his damages, through the ordinary courts, from the persons who took part in the riot. There were other British claims pending against Greece, some of which were of long standing, and as no satisfaction could be obtained from the Greek government, Mr. Wyse, successor to Sir Edmund Lyons, was instructed, in December, 1849, to deliver an ultimatum to that government; and in case it was rejected, Admiral Parker, commanding the English fleet in the Mediterranean, was ordered to lay an embargo upon Greek shipping. The demands of the ultima- tum were rejected, and the embargo was immediately enforced, several Greek ships of war and many merchant vessels being seized and detained in the Piraeus. Shortly afterwards, in February, 1850, French mediation was ac- cepted, pending which, active measures were suspended on the part of the English fleet. Mr. Wyse and Baron Gros, the French mediator, came to an agreement upon all points at issue save one; namely, a demand of indemnity by Pacifico for the loss of papers which, he alleged, were evidences of a valid claim by him against the Portuguese government for twenty-one thousand pounds. Mr. Wyse proposed that the Greek government should put into his hands a sum of money as security for the piyment of this claim, if, after investigation, it should appear to be well-founded. Baron Gros objected to this, because he not only considered the claim to be worthless, but he contended, further, that this demand was too humiliating for Greece. Failing to agree upon this i^oint, Baron Gi'os withdrew from the negotiations ; thereupon, Mr. Wyse sent a new ultimatum to the Greek government, and this time it was ac- cepted, and the indemnity demanded immediately paid. The total amount of this indemnity was 6,403^, 10.9, with the ad- dition of a deposit of about 5,000/ as security for the Portuguese claim. The indemnity awarded included the following items : For personal injurj^ 500Z; for loss of household effects, jewelry, etc., 4,267/, Ss. As to his Portuguese claim, a commission, having investigated the case reported in 1851, that it could not be substantiated ; but in view of the expense he had incurred, and a small amount due him, he was awarded 150/. Don Pacifico has usually been represented as an adventurer who had little claim upon the sympathy of his fellow-men; and England 248 MEASURES SHORT OF WAR. [PART II, has generally been severely criticised for supporting his claim. Yet if he was a British subject, he had a right to be protected as such. He was born in British territory, Gibraltar, and his father was born in London. His letters relating to this affair are dignified, and show much ability. His chief crime would seem to have been that of being a Jew. The argument that Pacifico ought to have resorted to the ordmary courts of Greece to obtain his indemnity is quite unten- able. What chance of success would he have had in a suit against a mob of several hundred persons, to him unknown, and with public opinion against him ? Indeed he brought the matter to the notice of the judiciary department of the government ; and it was then the duty of the government to take further j^roceedings. The fact would seem to be that the whole trouble lay in the weak and vacillating policy of the Greek government, which could easily have avoided all trouble by simply doing justice to M. Pacifico and the other claimants. Whether the British government was justified in resort- ing to such extreme measures may be questioned ; but that some action was called for there can be little doubt.^ 1 Other cases of Reprisal. The bombardment of Greytovm, 1854. — " GreytOM-n was a port on the Mosquito coast, in -n-liich some United States citizens resided. These citizens, and others interested with them in husiness, were subjected to gross indignities and injuries by the local authorities, who were British, but who professed to act under authority from the king or chief of the Mosquito Islands. The parties injured accordingly appealed to the commander of the United States sloop-of-war Cyane, then lying near that port, for protection. To punish the authorities for their action, he bombarded the town. For this act he was de- nounced by the British residents, who claimed that the British government had a protectorate over that region. His action was sustained by the government of the United States, the ground being the necessity of punishing in this way a great wrong to citizens of the United States, and preventing its continuance. " (1 Whar- ton's Digest, p. 229, and II., p. 59.5.) A favorite form of reprisal in coercing weaker states has been by what are called "pacific blockades ;" thus, in 1827 "the coasts of Greece were blockaded by the English, French and Russian squadrons, while the three powers professed to be at peace with Turkey." " The Togus was blockaded by France in 1831, New Granada by England in 18G1, Mexico by France in 1838, and La Plata from 1838 to 1840 by France, and from 1845 to 1848 by France and England. " (Hall's International Law, Ed. 1890, p. 369.) In like manner, without a declaration of war, France blockaded the Island of Formosa, and in 1893, the coast of Siam. In 1886 Greece was blockaded by the fleets of nearly all the great European powers. CHAP. I.] THE " BOEDUS LUST." 249 Sectiox 27. — Hostile Ei^rBARGO. THE "BOEDUS LUST." High Court of Admiralty, 1803. (5 C. nobinson, 24').) This was the case of a Dutch ship on a voyage from Domorara to I'.alavia, embargoed at the Cape of Good Hope by an English squadron before the actual declaration of war against Holland in 1803, and afterwards condemned as enemy's property. Sir W. Scott, J. — Extract : — " This was the state of the first seiz- ure. It was at first equivocal ; and if the matter in dispute had termi- nated in reconciliation, the seizure would have been converted into a mere civil embargo. That would have been the retroactive effect of that course of circumstances. On the contrary, if the transactions end in hostility, the retroactive effect is directly the other way. It im- presses the direct hostile character upon the original seizure. It is declared to be no embargo, it is no longer an equivocal act, subject to two interpretations ; there is a declaration of the animus, by which it was done, that it was done hostili animo and is to be considered as an hostile measure ab initio. The property taken is liable to be used as the property of persons, trespassers ab initio, and guilty of injuries, which they have refused to redeem by any amicable altera- tion of their measures. This is the necessary course, if no particular compact intervenes for the restitution of sucli property taken be- fore a formal declaration of hostilities. No such convention is set up on either side, and the state, by directing proceedings against this property for condemnation, has signified a contrary intention. Accordingly the general mass of Dutch property has been condemned on this retroactive effect ; and this property stands upon the same footing.^ 1 The object of a hostile embargo may be by way of reprisal to obtain satisfac- tion for an alleged injury; or, it may be, in the expectation of the outbreak of war, to get possession of property which will presumably be hostile, for tlie purpose of confiscating it later— after the actual outbreak of war. Although the government might restore such property at the breaking out of war, it has not been the prac- tice to do so; and hence, as Dana says, embargo "refers itself directly to the 250 MEASUIIES SHORT OF WAK. [PAET II. Sectiox 28. — Declaration of "War. THE " TEUTOXIA." Pkivy Council, 1870. (4 Privy Council Eejiorts, 171.) War may exist een issued ami done wider the previous express authority and direction of the Congress of the United States. ' " Without admitting that such an act was necessary under the circumstances, it is plain that if the President had in any manner assumed powers which it was necessary should have the authority or sanction of Congress, that on the well-known principle of law, '■omnis ratihahitio retrotrahiti(r, et mandato equiparatur, ' this ratification has operated to perfectly cure the defect. In the case of Brown v. United States (8 Cr., 1.31, 1.32, 133), Mr. .Justice Story treats of this subject, and cites numerous authorities to which we may refer to prove this position, and concludes, ' I am perfectly satisfied that no sul)ject can commence hostilities or capture property of an enemy, when the sovereign has prohibited it. But suppose he did, I would ask if the sovereign may not ratify his proceedings, and thus by a retroactive operation give validity to them ? ' " Although Mr. .Justice Story dissented from the majority of the Court on the whole case, the doctrine stated by him on this point is correct and fully substantiated by authority. "The objection made to this act of ratification, that it is ex post facto, and therefore unconstitutional and void, might possibly have some weight on the trial of an indictment in a criminal court. But precedents from that source cannot be received as authoritative in a tribunal administering public and international law. " On this first question, therefore, we are of opinion that the Presi- dent had a right, J?-ht great changes in tlie spirit of nations touching- the conduct of war, and in respect to tlie princii)les of international hiw a[)phcable to the subject. "Constant usage and practice of belUgerent nations from tlie ear- liest times subjected enemy's goods in neutral vessels to capture and condeuniation as prize of war, but the maxim is now universally ac- knowledged that 'free ships make free goods' which is another victory of commerce over the feelings of avarice and revenge. Indi- vidual debts, as a general remark, are no longer the subject of con- liscation, and the rule is universally admitted that if not confiscated daring the war, the return of peace brings with it both 'the right and the remedy.' Wolfv. Oxkohn, 6 Maule& Selvvyn, 92. * * * " Old decisions, made when the rule of law was that war amuilled all debts between the subjects of the belligerents, are entitled to but little weight, even if it is safe to assume that they are correctly reported, of which, in respect to the leading case of PHdeauj- v. Wtbbei\ 1 Levinz, 31, tliere is much doubt. Miller v. Prideaux., 1 Keble, 157 ; Lee V. Rogers, 1 Levinz, 110 ; 1I not share in each other's profits, made in carrying on tlie liostile coninierce of eacli country ? "It would l)e then most unjust to make the party who did not share in profit to share in loss, and to be bound by the other's con- tracts ; but if one partner does not share in profit, that alone de- stroys a partnership. It would be what the Roman lawyers called Societas leonina., in allusion to the fable of the lion, who, having entered into a partnership with the other animals of the forest in hunting, appropriated to himself all the prey. " It is one of the fundamental principles of every connnercial partnership, that each partner has the power to buy and sell and pay and receive, and to contract and bind the firm. But tlien, again, as a necessary check to this power, each partner can interfere and stop any contract about to be made by any one of the rest. This is an elementary rule, derived from the civil law. In re pari potiorem causcun esse jjrohiOentis constat. (Pothier, Trait, du Cent, sec. n. 90.) " But if the partnership continues in w^ar between liostile asso- ciates, this salutary power is withdrawn, and each partner is left defenceless. If the law continues the connection, after it has de- stroyed the check, the law is then cruel and unjust. "In speaking of the dissolution of partnerships, the French and civil law writers say, that partnerships are dissolved by a change of the condition of one of the parties which disables him to perform his part of the duty, as by a loss of liberty, or banishment, or bank- ruptcy, or a judicial prohibition to execute his business, or by confis- cation of his goods. " The English law of partnership is derived from the same source ; and as the cases arise, the same principles are applied. The princi- ple here is, that when one of the parties becomes disabled to act, or when the business of the association becomes impracticable, the law, as well as common reason, adjudges the partnership to be dis- solved. * * * "Another objection was raised, from the want of notice of the dissolution of the partnership. The answer to this is extremely easy, and perfectly conclusive. Notice is requisite when a partner- ship is dissolved by the act of the parties, but it is not necessary when the dissolution takes place, by the act of the laws. The declaration of war, from the time it was duly made known to the nations, put an end to all future dealings between the sul)jects and citizens of the two countries, and, consequently, to the future opera- tion of the copartnership in question. 278 EFFECTS OF AVAU AS BETWEEN ENEMIES. [PAKT H. "The declaration of w;ir was, of itself, the most authentic and monitor}' notice. Any other notice, in a case like this, between two public enemies, wlio had each his domicil in his own countrj^ would have been useless. All mankind were bound to take notice, of the war, and of its consequence. The notice, if given, could only be given by each partner in his own country ; and there it would be useless, as his countrymen could not hold any lawful intercourse Avith the enemy. It could not be given as a joint act, for the pai'tners cannot lawfully commune together. " But, it was said, that the peace had a healing influence, and restored the parties to all their rights, and arrested all confiscations, and forfeitures, which had not previously and duly attached. I do not know that I differ from the counsel in any just application of this doctrine. " As far as the war suspended the right of action existing in the adverse party prior to the war, that right revived ; but if the contract in this case was unlawful, peace could not revive it, for it never had any legal existence. So, too, the copartnership being once dissolved by the war, it was extinguished forever, except as to matters exist- ing prior to the war." NEW YORK LIFE IXS. CO. v. STATHEM. SAME v. SEYMS. MANHATTAN LIFE INS. CO. v. BUCK, Executor. SuPEEiiE Court of the L^xited States, 1876. ( 03 United States Bejwrts, 24.) Executon- contracts between persons who become enemies, where time is ma- terial and of the essence of the contract, are annulled by the war. Life insm^ance policies are of this character ; but the assured is entitled to recover the equitable value of the policy, at the time of the outbreak of the war. The first of these cases is here on appeal from, and the second and third on writs of error to, the Circuit Court of the L'nited States for the Southern District of Mississippi. The first case is a bill in equity, filed to recover the amount of a policy of life assurance, granted by the defendant (now ap[)ellant) in isol, on tlie life of Dr. A. D. Stathem, of Mississippi, fi'om the proceeds of certain funds belonging to the defendant attached in CHAP. II.] NEW YORK LIFE INS. CO. V. STATHEM. 279 the hands of its agent at Jackson, in that State. It appears from the statements of the hill that the animal premiums accruing on the l)olicy were all regularly [)aid, until the hreaking out of the late eivil war, but that, in consequence of that event, the premium due on the 8th of December, 18G1, was not paid ; the parties assured being residents of Mississippi, and the defendant a corporation of New York. Dr. Stathem died in July, 1862. The other cases are similar. Each policy contained various conditions, upon the breach of which it was to be null and void ; and amongst others the following : " That in case the said (assured) shall not pay the said premium on or before the several days hereinbefore mentioned for the payment thereof, then and in every such case the said company shall not be liable to the payment of the sum insured, or in an}^ part thereof, and this policy shall cease and determine." The Manhattan policy contained the additional provision, that, in every case where the policy should cease or become null and void, all previous payments made thereon should be forfeited to the com- pany. The non-payment of the premiums in arrear was set up in bar of the actions ; and the plaintiffs respectively relied on the existence of the war as an excuse, offering to deduct the premiums in arrear from the amounts of the policies. The decree and judgments below were against the defendants. Mr. Justice Bradley, after stating the case, delivered the opinion of the court. " We agree with the court below, that the contract is not an assurance for a single year, with a j^rivilege of renewal from year to year by paying the annual premium, but that it is an entire con- tract of assurance for life, subject to discontinuance and forfeiture for non-payment of any of the stipulated premiums. Such is the form of the contract, and such is its character. * * * " Each instalment is, in fact, part consideration of the entire in- surance for life. It is the same thing, where the annual premiums are spread over the whole life. * * * " The case, therefore, is one in which time is material and of the essence of the contract. Non-payment at the day involves absolute forfeiture, if such be the terms of the contract, as is the case here. Courts cannot with safety vary the stipulation of the parties by in- troducing equities for the relief of the insured against their own negligence. " But the court below bases its decision on the assumption that, when performance of the condition becomes illegal in consequence of 280 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II. the prevalence of public war, it is excused, and forfeiture does not ensue. It supposes the contract to have been suspended during- the war, and to have revived with all its force when the war ended. " Such a suspension and revival do take place in the case of ordi- nary debts. But have they ever been known to take place in the case of executory contracts in which time is material ? If a Texas merchant had contracted to furnish some Northern explorer a thou- sand cans of preserved meat by a certain day, so as to be read}' for his departure for the North Pole, and was prevented from furnish- ing it by the civil war, would the contract still be good at the close of the war five years afterwards, and after the return of the ex- pedition ? "If the proprietor of a Tennessee quarry had agreed, in 1860, to furnish, during the two following years, ten thousand cubic feet of marble, for the construction of a building in Cincinnati, could he have claimed to perform the contract in 1865, on the ground that the war prevented an earlier performance ? " The truth is, that the doctrine of the revival of contracts sus- pended during the war is one based on considerations of equitj' and justice, and cannot be mvoked to revive a contract which it would be unjust or inequitable to revive. "In the case of life insurance, besides the materiality of time in the performance of the contract, another strong reason exists why the policy should not be revived. Tlie parties do not stand on equal ground in reference to such a revival. "It would operate most unjustly against the company. The business of insurance is founded on the law of averages ; that of life insurance eminentl}^ so. The average rate of moi'taiity is the basis on which it rests. By spreading their risks over a large num- ber of cases, the companies calculate on this average with reasonable certainty and safety. .Anything that interferes with it deranges the security of the business. If every policy lapsed by reason of the war should be revived, and all the back premiums should be paid, the companies would have the benefit of this average amount of risk. " But the good risks are never heard from ; only the bad are sought to be revived, where the person insured is either dead or dying. Those in health can get new policies cheaper than to pay arrearages on the old. To enforce a revival of the bad cases, wliilst the company necessarily lose the cases, which are desirable, would be manifestly unjust. An injured person, as befc^re stated, does not stand isolated and alone. Ills case is connected with and correlated to the cases of all others insured by the same company. CllAP. II.] NEW YORK LIFE INS. CO. V. STATHEM. 2S1 "The nature of the business, as a wliole, must be looked ut to understand the general equities of the parties. " We are of opinion, therefore, that an action cannot be niaintained for the amount assured on a })olicy of life-insurance forfeited, like those in question, by non-payment of the premium, even though the payment was prevented by the existence of the war. " The question then arises, Must the insured lose all the money which has been paid for premiums on their respective policies? If tliey must, they will sustain an equal injustice to that which the companies would sustain by reviving the policies. At the very first blush, it seems manifest that justice requires that they should have some compensation or return for the money already paid, otliei-wise the companies would be the gainers from their loss ; and that from a cause for which neither party is to blame. The case may be illustrated thus : Suppose an inhabitant of Georgia had bargained for a house, situated in a Northern city, to be paid for by instal- ments, and no title to be made until all the instalments were paid, with a condition that on the failure to pay any of the instalments when due, the contract should be at an end, and the previous pay- ments forfeited ; and suppose that this condition was declared by the parties to be absolute and the time of payment material. Xow, if some of the instalments were paid before the war, and others ac- cruing during the war were not paid, the contract, as an executory one, was at an end. If the necessities of the vendor obliged him to avail himself of the condition, and to resell the property to another party, would it be just for him to retain the money he had received? Perhaps it might be just if the failure to pay had been voluntary, or could, by possibility, have been avoided. " But it was caused by an event beyond the control of either party, — an event which made it unlaAvful to pay. In such case, whilst it would be unjust, after the war, to enforce the contract as an execu- tory one against the vendor contrary to his Avill, it would be equally unjust in him, treating it as ended, to insist upon the forfeiture of the money already paid on it. An equitable right to some compensation or return for previous payments would clearly result from the circumstances of the case. The money paid by the pur- chaser, subject to the value of any possession which he may liave enjoyed, should, ex cequo et bono, be returned to him. This would clearly be demanded by justice and right. " ^Vnd so, in the present case, whilst the insurance company has a right to insist on the materiality of time in the condition of payment of premiums, and to hold the contract ended by reason of non-pay- ment, they cannot with any fairness insist u])on tlie condition, as it 282 EFFECTS OF M'AR AS BETWEEN ENEMIES. [PART H. regards the forfeiture of the premiums ah-eady paid ; tliat would be clearly unjust and inequitable. The insured has an equitable right to have this amount restored to him, subject to a deduction for the value of the assurance enjoyed by him whilst the policy was in ex- istence ; in other words, he is fairly entitled to have the equitable vahie of his policy. * * * " We are of opinion, therefore, first, that as the comjDanies elected to insist upon the condition in these cases, the policies in question must be regarded as extinguished by the non-payment of the premi- ums, though caused by the existence of the war, and that an action will not lie for the amount insured thereon. " Secondl}', that such failure being caused by a public war, without the fault of the asstired, they are entitled ex ((^qiio et bono to recover the equitable value of the policies with interest from the close of the war. * * * " In estimating the equitable value of a policy, no deduction should be made from the precise amount which the calculations give, as is sometimes done where policies are voluntarily surrendered, for the purpose of discouraging such surrenders ; and the value should be taken as of the day when the first default occurred in the payment of the premium by which the policy became forfeited. In each case the rates of mortality and interest used in the tables of the company will form the basis of the calculation. " The decree in the equity suit and the judgments in the actions at law are reversed, and the causes respectively remanded to be pro- ceeded with according to law and the directions of this opinion. Clifford, J., (with wliom concurred IIl'xt, J..) dissenting : — " Where the parties to an executory money-contract live in different countries, and the governments of those countries become involved in public war with each other, the contract bet^'een such parties is suspended during the existence of the war, and revives when peace ensues; and that rule, in my judgment, is as applicable to the contract of life-insurance as to any otlier executory con- tract. " Consequently, I am obliged to dissent from the opinion and judgment of the court in these cases." ^ "^Effect of war upon treaties. — "General compacts between nations," says Wheaton (Lawrence's eJ., p. 46'J), " may be divideJ into what are called trun.sitor!/ coiivtn- tioiis, and treaties properly so tcrnu'd. The first are perpetual in their nature, so that, being once carried into effect, they subsist independent of any change in the sovereignty and form of government of the contracting parties; and although their operation may, in some cases, be suspended diirinu war, tliey revive on the return of peace without any express stipulation. Such are treaties of cession, boundary, or exchange of territory, or tliose which create a permanent servitude in favor of one nation within the territory of another." CHAr. II.] THE " HOOP." 283 Section 31. — Tkade with the Exemy. THE "HOOP." High Court of Admiralty, 1799. (1 C. nobin.son, 19G.) British niPi'chants are not at liberty to trade with the enemy witlioiit the King's license; all property taken in such trade is conflscaljle as prize to the captor. Jndg'ineiit. — Sir W. Scott. — " This is the case of a ship laden with flax, madder, geneva, and cheese, and bound from Rotterdam osten- sibly to JJergen; but she was in truth coming- to a British port, and took a destination to Bergen to deceive the French cruisers ; and, as tliL- claim discloses (of which I see no reason to doubt the truth), the goods were to be imported on account of British merchants, being most of them articles of considerable use in the manufactures and commei'ce of this country, and being brought under an assurance from the commissioners of customs in Scotland that they might be lawfully imported without any license, by virtue of the statute 35 Geo. 3, c. 15, § 180. ^ " It is said that these circumstances compose a case entitled to great indulgence ; and I do not deny it. But if there is a rule of law on the subject binding the court, I must follow where that rule leads me ; though it leads to consequences which I may privately regret, when I look to the particular intentions of the parties. " In my opinion there exists such a general rule in the maritime jui'isprudence of this cottntry, by wiiich all trading with the public enemy, unless with the permission of the sovereign, is interdicted. It is not a principle peculiar to the maritime law of this country ; it is laid down by Bynkershoek as an universal principle of law. — ' Ex natura belli commercia inter hostes cessare non est dubitandum. Quamvis nulla specialis sit commerciorum prohibitio, ipso tamen 1 The 35 G. 3, c. 15 (March 16, 1795), enacts, " that it shall be lawful to import such goods belonging to subjects of the United Provinces, or to any who were sub- jects before the 19th of January, 1795, or to any subject of his majesty, to be landed and secured in warehouses for the benefit of the proprietor, and for the se- curity of the revenue." Subsequent acts contain further regulations for property Ci.;u.ing from Holland, in the ambiguous situation of tlie two countries at that time. 284 EFFECTS OF WAR AS BETWEEN ENEMIES. [PAKT II, jure belli commercia esse vetita, ipsse indictiones bellorum satis de- caraiit, etc' He proceeds to observe, that the hiterests of trade, and the necessity of obtaining certain connnodities have sometimes so far overpowered this rule, that different species of traffic have been permitted, '■ prout e re sua, suhditorumque suorum esse censent pn'u- cipes ' (Bynk. Q. J. P. B. 1, c. 3.) But it is in all cases the act and permission of the sovereign. Wherever that is permitted, it is a suspension of the state of war quo ad hoc. It is, as he expresses it, ^pi'O parte sic bellum, pjro pjarte pax inter suhditos iitri usque principes^ It appears from these passages to have been the law of Holland ; Valin, 1. iii., tit. 6, art. 3, states it to have been the law of France, whether the trade was attempted to be carried on in national or in neutral vessels ; it will appear in a case which I shall have occa- sion to mention. Tlie Fortuna, to have been the law of Spain ; and it may, I think, without rashness be affirmed to have been a general principle of law in most of the counti-ies of Europe. " By the law and constitution of this country, the sovereign alone has the power of declaring war and peace. He alone therefore who has the power of entirely removing the state of war, has the power of removing it in part, by permitting, where he sees proper, that commercial intercourse which is a partial suspension of the war. There may be occasions on which such an intercourse may be highly expedient. But it is not for individuals to determine on the expe- diency of such occasions on their own notions of commerce, and of commerce merely, and possibly on grounds of private advantage not very reconcilable with the general interest of the state. It is for the state alone, on more enlarged views of policy, and of all circum- stances which may be connected with such an intercourse, to deter- mine when it shall be permitted, and under wdiat regulations. In my opinion, no principle ought to be held more sacred than that this intercourse cannot subsist on any othei- footing than that of the direct permission of the state. Who can be insensible to the conse- quences that might follow, if every person in a time of war had a right to carry on a commercial intercourse with the enemy, and un- der color of that, had the means of carrying on any other species of intercourse he might think fit? The inconvenience to the public might be extreme ; and Avhere is the inconvenience on the other side, that the merchant should be compelled, in such a situation of the two countries, to carry on his trade between them (if necessary) un- der the eye and control of the government, charged with the care of the public safety? "Another princii)le of law, of a less public nature, but equally general in its reception and direct in its application, forbids this sort of com- CHAP. II.] TPIE " HOOP." 285 iiiunication as fundamentally inconsistent with the relation at that time existing- between the two countries; and that is, the total in- ability to sustain any contract by an appeal to the tribunals of the one country, on the part of the subjects of the other. In the law of ahnost every country, tlie character of alien enemy carries with it a disability to sue, or to sustain in the language of the civilians a per- iioiKf st'f/idi injiaUcio. The peculiar law of our own country applies this principle with great rigor. The same principle is received in our courts of the law of nations; they are so far l^ritish courts, that no man can sue therein who is a subject of the enemy, unless under particular circumstances that ^:)ro Jute vice discharge him from the character of an enemy ; such as his coming under a flag of truce, a cartel, a pass, or some other act of public authority that puts him in tlie King's peace 2^^'^ hue vice. But otherwise he is totally ex, lex, : even in the case of ransoms which are contracts, but contracts aris- ing ex jure hell% and tolerated as such, the enemy was not permitted to sue in his own proper person for the payment of the ransom bill ; but the payment was enforced by an action brought by the impris- oned hostage in the courts of his own countiy, for the recovery of his freedom. A state hi which contracts cannot be enforced, cannot be a state of legal commerce. If the parties who are to contract have no right to compel the performance of the contract, nor even to appear in a court of justice for that purpose, can there be a stronger proof that the law imposes a legal inability to contract ? To such transactions it gives no sanction ; they have no legal existence; and the whole of such commerce is attempted without its protection and against its authority. Bynkershoek expresses himself with great force upon this argument in his first book, chapter 7, where he lays down that the legality of commerce and the mutual use of courts of justice are inseparable ; he says, that cases of commerce are undis- tinguishable from cases of any other species in this respect. ' Si liosti semel permittas actiones exercere, difficile est distinguere ex qua causa oriunter, nee potui animadvertere illam distinctionem usu fuisse servatam.' "Upon these and similar grounds it has been the established rule of law of this court, confirmed by the judgment of the Suprenie Court, that a trading with the enemy, except under a royal license, subjects the property to confiscation ; — and the most eminent persons of the law sitting in the Supreme Court have uniformly sustained such judgments. * * * ^ ^In support of this rule Sir W. Scott reviews a large number of cases decided on appeal by the Lords of Appeal. These cases are the following : The Kingende Jacob, 1750 : The Lady Jane, 1749; Deergaden, 1747 ; The Eliz.ibe:h, 1741) ; Tlie 286 EFFECTS OF WAR AS BETWEEN ENEMIES. [I'ART 11. " I omit many other cases of the last and the present ^\■ar merely on this ground that the rule is so firmly established, that no one case exists which has been permitted to contravene it, — for I take upon me to aver, that all cases of this kind which have come before that tribunal have received an uniform determination. The cases which I have produced, prove that the rule has been rigidly enforced : — Avhere acts of parliament have on different occasions been made to relax the navigation-law and other revenue acts ; where the govern- ment has authorized, under the sanction of an act of parliament, a homeward trade from the enemy's possession, but has not especially protected an outward trade to the same, though intimately con- nected with that homeward trade, and almost necessary to its exist- ence ; that it has been enforced where strong claim not merely of convenience, but almost of necessity, excused it, on behalf of the individual ; that it has been enforced where carriages have been laden before the war, but where the parties have not used all possible dili- gence to countermand the voyage after the first notice of hostilities ; and that it has been enforced not only against the subjects of the crown, but likewise against those of its allies in the A\'ar, upon the supposition that the rule was founded on a strong and universal principle, which allied states in war had a right to notice and apply, mutually, to each other's subjects. Indeed it is the less necessary to produce these cases, because it is expressly laid down by Lord Mansfield, as I understand him, that such is the maritime law of England." {Gist v. 3Iason, 1 T. R., 85.) [In conclusion. Sir \V. Scott held that the acts of Parliament in question were not intended to legalize the trade without special licenses ; and that the law advisers of the commissioners were wrong in their conclusions to that effect. The property was therefore con- demned according to the strict rule of law.] Juffrow Louisa Margaretha, 1781; The St. Louis, 1781; The Victoria, 1781; The Conite de Wolirougoff, 1781 ; The Guidita, 1785 : Tlie Eenigheid, 1795 ; The Fortuna, 1795 ; The Freeden, 1795 ; The William, 1795. These were all cases in which the property in question was condemned, though some of them, like the case of the Hoop, were cases of great hardship upon British merchants. CHAP, n.] POTTS V. BELL. 2tS7 POTTS V. BELL. King's Bexcii, 1800. (8 Term Reports, 54S.) Trad'ng with the enemy without the King's license is illegal. This was the case of a neutral ship captured by a Freiicli cruiser on a voyage from Rotterdam to Hull, for having on board enemy property (English). These goods were bought in Rotterdam by the agent of an English house, after the breaking out of hostilities between France and England, and insured in an English company. An action was brought on the insurance policy. The defendant insisted that the plaintiff was not entitled to re- cover ; because the policy was void, inasmuch as it was not hiAvful to trade with the enemy. The Common Pleas found for the plaint- iffs. But on appeal, this judgment was reversed : Judgment, — Lord Kenyox, Ch., J. : — " The court had very fully con- sidered the case immediately after the very learned argument which had been made by the King's advocate. Sir J. Xicholl, in the last term. That the reasons \^inch he had urged and the authorities he had cited were so many, so uniform, and so conclusive to show that a British subject's trading with an enemy was illegal, that the ques- tion might be considered as finally at rest. That those authorities, it was true, were mostly drawn from the decisions of the admiralty courts ; and that though all diligence had been used, there was only one direct authority on the subject to be found in the common-law books, and that one was to the same effect. But that the circum- stances of there being that single case only was strong to show that the point had not been since disputed, and that it might now be taken for granted that it was a principle of the common law that trading with an enemy without the King's license was illegal in Ih'itish subjects. That it was therefore needless in this case to delay giving judgment for the sake of pronouncing the opinion of the court in more formal terms ; more especially as they could do little more than recapitulate the judgment with the long train of authorities, already to be found in the clearest terms in the principal report" of the case of the Hooj) published by Dr. Robinson. That the consequence was that the judgment of the court of Common Pleas must be reversed." 288 EFFECTS OF WAR AS BETWEEN ENEMIES. [PAET 11. THE " RAPID." Supreme Court of the United States, 1814. (8 Cranch, loo.) After a doclaration of war, an American citizen cannot legally send a vessel to the enemy's country to bring away his property. This was an appeal from the sentence of the circuit court, for the district of Massachusetts. The material facts in the case were these. Jabez Harrison, a native American citizen, the claimant and ap- pellant in this case, had purchased a quantity of English goods in England, before the declaration of war by the United States against that countr}', and deposited them on a small island, belonging to the English, called Indian Island, and situated near the line between Xova Scotia and the United States. Upon the breaking out of the war, Harrison's agents in Boston hired the Iif/pid, a vessel licensed and enrolled for the cod fisher}^ to proceed to the place of deposit and bring away the goods. The Hapid accordingly sailed from Bos- ton, on the 3d of July, 1812, with Harrison, the claimant, on board, proceeded to Eastport, where Harrison was left, and from thence, agreeably to Harrison's orders, to Indian Island, where the cargo in question was taken on board. On the eighth of July, while on his return, she was captured by the Jefferson Privateer, on the high seas, and brought into Salem. The goods, being libeled as prize, and claimed by Harrison as his property, were condemned in the circuit court of Massachusetts to the captors, on the ground that by " trading with the enemy," they had acquired the character of enemies' property. A claim was also interposed by the United States, on the ground of a violation, by the liapid, of the non-intercourse act. This claim was also rejected. From the decree of the circuit court the United States and Harrison appealed ; at the trial before the Supreme Court the government of the United States did not interpose its claim. Tlie Court dwelt at considerable length upon the general princi- ples of the rule which prohibited trading between enemies; and as there was no question of the observance of this rule in international law, this part of the opinion is omitted. Tlie claimant contended, however, that there was not a trading with the enemy in this case ; CHAP. II.] THE " RAPID/' 289 that on the hreaking out of war, every citizen had a rig-ht to with- draw pr()[)erty lying in the enemy's country and purchased before the war. Only so much of the ophiion as bears upon this point is given. Judgment, — ^Jonxsox, J. : — "* * * After taking this general view of the principal doctrine nil this subject, we will consider the points made in behalf of the claimant in this case, and, 1. Whether this was a trading, in the eye of the prize law, such as Avill subject the property to capture? " The force of the argument on this point depends upon the terms made use of. If by tnuUng, in prize law, was meant that signifi- cation of the term which consists in negotiation or contract, this case would certainly not come under the penalties of the rule. But the object, policy, and spirit of the rule is to cut oft" all communica- tion or actual locomotive intercourse between individuals of the belligerent states. Xegotiation or contract has, therefore, no nec- essary connection with the offence. Intercourse inconsistent with actual hostility, is the offence against which the o}iei-ation of the rule is directed ; and by substituting this definition for that of trad- ing with an enemy, an answer is given to this argument. " 2. Whether, on the breaking out of a war, the citizen has a right to remove to his own country with his property, is a question which Ave conceive does not arise in this case. This claimaint certainly had not a right to leave the United States, for the purpose of bring- ing home his property from an enemy's country ; nnich less could he claim it as a right to bring into this country, goods, the importa- tion of which was expressly prohibited. As to the claim for the vessel, it is founded on no pretext whatever ; for the undertaking, besides being in violation of two laws of the United States, was al- together voluntary and inexcusable. With regard to the importa- tions from Great Britain about this time, it is Avell known that the forfeiture was released on grounds of policy and a supposed obliga- tion induced by the assurances which had been held out by the American charge d'affaires in England. But this claimant could allege no such excuse. " 3. On the third point, we are of opinion that the foregoing obser- vations furnish a sufficient answer. "If the right to capture property thus offending, grows out of a state of war, it is enough to support the condemnation in this case, that the act of Congress should produce a state of war, and thit the connnission of the privateer should authorize the capture of any property that shall assume the belligerent chai'acter. " Such a character Ave are of opinion this vessel and cargo took 19 290 EFFECTS OF WAK AS BETWEEN ENEMIES. [I'AKT II. upon herself ; or at least, she is deprived of the right to prove her- self otherwise. " We are aware that there may exist considerable hardshi[) in this case ; the owners, both of vessel and cargo, may have been uncon- scious that they were violating the duties which a state of war im- posed upon them. It does not appear that they meant a daring violation either of the laws or belligerent rights of their country. But it is the unenvied province of this court to be directed by the head, and not by the heart. In deciding upon principles that must define the rights and duties of the citizen and direct the future de- cisions of justice, no latitude is left for the exercise of feeling." THE "ST. LAWRENCE." Supreme Court of the United States, 1814 — 1815. (8 Cranch, 434, and 9 Crunch, 120.) Without deciding whether an American citizen may, after tlie outbreak of war, witlidraw with liis property from tlie enemy's country, held, that he cannot do so eleven months after the declaration of war. This was an appeal from the sentence of the United States Circuit Court for the district of Xew Hampshire. The ship St. Lawrence was captured on the lioth of June, 1813, and, with her cargo, libeled as prize, in the District Court of Xew Hampshire. On the 5th of IMay, 1813, a license was granted by the privy council of Great Britain to Thomas White of London, and others, permitting them to export, direct to the United States, an enumerated cargo in the St. Lawrence, provided she cleared out be- fore the last day of that month. On the 30th of May, 1813, she sailed from Liverpool for the L'nited States with the cargo specified in the license. Mr. Alexander M'Gregor and his family were passengers on board. It appeared from the examination of Mr. ^M'Gregor, that he was born in Scotland, was naturalized in the United States in 1795, had lived, the last seven years, in Liverpool, and was returning in the St. Lawrence, with his family to the United States. There were several claimants, but only so much of the case is given as refers to the claims of M'Gregor and Penniman. Webster, for M'Gregor and Penniman, said : " We contend that a distinction is to be taken between an American citizen, domiciled m England at the breaking out of the war, with- CHAP. II.] THE " ST. LAWEENCE." 201 drawing his funds, and an American citizen who goes to England after the declaration of war, for the same purpose. That the former, whether a native or naturalized citizen, has a right (and perhaps it is his duty) to return to tlie United States with his effects. If he has no such right, why should the law of nations have provided a reasonable time for removing in case of war ? " This rule of the law of nations has been founded upon the necessity of the case, and upon the hardship which would attend the want of such a rule. A citizen of one country may lawfully go to any othei- country, in time of peace, and take up his residence there ; and it would be very hard if he must suffer by the sudden and unexpected breaking out of a war — an event over which he had no control. A neutral would be permitted to withdraw his funds in such a case ; and if we should allow the privilege to neutrals, why should we deny it to our own citizens ? 1 Rob., 1, The Vigilantict 1 / Bos. and Pul^ 355, Bell V. Gitson. " The case of Escott, cited in The Hoop, 1 Rob., 1G5, 19G, may per- haps be thought to make against our claim. " But the cases are not alike. In that case, Escott sent for his prop- erty : here M'Gregor came with his. " A character gained by residence, is lost by non-residence. "When M'Gregor ceased to reside in England, his character, if hostile before, no longer continued hostile. That it was not his intention to continue his residence in England, is clearly evidenced by his actual return to the United States with his family. " With regard to his half of the ship, we contend that if he had a right to return, he had a right to use the means necessary for that purpose — he had a right to purchase a ship for the conveyance of himself and his family. So if it was lawful for him to withdraw his funds, he might lawfully invest those funds in merchandise, if he could not otherwise withdraw them. 4 Rob., 161, 195, Tlie Madonna delle Grade ; 3 Rob., 11, 12, The Indian Chief; 5 Rob., 248, The President; 5 Rob., 84,90, The Ocean; 5 Rob., GO, The Bianar Judgment : — " It is not the intention, to express any opinion as to the right of an American citizen, on the breaking out of hostilities, to M'ithdraw his property purchased before the war, from an enemy country. Admitting such right to exist, it is necessary that it should be ex- ercised with due diligence, and within a reasonable time after the knowledge of hostilities. To admit a citizen to withdraw property from an enemy countr}', a long time after the war, under the pretence of its having been purchased before the war, would lead to the most injurious consequences, and hold out strong temptations to every 292 EFFECTS OF AVAR AS UETWEEX ENE:MIES. [PAliT II. species of fraudulent and illegal traflBc with the enemy. To such an unlimited extent we are all satisfied that the right cannot exist. The present shipment was not made until more than eleven months had elapsed after war w' as declared ; and we are all of opinion that it was then too late for the party to make the shipment, so as to exempt him from the penalty attached to an illegal traffic w'ith the enemy. The consequence, is that the property of JMr. Penniman must be condennied. " And their decision is fatal, also, to the claim of jMr. M'Gregor. Independent, indeed, of the principle, there are many circumstances in the case unfavorable to the latter gentleman. In the first place, it is not pretended that the goods included in his claim Avere pur- chased before the war. In the next place, he was the projector of the present voyage, and became, as to one moiety, the charterer or purchaser of the ship. Nearly all the cargo consisted of goods belong- ing (as it must now be deemed) exclusively to British merchants. He was, therefore, engaged in an illegal traffic of the most noxious nature ; a traffic not only prohibited by the laAv of war, but by the municipal regulations of his adopted country. His whole property, therefore, embarked in such an enterprise, must alike be inflicted with the taint of forfeiture." THE BRIG "JOSEPH." U. S. Circuit Court for Massachusetts, 1813. (1 GalUson, 545.) When a citizen of the United States is residing in the enemy's coimtiy at the outbreak of war, lie is not permitted to bring liis property baclv in sucli a way as to involve a trade with the enemy. The following is an extract from the opinion of 3Ir. Justice Story : — " It has been farther argued, that a declaration of war is, in effect, a command to the citizens of the belligerent country abroad at the time, to return home, and. that the law^ allows a reasonable time" and w^ay to effect it. " I am not aware of any principle of public law, which obliges every absent citizen to return to his countiy, on the breakiiig out of the war, nor has any authority been produced, which countenances the posi- tion. It may be admitted, that the sovereign power of the country has a right to require the services of all its citizens, in time of war, and f/r/ v. Wuddingt on, 16 Johnson, 88 ; Alexan- der's Cotton, 2 Wallace, 404; Ex parte Boussmaker, 13 Ves., 71 ; Coolidf/e v.In;/lce, 13 Mass., 20; Patonv. Nichols, 3Wheaton, 204; Mussony. Fales, 10 Mass., 332; Capen v. Barrows, 1 Grey, 380. CHAP. II.] KERSHAW V. KELSEY. 297 the war, ixiyment then to such creditor or liis agent can in no respect be construed into a violation of the duties imposed by a state of war U[)on the debtor; it is not made to an enemy, in contemplation of international or municipal law ; and it is no objection that the agent may possibly remit the money to his principal in the enemy's coun- try ; if he should do so, the offence would be imputable to him, and not to the person paying him the money. ( Com. v. Penn., Peters, C. C, 496 ; Denniston v. Imbrie^ 3 Wash. C. C, 396 ; Ward v. Smith, 7 Wall., 447; Buchanan v. Cury, 19 Johns., 137.) "The same reasons cover an agreement made in the enemy's terri- tory to pay money there, out of funds accruing there, and not agreed to be transmitted from within our own territory ; for, as was said by the Supreme Court of New York — the last case cited, ' This rule is founded in public policy, which, forbids, during war, that money or other resources shall be transferred so as to aid or strengthen our enemies. The crime consists in exporting the money or property, or placing it in the power of the enemy. " The lease now m question was made within the rebel territory where both parties were at the time, and would seem to have con- temi)lated the continued residence of the lessee upon the demised in'emises throughout the term. Xo agreement appears to have been made as part of a contract contemporaneously with the lease, that the cotton crop should be transported, or the rent sent back, across tlie line between the belligerents, and no contract or communication appears to have been made across that line, relating to the lease, the deliveiy of possession of the premises or of the corn, or the payment of the rent of the one or the value of the other. The subsequent for- warding of the cotton by the defendant's son from Mississippi to Massachusetts may have been unlawful ; but that cannot affect the validity of the agreements contained in the lease. Neither of these agreements involved or contemplated the transmission of money or property, or other communication, between the enemy's territory and our own. We are therefore unanimously of opinion that they did not contravene the law of nations or the public acts of the govern- ment, even if the plantation was within the enemy's lines ; and that the plaintiff, upon the case reported, is entitled to recover the unpaid rent, and the value of the corn. " 298 EFFECTS OF WAii AS BET^VEE^' ene:mies. [part u. UXITED STATES v. GROSSMAYER. SUPKEME CoUUT OF THE UxiTED StaTES, 1869. ( 9 Wallace, 72.) A merchant residing in New York, could not legally transmit orders by a third person to his agent in Georgia, during the civil war. Held, that all acts of the agent, in carrying out such orders, in dealing with the property or debts of his principal, were null and void. This case was an a^Dpeal from the Court of Claims. Elias Einstein, a resident of Macon, Georgia, was indebted, when the late rebellion broke out, to Grossmayer, a resident of Xew York, for goods sold and money lent, and while the war was in progress a correspondence on the subject was maintained through the medium of a third person, who passed back and forth several times between 3Iacon and Xew York. The communication between the parties re- sulted in Grossmayer requesting Einstein to reiuit the amount due him in money or sterling exchange, or, if that were not possible, to mvest the sum m cotton and hold it for him until the close of the war. In pursuance of this direction — and, as it is supposed, because money or sterlhig exchange could not be transmitted — Einstein pur- chased cotton for Grossmayer, and informed him of it ; Grossmayer exi>vess'ing himself satisfied tcit/i the arrany an agent appointed after bis own disability to deal at all with the insurgents was created '? " It is argued that the purchase by Einstein was ratified by Gross- mayer, and that being so, the case is relieved of difficulty ; but this is a mistaken view of the principle of ratification, for a transaction originally unlawful cannot be made any better by being ratified. '^ In any as[)ect of this case, \\hether the relation of debtor and creditor continued, or was changed to that of principal and agent, the claimant cannot recover. "As he was prohibited during the war from having any dealings with Einstein, it follows that nothing which both or either of them did in this case could have the effect to vest in him the title to the cotton in question, " Xot being the owner of the property he has no claim against the United States. " The judgment of the Court of Claims is reversed, and tlie cause is remanded to that court with directions to enter an order " Dismissing the petition." THE " SEA LION." Supreme Court of tue United States, 1866. (5 Wallace, G30.) The act of Congress of .July 13, 1861, authorizing the President to license certain commercial intercourse witli tlie States in rebellion did not contemplate the exer- cise of that authority hy sulioniinate officers of the executive department w ithout the express order of the President. An act of Congress passed during the late rebellion (.July 13ih, 1861), prohibited all commercial intercourse between the inhabitants of any State which the President might declare in a state of insur- rection, and the citizens of the rest of the United States; and enacted that all merchandise coming from such territory into other CHAP. TI.] THE " SEA LION." 301 ports of the United States with the vessel conveying it sliould be forfeited. The act provided, however, that " the President'' might "in A/.s discretion license and permit commercial hitercourse'''' with any such part of a State the iidiabitants of which had been so declared in a state of insurrection, "in sucli articles, and for such time, and by sucli persons, as he, in lils discretion, may think most conducive to the pul)lic interest." And that, "such nitercourse, so far as by Irhn licensed, shall be conducted and carried on only in pursuance of rules and regulations presci'ibed by the seci-etary of the treasury." The President having soon after declared several Southern States, and among them Alabama, in a state of insurrection, and the Secre- tary of the Treasury having issued a series of commercial regula- tions on tlie subject of intercourse with them, Brott, Davis &, Slions, a counnercial firm of New Orleans, obtained from Mr. G. S. Den- nison, special agent of the Treasury Department, and acting Col- lector of Customs at New Orleans, a paper, dated February IGth, 1863, as follows : "The United States military and other authorities at Xew Orleans permit cotton to be received here from beyond the United States military lines, and such cotton is exempt from seizure or confiscation. An order is in my hands from Major- (renend Banks approving and directing this policy. The only condition imposed is that cotton or other produce must not be bought with specie. All cotton or o^ier produce brouglit liither from tlie Confederate lines by Brott, Davis & Shons will not be interfered with in any manner, and they can ship it direct to any for- eign or domestic jiort." This paper %oas indorsed hy Rear- Admiral Farra. 1!.] FURTADO V. RODGERS. 303 Banks is not produced. If it were as comprehensive as the special agent assumed it to be, it covered shipments to New Orleans from Wilming-ton, Charleston, and all points in the rebel States. It em- braced merchandise, coming alike from places within, and places be- yond his military lines. With respect to the latter it was clearly void. The President only could grant such a license. Mobile was then in possession of the enemy. The vessel and cargo bore the stamp of the enemy's property. The paper relied upon was a nullity, and gave them no protection. They were as much liable to capture and condeinnation as any other vessel or cargo, leaving a blockaded port and coming within reach of a blockading vessel. " The decree below was rightly rendered, and it is « Affirmed." Mr. Justice Grier : — " I do not concur in this judgment. The vessel went out of Mobile by permission of the commander of the blockade there. To con- demn such property would be a violation of good faith. Xo English court has ever condemned under such circumstances." FURTADO V. RODGERS. Common Pleas, 1802. (3 Bos. cfc Pull. 191.) An insurance effected in Great Britain on a French ship previous to the com- mencement of hostilities between Great Britain and France does not cover a loss by British capture. This was the case of the ship Petronelli, which sailed from Bayonne in France, Oct., 1792, for Martinique insured in an English company, the pohcy dating 19th Oct., 1792. The next year, while still at Mar- tini(jue the war between France and England broke out ; and the island of Martinique with all the shipping in the harbors was cap- tured by the English. After the peace of Amiens in 1802, the owner of the ship brought suit in Common Pleas in England, to recover the insurance on the ship. Judgment, — Lord Alvanley, C. J. : — " As it is of infinite importance to the parties that this case should be decided as speedily as possible, and as we entertain no doubts upon the subject, we think it right to deliver the judgment of the court without any further delay ; at the same time considering (he 304 EFFECTS OF ^VAR AS BETWEEN ENEMIES. [rART II. magnitude of the question we shall allow the parties to convert this case into a special verdict, in order that the opinion of the highest court in this kingdom may be taken, if it should he thought nec- essary. There are two questions for our consideration : 1st, whether it be lawful for a British subject to insure an enemy from the effect of capture made by his own government ? :2dly, whether, if that be legal, the insurance in this case having been made previous to tlie commencement of hostilities will make any difference ? As to the first point, it has Ijeen understood for some years to have been the opinion of all Westminster-llall, and I believe of the nation at large, that such insurances are not strictly legal or capable of being enforced in a court of justice. " The cases upon the subject are all brought into a small compass in the two valuable books of Mr. Park and my Brother Marshall. Mr. Park seems to consider the cases of Brandon v. JVesbitt and JBristurr., 1734, which decision is overruled l>y Anthori V. Fisher, is to be called in aid. If a Itond be given to an CHAP. II.] ANTOIXE V. MOKSHKAD. 309 alien enemy, it is good quoad the obligor, that is, it enures only for the benefit of the Crown. And if so of a bond, the law must be the like on a l)ill of exchange. So is it of contracts of insurance made with an alien enemy. Frindt v. Waters, 15 East., 2GG, Lord Ellkx- ijououcii, C. J., says the defense of alien enemy may go to the. con- tract itself, on which the plaintiff sues, and operate as a perpetual bar; though in that case the contracting party having become an enemy after the contract, it was held to be only a temporary suspen- sion of the right to sue, but he showed a disposition to confirm the cases of Brandon v. Nei^bitt^ 6 T. R., 2.3, and Bristom v. Toicers, 6 T. R., 35. No case has decided that a contract made with an alien enemy in time of war may be ever afterwards enforced. Chief Baron Gilbert lays it down, that upon the plea of alien enemy the right of the plaintiff is forfeited to the crown, as a species of reprisal upon the state committing hostility. GiiJBS, C. J.: — " It will not l)e useless to consider what legal proposi- tions can be deduced from the cases cited on behalf of the defendant, and to try how far they are applicable to the present case. This is no bill of exchange drawn in favour of an alien enemy, but by one subject in favour of another subject, upon a subject resident here, the two first being both detained prisoners in France ; the drawer might legally draw such a bill for his subsistence. After the bill is so drawn, the payee indorses it to the plaintiff, then an alien enemy. How was he to avail himself of the bill, except by negotiating it, and to whom could he negotiate it, except to the inhabitants of that country in which he resided ? I can recollect but two principles from the cases cited by the counsel for the defendant, and they are principles on which there never was the slightest doubt. First, that a contract made with an alien enemy in time of war and that of such a nature that it endangers the security, or is against the policy of this country, is void. Such are policies of insurance to protect an enemy's trade. Another principle is, that however valid a contract originally may be, if the party become an alien enemy he cannot sue. The Crown, during the war, may lay hands on the debt, and recover it, but if it do not, then, on the return of peace the rights of the con- tracting alien are restored, and he may himself sue. No other prin- ciple is to be deduced. The first may be laid out of the case, for this was not in its creation a contract made with an alien enemy. The second question is, whether the bill came to the hands of the plaintiff by a good title ? Under the circumstances of this case, not meaning to lay down any general rule beyond this case, I am of opinion that the indorsement to the plaintiff conveyed to him a legal title in this bill, on which the king might have sued in the time of (he war. olO EFFECTS OF WAR AS BETWEEN ENEISIIES. [PAIIT II. and he not having- so done, the plaintifif might sue after peace was proclaimed." Heath, J., was absent. Chamure, ,T. — "I am perfectly of the same opinion, and it w-ould he of very mischievous consequence if it were otherwise." Dallas, J. — " This is not a contract between a subject of this country and an alien enemy, nor is it a contract of that sort to which the principle can be applied. That principle is, that there shall be no communication with the enemy in time of war, but this is a con- tract between two subjects in an enemy's country, wdiich is perfectly legal. " Ruled refused." Section 32. — Raxsom Bills. CORNU V. BLACKBURNE. King's Bench, 1781. ( 2 Bouylas, 640.) A French captor had ransomed a British vessel, taken a hostage, and was then in turn captured by British cruisers; but he concealed the ransom bill, and after- ward sued upon it. Held, that he could recover in the action. This was the case of an English vessel and cargo captured by a French privateer and ransomed and a hostage taken as security ; but the privateer w-as in turn captured by two English frigates and taken into an English port. The ransom bill was concealed, how- ever, l)y the first captor, and not given up ; and the present suit is on the ransom bill. This document is as follows : " Xo. CO. Registered tlie present ransom bill at the Admiralty office, Boidogne, the 2'Ah. October, 1770, and delivered in double to Captain itolx-rt ("ornu, com- manding, the cutter, the Princesse de linhccrj privateer, of this port, by me under- written Chief Register. Signed, Merlin, Boulogne.' — We the underwitten Robert Cornu of Boulogne, commander of the ship the Princesse de Robecq, privateer of Boulogne, and Thomas Fincliett of Liverpool, master of the ship the iJulli/ of Li ver- poole, have agreed as followeth, viz. — That I, Robert Cornu, commander of the said privateer, acknowledge to have ransomed tlie said ship the Dolly of Liver- poole, belonging to .John Blackburne, burgher of Livei-poole, burthen lOo tons, on the 6th of .Tune, in the year 1780, at the heighth of Edinburgh, going from Lvnn to Liverpoole in England, under English colours, and passport of said Eng- land, loaded with wlieat, for the account of John Blackburne, burgher of Liver- CHAP. II. ] CORNU V. BLACKBUR^E. 311 poolc; wliich vessel I have agreed to ransom for the sum of 1300L sterling, to be paid to Mr. HauffouUier, fitter of the said privateer at Dunkii-k; in consideration of which I have set the said vessel at liberty to go to the port of Liverpoole, where she is to be arrived in the time and space of three months, afler the expiration of which this present agreement shall not clear her from being taken by any other privateers. For security of which ransom, I have received for hostage on board of the said ship, John Butler, cousin to the captain of the said vessel, desiring all friends and allies to let safely and freely proceed the said vessel to the port of Liverpoole, without any let or molestation, during the said time or course of her voyage; and I, Thomas Finehett, owner of the said ship and merchandizes, have volunlarily submitted to the payment of the said ransom, viz. VM)l. sterling; for surety whereof I have delivered up the said John Butler of Liverpoole for hostage, liromising not to go against the conditions of this present contract, whereof each of us have a copy by us, which we have signed, with the said hostage. Signed on board the said ship, the (itli of June in the year 1780. And it is further expressly covenanted and agreed, that I the said Thomas Finehett do bind and oblige myself, and engage my vessel and cargo, to i^ay or cause to be paid to the owners of the said privateer, the full amount of the said ransom, should the said hostage come to die, or to desert, or that the said privateer should perish, or be taken with the hostage on board, without which condition the captain of the said privateer would not have consented to the above ransom, which, in all cases whatsoever, shall be well and truly paid. — (Signed) Robert Cornu. Thomas Finehett. John Butler."' Lord Mansfield : — " It is sound policy, as well as good morality, to keep faith with an enemy in time of war. This is a contract whicli arises out of a state of hostility, and is to be governed by the law of nations, and the eternal rules of justice. The additional clause is particularly adapted to this case. There is no pretext to impeach it, on the ground of fraud or extortion. The bill was registered before the French ship sailed, with this clause in it. Nor does any inference arise, from its insertion, that the general law was understood to be otherwise ; for it is, also, stipulated, that the death of the hostage shall not vacate the contract, which stipulation the parties must be presumed to have known to be unnecessary, because the decision in llicord V. Bettenham was notorious over all Europe. Learned laAvyers were Avritten to on that occasion, both in France and Holland, and Mr. Justice Blackstone shewed me several letters he had received from abroad, on the subject. It is said, that, by the law of nations, the recapture puts an end to the ransom bill; and the argument is, that the court of Admiralty decrees salvage for retaking the ransom bill. " But what are the cases brought to prove this position ? None of them were litigated but the last, and, there, no ransom bill was forth- coming. Upon what was salvage given in that case ? They seem to have mistaken the nature of salvage. They seem to consider it AS a debt Avhich may be exacted. But no man can be compelled to pay salvage, unless he chooses to have the property back. They 312 EFFECTS OF WAR AS BETWEEN EXEiHES. [pA1:T n. have confounded distinct subjects. What is the eighth part ot a ransom bill ? Can the eighth part of an hostage be claimed as salvage ? Could the recaptor make use of the ransom bill ? " Could he bring an action on it in the foreign captain's name ? When the owner gets possession of the ransom bill, it may be a dif- ferent consideration. But the present case is clear on two grounds. 1. The special clause is decisive ; and, 2. Independent of that clause, there never has been any capture of the ransom bill. " The authority from Grotius is very strong on this last ground." WiLLEs, and Ashuurst, Justices, " of the same opinion." BuLLEK, Justice, '' of the same opinion. — The last ground goes all the length ; for the bill was never taken. " The Postea to be delivered to the plamtiff." ^ THE "CHARMIXG NANCY." Opixiox of G. Hay, 17G1. {ifaisdeii's Admiralty Cases, 398.) "Who may sue on a ransom bill ? The ship Charming JVancy (whereof James Fanneson now is or lately was master) being taken as prize by the French, w'as with her cargo ransomed by the master for the sum of £ ; and Francis Burt and one of the crew, whose name is unknown, consented to go as hostages for the payment of the said ransom ; in consequence whereof the said ship and cargo were released. The ship afterwards arrived at her destined port, and has there unlivered part of her cargo, but the said ransom has not been paid, and the said hostages still remain prisoners. A suit is intended to be commenced in the Court of ^Vdmiralty by the relations of Burt to compel the payment of the said ransom, and thereby procure the release of the hostage, and it is uncertain whether the ship, and that part of the cargo which remains unlivered may be sufficient to answer the said ransom. 1 The case of Bicord v. lielienhcon, 3 Burrow, 1734 (1T()2), referred to by Lord Mansfield, was that of a British ship captured and ransomed by a Fronoli captor, a hostage — .Joseph Bell — being taken. The hostage died in prison ; and the present action was subsequently brought on the ransom bill by the captor. It was objected that, the plaintiff being an alien enemy at the time of the con- tract, the ransom bill was void, the hostage alone being entitled to bring an action. But the court overruled these objections and gave judgment for the plaintiff. CHAP. II.] THE " PATllIXENT." 313 Query. — "Have not Burt's relations a right to bring an action against the master, for tlie performance of whose contract tlie liostages became bound, as well [as] agninst the ship and goods, so that they may, if necessary, proceed against both ? And can a war- rant on such action be refused ? And, as the name of the other hostage is not at present known, may not such action be entered in tlie name of Burt and company as hostages ? " Answer. — " I do not know any instance of a warrant issuing against the master in such a case. The shi}) and goods are in the first place ans^^'erable for the redemption of a hostage. " These may be arrested, and the suit may be brought by Burt's relations on behalf of both the hostages, naming the one and describ- ing the other of name at present unknown." G. Hay, January 24, 1701. " In the first instance I think you cannot proceed against the master. If the ship and goods will not produce the sum stipulated for the ransom, and you can show that the master fraudulently ran- somed, I think he may then be prosecuted on behalf of the hostages." THE "PATRIXENT." Opinion of Wm. Wynne, 1781. ( 3/ar.S'cZeu's Admiralty Canes, 398.) A British sliip was ransomed by an American captor, and a liostage talcen. The bill was sent to Holland to be forwarded to England for collection. The opinion was that a suit on the ransom bill could be maintained against the master and owners of the ransomed vessel, but, it must first be shown that the hostage was detained or dead. The ship Patr'txent^ Hannibal Lush, master, was taken by an American privateer, and was ransomed for £5,500 sterling, and an hostage delivered, who was carried to America. For the above sum the captain of the ransomed ship drew a bill upon ^Messrs. John Glassford & Co., merchants in Glasgow, a copy of which is under- written, who are owners of the vessel. The ransom-bill was sent to Amsterdam, and from thence remitted to merchants in London, to recover the value of it. When it \\as first presented to the gentlemen upon whom it was drawn, they offered £1,000, part of it, as the value of the ship ; but it not being thought prudent to receive a part of the money, their ofter was then 314 EFFECTS OF WAR AS BETWEEN ENEMIES. [PAItT 11. refused: since wliieli the said gentlemen, together Avith the owners of the cargo, have refused to pay the bill or any part of it. Your opinion is desired whether the holder of this ransom l)ill can maintain a suit in the Admiralty Court against the owners of the ship and cargo for the recovery of tlie sum for which such bill was given ? And whether such suit must be brought against every in- dividual owner of the ship and cargo. Copy of the Bill. " £5,500. On board the schooner Hanna. July -26, 1779. " At ninety days' sight my second bill of exchange, first and third of the same tenor not paid, pay to Richard Jackson or order the sum of five thousand five hundred pound sterling, for the ransom of the ship Patrlcent and her cargo. Haxnibal Lush. " To Messrs. Johx Glassford & Co., " Merchants, Glasgow." Ansv-er. — " I think that the owner of this ransom-bill may main- tain a suit in the Court of Admiralty for the recovery of the sum for which the bill was given ; but I apprehend they must make it appear that the hostage is not at liberty, if he is living, before they can ob- tain payment of the money. The proper way of commencing such a suit would be by arresting the ransomed ship with tlie cargo on board. But if that cannot be done, I think it will be sufficient to bring the suit against Lush, the master, who drew the bill, and Messrs. Glassford & Co., the owners of the vessel, upon whom it is drawn." "Wm. Wyxxe, Doctors' Commons, July 'iSth, 1781.^ ^ Ransom Contracts. — In a subsequent case, Anthon v. Fisher, 2 Douglas, 649, note, it was settled in English law that an alien enemy cannot sue on a ransom bill for want of a persona standi injudicio. And so in the case of the Hoop, 1 C. Rob., 201. Sir W. Scott said, "even in the case of ransoms which were contracts, but contracts arising ex jure belli, and tol- erated as such, the enemy was not permitted to sue in his own proper person for the payment of tlie ransom bill: but the payment was enforced by an action by the imjirisoned hostage in the courts of his own country, for the recovery of his free- dom." " But the effect of such a contract.*" says Wheaton. Ed of 1S(m. p. (i!)."), "like that of every other which may be lawfully entered into between belligerents, is to suspend the character of an enemy, so far as respects the parties to the ransom bill; and, consequently, the technical objection of the want of aj^ersona standi injudi' CiiAV. II.] THE " IXDI^iN CHIEF." 315 Section 33. — Commercial Domicil. THE "INDIAN CHIEF." High Court of Admiralty, 1801. ( 3 C. Robinson, 12.) This was the case of a ship and cargo seized in tlie liarbor of Cowes, on a voyage from Batavia to Hamburg, in wliich two questions arose, respecting tlie national oliaracter of tlie OM'ners of tlie sliip and cargo respectively, botli American citizens residing in Britisli territory, and cliarged with trading witli tlie enemy. Ueld. That a neutral merchant residing in a belligerent country is to be regarded as a belligerent trader: but that the moment he puts himself in motion bona fide to return to his native country sine aninio revertendi, he loses his belligerent char- acter, and resumes that of a neutral. Judgment, — Sir W. Scott : — "This is the case of a ship seized in the port of Cowes, where she came to receive orders respecting tlie deUvery of a cargo taken in at Batavia, with a professed original intention of proceeding to Hamburg ; but on coming into this country for particular orders, the ship and cargo were seized in port. It does not ap- pear clear to the court, that it might not be a cargo intended to be delivered in this country, as many such cargoes have been, un- cio cannot, on principle, prevent a suit being brought by the captor, directly on the ransom bill."' And this appears to be the practice in the maritime courts of the European continent. (Valin, Ord. de la Marine, liv. 3, tit. 9, art. It); Pistoye et Duverdy, I., 280 et seq.) " If the ransomed vessel," says Wheaton, Ed. of ISfio, p. G94, " is lost by the perils of the sea, before her arrival, the ol)ligation to pay the sum stipulated for her ransom is not thereby extinguished. * * * Even where it is expressly agreed that the loss of the vessel by these perils shall discharge the captured from the payment of the ran- som, this clause is restrained to the case of a total loss on the high seas, and is not extended to shipwreck or stranding, which might afford tlie master a temptation frauilulently to cast away his vessel, in order to save the most valuable part of the cargo, and avoid the payment of the ransom. * * * So, if the captor, after having ransomed a vessel belonging to the enemy, is himself taken by the enemy, together with the ransom bill, of which he is the bearer, this ransom bill becomes a part of the capture made by the enemy; and the persons of the hostile nation who were debtors of the ransom are thereby discharged from their obligation."' On the subject of ransom generally, see Judge Stoi{y's opinion in Maisunnare v. Eeutinosed hardship to which the contrary doctrine exposes him. But if the reasoning- employed on this subject be correct, no such hardsliip can exist. For if, before the election is made, his pi-operty on the ocean is liable to capture by the cruisers of his native and deserted country, it is not only free from capture by tliose of his adopted country, l)ut is under ils protection. The privilege is supposed to be equal to the disad- vantage, and is therefore just. The double privilege claimed seems too unreasonable to be granted. * * * " Condemnation was pronounced in all the cases." ^ 1 Chief-.Justice Marshall and Livingston, J., dissented from a part of the jiulginent. Mr. Duer (" Insurance," I., 50")) has given an admirable summary of the dis- senting opinion of Chief-Justice Maksiiall in the Vcnufi, tJie principles of wliich he seems inclined to think are more in accordance with reason than the one laid down by the majority of the bench. Mr. Duer says : " From this opinion of the majority of the court T'liief-Justice Mahsiiall, and Mr. Justice Livingston, dissented, and the former supported his dissent in an elaborate argument, which, as it bears, in an eminent degree, the im- press of his vigorous and comprehensive mind, claims, and will amply reward, the diligent perusal of tlie student. The basis of his argument was the position, that, a mere commercial domicil, wholly acquired in time of peace, necessarily ceases at the commencement of hostilities between the country of the merchant's residence, and that of his allegiance ; and this position he expands and illustrates by a great variety of arguments, from various sources. It is only a very condensed view of his reasoning that I shall attempt to exhibit. Where a merchant removes to a foreign country, for commercial purposes, in time of peace, it is reasonable to believe, that he intends to remain only so long as he can carry on his trade, law fully and advantageously, without a violation of duty to the country of his af- fections and his allegiance ; but the intervention of a war between the country of his residence and his own country, renders the prosecution of a trade, such as he alone contemplated, no longer practicable. Such a war, we are bound to believe, removes the causes, and supersedes the motives that alone induced his foreign resi- dence ; and an intention of continued residence, under so material a change of cir- cumstances, ought no longer to be imputeil to him. On the contrary, when we consider that the right of the merchant to remain and prosecute the trade in which he was engaged, is now forfeited — that he lias become the enemy of the country in which he resides — that his continuance in it will, probably, expose him to many and serious Inconveniences — that his interests and his duty and most probably, his inclinations, call him home — it seems, not only a fair, but almost a necessary inference, that the chau'^e in his situation has produced a change of his inten- tions ; it, therefore, justifies the presumption, that he means not to continue, but as soon as practicable, to terminate his residence. It is alike imnolitic ami un- just, to build any argument upon his first residence, of his intention to throw otf permanently his oi'iginal character and allegiance. 320 EFFECTS OF WAli AS BETWEEN ENEMIES. [PAKT II. THE " HARMONY." Hiuii Court ok .Vomiualty, 1800. (2 C. liobinson, 322.) In considering the evidence which shall constitute doniicil, time is the mrst im- liorcant ingredient. This was one of severiil American vessels in wliieh a (;laini had been reserved for part of tlie cargo, on farther proof to be made of the national character of G. W. ]Mnrray, who appeared in the ori<^inal " The very commerce, in which he was engaged, may have had a direct relation to the interest of his own country, may have tended to augment its. resources and wealth. No nation that takes an interest in the prosperity of its own commerce, can wish to restrain its own citizens from residing abroad for commercial pur- poses ; nor will it hastily construe such a residence into a change of national character, to tlie certain injury of the individual, and probably to its own. Xor is tliis all. It is the doctrine of the most approved writers on the law of nations, that a citizen of one country, who is resiling, but not naturalize!, in another, is not incorporated into the foreign society ; but is still considered as a member of that to which he originally belonged. If a war breaks out between tlui two nations he is to be permitted, and it is, in truth, liis duty to restore him self, by a speedy removal, to his proper allegiance. It is his duty to free himself from a position, that, by its voluntary continuance, would render him an enemy of his own country; and we are bound to presume that he will avail himself of the earliest means and opportunity to discharge a duty, that the dictates of patriotism, and the law of his allegiance, alike Impose. Whilst this presumption continues in force, it is unjust 1o consider him as an enemy. It is a harsh proceeding of his native country to confiscate the property of one, who, for aught that appears, may deserve to b(j ranked among its most attached and devoted citizens. But this presumption, that, while it exists, should shield his property from condemnation, continues to exist, not only till he is proved to have a knowledge of the war, but until a reasonable and sufficient time has been allowed him to disengage himself and eff(>ct a removal. It exists until there is evidence, that after a knowledge of the war, he had continued to reside, without compulsion, or justifiable cause, in the hostile country. AVhen it is proved to be his real intention to change permanently his national character ; where it is his choice to remain in the hostile country, there is no injustice or harshness in treating him as an enemy ; but if, while prosecuting his business in a foreign country, he retained his attachment, and contemplated a return, to his own, it is pressing admiralty principles too far ; it is drawing conclusions that the liremises do not warrant, to infer absolutely his intention to continue in a country which has become hostile, m^^rely from his residence and trading in that country while it was friendly, and to punish him by a confiscation of his goods, as if he had been fully eonvicted of this intention. "The Chief-Justice concluded by remarking, that hi applying the principlco he CHAP. II.] THE '• HARMONY." 327 case, as a partner of a house of trade in America, but personally resident in France ; restitution had been decreed in the several claims to the house of trade in America, with a reservation of the share of this partner. G. W. Murray, a partner in a house of trade in ^;e\v York, had gone to France, in 1794, as supercargo of a vessel, in behalf of his firm, to there dispose of the cargo; but with the exception of a brief visit to America in 1795-96, he conthiued to reside in France, and to receive and dispose of cargoes sent out from New York. At the time of the first trial, Mr. G. W. Murray had not been in France a year ; but from the evidence of letters, etc.. Sir W. Scott thought the intention was to form a permanent residence and cor- respondence in France. This belief was strengthened by the fact that Mr. Murray had returned to France in 1790 and remained there till 1800. Hence his return to America in 1795-9G was probably but temporary, and he was considered to have had a residence in France for six years. Judgment, — Sir W. Scott, (Extract) : — " This is a question which arises on several parcels of property claimed on behalf of G. ^V. Murray ; and it is in all of them a ques- had laid down to the claimants, the court ought to be regulated by the conduct they had pursued, after a knoa-led'je of the war. If they had continued their residence and trade, after a knowledge of the war, it was clear, that their claim to a restitu- tion could not be sustained; but if they had taken immediate measures for return- ing to the United States, and liad since actually returned, or had assigned sufficient reasons for not returning, tlieir property was, in his judgment, callable of restitu- tion, and that by this discrimination some of the claimants, although not all, were entitled to the restoration of their goods. '■ In the course of this opinion, which I have reluctantly abridged, the Chief- Justice subjected most of the leading decisions of the English admiralty on the question of domicil, to a strict and searching analysis, and he arrived at the con- clusion that they gave no support to the assertion that Sir W. Scott had ever ad- vanced or intimated, or would probably maintain, a doctrine repugnant to that he sought to establish. Indeed, the exact case, under circumstances analogous to those in which it was presented to the Supreme Court of the United States, seems never to have arisen in the courts of England. " It is necessary, in conclusion, to remark that the claimants in the case which was the subject of this controversy, although naturalized citizens of the United States, were native-born subjects of Great Brilain, and consequently their residence in England was not properly the acquisition of a new domicil, but, by its necessary effect, a restoration to their original allegiance. Whether the reasoning and views of the Chief-.Jastice were apiplicable in their full extent, if at all, to such a case, may be seriously doubted; and these doubts may be felt even by those, who assent without difficulty to the soundness and truth of his doctrine, when limited in its application to native subjects or citizens, residing merely, and not naturalized, in a foreign country." 328 EFFIXTS OF "WAR AS ^.ET^YEEX ENE.MIES. [PART II. tion of residence or domicil, which I liave often had occasion to ob- serve, is in itself a question of considerable difficulty, depending on a great variety of circumstances, hardly capable of being defined by any general precise rules. The active spirit of eonunerce now abroad in the world, still farther increases this difficulty by increasing the variety of local situations, in which the same individual is to be found at no great distance of time ; and by that sort of extended cir- culation, if I may so call it, by which the same transaction commu- nicates with different countries, as in the present cases, in which the same trading adventures have their origin (perhaps) in America, travel to France, from France to England, from England back to America again, without enabling us to assign accurately the exact legal effect of the local character of every particular portion of this divided transaction. " In deciding such cases, the necessary freedom of commerce im- l^oses likewise the duly of a particular attention and delicacy; and strict principle of law must not be pressed too eagerly against it ; and I have before had occasion to remark, that the particular situa- tion of America, in respect to distance, seems still more particularly to entitle the merchants of that country to some favourable distinc- tions. They live at a great distance from Europe ; they have not the same open and ready and constant correspondence with individ- uals of the several nations of Europe, that these persons have with each other ; they are on that very account more likely to have their mercantile confidence in Europe abused, and therefore to have more frequent calls for a personal attendance to their own concerns ; and it is to be expected that when the necessity of their affairs calls them across the Atlantic, they should make rather a longer stay in the country wliere they are called, than foreign merchants who step from a neighbouring country in Europe, to which every day offers a convenient opportunit}^ of return. "In considering this particular case, it may iiot be improper to remark, that circumstances occur in the evidence that address them- selves forcibly to private commiseration, remarking, however, at the same time, that public duty can allow only a very limited effect to such considerations, and still less to another, tliat has been pressed upon me, that the money, if restored, is to go in payment of debts due to British creditors, from the bankrupt estate of this unfortunate jierson. "31y business is to inquii-e wliether he is entitled to recover it, witliout regard to tlie i)robable application of it, if it finds its way again into liis possession. " Of the few prmciples that can be laid down generally, I may CHAP, ir.] THE " IIAUMONY." 32'J venture to hold, tliat time is the grand iiiivredient in constitutin-,^ domicil. I think that hardly enong-h is attributed to its effects; in most cases it is unavoidably conclusive ; it is not unfreqnently said, that if a person comes only for a special purpose, that shall not fix a domicil. This is not to be taken in an uniiualified latitude, and with- out some respect had to the time which such a purpose may or shall ocGui)y ; for if the purpose be of a nature that /nay, prohahhi, or r^e.s- actxdlh/ detain the person for a great length of time, I cannot but think that a general residence might grow upon the special purpose. " A special puri)ose may lead a man to a country, where it shall detain him the whole of his life. A man comes here to follow a law- suit, it may happen, and indeed is often used as a ground of vulgar and unfounded reproach (unfounded as matter of just reproach though the fact may be true,) on the laws of this country, that it may last as long as himself. Some suits are famous in our juridical history for having even outlived generations of suitors. I cannot but think that against such a long residence, the plea of an original special purpose could not be averred; it must be inferred in such a case, that other purposes forced themselves upon him and mixed themselves with his original design, and impressed upon him the character of the country where he resided. " Suppose a man comes into a belligerent country at or before the beginning of a war; it is certainly reasonable not to bind him too soon to an acquired character, and to allow him a fair time to disengage himself ; but if he continues to reside during a good part of the war, contributing, by payment of taxes, and other means, to the strength of that country, T am of opinion, that he could not plead his special purpose with any effect against the rights of hostility. If he could, there would be no sufficient guard against the fraud and abuses of masked, pretended, original, and sole purposes of a long- continued residence. There is a time which will estop such a plea ; no rule can fix the time a pHori, but such a time there must be. " In proof of the efficacy of mere time, it is not impertinent to remark, that the same quantity of business, which would not fix a domicil in a certain space of time, would nevertheless have that effect, if distributed over a large space of time. Su[)pose an .Ameri- can comes to Europe, with six contemporary cargoes, of which he had the present care and management, meaning to return to America immediately; they would form a different case from that, of the same American, coming to any particular coinitry of Europe, with one cargo, and fixing himself there, to receive five remaining cargoes, one in each year successively. I repeat, that time is the great agent in this matter; it is to betaken in a coni[)ound ratio, of the time and 330 EFFECTS OF Vv-AU AS BETWEEN ENEMIES. [I'ART 11. the occupation, with a great preponderance on the article of time : he the occupation wliat it may, it cannot happen, hut with few ex- ceptions, that mere length of time shall not constitute a domicil." BEXTZEX T. BOYLE. Sl'pueme C()Uut of the Uxited States, 1815. (9 Crunch, 101.) The produce of enemy soil while uusold is hostile, whatever be the domicil of the ownei' of the soil. Judgment, — Marshall, C. J. : — " The Island of Santa Cruz, belonging to the kingdom of Den- mark, was suVjdued during the late war, by the arms of his Britannic Majesty. Adrien Benjamin Bentzen, an officer of the Uanisii government, and a proprietor of land therein, withdrew from the island on its surrender, and has since resided in Denmark. The property of the mhabitants being secured to them, he still retained his estate in tlie island under the management of an agent, who shipped thirty hogsheads of sugar, the product of that estate, on board a British sliip, to a commercial house in London, on account and risk of the said A. B. Bentzen. On her passage she was cap- tured by the American privateer, the Cornet^ and brought into Bal- timore, where the vessel and cargo were libelled as enemy property. A claim for these sugars was put in by Bentzen ; but they were con- demned with the rest of the cargo ; and the sentence was affirmed by the circuit court. Tiie claimant then appealed to this court. Some doubt has been suggested whether Santa Cruz, while in the possession of Great Britain, could pr()[)erly be considered as a Urilish island. But, for this doubt there can be no foundation. Although acquisitions made during war are not considered as permanent until confirmed by a treaty, yet to every commercial and belligerent pur- pose, they are considered as a part of the domain of the conqueror, so long as he retains the possession and government of them. The island of Santa Cruz, after its capitulation, remained a IJritisli island until it was restored to Denmark. '■ Must the product of a plantation in that island, shipped ])y the pro[)i-ietor himself, who is a Dane residing in Denmark, be con- sidered as Britisli, and therefore enemy property? "In arguing this question, the counsel for the claimant has made CHAP, ir.] BENTZEN V. BOYLE. 3ol two points. 1. That this case does not come witliin the rule a[)i)U- cable to shipments from an enemy country, even as hiid down in tho Britisli courts of admiralty. 2. That the rule has not been rightly laid down in those courts and consequently will not be adopted in this. 1. Does the rule laid down in the British courts of admiralty embrace this case V " It appears to the court that the case of the Phoenix ^ is precisely ill point. In that case a vessel was captured on a voyage from Suri- nam to Holland, and a part of the cargo was claimed by persons residing in Germany, then a neutral country, as the produce of their estates in Surinam. " The counsel for the captors considered the law of the case as entirely settled. The counsel for the claimant did not controvert this position. They admitted it ; but endeavoured to extricate their case from the general principle by givhig it the protection of the treaty of Amiens. In pronouncing his opinion, Sir William Scott lays down the rule thus : ' Certainly nothing can be more decided and fixed, as the principles of this coui't and the Su^jreme Court upon very solenni arguments, than that the possession of the soil does im- l)ress \\\)(^\\ the owner the character of the country, whatever the local residence of the owner may be. This has been so re[)eatedly decided, both in this and the Superior Court, that it is no longer open to discussion. No question can be made on the point of law, at this day.' " Afterwards, in the case of the Yrow Anna Catharina, 5 C. Rob., 167, Sir William Scott lays down the rule, and states its reason. ' It cannot be doubted,' he says, ' that there are transactions so radi- cally and fundamentally national as to impress the national charac- ter, independent of peace or war, and the local residence of the parties. The produce of a person's own plantation in the colony of the enemy, though shipped in time of peace, is liable to be coisidered as the property of the enemy, by reason that the proprietor has incor- porated himself with the permanent interests of the nation as a holder of the soil, and is to be taken as a part of that country, in that particular transaction, independent of his own personal resi- dence and occupation.' " This rule laid down with so much precision, does not, it is con- tended, embrace Mr. Bentzen's claim, because he has not 'incorporated himself with the permanent interests of the nation.' He acquired the property while Santa Cruz Avas a Danish colony, and he with- drew from the island when it became British. 1 5 C. Eob., 20. 332 EFFECTS OF WAR AS Bi:T\VE::N ENEMIES. [I'AET U. "This distinelioii does not appear to the court to be a sound one. The identiticatioii of the national character of the owner with that of the soil, in the particular transaction, is not placed on the disposi- tion with which he acquires the soil, or on his general character. The acquisition of land in Santa Cruz binds him, so far as respects that land, to the fate of Santa Cruz, whatever its destiny may be. While that island belonged to Denmark, the produce of the soil, while unsold, was, according to this rule, Danish property, what- ever might be the general character of the particular proprietor. "When the island became British, the soil and its produce, while that produce remained unsold, were British. "The general commercial or political character of Mr. Bentzen could not, according to this rule, affect this particular transaction. Although incorporated, so far as respects his general character, with the permanent interests of Denmark, he was incorporated so far as respects his plantation in Santa Cruz, with the permanent interests of Santa Cruz, which was at that time British ; and though as a Dane, he was at war with Great Britain, and an enemy, yet, as a proprietor of land in Santa Cruz, he was no enemy; he could ship his produce to Great Britain in perfect safety. " The case is certainly within the rule as laid down in the Bi'itish courts. The next inquiry is : how far that rule will be adopted in this country ? " The law of nations is the great source whence we derive tliose rules, respecting neutral and belligerent rights, which are recognized by all civilized and commercial states throughout Europe and America. This law is in part unwritten, and in part conventional. To ascer- tain that Avhich is unwritten, we resort to the great principles of reason and justice; but, as these principles will be ditferentl}- un- derstood by different nations under different circumstances, we con- sider them as being in some degree, fixed and rendered staV)le by a series of judicial decisions. The decisions of the courts of every country, so far as they are founded on a law common to every country, will be received, not as authority, but with respect. The decisions of the courts of every country show how the law of nations, in the given case, is understood in that country, and will be con- sidered in adopting the rule which is to prevail in this. "Without taking a comparative view of the justice or fairness of the rules estaljlished in the British courts, and of those established in the courts of other nations, there are circumstances not to he excluded from consideration, which give to those rules a claim to our attention, thnt we cannot entirely disregard. The United States having, at one time, formed a component part of the British Empire, their prize law CHAT, rr.] BKNTZEX V. BOVLE. 3G3 was our prize law. When we separated, it continued to be our prize law, so tar as it was adapted to our eireunistances and was not varied by the power wliich was ca[)al)le of changing it. " It will not be advanced, in consequence of this foi-nier relation between the two countries, that any obvious misconstruction of public law made by the Uritish courts, will be considered as forming a rule for the American courts, or that any recent rule of the lirilish courts is entitled to more respect than the recent rules of other countries. IJut a case professing to be decided on ancient princi[)les will not be entirely disregarded, unless it be very unreasonable, or be founded on a construction I'cjected by other nations. " The rule laid down in the Phcenix is said to be a recent rule, be- cause a case solemnly decided before the Lords Commissioners in 1783, is (pioted in the margin as its authority. But that case is not suggested to have been determined contrary to former practice or former opinions. Nor do we perceive any reason for supposing it to be contrary to the rule of other nations in a similar case. " The opinion that the ownership of the soil does, in some degree, connect the owner with the property, so far as respects that soil, is an opinion which certainly prevails very extensively. It is not an unreasonable opinion. Personal property may follow the person anywhere ; and its character, if found on the ocean, may dejjcnd on the domicil of the owner. But land is fixed. Wherever the owner may reside, that land is hostile or friendly according to the condition of the country in wdiich it is placed. It is no extravagant perversion of principle, nor is it a violent offense to the course of human opinion to say that the proprietor, so far as respects his interest hi this land, partakes of this character ; and that the produce, while the owner i-emains unchanged, is subject to the same disabilities. In condemn- ing the sugars of ]Mr. Bentzen as enemy property, this court is of opinion that there was no error, and the sentence is affirmed with costs." EFFECTS OF WAU AS BETWEEN ENEMIES. [PAET U. THE "PRIZE CASES." Supreme Court of the United States, 1862. (2 ni((rk., (571.) The property of all persons resident wilhiii the territory of the states in rebellion, during the civil war in the United States, and engaged in commerce upon the sea, is enemy propei-ty and subject to condemnation as prize. II. " We come now to the consideration of the second qnestion. "What is included in the term 'enemies' property?' " Is the property of all persons residing within the territory of the states now in rebellion, captured on the high seas, to be treated as ' enemy's property ' whether the owner be in arms against the government or not ? " The right of one belligerent not only to coerce the other by direct force, but also to cripple his resources by the seizure or de- struction of his property, is a necessary result of a state of war. Money and wealth, the products of agriculture and connnerce, are said to be the sinews of war, and as necessary in its conduct as numbers and physical force. Hence it is, that the laws of war rec- ognize the right of a belligerent to cut these sinews of the power of the enemy, by capturing his property on the high seas. "The appellants contend that the term 'enemy' is properly ap- plicable to those only who are subjects or citizens of a foreign state at war with our own. They quote from the pages of the common law, which say, ' that persons A\'ho wage war against the king may be of two kinds, subjects or citizens. The former are not proper enemies, but rebels and traitors ; the latter are those that come properly under the name of enemies.' " They insist, moreover, that the President himself, in his proc- lamation, admits that great numbers of the persons residing within the territories in the possession of the insurgent government, are loyal in their feelings, and forced by compulsion and the violence of the rebellious and revolutionary party and its '■ de facto goverinnent ' to submit to theii- laws and assist in their scheme of revolution ; that the acts of the usurping government cainiot legally sever the bond of their allegiance; they have, therefore, a co- relative right to claim the protection of the government for their persons and prop- erty, and to be treated as loyal citizens, till legally convicted of CHAP. J I.] THE " PRIZE CASES." 335 having- I'enouiiced their alleo-jance and made Avar against the govern- ment by treasonably resisting its hiws. "They contend, also, tliat insurrection is the act of indivi(bials, and not of a government or sovereignty ; tliat tlie individuals en- gaged are the subjects of law. That confiscation of their property can be effected only under a nmnicipal law. That by the law of the land such confiscation camiofc take place without the conviction of the owner of some offence, and finally that the secession ordinances are nullities and hiefl'ectual to release any citizen from his allegiance to the national government, and consequently that the constitution and laws of the United States are still operative over persons in all the states for punishment as well as protection. " This argument rests on the assumption of two propositions, each of which is without foundation on the established law of nations. " It assumes that where a civil war exists, the party belligei-ent claiming to be sovereign, cannot for some unknown reason, exercise the rights of belligerents, although the revolutionary party may. Being sovereign, he can exercise only sovereign rights over the other party. "The insurgents may be killed on the battle-field or by the ex- ecutioner ; his property on land may be confiscated under the munic- ipal law; but the connnerce on the ocean, which supi)lies the rebels with means to support the war, cannot be made the subject of capture under the laws of war, because it is 'unconstitutional ' ! ! ! Xow, it is a proposition never doubted, that the belligerent party who claims to be sovereign, may exercise both belligerent and sovereign rights ; (see 4 Cr., 272). Treating the other party as a belligerent and using only the milder modes of coercion which the law of nations has in- troduced to mitigate the rigors of war, cannot be a subject of com- plaint by the party to whom it is accorded as a grace or granted as a necessity. We have shown that a civil war such as that now waged between the Xorthern and Southern states, is properly con- ducted according to the humane regulations of public law as regards capture on the ocean. "Under the very peculiar constitution of this government, al- though the citizens owe supreme allegiance to the Federal govern- ment, they owe also a qualified allegiance to the state in which they are domiciled. "Their persons and property are subject to its laws. " Hence, in organizing this rebellion, they have acted as states claiming to be sovereign over all persons and projierty within their respective limits, and asserting a right to absolve their citizens from their allegiance to the Federal government. Several of these states 336 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II. have combined to form a new confederac}^ claiming to be acknowl- edged by the world as a sovereign state. Their right to do so is now being decided by wager of battle. " The ports and territory of each of these states are held in hostility to the general government. It is no loose, unorganized insurrection, having no defined boundary or possession. It has a boundary marked by lines of bayonets, and which can be crossed only by force, — south of this line is enemies' territory, because it is claimed and held in pos- session by an organized, hostile and belligerent power. " All persons residing within this territory whose property may be used to increase the revenues of the hostile power are, in this contest, liable to be treated as enemies, though not foreigners. They have cast off their allegiance and made war on their government, and are none the less enemies because they are traitors. "But in defining the meaning of the term 'enemies' property,' Ave shall be led into ei-ror if we refer to Pleta and Lord Coke for their definition of the word ' enemy '. It is a technical phrase peculiar to prize courts, and depends upon principles of public policy as distin- guislied from the common law. " Whether property be liable to capture as ' enemies' property ' does not in any manner depend on the personal allegiance of the owner. ' It is the illegal traffic that stamps it as " enemies' prop- erty." It is of no consequence whether it belongs to an ally or a citizen. 8 Cr., 384. The owner, ^;>;-o Aac f/ce, is an enemy.' 3 Wash. C. C. R., 183. " The produce of the soil of the hostile territory, as well as other property engaged in the commerce of the hostile power, as the source of its wealth and strength, are always regarded as legitimate prize, without regard to the domicil of the owner, and much more so if he reside and trade within their territory." ^ ' For the first part of this case see § 28, mpra. Domicil. — " A commercial domicil," says Mr. Dicey, " is such a residence in a country for the purpose of trading there as makes a person's trade or business contribute to or form part of the resources of such country, and renders it, there- fore, reasonable that his hostile, friendly, or neutral character should be deter- mined by reference to the character of such country. Wlien a person's civil domicil is in question, the matter to be determined is whether lie has or has not so settled in a given country as to have made it his home. When a person's com- mercial domicil is in question, the matter to be determined is whether he is or is not residing in a given country with the intention of continuing to trade there." (Dicey on Domicil, 345.) In the case of the Antonia Johanna, 1 Wheaton, 159, the Supreme Court of the United States held, that the share of a partner in a neutral house is, jure belli, sub- CHAr. II.] '' LE HAEDY " COXTRE " LA VOLTIGEAXTE." 337 «LE HARDY" contre "LA VOLTIGEANTE." CoNSEiL DEs Prises, ax IX. {Piatoye et Duverdy, I., ^21.) A neutral merchant domiciled in a belligerent countiy does not acquire a belligerent character ; and his property at sea is neutral property. Le navire neutre le Hard//, charge pour le compte de Coste Lan- freda, citoyen ragusais, consul de llaguse u ^lessiiie, avait etc arrcte par Id Voltlgeante. La France etait alors en guerre avec le roi des Deux-Siciles ; il s'agissait de savoir si Coste Lanfreda, citoyen et consul d'une nation neutre, devait etre considere comme enneuii ou comme neutre. Le CoxsEiL, — Oui le rapport du citoyen Lacoste, menil)re du Con- seil ; Au moyen de ce qu'il resulte principalenient des pieces qu'il n'a point existe de contravention serieuse sur la regularite des pieces relatives au navire, qui a etc emraene aussitot apres le jugement du tribunal de commerce ; — Qu'a I'egardde la cargaison, Coste Lanfreda, qui en est proprietaire, exeryant a Messine les fonctions de consul de Raguse, a prouve, devant le tribunal d'appel, qu'il etait originaire de Raguse, ce qui ne permet pas de s'arreter a I'assertion vague du capi- taine, portant qu'il le croyait sujet de Xaples ; — Qu il n'y a point eu de double destination constatee, et que, lors meme qu'elle Teut etc, les deux ports indiques etant egalement I'un neutre, I'autre allie, il ne pouvait y avoir lieu a aucune suspicion raisonnable ; — Que la loi du 29 nivose an VI, ne concernant que les marchandises du cru anglais, ject to confiscation where his own domicil is in a hostile country. (3 AMiarton's Digest. 343.) In the case of the Frienclschaft, -iAMieaton, 105, the court held, that tlie prop- erty of a house of trade established in the enemy's country is condemnable as prize, whatever may be the personal domicil of the partners. (3 Wliarton's Digest, 348.) Other cases on Commercial Domicil are: Bell v. Reicl, 1 Maul. &Selw.. 726 (1813); TFi7sonT. 3/aryai^, 8T. R.,45(1798): The San Jose Indiano,2 GaU.,268 (1814): Tlie Junge Klassina, .5 C. Rob. . 302-304 (1804): The Herman. 4 C. Rob. . 228 (1802); Sparenhnrgx. Bannatyne, 1 Bos. & Pul., 163 (1797); The Abo. 1 Spinks, 349(1854); The Gerasimo, 11 Moo. P. C. C, 88(1857); The Baltica. 11 Moo. P. C. C, 141 (1857); 3Irs. Alexander's Cotton, 2 WaU., 404 (1864); The Flying Scud, 6 WaU.. 263(1867). 22 338 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II. ne pnuvait s'lippliqner a celles du cru des Deux-Siciles, qui n'ont pas ete occujxjes ti titve de coinpiC'te par les troupes de la Grande-Bre- tagne ; — Qu'alors, pour decider la qualite de la cargaisou du navire le Harcly^ il suffit d' examiner si elle i3eut etre consideree comuie en- nemie, sur le rapport que Coste Lanfreda, originaire de Raguse et consul, residait en cette qualite et faisait le commerce a Messine, pays alors en guerre avec la 1 lepublique franyaise ; — Que cette ques- tion de droit public se resoudra facilement pour la negative, en faisant attention que la residence en pays etranger n'empeche pas un indi- vidu d'appartenir an pays qui Ta vu naitre ; — Que, pour ne plus tenir a sa patrie, il faut qu'il ait volontairement clioisi une patrie nouvelle, et qu'elle I'ait regulierement adoi)te; — Que sans cette renonciation de sa part a son ancienne patrie, sans cette adoption necessaire, il est toujours ce qu'il etait originairenient, ami des amis, ennemi des en- nemis de sa patrie native ; que, lorsque cette patrie est neutre, il reste neutre lui-nieme, et doit jouir, pour sa personne comme pour ses biens, de tons les avantages de la neutralite, parce que les biens n'ont pas par eux-memes de caractere neutre ou hostile, mais pre- nant toujours celui dont se trouve revetu leur proprietaire ; — Que d'ailleurs la guerre rfetant point une relation d'homme a homme, ni des societes aux individus, mais bien des Etats entre eux, on ne pent forcer a y prendre part celui qui n'a pas manifesto la volonte expresse de s'incorporer a la puissance belligerante chez laquelle il liabite ; — Que les inconvenients, les abus que pent enti-ainer le systeme con- traire, quelque graves qu'ils soient, sont plus que balances par Tavan- tage que retire le monde commeryant de la protection et de la faveur ac- cordees paries belligerants an commerce neutre, quelque part qu'il s'ex- erce; — Que les ennemis d'origine, quoique etal)lis dans un pays neutre et y faisant le commerce sous la protection et le pavilion neutre, ne perdant point le caractere ennemi, il serait tout a la fois deloyal et contradictoired'assimiler, suivant Foccurence et les chances variables de la guerre, les neutres d'origine a des ennemis, uniquement parce qu'ils resideraient et commerceraient en pays enneuiis ; — Que les publicistes, dans des temps deja recules, oCi la force tenait encore plus ou moins lieu du droit, ont bien pu enoncer des faits contraires et professer des principes opposes ; mais que les progres successifs de la civilisation, le besoin, universellement senti, de Taccroissement et de la liberie des relations commerciales entre les peuples, en ame- nant des idees plus saines, ont fait prevaloir des idees plus liberales que le gouvernement s'empresse de proclaraer aujourd'hui, comme le type de sa politique et le gage de son amour de I'humanite ; — Qu'en reportant ces considerations sur Tespece actuelle, on voit un i^roprie- taire neutre d'origine, qui, par sa residence en pays devenu momen- CHAP. II.] THE PACKET " DE BLLBOA." 339 tanement ennemi, et par ses speculations comraerciales, n'a pu perdre les avail tag'es de sa iieutralite, avec d'autaut plus de raison, qu'y ex- er5ant les fonetions de consul de sa patrie originaire, il n'a pas cesse de lui appartenir de fait et de droit, et, dans aucun cas, ni pour sa personne ni pour son commerce, qui en est inseparable, n'a pu I'-tre considere comme ennemi ; Decide que la prise faite par le corsaire fran5ais la Vbltir/eante, du navire ragusais le Ilardi/, est nulle et illegale, en fait pleine en- tiere maiiilevee aux proprietaires taut du navire que de la cargaisou. Section 34. — OwxERsnip of Goods in Tkaxsit. THE PACKET " DE BTLBOA." High Court of Admiralty, 1799. (3 C. Robinson, 133.) In time of war, or in contemplation of war, goods in transitu on the ocean are lield to belong to the consignee. This was a case of a claim of an English house for goods shipped on tlie order of a Spanish merchant, before hostilities with Spain, and captured December. 1796. on a voyage from London to Corunna. Held, that the conti'act was valid and the goods were restored. Judgment, — Sir W. Scott: — " This is a claim of a peculiar nature for goods sent by British subjects to Spain, shipped before hostilities, during the time of that situation of the two countries, of which it was unknown, even to our government, what would be the issue between them. There appears to be no ground to say that this contract was influenced by speculations on the prospect of a war, or that anything has been specially done to avoid the risks of war. It is shown in the affida- vit of the claimant ' that this is the constant habit and practice of this trade ; ' whether it is the practice of the Spanish trade gen- erally, or only the particular mode of these individuals in carry- ing on commerce together is not material, as the latter M'oiild be quite sufficient to raise the subject of this claim. The question is, in whom is the legal title? Because, if I should find that the interest was in the Spanish consignee, I must then condemn, and leave tlie British party to apply to the Crown for that grace and favor which it is always ready to shew ; the property being con- demnable to the Crown as taken before hostilities. o-iO EFFECTS OF WAR AS BETWEEN ENEMIES. [PAET II. " The statement of the chiiiii sets foi'ih that these goods have not been paid for by the Spaniard ; — that would go but little Ava^, — tliat alone would not do; there must be many eases in Avhicli British }nerchants sutler from capture, by our own cruisers, of goods shipped for foreign account before the breaking out of hostilities. It goes on to state, 'that, according to the custom of the trade, a credit of six, nine, or twelve months is usually given, and that it is not the custom to draw on the consignee till the arrival of the g(»ods; that the sea risk in peace as well as war is on the consignor; that he insures, and has no remedy against the consignee for any accident that happens during the voyage.' Under these circum- stances, in whom does the property reside ? The ordinary state of connnerce is, that goods ordered and delivered to the master are considered as delivered to the consignee, whose agent the master is in this respect ; but that general contract of the law may be varied by special agreement or b}'' a particular prevailing practice, that pre- supposes an agreement amongst such a description of merchants. In time of profound peace, when there is no prospect of approach- ing war, there would unquestionably be nothing illegal in contract- ing, that the Avhole risk should fall on the consignor, till the goods came into possession of the consignee. In time of peace they may divide their risk as they please, and nobody has a right to say they shall not; it would not be at all illegal, that goods not shipped in time of war, or in contemplation of war, should be at the risk of the shi[)per. In time of war this cannot be permitted, for it would at once put an end to all captures at sea; the risk would in all cases be laid on the consignor, where it suited the purpose of protection ; on every contemplation of a war, this contrivance would be prac- ticed in all consignments from neutral ports to the enemy's countr}^ to the manifest defrauding of all rights of capture ; it is therefore considered to be an invalid contract in time of war ; or, to express it more accurately, it is a contract which, if made in war, has this ef- fect ; that the captor has a right to seize it and convert the prop- ert}'' to his own use ; for he having all the rights that belong to his enemy, is authorized to have his taking possession considered as equivalent to an actual delivery to his enemy; and the shipper who put it on board during a time of war, must be presumed to know the rule, and to secure himself in his agreement with the consignee against the contingence of any loss to himself that can arise from capture. In other wcjrds, he is a mere insurer against sea risk, and he has nothing to do with the case of capture, the loss of which falls entireh'^ on the consignee. If the consignee refuses payment and throws it upon the shipper, the shipper must be supposed to have CHAP. II,] THE TxVCKET '' DE P.ILBOA." 341 guarded his own interests against that hazard, or he has acted ini- providently and without caution. "Tlie present contract is not of this sort; it stands as a hiwful agreement, being made wliilst there was neither war nor prospect of war. The goods are sent at tlie risk of the shipper : if they had heen lost, on whom would the loss have fallen but on him ? What surer test of property can there be than this? It is the true criterion of property that, if you are the person on whom the loss will fall, you are to be considered as tlie proi)rietor. The bill of lading very nnich favors this account. The master binds himself to the shipper, ' to deliver for you and in your name,' by which it is to be understood that the delivery had not been made to the master for the consignee, but that he was to make the delivery in the name of the shipper to the consignee, till which time the inference is that they were to remain the i)roperty of the shipper: as to the payment of freight, that is not material, as in the end the purchaser must necessarily pay the carriage. The other consideration— who bears the loss ? much outweighs that, — neither does the case put shew the contrary. The case put is — supposing Spain and England both neutral and that these goods had been taken l)y the French and sold to great profit, to whose advantage would it have been? The answer is, if the goods were to continue the propei'ty of the shipper till delivery, it must have enured to /tis benefit, and not that of the consignee. To make the loss fall upon the shipper in tlie case of the present shi})ment would be harsh in the extreme. lie sliips his goods in the ordinary course of traffic, by an agreement mutually understood between the parties, and in no wise injurious to the rights of any third party ; an event subsequentl}'' happens which he could in no degree provide against. If he is to be the sutt'erer he is a sutiierer without notice and without the means of secui-ing him- self ; he was not called upon to know that the injustice of the other party would produce a war before the delivery of his goods. The consignee may refuse payment, referring to the terms of the con- tract which was made when it was perfectly lawful ; and under what circumstances and on what principles the shipper could ever enforce payment against the consignee is not easy to discover. The goods have never been delivered in Spain ; they were to have been at the risk of the shi[)per until delivery, and this under a perfectly fair contract. I must consider the property to reside still in the English merchant. It is a case altogether different from other cases which have happened on this subject flagrcmte hello. I am of opinion that, on all just considerations of ownership, the legal prop- erty is iu the British merchant ; that the loss must have fallen on 342 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART H. the shipper, and the delivery was not to have heen made till the last stag-e of the business, till they had actually arrived in Spain and had been put into the hands of the consignee ; and therefore I shall decree restitution of the goods to the shipper." On prayer that the captor's expenses might be paid, it was iinswered that they had already had the benefit of the condemnation of the ship. Court. — " I think there has been a great service performed to the shipper. If the goods had not been captui'ed they would have gone into the possession of the enem5^ The captor did right in bringing the question before the court, and he ought by no means to be a loser, I shall not give salvage, but shall direct the expenses of the captor to be paid out of the proceeds." THE « SAN JOSE mDIAXO." U. S. CiKCUiT Court fok Massachusetts, 1814. ( 2 Gallison, 268. ) Title to goods in transitu — stoppage in transitu. Extract from the opinion of Story, J. : — " The next is the claim of Mr. J. Lizaur, of , in Brazil. "The shipment was made by Messrs. Dyson Brothers & Co., and by the bill of lading the goods are consigned to Messrs. Dyson Brothers and Finney, Rio de Janeiro. " The accompanying invoices express the shipment to be made by order and for account of Mr. J. Lizaur, and contain charges of freight, commission and insurance, and an acknowledgment of giving credit for three and six months. In a letter of the 4th of May, 1814, addressed l)y the shippers to the consignees, they say, 'for Mr. Lizaur Ave open an account in our books here, and debit him 1704^. Us. 7(/. for 10 cases of cambrics, etc., at three months' credit; we cannot yet ascertain proceeds of his hides, etc., but find his order Avill far exceed amount of these shipments., therefore consign tlte wliole to you., so as you may come to a proper ■nnderstariding. We have charged our usual commission of two and a half per cent, in the invoices, but should you have made any stipulation to the conti'ary, he can again bring same to our del)it. Invoices, l)ills of lading and ])atterns of what goods are requisite we forward as usual in a small box to your address.' "The single question presented in this claim is, in whom the prop- CHAP. II.] THE "SAX JOSE INDIAXO." 343 erty vested during its transit; if in ^Ir. Lizaur, tlien it is to be re- stored ; if in the shippers, then it is to be condennied. It is con- tended on behalf of the claimant, that the goods, having been i)ur- chased by order of Mr. Lizaur, the property vested in him immedi- ately by the purchase, and the contract being executed by the sale, no deliver}^ was necessary to perfect the legal title ; that nothing was reserved to the shippers, but a mere right of stoppage in tran- situ, and that if they had been burnt before the shipment, or lost during the voyage, the loss must have fallen on Mr. Lizaur. " As to the doctrine of stoppage in transitu, I do not conceive it can apply to this case. That right exists in the single case of insolv- ency, and presupposes, not only that the property in the goods has passed to the consignee, but that the possession is in a third person in their transit to the consignee. It cannot, therefore, touch a case, where the actual or constructive possession still remains m the shipper or his exclusive agents. " I agree also to the position, that in general the rules of the prize court, as to the vesting of property, are the same as those of the common law, by which the thing sold, after the completion of the contract, is properly at the risk of the purchaser. But the question still recurs, when is the contract executed ? It is certainly com- petent for an agent abroad, who purchases in pursuance of orders, to vest the property, immediately on the purchase, in his principal. This is the case, when he purchases on the credit of his principal, or makes an absolute appropriation and designation of the property for his principal. But where a merchant abroad, in pursuance of orders, sells either his own goods, or purchases goods on his o\\'n credit (and thereby in reality becomes the owner), no property in the goods vests in his correspondent, until he has done some notorious act to divest himself of his title, or has parted with the possession by an actual and unconditional delivery for the use of such corre- spondent. Until that time he has in legal contemplation the exclu- sive property, as well as possession ; and it is not a wrongful act for him to convert them to any use, which he pleases. He is at liberty to contract upon any new engagements, or substitute any new con- ditions in relation to the shipment. And this, I understand, not only as the general law, but as the prize law pronounced by that high tribunal, whose decisions I am bound to obey. " In the Ve/ins, 1814, on the claim of Magee and Jones, in deliver- ing the opinion of the court, Mr. Justice Washixgtox observed : ' to effect a change of property, as between seller and buyer, it is essen- tial, that there should be a contract of sale agreed to by both par- ties, and if the thing agreed to be purchased is to be sent by the 3-1:4 EFFECTS OF AVAR AS BETWEEN ENEMIES. [PART II. vendor to the vendee it is necessaiy to the perfection of the contract, that it should be delivered to the purchaser or to his agent, Mhich the master (of a ship) to many purposes is considered to be.' " .\nd adverting to the facts of that claim he further says : ' The delivery of the goods to the master of the vessel was not for the use of Magee and Jones, any more than it was for the shipper solely, and consequently it amounted to nothing, so as to divest the property out of the shipper, until Magee should elect to take them on joint account, or to act as the agent of Jones.' " THE "SALLY." Lords, 1795. ( 3 C. Robinsoiu 300, tiote. ) Merchandise shipped to become the property of the enemy on aiTival. if taken in transitu, is tohe condemned as enemy's property. Supposing it was to be- come the i^roperty of the enemy on deUvery. capture is considered as delivery. The tSallt/ was a case of a cargo of corn shipped March, 1793, by Steward and Plunket, of Baltimore, ostensibly for the account and risk of Conyngham, Xesbit & Co., of Philadelphia, and consigned to them or their assigns: By an endorsement of the bill of lading, it was further agreed that the ship should proceed to Havre de Grace, and there wait such time as might be necessary, the orders of the consignee of the said cargo (the mayor of Havre) either to deliver the same at the port of Havre, or jn-oceed therewith to any one port without the Mediterranean, on freight at the rate of 55. per bari-el on delivery at Havre, and bs. Qd. at a second port, the freight to be settled by the shippers in America according to agreement. Amongst the papers was a concealed letter from Jean Ternant, the minister of the French Republic to the United States, in which he informs the minister of foreign affairs in France. "The house of Conyngham & Co., already known to the ministers, by their fctrmer operations for France, is charged by me to procure Avithout delay, a consignment of •22,(iOU bushels of wheat, 8,U00 barrels of fine flour, 900 barrels of salted beef from New England. The conditions stipu- lated are the same as those of the contract of 2d Xovember, 1792, Avith the American citizens. Swan & Co., for a like supply to be made to the Antilles, namely, that the grain, flour, and beef are to be paid at the current price of the markets at the time of their being shipped ; that the freights shall be at the lowest course in the CHAP. n."J THE "SALLY." 345 ]iorts ; tliat an insurance should l)o on the whole ; and that a com- niission of live per cent, shall be allowed for all the merchants' expenses and fees. It has been, moreover, agreed, considering the actual reports of war, that the whole shall be sent as American property to Havre and to Nantes, with power to our goverinnent of sending the ships to other ports conditional on the usual freight. As you have not signified to me to whom these cargoes ought to be delivered in oar ports, I shall provide each captain with a letter to the mayor of the place." There was also a letter from Jean Ternant to the mayor of the municipality of Havre. "Our government having ordered me to send supplies of provisions to your port, I inform you that the bearer of this, commanding the American ship, the Salb/, is laden with a cargo of wheat, of which he Avill deliver you the bill of lading." To the 12th and COtli interrogatories the master deposed, "that he believes the flour was the property of the French government, and, on being unladen, icould have immediately become the 'property of the French government." In the argument it was insisted, on the part of the dalnuods, that llie cai'go was to be considered as the property of the .Americaii merchants; that it had V)een ordered by them, to be supplied and delivered at a certain place; and that under the general principle of law, property was not considered to be divested between the vendor and vendee till actual delivery. It was contended, that the contract remained executory till the completion by delivery in Europe ; that the payment was contingent on the completion of the contract in this form, and that no money had passed, nor any compensation or agreement had intervened to produce an absolute conversion of the property ; and it was [)rayed that the court would admit farther proof to ascertain that circum- stance. On the part of the captors it was replied, that the general rule of law subsisting between vendor and vendee in a commercial trans- action, referring only to the contracting parties, and not affecting the rights of third persons, could not apply to contracts made in time of war, or in contemplation of war, where the rights of a bellig- erent nation intervened ; that the eflfect of such a contract as the present would be to protect the trade of the contracting belligerent from his enemy; and that if it could be allowed, it would put an end to all capture. It was said to be a known princii)le of the prize court, that neutral property must be proved to be neutral at all periods from the time of shipment, without intermission, to the 346 EFFECTS OF WAR AS BETWEEN ENEMIES. [P.VRT II. arrival and subsequent salt in the port of the enemy ; that the twelfth and twentieth interrogatories Avere framed with this view to inquire, " whether on its arrival, etc., it shall and will belong to the same owner and no other, etc.," and a reference was made to the case of the Cliarles Ilavenerswerth in 1741, in which the form of attestation was directed to be prepared by the whole bar, and was established in the present form to ascertain the property at the several periods of .s/n'pment, and arn'cal in the enemy's ports^ — in cases where affi- davits were to be received to supply the defects of the original evidence, in the place of plea and proof. The Court : — " It has always been the rule of the prize courts, that property going to be delivered in the enemy's country, and under a contract to become the jDroperty of the enem}^ immediately on arrival, if taken in transitu, is to be considered as enemies' property. Where the contract is made m time of peace or without any contemplation of a war, no such rule exists : — But m a case like the present, where the form of the contract was framed directly for the purpose of ob- viating the danger apprehended from approaching hostilities, it is a rule which unavoidably must take place. The bill of lading expresses account and risk of the American merchants ; but papers alone make no proof, unless supported by the depositions of the master. Instead of supporting the contents of his papers, the master deposes, ' that on arrival tlie goods would become the jDroperty of the French government,' and all the concealed papers strongly support him in this testimony : The evidentia rei is too strong to admit farther proof. Supposing that it was to become the property of the enemy on delivery, capture is considered as delivery : The captors, by the rights of war, stand in the place of the enemy, and are entitled to a condemnation of goods passing under such a contract, as of enemy's property. On every pi-incinle on wliich Prize Courts can proceed, this cargo must be considered as enemy's property. " Condemned. " THE "AXXA CATIIARIXA." High Couut of Admikai.tv, 1802. (4 C. Robinson, 107.) Goods going to become tlie i)roi)ci1:y of the enemy immediately on arnval. condemned. Tliis v.'as a case of a cargo of dry goods, etc., taken Octoljer, 1801, on a voyage from Hamburgh to La Guayra, and described in the CHAl'. 11.] THE "ANNA CATHAEIXA." 347 ostensil)le papers and depositions, "as going to take the cliance of the market." By the discovery of a letter, it afterwards appeared, that tliese goods wei'e going under a special agreement and contract with the Spanish gov^ernment of the Caracas. Judgment, — Sir W. Scott : — * * * Taking the shippers to be neutral merchants " how does the characier of the goods stand in this transaction? Was it not, in the first place, a cargo going to become the property of the Spanish govern- ment immediately on arrival? Was not the Spanish goverinnent en- titled to possession? It was only on the violation of tlie contract, on the part of the Spanish government, that these goods w^ere to take the chance of the market. The shippers considered themselves as bound to deliver them to the use of the Spanish government, under the agreement; as entitled to the benefit, and subject to the obligaticms of that contract. Were there any intermediate acts to be done after the arrival of the vessel? Or were the acts such, as would have the effect of substantially distinguishing this case from the /Sallt/, and other cases ? Is there any act of ownership which the claimant was at liberty to exercise, so as to prevent the delivery? If not the goods must be considered as having substantially become, in itinere, the property of the enemy. * * * " It is said * * * that these goods do not exactly correspond with the enumeration in the agreement, that thei/ are not contract (joods ; and consequently, that without any violation of puljlic faith, the accej^tanceof them was merely optional and contingent. But, I can- not tliink, that it is now open to tlie parties to make this averment ; when it is evident, on the face of their own letters, that they had relied on the clear and absolute obligation of the Spanish govern- ment to take them as such. * * * "These distmctions are, in my judgment, totally insufficient to take the case out of the authority of the precedents alluded to. Where the goods are sent under a contract by the party, it surely cannot be permitted to the claimant himself to aver, that the goods so sent are not contract goods. * * * Under these circumstances, I am strongly disposed to hold, that this cargo was going in time of war to the port of a belligerent, there to become the property of tlie belligt-rent, immediately on arrival, and that the legal consequence of condemnation would on that ground alone attach upon it." ^ ' Only so much of this case is given as refers to the shipment of goods under contract to a belligerent port. 348 ETFECTS OF WAIl AS BETWEEN ENEMIES. [I'AllT II. LES "TROIS FRERES." COMITE DE SaLUT PuCLIC, AX III. (Pistoye et Dnvcnhj. L. ZTu.) Semble. that, by the French rule, the neutral shipper may assume the risk of goods in ti-ansit to an enemy country. Le navire daiiois les Trois-Freres, charge fl Genes de 535 futailles d'huile, a destination d'Ostende et Amsterdam (qui, en juin 1793, etaient des pays ennemis de la France), fut capture le 3 juin 1793 par le corsaire le Passe-Partout., de Bordeaux, et le 6 de juillet sui- vant la prise fut amenee a Bayonne. Le 24 Lrumaire an II, un juge- ment du tribunal de commerce de cette ville, sui' Topposition de negociants genois, le sieur Stratforello et Cie, qui avaient revendique une partie de la cargaison (150 futailles), fit mainlevee de la capture et condamna les capteurs a payer le prix de la marcliandise, valuer d'Ostende et d'Amsterdam, par application du droit de presomption cree par la loi du 9 mai 1793, bien que les capteurs n'eussent pas de- mande a user de cette faculte, qui etait devenue tres-onereuse par suite du maximum recenniient decrete pour toutes les denrees. Ce jugement rendu, les pieces relatives a la capture des Trots- Freves furent envoyees au Conseil executif apres la loi du 18 brumaire an II, et le Comite de salut public, quise substitua a ce conseil executif, rendit sur cette affaire la decision suivante : '• Sur le rapport fait au Comite de salut public par le connnissaire de la marine et des colonies, que, le 3 juin 1793, le corsaire le Passe- Partout, de Bordeaux, prit et conduisit a Bayonne le navire danois les Trots- Freres, ({ue le tribunal de commerce a Bayonne ayant statue sur la validite de la prise du navire et I'ayant declare neutre, le capi- taine a reyu son fret et rindenniite reglee par le meme tribunal; " Que, ne s'agissant plus de la cargaison, I'examen des pieces qui la concernent et I'etat de la procedure apprennent qu'une partie a ete chargee par des Genois, amis de la Republique franyaise, et pour leur compte et risque ; que c'est la propriete de citoyens genois; que consequemment la saisiequi en a etc faite est illegale et nulle, et que la restitution en doit etre faite a leurs proprietaires ; " Que la propri('tt' de celles chargees par des Genois pour le compte de qui il api)artien(liait ne se trouvant point designee, ces marchan- dises sont de droit presumees enneraies, d6s le moment qu'il ne se CHAP. II.] LES "TllOIS FlIEKES." 349 trouve ancune preiive contrain' pr<>[)rc a detruiro cotte pivsoiniitioii ; que, comine telles, dies sont bien saisies et devk'niicnt sujetles a confiscation ; " Le Comit^ de Saiait Public, — statiiant en consequence de son arrete du 4 floreal dernier, arrete : "'1'^ Est contirnie le jngenient du ti'ibuiial dc c'liniiieiTM^ dt; I5ay- onne, du oO aout 179;), rendu en faA'eurdu capitaine daiiois du navire IcH Trois-Freres, et par lequel ce navire a etc declare propriete neu- tre, et relache avec payement de son fret et une indenniite ; " ' -l'^ Sont declarees proprietes genoises et neutres les marchan- dises cluirgees a bord du navire les Trois-Freres pour compter et risque des citoyens Straiforello et autres ; " ' 3^ Les niarchandises appartenant aux citoyens Straff oi-ello et autres Genois leur seront restituees, dans les quantites marquees et qualites designees dans les connaisseuients ; et, en cas de vente de ces marcliandises, les arniateurs ducorsaire le Passe-Partout en reni- bourseront la valeur, suivant le cours dans lelieu de leur destination au moment de la prise, avec interet de la valeur des objets restitues, les dits interets tenant lieu de toute indenniite d'indue retention ; " '4'^ Sont declarees proprietes ennemieset conunetelles acquises par confiscation aux armateurs et a 1' equipage du corsaire le Passe- Partout, toutes autres parties de la cargaison du navire les Trois- Freres et qui out ete cbargees pour lecomptede qui il appartiendra ; " '5^ Les marchandises de cette cargaison, si elles existent encore en nature, qui pourraient etre jugees utiles au service de la Repub- lique, seront achetees pour son compte, etla valeur en sera payee des la remise au magasin a ceux a qui elles appartiennent, aux termes du present arrete.' " (Cette cause etait usuelle au temps du Comite de salut public. Voyez Merlin, Questions de droit X. Prises mari- times, i TT.) ^ ' Observations. — " AujourcVliui, que le principeque le pavilion couvre la car- gaison est admis sans conteste, cette decision pent paraitre au pi'emier abord n'avoir qu'un interet liistorique ; elle a cependant aussi un interet juridique. En effet. la declaration de I'Empereur, du 29 mars 1854, annonce que les marchan- dises neutres chargees sur navires ennemis ne seront pas confisquees. L' arrete du Comite de salut public juge que des marchandises chargees i^ar des neutres avec d'autres marchandises reconnues neutres et destinees a un port ennenii. doi- vent etre reputees ennemies, si le destinataire n'est pas connu. Cette decision pourrait s'appliquer aujourd'hui ;i des marchandises chargees sur un navire en- nemi. En effet, il s'agissait dans Tespece de savoir (pielle etait la nationalite des marchandises, et cette question etait tout a fait indepeudante de la nationalite du navire veeteur." 350 EFFECTS OF WAR AS BETWEEN ENEMIES. [I'AKT U. Section 35.— Transfer in Transitu. THE "YROW MARGARETIIA." High Court of Admiralty, 1799. (1 C. Robinson, 336.) This was the case of a cargo of brandies shipped by Spanish merchants in Spain in May, 1794, before Spanish hostilities, and transferred to Mr. Berkeymyerat Hamburgh, during their voyage to Holland. Held, to be a bona fide transaction, and the rule against transfer in. transitu was not appUed. Judgment, — Sir W. Scott : — " This is a claim of :Mr. Ph. Berkeymj^er, of Hamburgh, for some parcels of wine which were seized on board three Dutch vessels de- tained by order of government in 1795. The ships have been since condemned; the cargoes were described in the ship's papers, as far as the property was expressed, as belonging to Spanish merchants. It is material, in this case, to consider the relative situation of the countries from which, and to which these cargoes were going. Spain and Holland were then in alliance with this country and at war with France; it might, therefore, be an inducement with a Spanish merchant to conceal the property of his goods, although it does ?wt appear to have existed in any great degree, as the goods were coming under an English convoy, and as they were shipped ' as Spanish wines,' and destined, avowedly, to Holland ; there was, therefore, nothing in this part of the case to mislead our cruisers. :Mr. Berkeymyer is allowed to be an inhabitant of Hamburgh, although he had made a journey, a short time previous to the ship- ment of these cargoes, to Spain (where he had resided some years before), to settle his affairs, and bring off the property which he had left behind him. He had quitted Spain, however, previous to the breaking out of Spanish hostilities, and had resumed his original character of a merchant of Hamburgh. Tlie account which he gives of his transactions in Spain, as far as they regard this case, is, that he entered into a contract with two Spanish houses for some wines, wliich were at the time actually shipped, and in itinere towards Hol- land. The first objection that has been taken is, that such a transfer is invalid, and cannot be set up in a Prize Court, where the property CHAP. II.] THE " VROW MARGAUETHA." o^l is always considered to remain in tlie same character in which it was shipped till tlie delivery. If that could he jnaintained tliere would he an end of the question, hecause it has been admitted that these wines were shipped as Spanish property, and that Spanish property is now become liable to condenniation. But T ai)preheiid it is a posi- tion which cannot be maintained in that extent. In the oi'dinary course of things in time of peace — for it is not denied that such a contract may be made, and effectually made (according' to the usage of merchants,) such a transfer in transitu might certainly be made. It has even been contended that a mere delivering of the bill of lading is a transfer of the property. But it might be more correctly expressed, perhaps, if said that it transfers only the right of delivery ; but that a transfer of the bill of lading, with a contract of sale ac- companying it, may transfer the property in the ordinary course of things, so as effectually to bind the parties, and all others, cannot well be doubted. When war intervenes, another rule is set up by Courts of Admiralty, which interferes with the ordinary practice. In a state of war, existing or imminent, it is held that the property shall be deemed to continue as it was at the time of shipment till the actual delivery ; this arises out of the state of war, which gives a belligerent a right to stop the goods of his enemy. If such a rule did not exist all goods shipped in the enemy's country would be protected by transfers which it would be impossible to detect. It is on that principle held, I believe, as a general rule, that property can- not be converted in transitu ; and in that sense I recognize it as the rule of this Court. But this arises, as I have said, out of a state of war, which creates new rights in other parties, and cannot be applied to transactions originating, like this, in a time of j)eace. The trans- fer, therefore, must be considered as not invalid in point of law, at the time of the contract ; and being made before the war it must be judged according to the ordinary rules of commerce. " It has been farther objected to the validity of this contract, that a part of the wines did actually reach Hamburgh, Avhere they were sold, and the money was detained by the consignees in pay- ment of the advances which they had made. It is said that this annuls the contract — to the extent of that part it may do so, and the deficiency must be made up to tlie purchaser by other means ; but it appears that it has been actually supplied by bills of exchange, and an assignment of other wines sent to Petersburgh. It is not for me to set aside the whole contract on that partial ground, or to construe the defect in the execution of the contract so rigorously as to extend it to those wines which never went to Holland, and which never be- came de facto subject to be detained by the consignees. They are 352 EFFECTS OF WAR AS BETWEEN ENEMIES. [PAET II. free for the contract to act upon ; and if the parties are desirous of adherin'cesidia, though probably the true rule should in all cases of recapture be deemed necessary to divest the original proprietor of his rights ; for the effect of adhering to such a rule would be gross injustice to British subjects. * * * "If I am asked, under the knov/n diversity of practice on this- subject, what is the proper rule for a State to apply to the recapt- ured property of its allies, I should answer that the liberal and ra- tional proceeding would be, to apply in the first instance the rule of that country to which the recaptured property belongs. * * * "If there should exist a country in which no rule prevails, the recapturing country must then of necessity apply its own rule and 360 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II. rest on the presumption that that rule will be adopted and adnihiis- tered in the future practice of its allies. * * * "I understand [the law of Eng-land] to be clearly this : That the maritime law of England, having- adopted a most liberal rule of res- titution on salvage, uith respect to the recaptured jn'operty of its own subjects, gives the benetit of that rule to its allies, till it ap- pears that they act towards British property on a less liberal prin- ciple. In such a case it adopts their rule and treats them accord- ing- to their OAvn measure of justice, * * * " [As Portugal had adopted the twenty-four-hour rule, that principle was applied to those ships recaptured duriiig the time that rule prevailed in Portugal, and the rate of salvage decreed was the Portuguese rate, one-eighth to ships of war and one-fifth to priva- teers. The English rule allowed one-sixth to privateers.] THE "CAPtLOTTA." PIiGii Court of Admiralty, 1803. (5 C. Eobinson, 54.) Salvage on neutral property, retaken out of the hands of the enemy, not given — unless it can be shown by references to the ordinances or to the prac- tice of the prize coiu'ts of the enemy, that the first seizure was made vmder such circumstances as would have exposed the goods to condemnation in the hands of the enemy. This was a question of salvage, on the recapture of a Spanish ship and cargo from a French cruiser. Judgment, — Sir W. Scott : — " The (question now to be decided is, whether salvage is due on the neutral property in this ship which has been recaptured out of the possession of the enemy. It certainly has not been the practice of this court to decree salvage under such circumstances generally ; but, in consequence of the violent conduct of France during the last war, it was thought not nni-easonable on the part of neutral nier- £;hants themselves, that salvage should be allowed. * * * " I am, therefoi-e, not disposed to hold generally tliat neutral property recaptured from French cruisers shall be subject to sal- vage. I'he rule, so far as it can be considered a general rule, is rather to be laid down the other way. At the same time, if any edict can be appealed to or any fact established, by which it can be shewn that the property would have been exposed to condemnation CHAP. II.] THE '• EMILY ST. PlEKllE." 3(31 in the courts of France, T shall hold that to be sufficient ground to induce me to pronounce for salvage in that particular case. With regard to the precedent of the Jouge Lanihert (5 C. Kob., 54, note), I think I am warranted to consider the authority of that case as in a great measure done away by the subsequent decision of the Lords in the late war, in wdiicli they have repeatedly pronounced for sal- vage on the recapture of neutral property. In departing from the old rule they have in some degree disclaimed the principle ; and, I think, with great propriety, as far as it could be considered as an universal principle, governing the practice of our prize courts in all possible cases, without any possible exception. In the present in- stance there does not appear to me to be any grounds on which it can be supposed that this property would have been condemned, merely because it came out of the hands of a British privateer, or because the original voyage had been the colony of Spahi to London. No edict has been produced from the French code to shew that this property would have been subject to any such penalty on either of those accounts, in the prize courts of France. Tlie ex- penses of the recaptors must be fully paid ; but I shall not pro- nounce salvage to be due." ^ THE "EMILY ST. PIERRE." {Lawrence's Mlieaton, 667, 1021.) It is not the duty of a neutral government to restore a private vessel of one of its citizens which has been rescued by her crew from a belligerent captor before condemnation. This was a British vessel, captured by the United States block- ading squadron, in the act of breaking the blockade of Charleston, S. C, and ordered to Philadelphia f(^r adjudication in charge of a jnize crew. The original crew, by fraud and force, I'egained posses- sion, and took the vessel to Liverpool and restored her to the posses- sion of her owners. Mr. Adams applied to Earl Russell for a resto- ration of the vessel, on the ground that the rescue was a violation of the law of nations, which furnished sufficient cause for condemna- tion, and a breach of the duty of a neutral, who is bound to sub- mit CO the adjudication of the prize court of tlie captor. Earl Rus- sell refused the demand on two grounds,— ^/?r.s#, that, as the rescue ' For an account of the laws of different countries on the subject of recapture and salvage, see Dana's Wheaton, pp. 406— i72. 302 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II. was not a violation of any municipal law of England, and as the ves- sel was not in the custody of the British Government, that govern- ment had no legal right to take her from the hands of her owners, or to prosecute or proceed against the vessel or the owners for any violation of law ; and, second, that, in addition to the technical ob- jection, the offense was solely one against the laws of war made for the benefit of captors, which the captors could assert and vindicate only in their own tribunals. Admitting that rescue was ground for condemnation, he contended that the decree could only be made by the belligerent prize court. No other court, either of the belligerent or of a neutral country, had jurisdiction to condemn or restore prop- erty taken in war. If the private neutral rescues his vessel by force he takes all risks of the captor's rights of force recognized by nations, but nothing more. The courts and government of the neutral country cannot decide that the title to the vessel has passed to the captor before condemnation by the prize courts of the captor's country. All they can do is to restore to the captor the temporary possessory right, which he has between capture and condemnation. Such possessory right he held to be one of force, which the captor's government could guard and assert by condemnation or other pen- alty on the property, if in its possession, through its prize court ; but, even by the courts of the captor, the neutral rescuer could not be personally punished, as for a crime. He contended that it was nut incmnbent on neutral governments to make laws to enforce such belligerent possessory rights against their own citizens, any more than it is in case of crimes committed by their own citizens abroad, whom they do not even deliver u[) to the offended government for trial, except by treaty stipulation ; or in case of violations of the revenue or embargo laws of other counti-ies, which they never even indirectly take active cognizance of; or in case of successful breach of blockade. In the course of the correspondence -Mr. Adams cited a parallel case, in which the position of the two governments was reversed, as early as 1799, that of the brig J^.cperience. She was an American vessel, captured (with two other vessels) by a British cruiser, rescued by her crew, and brought to Philadelphia. I>y dii-ection of Loi-d Grenville, of Oct. 21, 1799, Mr. Liston demanded her restoration by the American government, by letter of May 2, isoo. The Secretary of State, ^Nlr. Pickering, by letter to Mr. Liston, of May .3, IsoO, declined to interfere, and upo)V the ground that it was an inchoate and belligerent right of captors, which the neutral gov- ernment cannot V^e expected to enforce against its own subjects ; but referred the British Minister to the Admiralty Courts of the United CHAP. II.] THE " EMILY ST. riERIlE." 3G3 States, giving no opinion on the question beyond declining executive intervention. The papers on the interesting question of the l>rig Experience were searched for and exclianged between tlie two governments by both Earl Russell and Mr. Adams; and Earl Uussell stated that there was no evidence in the Foreign Office that the opinion of the law-officer of the crown had been taken in that case, or that any further proceedings were had after tlie reply of IMr. Pickering. Mr. Adams, on his part, did not press further the case of the Emily St. Pierre, nor attempt proceedings in the Admiralty Courts of Great Britain. It may, therefore, be considered as settled by these two cases, that a neutral government is not required, by executive action, to restore a private vessel of one of its citizens which has been rescued by her crew from her captors before condenniation, on demand of the gov- ernment of the captors. The possessory, belligerent right of the captors, is not to be enforced by neutral powers by any positive action in the way of penalty or seizure for restitution. Whether the right can be vindicated by a possessory suit by the captors in the Admiralty Courts of the neutral, has not been judicially deter- mined ; but the course of the political departments of both govern- ments, and the reasoning on which they proceeded, seem to settle the judicial, as well as the political question. (Dana's Wheaton, 475.) ^ ^ In the case of the Lone, 3 Op. Atty.-Gen., 377, this vessel had entered the port of Matamoras while it was blockaded by a French squadron (1838), and sailed thence for New Orleans. On the voyage she was captured by a French cruiser: but some days later she was rescued by her captain, wlio brought her into New Orleans. A demand was made on the President by the French Govern- ment for her return to the captors. Attorney-General Grundy advised that the President had no power to grant the demand, the case involving questions to be settled by the courts, and not by th3 executive, and that the claimants must go into the courts. He also advised tliat if a vessel, after escaping from her cap- tors, terminated her voyage in safety, her liability to condemnation for the escape entirely ceases. (3 Wharton's Digest, 179.) o04 EFFECTS OF WAK AS BETWEEN EXE.MIES. [I'AKI II. Section 38. — Hostile Occupation — Conquest. UXITED STATES v. lilCE. Supreme Court of the United States, 1819. (4 Wheaton, 246.) Held, Tliat, while Castine, in Maine, was in the military possession of the British forces, it was not a port of the United States, within the meaning of tiie revenue laws, so that, after the evacuation of the place, the United States could coUect duties on goods imported into it during the occupation. Story, J., delivered the opinion of the court : — "The single question arising on the pleadings in this case is, whether goods imported into Castine, during its occupation liy the enemy, are liable to the duties imposed by the revenue laws upon goods imported into the United States. It appears, by the pleadings, that on the first day of September, 1814, Castine was captured by the enemy, and remained in his exclusiv'e possession, under the com- mand and control of his military and naval forces, until after the rati- fication of the treaty of peace, in February, 1815. During this period, the British government exercised all civil and military authority over the place ; and established a custom-house, and admitted goods to be imported, according to regulations prescribed by itself, and, among others, admitted the goods upon which duties are now de- manded. These goods remained at Castine until after it was evacu- ated by the enemy, and upon the reestablishinent of the American government, the collector of the customs, claiming a right to Amer- ican duties on the goods, took the bond in (picstion from the defend- ant, for the security of them. " Under these circumstances, we are of o[)inion, that llie claim for duties ca,nnot be sustained. By the conquest and militai'v occu- pation of Castine, the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over tliat place. The sovereignt}^ of the United States over the territory was, of course, suspended, and tlie laws of the United States could no longer be rightfully enfor(;ed there, or be obligatf)ry upon the inhab- itants wlio remained iuid submitted to the conciueiors. l]y the sur- render the inluibitants passed under a temporary allegiance to the CHAP. II.] FLEMING V. PAGE. 365 British government, and were bound l)y such laws, and suclioidy, as it chose to recognize and impose. From the nature of the case, no other laws could be obligatory upon them ; for where there is no protection, or allegiance, or sovereignty, there can be no claim to obedi- ence. Castine was, therefore, during this period, so far as respected our revenue laws, to be deeme:! a foreign port ; and goods imported into it by the inhabitants, were subject to such duties only as the British government chose to require. Such goods were, in no cor- rect sense, imported into the United States. The subsequent evacu- ation by the enemy, and resumption of authority by the United States, did not, and could not, change the character of the previous transactions. " The doctrines respecting the jus 2^ostli')ninU are wholly inapplica- ble to the case. The goods were liable to American duties, when imported, or not at all. That they were not so liable at the time of importation, is clear from what has been already stated ; and when, upon the return of peace, the jurisdiction of the United States was reassumed, they were in the same predicament as they would have been if Castine had been a foreign territory ceded by treaty to the United States, and the goods had been previously imported there. In the latter case, there would be no pretence to say that American duties could be demanded ; and, upon principles of public or nninic- ipal law, the cases are not distinguishable. " The authorities cited at the bar, would, if there were any doubt, be decisive of the question. But we think it too clear to require any aid from authority." ^ FLEMING V. PAGE. SupRE3iE Court of the Uin^ited States, 1850. ( 9 Hoicard, 003.) Held, that goods imported into the United States from Tampico, IMexico. while in tlie military occupation of the United States forces, are to be consid- ered as importations from a foi-eign country. This action is brought by the plaintiffs, merchants, residing in the city of Philadelphia, against the defendant, the late collector of the poi't of Philadelphia, to recover the sum of one thousand five hun- ' In the United States V. Hay ward, 2 Gallison, 48.") (1815), Mr. Justice Story held tliat Castine was to be considered a '■ foreign port," with reference to the non-importation acts. 3GG EFFECTS OF WAR AS BETWEEN ENEMIES. [PAET 11. dred and twenty-nine dollars, duties paid on the 14tli of June, 1S47, under protest, on goods belonging to the plaintiffs, brought from Tainpico while that place was in the military occupation of the forces of the United States. On the 15th of November, 184G, Commodore Conner took military possession of Tampico, a seaport of tlie State of Tamaulipas, and from that time until the treaty of peace it was garrisoned by Amer- ican forces, and remained in tlieir military occupati(m. Justice was administered there by courts appointed under the militai"y authority, and a custom-house was established there, and a collector appointed, under the military and naval autliority. Upon a certificate of division in opinion in the Circuit Court the case came up to this court. Judgment, — Taxey, C. J. : — " The question certified by the Circuit Court turns upon the con- struction of the act of Congress of July 30, 1846. "The duties levied upon the cargo of the schooner (Jatharine were duties imposed by this law upon goods imported from a foreign country. And if at the time of this shipment Tampico was not a foreign port, w'ithin the uieaning of the act of Congress, then tlie duties were illegally charged, and, having been paid under protest, the plaintiffs would be entitled to recover in this action tlie amount exacted by the collector. " Tlie port of Tampico, at wliich the goods were shipped, and tlie IMexican State of Tamaulipas, in which it is situated, were undoubt- edly at the time of the shipment subject to the sovereignty and do- minion of the United States. The Mexican authorities had been driven out, or had submitted to our army and navy ; and the country was in the exclusive and firm possession of the United States, and governed by its military authorities acting under the orders of the President. But it does not follow that it was a part of the United States, or that it ceased to be a foreign country, in the sense in which these words are used in the acts of Congress. " The country in question had been conquered in war. But the genius and character of our institutions are peaceful, and the power to declare war was not conferred U[)on Congress for the purposes f)f aggression or aggrandizement, but to enable the general government to vindicate by arms, if it should become necessary, its own rights and the rights of its citizens. "A war, therefore, declared by Congress, can never be presumed to be waged for the purpose of conquest or the acquisition of terri- tory ; nor does the law declaring the war imply an authority to the President to enlarge the limits of the United States by subjugathig CHAP. II.] FLEMING V. PAGE. 367 the enemy's country. The United States, it is true, may extend its boundaries by conquest or treaty, and may demand the cession of territory as the condition of peace, in order to indenniify its citizens for tlie injuries tliey liavo suffered, or to reimburse the government for the expenses of tlie war. But this can be done only by the treaty-making power or the legislative authority, and is not a part of the power conferred upon the President by the declaration of war. His duty and his power are purely military. As commander-in-cliief, he is authorized to direct the movements of the naval and military forces placed by law at his command, and to em[)l()y them in the manner he may deem most effectual to harass and conquer and sub- due the enemy. He may invade the hostile country, and subject it to the sovereignty and authority of the United States. But his conquests do not enlarge the boundaries of this Union, nor extend the operation of our institutions and laws beyond the limits before assigned to them by the legislative power. " It is true, that, when Tampico had been captured, and the State of Tamaulipas subjugated, other nations were bound to regard the country, while our possession continued, as the territory of the United States, and to respect it as such. For, by the laws and usages of nations, conquest is a valid title, while the victor main- tains the exclusive possession of the conquered country. The citi- zens of no other nation, therefore, had a right to enter it without the permission of the American authorities, nor to hold intercourse with its inhabitants, nor to trade with them. As regarded all other nations, it was a part of the United States, and belonged to them as exclusively as the territory included in our established boundaries. " But yet it was not a part of this Union. For every nation which acquires territory by treaty or conquest holds it according to its own institutions and laws. And the relation in which the port of Tampico stood to the United States, while it was occupied by their arms, did not depend upon the laws of nations, but upon our own Constitution and acts of Congress. The power of the President, under which Tampico and the State of Tamaulipas were conquered and held in subjection, was simply that of a military commander prosecuting a war, waged against a public enemy, by the authority of his government. And the country from which these goods were imported was invaded and subdued, and occupied as the territory of a foreign hostile nation, as a portion of Mexico, and was held in pos- session in order to distress and harass the enemy. AVhiie it Avas occupied by our troops they were in an enemy's country, and not in their own ; the inhabitants were still foreigners and enemies, and owed to the United States nothing more than the submission and 368 EFFECTS OF WAR AS IJETWEEN ENEMIES. [PAUT U. obedience, sometimes called temporary allegiance, which is due from a conquered enemy, when he surrenders to a force which he is unable to resist. But the boundaries of the United States, as they existed when war was declared against ^Mexico, were not extended by the conquest ; nor could they be regulated by the varying incidents of war, and be enlarged or diminished as the armies on either side advanced or retreated. They remained unchanged. And everyplace which was out of the limits of the United States, as previously established by the political authorities of the government, was still foreign ; nor did our laws extend over it. Tampieo was, therefore, a foreign port when this shipment was made. " Again, there was no act of Congress establishing a custom-house at Tampico, nor authorizing the appointment of a collector ; and, consequently, there was no officer of the United States authorized by law to grant the clearance and authenticate the coasting manifest of the cargo, in the manner directed by law, where the voyage is from one port of the United States to another. The person who acted in the character of collector in this instance, acted as such under the authority of the military commander, and in obedience to his orders ; and the duties he exacted, and the regulations he adopted, were not those prescribed by law, but by the President in his character of commander-in-chief. The custom-house was estab- lished in an enemy's country, as one of the weapons of war. It was established, not for the purpose of giving to the people of Tamauli- pas the benefits of commerce with the United States, or with other countries, but as a measure of hostility, and as a part of the military oi^erations in ^Mexico; it was a mode of exacting contributions from the enemy to support our army, and intended also to cripple the resources of Mexico, and make it feel the evils and burdens of the war. The duties required to be paid were regulated with this view, and were nothing more than contributions levied upon the enemy, which the usages of war justify when an army is operating in the enemy's country. The permit and coasting manifest granted by an officer thus appointed, and thus controlled by military authoi'ity, could not be recognized in any port of the United States, as the documents required by the act of Congress when the vessel is en- gaged in the coasting trade, nor could they exempt the cargo from the payment of duties. "This construction of the revenue laws has been uniformly given by the administrative department of the government in every case that has come before it. And it has, indeed, been given in cases where there appears to have been stronger ground for regarding the place of shipment as a domestic port. For, after Florida had been CHAP. 11.] FLEMING V. PAGE. 869 ceded to the United States, and the forces of the Ignited States had taken possession of PensacoLi, it was decided by the Treasury Department, that goods imported from Pensacohi before an act of Congress was passed erecting it into a collection district, and author- izing the appointment of a collector, were liable to duty. That is, that although Florida had, by cession, actually become a part of the United States, and was in our possession, yet, under our revenue laws, its ports must be regarded as foreign until they were estab- lished as domestic, by act of Congress; and it ai)pears that this de- cision was sanctioned at the time by the Attorney-General of the United States, the law oflflcer of the government. And, although not so directly applicable to the case before us, yet the decisions of the Treasury Department in relation to Amelia Island, and certain ports in Louisiana, after that province had been ceded to the United States, were both made upon the same grounds. ^Vnd, in the latter case, after a custom-house had been established by law at Xew Orleans, the collector at that place was instructed to regard as fo!"- eign ports Baton Rouge and other settlements still in the posses;uon of Spain, whether on the Mississippi, Iberville, or the sea-coast. The Department in no instance that we are aware of, since the establishment of the government, has ever recognized a place in a newly-acquired country as a domestic port, from which the coasting trade might be carried on, unless it had been previously made so by act of Congress. "The principle thus adopted and acted upon by the executive department of the government has been sanctioned by the decisions in this court and the circuit courts whenever the question came before them. We do not propose to conunent upon the different cases cited in the argument. It is sufficient to say, that there is no discrepancy between them. And all of them, so far as they apply, maintain, that under our revenue laws every port is regarded as a foreign one, unless the custom-house from which the vessel clears is within a collection district established by act of Congress, and the officers granting the clearance exercise their functions under the authority and control of the laws of the United States. " In the view we have taken of this question, it is unnecessar)^ to notice particularly the passages from eminent writers on the laws of nations which were brought forward in the argument. They speak altogether of the rights which a sovereign acquires and the powers he may exercise in a conquered country, and they do not bear upon the question we are considering. For in this country the sovereignty of the United States resides in the people of the sev- eral States, and they act through their representatives according to 24 370 EFrECTS OF WAR AS BETWEIZN EXE.MIES. [PART U. the delegation and distriluition of powers contained in the constitu- tion. And the constituted anihorities to ■whom tlie power of making war and conchiding peace is confided, and of determining whether a conquered country- shall be permanently retained or not, neither claimed nor exercised any rights or powers in relation to the territory in question but the rights of Avar. ,\fter it was subdued it was uniformly treated as an enemy's country and restored to the possession of the ^Mexican authorities when peace was concluded. aVnd certainly its subjugation did not compel the United States, Avhile they held it, to regard it as a part of their dominions, nor to give to it any form of civil government, nor to extend to it our laws. " Xeither is it necessary to examine the English decisions which have been referred to b}' counsel. It is true that most of the States have adopted the principles of English jurisprudence, so far as it concerns private and individual rights, and when such rights are in question we habitually refer to the English decisions, not only with respect, but in many cases as authoritative. But in the distribution of political power between the great departments of government, there is such a wide difference between the power conferred on the President of the United States and the authority and sovereignty which belong to the English crown, that it would be altogether un- safe to reason from any supposed resemblance between them, either as regards conquest in war or any other subject where the rights and powers of the executive arm of the government are brought into question. Our own constitution and form of government must be our only guide. And we are entirelj^ satisfied that, under the constitution and laws of the United States, Tampico was a foreign port, within the meaning of the act of 1846, when these goods were shipped, and that the cargoes were liable to the duty charged upon them, and we shall certify accordingl}'- to the circuit court." Mr. Justice McLeax dissented. Order. — " This cause came on to be heard on the transcript of the record from the circuit court of the United States for the eastern district of Pennsylvania, and on the point or question on which the judges of the said circuit court were opposed in opinion and which was certified to this court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel. — On consideration whereof, it is the ojiinion of this court, that Tampico was a foreign port within tlie meaning of the act of Congress of July 30, 1S46, entitled 'An act reducing the duties on imports, and for other purposes,' and that the goods, wares, and merchandise as set forth and described in the record CHAP. II.] CROSS V. HARIUSOX. 371 were liable to the duties charged upon them under said act of Con- gress. Whereupon it is now here ordered and adjudged by this court that it be so certified to the said circuit court." CROSS V. HARRISON". Supreme Couet of the United States, 1853. (16 Howard, 164.) Character of the military and civil government set up in California under the military occupation of the United States army. In the war with Mexico the port of San Francisco was conquered by the arms of the United States, in the year 1846, and shoi'tly afterwards the United States had military possession of all of Upper California. Early in 1847 the President of the United States, as constitutional commander-in-chief of the army and navy, author- ized the military and naval commanders of the United States forces in California to exercise the belligerent rights of a conqueror and to form a civil and military government for the conquered territory, with power to impose duties on imports and tonnage for the support of such government and of the army which had the con- quest in possession. This was done, and tonnage and import duties were levied under a war tariff, which had been established by the civil government for that purpose until official notice was received by the civil and mili- tary governor of California, that a treaty of peace had been made with Mexico, by which Upper California had been ceded to the United States. Upon receiving this intelligence the governor directed that import and tonnage duties should thereafter be levied in conformity \\ith such as were to be paid in the other ports of the United States, by the acts of Congress ; and for such purpose he appointed the de- fendant in this suit collector of the port of San Francisco. The plaintifls now seek to recover from him certain tonnage duties and imposts upon foreign merchandise paid by them to the defendant as collector between the 3d of February, 1848 (the date of the treaty of peace), and the l-Sth of November, 1849 (when the collector appointed by the President, according to law, entered upon the duties of his office), upon the ground that they had been illegally exacted. The formation of the civil government in California, when it was done, was the lawful exercise of a belligerent right over a 372 EFFECTS OF WAR AS BETWEEN ENEMIES. [PAIIT II. conquered territory. It was the existing government when the ter- ritory was ceded to the United States, as a conquest, and did not cease as a matter of course, or as a consequence of the restoration of peace ; and it was ris^htfully continued after peace was made witli ^lexico, uniil Congress legishited otherwise, under its constitutional power, to dispose of and make all needful rales and regulations respecting the territory or other property belonging to the United States. The tonnage duties and duiit's upon foreign goods imported into San Francisco Avere legally demanded and lawfully collected hy the civil governor, Avhilst the war continued, and afterwards, from the ratification of the treat}^ of peace until the revenue system of the United States was put into practical operation in California under the acts of Congress passed for that purpose. THE AMEPJCAX IXSURAXCE COMPANY v. CAXTER. Supreme Court of the Uxited States, 1828. ( 1 Peters, 511.) StatiTS of the people of Florida after the cession of that territory to the United States. The folloA^ing is an extract from the judgment : — ^Marshall, C. J.: — "The course which the argument has taken will require, that, in deciding this question, the Court should take hito view the relation m which Florida stands to to the United States. " The Constitution confers absolutely on the government of the Union the powers of making war and of making treaties ; conse- quently, that government possesses tlie power of acquiring territory either by conquest or by treaty. "The usage of the world is, if a nation be not entirely subdued, to consider the holding of conquered territory as a mere military oc- cupation, until its fate shall be determined at the treaty of peace. If it be ceded by the treaty, the acquisition is confirmed and the ceded territory becomes a part of the nation to which it is an- nexed ; either on the terms stipulated in the treaty of cession, or on such as its new master shall impose. On such transfer of territory, it has never been held, that the relations of the inhabitants with each other undergo any change. Their relations witli their former sovereign are dissolved, and new relations are created between them and the government which has acquired their territory. The same act which transfers their country, transfers the allegiance of CHAP. II.] JECKEIl V. MONTGOMERY. 873 those who remain in it; and the hiw, wiiieh may be denominated po- litical, is necessarily changed, althougli tliat ^vhich regulates the in- tercourse and general conduct of individuals, remains in force until altered by the newly-created power of the State. "On the 2d of February, 1819, Spain ceded Florida to tlie United States. The 6tli article of the treaty of cession contains the following provision : ' The inhabitants of the territories which his Catholic majesty cedes to the United States by this treaty, shall be incorporated in the Union of the United States as soon as may be consistent wuth the prmciples of the federal Constitution ; and ad- mitted to the enjoyment of the privileges, rights, and imnumities of the citizens of tlie United States.' "This treaty is the law of the land and admits tlie inhabitants of Florida to the enjoyment of the privileges, rights, and innnunities of the citizens of the United States. It is umiecessary to inquire whether this is not their condition, independent of stipulation. They do not, however, participate in political power; they do not share in the government, till F'lorida shall become a state. In the meantime Florida continues to be a territory of the United States ; governed by virtue of that clause in the Constitution which em- powers Congress ' to make all needful rules and regulations re- specting the territory or other property belonging to the United States.'" JECKER V. MONTGOMERY. Supreme Court of the Uxited States, 1851. ( 13 Howard, 498.) Neither the President of the United States, nor anj^ inferior executive officer, can estabUsh a court of prize, in territory occupied by American troops, com- petent to take jurisdiction of a case of capture /;uhlico egit against the state, was confiscable. They rejected the doctrine that, because the Prince had retained possession of the instruments containing the written acknowl- edgments of the debtors, he therefore had constructive possession CHAr. II.] THE ELECTOR OF HESSE CASSEL. 383 of the debts, the circnmstances beinj^ consich'rcd under wliich the juoney had been borrowed — ado[)liii,ij;- tlie priii(ii»le of the Roman Iaiw, ^^ Dissol/Uce q'uantlt((tis retentnin iitstrtnuanttdii inefficax 2'>C)tes creditorem I'emanere * * * non est ambigni juris.'''' They considered how the question was affected by the return of the Prince, and by liis rechimation of his former property, and they held that the principle of the decision of tlie Amphictyons in the case of the Thebans and Thessalians was sound law, and that it had been so treated by almost all jurists, ancient and modern. They considered the general question whether, after peace, there did or did not take place a restitutio itt i)ite(/rum with respect to those who had been dispossessed by war. They held that, even ac- cording to the letter of the Roman Law, the restored owner must take the property as he found it, and was entitled to no compensation for the damage which it might have suffered in the interval ; that what was actually gone he could not claim to have replaced ; and especially that what the public exchequer (Jrscus) had alienated was not to be restored. That as to such alienations the principle of all law, whether pri- vate, public, or international, was expressed in the words of the Roman Law, " JVbn debet quod rit^ et secundum leges ah initio actum est, ex alio eventu resKscitari.'''' It was impossible, these judges observed, to consider the return of tlie Prince as a continuation of his former government. He had not been constantly in arms against Xapoleon, and at last successful, by force of arms, in recovering his domains. He had been treated by the peaces of Tilsit and Schonbrunn as politically extinct, and the King of Westphalia had been recognized by the continental powers as Regent of Ilesse Cassel. They remarked that the Prince's own tribunals of Hesse Cassel had pronounced (June 27, 1818,) that those subjects of the King of Westphalia who had paid to him or his exchequer their debts, and received due discharges, could not be legally called upon to pay a second time; and they thought the principle of that decision, as well as the authorities which they had referred to, led them to the judi- cial conclusion that all the debts, whether the whole sum had l)een paid or not, for which discharges in full had been given by Xapo- leon, were validly and effectually paid ; and they, therefore, so far, reversed the former sentences, leaving, it should seem, both parties to pay their costs. 38i EFFECTS OF WAE AS BETWEEN EXE3IIES. [PAKT U. OCCUPATIOX OF NAPLES BY CHARLES VIIL, 1495. ( PhiUimore's International Laic, III., 838. ) May citizens legally dLscharge the debts which they owe to the sovereign by paying the amounts to the temporary conqueror or military occupier of the ter- ritory of the state 't In the year 1495, Charles the Eighth of France overran Italy, and replaced for a moment the House of Anjou upon the throne of Naples. During his brief tenure of that kingdom the French king bestowed upon his adherents all that he could lay hands upon. Amongst other devices for enriching the Angevin party, that of calling in debts due to the state from the opposite faction was adopted. Many of these debtors paid honestly the full amount of their debt. Some tried to drive a bargain to their advantage, pay- ing only a portion of their debt, and obtaining a receipt for the whole. Some contrived to pay nothing, and obtain a written dis- cliarge from everything. Four months afterwards, when the French king, with the Angevins, was driven out, and Ferdinand, with the Arragonese, was restored, the question as to the validity of tliese payments and receipts was sharply contested. Among other jurists invoked to adjudicate or arbitrate upon it, was one summce mictori- tatis^ named JlattJicriUS de Affiictis. His conclusions on this im- portant subject are as follows : — '■'■ Prima conchisio : Quod illi debitores dictorum regtim de Arra- gonid, qui fuerunt in mora solvendi dlctis regibus pecuniam debitam in genere, et jussu regis Caroli et suorum officialium solverunt ipsis donatariis, quod non sunt liherati, et tenentur solvere dictis regibus, veris creditoribus. " Secxinda conclusio sit ista, quod illi debitores qui non fuerunt in mora solvendi dictis creditoril)us, sed jussi ab officialibus regis Fran- ciae, quod solvant illis Gallis, virtute largitatis regis, et ipsi fecerunt, quidquid eis fuit possible, ut non solverent, et realiter eis solverunt propter jussum poenale, qtiod isti sunt liberati. " Tertia conclusio sit ista, quod si debitor fuit in mora, sed erat infra tempus purgandi raoram, et infi-a illud tempus sit exactus ab illis Gallis jussu magistrattis tunc solvendo Gallis perinde habeturac si non asset in mora, et sic erit liberatus. " Qiiarta conchisio sit ista, quod debitor, qui solvit Gallis illam pecuniam debitam regibus de Arragoniu virtute jussus magistratCis, CHAr. II.] THE " MENTOR." 38D cui non potuit resistere, et peenniam illam (lel)itani post diein solu- tionis faciencUe erat solitum quod ipsi debitores penes se retineljan\ pro expensis occurrentibus in administratione officii nomine regio, si ipsam pecuniani Gallis solverunt, sunt liberati, etiani qutjd fueiiut in mora. " Quinta condusio sit ista, quod illi debitores, qui solutionem pro- bant per confessionem Gallorum publicam vel privatani, ita, quod non probant veram numerationem pecunige eis factum, non sunt Uberati^ sed debent solvere veris creditoribus, quantumcunque osten- derint dictum jussum. " Sexta condusio, quod illi debitores, qui se concordaverunt, quod si non ostendunt veram solutionem in totum vel in partem, non sunt liber at L " Exitus rei approbavit istas conclusiones." Section 39. — Termixatiox of War. THE "MENTOR." High Court of Admiralty. ( 1 C. Robinson, 179. ) Hostile acts committed after the conclusion of peace are illegal ; and the injured party may sustain an action for damages against the wrongdoer. But if an officer commits such act in ignorance of the ending of the war, his own government should protect him. The following is an extract from the judgment of Sir W. Scott: — "The circumstances of the case, as far as it is necessary to state them, are these : The ship being American property, was on a voy- age from Havannah to Philadelphia, in 1783 ; off the Delaware she was pursued by His Majesty's ships, the Centurion and the Vulture, then cruising off that river, under the command of the admiral on that station. Admiral Digby. All parties were in complete igno- rance of the cessation of hostilities ; not only the persons on board the King's ships, but the Americans, as well those on the shore, as those on board the vessel. In the pursuit, shots were fired on both sides, and, it is alleged on the part of the British, that the ship was set on fire by her own crew, who took to the shore. "Now, I incline to assent to Dr. Lawrence's position, that if an act of mischief was done by the King's officers, though through igno- 25 38G EFFECTS OF WAR As BETWEEN ENEMIES. [PART n. ranee, in a place where no act of hostility oug-lit to have heen exer- cised, it does not necessarily follow that mere ignorance of tJial fact would protect the officers from civil responsibility. If by articles, a place or district was put under the King's peace, and an act of hos- tility Avas afterwards committed therein, the injured party might have a right to resort to a court of prize ; to show that he had been injured Ijy this breach of the peace, and was entitled to compensa- tion ; and if the officer acted through ignorance, his own govern- ment nnist protect him : for it is the duty of government, if they put a certain district within the King's peace, to take care that due notice shall be given to those persons by whose conduct that peace is to be maintained ; and if no such notice has been given, nor due diligence used to give it, and a breach of the peace is committed through the ignorance of those persons, they are to be borne harm- less, at the expense of that government whose duty it was to have given that notice."^ THE "XYMPH." CoxsEiL DEs Prises, 1801. {Merlin; Repertoire de Jurisprudence, t. 25, p. 131.) It was stipulated by the Peace of Amiens, between England and France, that two months sliould be allowed for the news of the close of the war to reach their respective cruisers in the West Indies. A British vessel was captured before the two months had expired, but after news of the peace had reached the captors, coming, however, through British sources. Tlie ship was restored. The XyrnpJi, a ]>i-itish vessel, was captured by the privateer Petite- lienoiionee at the island of Guadeloupe before the two months granted by the treaty of Amiens for these seas had expired. But the Petite- Renommee had received the commission and sailed from Guadeloupe five days after the signing of the treaty of peace had been conimunicated by the English governor of the island of Dominica to the authorities of Guadeloupe, and acknowledged by the latter. The conseil therefore held this to be a case of bad faith on the part of the captor; and although information of peace was communicated ' This case had been in the courts ten or more years previously, but no records of the proceedings were produced. On this account, and from the further fact that the present action was brouglit against the admiral of the station, instead of against the actual wrongdoer, the court refused to give relief. CHAP. II.] THE "MYMrn." 387 by the enemy, it was sufficient to stop any aggressive acts of war until the truth of the news could be ascertained officially. Conse- quently the Xi/n)])Ji was restored with damages. Conclusions du Commaissaire du Gouvernement. 31. Collet-Des- cotils : — " Une chaloupe, la Petite- Henommee, armoe en course, partit du port dela Liberie, tie de la Guadeloupe, Ic 2 frimairc anX,et, le 9du mOnie mois, aborda le brick Anglais, la Nijmbhe, a I'ancre dans la rade de Tile de Saint-Christophe, coupa son cable et renleva. "Plusieurs jours auparavant, les preliminaires de la paix avaient etc publics dans les iles Anglaises de ces parages ; le capitaine de la fregate Anglaise, le Tamer, avait envoy 6 un parliamentaire a la Guadeloupe pour en donner lanouvelle, quietait confirmee en nieme temps par le gouverneur de la Dominique. Tout en accusant recep- tion de ces deux communications au gouvernement Anglais, u la date du 24 brumaire, le mulatre Pelage qui avait usurpe le gouvernement militaire de la Guadeloupe, se hiita d'expedier des pouvoirs a, des corsaires, qui mirent immediatement a la mer, dans le dessein de profiter de la securite des Anglais. Une deces commissions, dc'livrce a la Petite-Iienommee, portait la date du 29 brumaire, et etait, par consequent, posterieure de cinq jours a la reponse de Pelage. Dans sa protestation centre la capture, le capitaine Anglais declara que la Petite- Eeno7n7r)ee ?ivait surpris son navire pendant la nuit; qu'apres avoir coupe son cable, les corsaires etaient monies a bord ou tout I'equipage dormait, et avaient use de leurs amies, quoiqu 'aucun des Anglais ne fut arme ; qu'ils avaient pille I'equipage, ainsi que les marchandises de la cargaison. "Par decision du 24 frimaire an X, le commissaire de la marine au port de la Liberie, assiste du controleur de la marine et du sous — commissaire charge de I'inscription maritime, pronon9a la confiscation du navire et du chargement, qui furent vendus, et dont le produit fut verse a la caisse des invalides de la marine jusqu' a ce quMl fut statue definitivement. " Sur I'appel porte devant les Conseil des prises, le procureur gen- eral conclut a Tannulation de la prise. Les armateurs avaient allegue qu'on ne devait reconnaitre comme nouvelles de la paix que les nou- velles officielles, c'est a dire emanent du gouvernement ; que, sans cela, on serait expose a devenir victime de la ruse des ennemis et de la confiance qu'on aurait euedans une fausse nouvelle. " C'est se tromper etrangement, dit M. Collet-Descotils, commis- saire du Gouvernement, que de confondre la perfidie avec la ruse ; et ce serait une perfidie dont il n'est point d'exemple dans Thistoire des nations de I'Europe, qu'une fausse nouvelle de paix, donnee 388 EFFECTS OF WAR AS BETWEEN ENEMIES. [PAI;T 11 officiellement par des commandmants militaires d'une nation avec laquelle le premiere serait en guerre. "Du reste, je suis loin de pretendre que Ton soit oblige de donner une conllance aveugle aux nouvelles depaix ainsi transuiises, et que Ton doive negliger les mesures de surete dans les lieux ou elles par- viennent ; inais il y a une grande difference entre se tenir sur une sage de'fensive, jusqu' ace qu'oii ait reyu des instructions de son l)ropre gouvernement, et se perniettre des actes d'oppression, lors sur- lout que les circonstances rendent plus que probable- la nouvelle de la paix, et que la conduite de rennenii est telle qu'elle n'offre point de motifs de craindreaucune surprise de sapart. Recevoirde notre ennemi la nouvelle de la paix, et, i)ar consequent, recevoir en meme temps Tassuranre (pi'il n'attaquera plus nos vaisseaux, exige au inoins de notre part luie suspension d'hostilites offensives : profiler de la seeurite que lui inspire la communication qu'il nous a donnee, pour faire enlever, soit a la mer, soit dans ses ports, ses navires, et sabrer les hommes qui les montent, est un acte de perfidie et de de- loyaute qui ne convient qu' a des pirates et qui fletrirait riioinieur du nom Franyais, s'il demeurait impuni. " Les armateurs du corsaire out encore pretendu que toute prise faite avant Texpiration des delais etait valable, puisque Tart. 11 des preliminaires fait connaitre que ces delais out ete convenus par les puissances contractantes, pour prevenir les plaintes ou les reclama- tions. Rien de plus errone que cette opinion. Les prises faites dans les delais portes par I'art. 11 des preliminaires nepeuvent done etre jogees valables, qu'autant que les batiments capteurs n'auraient pas eu une connaissance positive de la paix. Cette verite, conforme aux principes professes paries publicistes que j'ai cites dans mes conclu- sions sur Taffaire du Porc/icr, est d'une evidence a laquelle on ne peut refuser de se rendre. "Le Coxseil declare nulle, illegale, et contraireau droit des gens, la prise faite par le corsaire P'ranyais de la Guadeloupe, la Petite- JRenommte, du navire Anglais la Xi/mphey ^ 1 The similar ease of the Svnneherd (le Porcher), Pistoge et Duvenlj-, i., 140, wasthat of anEnglish vessel captured in the Indian seas by a Frencli privateer, after the signing of the treaty of Amiens, hut before tlie expiration of the five montlis allowed for the news of the peace to reach those seas. In this case the English ship had been fitted out as a privateer. She sailed from Talcutta after the news of the peace had reached that place, and informed the captor of that fact. It was contended farther by the claimant that the captor had n^ceived notice of the peace from a Portuguese vessel. On the other hand it was \\A(\ by the Conseil des Prises that no sufficient notice of peace had reached the captor. " Ildemenrc done pour constant que la capture e;iance has usually been recognized to he ahout three miles from the shore. But it so happens in this case, that a question arises as to what is to be deemed the shore, since there are a immber of little mud islands composed of earth and trees drifted down by the river, which form a kind of portico to the main-land. It is con- tended that these are not to be considered as any part of the terri- tory of America, that they are a sort of ' no nuurs land,' not of con- sistency enough to support the purposes of life, uninhabited, and re- sorted to, onh', for shooting and taking birds' nests. It is argued that the line of territory is to be taken only from the Balise, which is a fort raised on made land by the former Spanish possessors. I am of a different opinion; I think that the protection of territory is to be reckoned from these islands ; and that they are the natural appendages of the coast on which they border, and fi'om which, in- deed, they are formed. Their elements are derived immediately from the territory, and on the principle of alluvium and increment, on which so much is to be found in the books of law. Quod vis Jluminis de Pio prmdio detraxerit, and vicinojjycsdio attiderit^ palani tuion remunet, even if it had been carried over to an adjoining terri- tory. Consider what the consequencewould.be if lands of this description were not considered as appendant to the main-land, and as comprised within the bounds of territory. "If they do not belong to the United States of Ameiica, any other power might occupy them ; they might be embanked and fortified. What a thorn would this be in the side of Amei'ica ! It is physi- cally possible at least that they might be so occu})ied by Eur()[)ean nations, .-uid then the command of the river would be no longer in America, but in such settlements. The possibility of such a conse- quence is enough to expose the fallacy of any arguments that are addressed to show that these islands are not to be considered as part of the territory of America. Whether they are composed of earth or solid rock, will not vary the right of dominion, for the right of dominion does not depend upon the texture of the soil. " I am of opinion that the right of territory is to be reckoned from those islands. That being established, it is not denied that the actual capture took place within the distance of three miles from the islands, and at the very threshold of the river. But it is said that the act of capture is to be carried back to the commencement of the pursuit, and that if a contest begins before, it is lawful for a belligerent cruiser to follow, and to seize his prize within the terri- tory of a iii'Utral state. And the authority of Bynkershoek is cited on this point. True it is, that that great man does intimate an opin- ion of his own to that effect; but with many qualifications, and CHAP. 111.] THE "ANNA." 395 as all opiuidii, which ho did not lind to liavo heeii ud()[>te(l l)y any other writers. I confess I should have heen inclined to have jioiic along- with him, to this extent, that if a cruiser, which had Ijct'ore acted in a manner entirely unexceptionable, and free from all violation of territory, liad summoned a vessel to submit to exam- ination and search, and that vessel had fled to such places as these, enlirely uninhabited, and the cruiser had without injury or annoy- ance to any person whatever, quietly taken possession of his prey, it AAould be stretcliing- the point too hardly against the captor, to say tliat on this account only it should be held an illegal capture. If nothing- objectionable had a[)i)eared in the conduct of the ca])tors before, the mere following- to such a place as this is, would, I think, not invalidate a seizure otherwise just and lawful. " But that brings me to a part of the case, on which I am of opin- ion that the privateer has laid herself open to great reprehension. Captors must understand that they are not to station themselves in the mouth of a neutral river, for the purpose of exercising the rights of war from that river, much less in the river itself. It appears from the privateer's own log-book that this vessel has done both ; and as to any attempt to shelter this conduct under the example of King's ships, which I do not believe, and which, if true, would be no justification to others, captors must, I say, be admonished, that the practice is altogether indefensible, and that if King's ships should be guilty of such misconduct, they would be as much sub- ject to censure as other cruisers. " It is unnecessary to go over all the entries in the log. The cap- tors a})pear by their own description to have been standing off and on^ obtaining information at the I^alise, overhauling vessels in their course down the river, and making the river as much sul:)servient to the purposes of war, as if it had been a river of their own country. This is an inconvenience which the states of America are called upon to resist, and which this court is bound on every principle to dis- courage and correct. "With respect to one vessel, it appears that the Bilboa, under Spanish colors, and an undoubted Spanish ship, had been captured and carried into the river ; and it was stated in an affidavit wdiich Avas exhibited to account for the absence of the usual witnesses in that case, that the prisoners liad escaped. The cause Avas brought on upon the evidence of the releasing witnesses under this representa- tion. It now appears by an entry in this log, ' that the jn-iaoners vjere set on shore ;'' an act highly unjustifiable, in its own nature, independent of the deception Avitli which it has been accompanied. The prisoners are the King's prisoners, and captors are particularly o9o BELLIGKREXTS AND NEUTKALS. [PART II. enjoined hj^ the instructions not to release any prisoners belonging to the ships of the enemy, and they violate their duty whenever they do. AVhen I advert to the imposition that has been put upon the court in that transaction, how can I trust myself to any representa- tion coming from the same persons. Indeed, I think, I can perceive strong traits of bad faith running throughout the whole conduct of the captors in the present case. In answer to tiie complaint that has been made against the captors for bringing this prize to Eng- land, it was said, that it was done at the desire of the master of the captured vessel ; though in the affidavit of the mastei', \\hic-h is not contradicted, it is sworn, ' that the captors offered to set him on shore, but that he refused to be separated from his cargo.' '' The conduct of the captors has on all points been highly repre- hensible. Looking to all the circumstances of previous misconduct, I feel myself bound to pronounce, that there has been a violation of territory, and that as to the question of property, there was not suf- ficient ground of seizure; and that these acts of misconduct have been further aggravated, by bringing the vessel to England, without any necessity that can justify such a measure. In such a case it would be falling short of the justice due to the violated rights of America, and to the individuals who have sustained injury by such misconduct, if I did not follow up the restitution which has passed on the former day, with a decree of costs and damages." THE "GEXERAL ARMSTROXG." Louis Xapoleox, Aubitijator, 1851. (2 Wharton's Digest, 604.) "Wliere a capture has been made in neutral waters, claims for damages by the injured belligerent against the neutral state not allowed, if the captured sliip resisted, instead of asking protection of the neutral. " The destruction of the American armed brig General Ariiistronf/ by a I^ritish man-of-war, in the harbor of Fayal, in 1814, gave rise to a loiig-continuing correspondence, which resulted, in is.jl, in an agreement to refer the claims growing out of it to the ' arljitrament of a sovereign, potentate, or chief of some nation in amity with both the high contracting parties.' The President of the French Repul)- lic (afterwards Xapoleon TIT.) was selected as the arbiter. This decision was adverse to the I'nited States." The following is a translation of the material parts of the decision ; CHAP. III.] THE " GENERAL ARMSTRONG." 397 " Considering that it is cleav, in fact, tliat tlio United States were at war with Her Britannic Majesty, and Her Most Faitliful ^lajesty preserving- her neutrahty, the American bi'ig the General Arm,' stron;/^ connnanded by Captain lleid, legally provided with lettei'S of marque, and armed for privateerhig purposes, having sailed from the port of Xew York, did, on the 26th of September, 1814, cast anchor in tlie port of Fayal, one of the Azores Islands, constituting part of Her Most Faithful ^I;'.jesty's dominions. " That it is equally clear that, on the evening of the same day, an English squadron, connnanded by Conunodore Lloyd, entered the same port ; "That it is no less certain that, during the following night, re- gardless of the rights of sovereignty and neutrality of Her Most Faithful Majesty, a bloody encounter took place between the Americans and the English ; and that on the following day, tlie 27th of September, one of the vessels belonging to the English squadron came to range herself near the American privateer for the pur[)ose of cannonading her; that this demonstration, accompanied by the act, determined Captain Reid, followed by his crew, to abandon his vessel and to destroy her ; " Considering that if it be clear that, on the night of the 2Gth of September, some English long-boats, commanded by Lieutenant Robert Fausset, of the British navy, approached the American brig, the General Armstrong, it is not certain that the men who manned the boats aforesaid were provided with arms and annnuni- tion ; " That it is evident, in fact, from the documents which have been exhibited, that the aforesaid long-boats, having api)roaclied the American brig, the crew of the latter, after having hailed them and summoned them to be off, immediately fired upon them, and that some men were killed on board the English boats, and others wounded — some of whom mortally — without any attempt having been made on the part of the crew of the boats to repel at once force by force ; "Considering that the report of the governor of Fayal proves that the American captain did not apply to the Portuguese govern- ment for protection until blood had already been shed, and, when the fire had ceased, the brig General ArmstronD XEUTKALS. [PAET II. THE " SAXTTSSIMA TRIXIDAD." Supreme Court of the U>ited States, 1822. ( 7 U'heaton, 283. ) Held, tliat neutral citizens may send armed vessels to belligerent ports for sale, provided it be done as a bona Jide commercial transaction, a ship iutliis situation being considered as merely an article of conti'aband of war. The augmentation of the foi'ceof a belligerent cruiser, in neutral territor}-, is illegal : and will entail the restoration of a prize made by such vessel, if brought within the jurisdiction of the offended neutral. This was a libel filed by the consul of Spain, in the district court of Virginia, in April, 1817, against eighty-nine bales of cochineal, two bales of jalap, and one box of vanilla, originally constituting part of the cargoes of the Spanish ships Santissima Tn'nhlad 'AXidi St. Aiider, and alleged to be unlawfully and piratically taken out of those vessels on the high seas by a squadron consisting of two armed vessels called the Independencla del Sud and the Altrarida, and manned and commanded by persons assuming themselves to be citizens of the Ignited Provinces of the Kio de la Plata. The libel was filed, in behalf of the original Spanish owners, by Don Pablo Chacon, consul of his Catholic Majesty for the port of Norfolk ; and as amended, it insisted upon restitution, principally for three reasons : (1) That the commanders of the capturing vessels, the Indepen- dencia and the AltravUla, were native citizens of the United States, and were prohibited by our treaty with Spain of 1795, from taking commissions to cruise against that power. (2) That the said capt- uring vessels were owned in the United States, and were originally of Spain on the ground that the Irresistible had been illegalh' fitted out in an American port. A claim was set up by one Francesc-he, who alleged that he had bought her at the prize sale. The Supreme Court (Story, J. , giving the opinion) held that this purcliase was not proved, and that she was still in the hands and ownership of the owners of the Irresistible ; that their title was not improved by the condemnation, if vaUd otherwise ; and restored her to the King of Spain. (Dana's Wheaton, 5.55, note.) Other early cases in the United States courts on this question are : The Betsey, Bee, 67 ; The Brotliers, Bee, 76 ; The Nancy, Bee, 73 ; llie Sloop Betsey, 3 Dalla.s, 6; Tlie Maydalena, 1196 (Talbot v. Jansen,^ Dallas, 133); The Alfred. \1! 96.-^ Dallas, 307 ; The Plujebe Ann, 1796. 3 Dallas, 319 ; The Invincible, 1816. 1 Wheaton. 238 ; Bello Corranes, 1821. 6 Wheaton. 152 ; Gran Para, 1822. 7 Wheaton. 471 ; Arrogante Barceloms, 1822, 7 Wheaton, 496 ; Tlie Funny, 1824, 9 Wheaton, 659. CHAP, irr.] THE "SAXTIRSniA TIUXIDAD." 400 equipped, fitted out, armed and nianued in tiie United States, con- trary to law. (8) That their I'orce and armament had been illegally augmented within the United States. The district court, upon the hearing of the cause, decreed restitu- tion to the original Spanish owners. That sentence was alftrmed in the circuit court, and from the decree of the latter the cause was brought by appeal to this court. Judgment, — Stouy, J. : — " Upon the argument at the bar several questions have arisen, which have been deliberately considered by the court; and its judg- ment will now be pronounced. The first in the order, in which we think it most convenient to consider the cause, is, whethei" tlie Iii» * * This view of the question renders it unnecessary to con- sider another w^hich has been discussed at the bar respecting what is denominated the right of expatriation. * * * "And here Ave are met by an argument on behalf of the claimant, that the augmentation of the force of the Independencia within our ports, is not an infraction of the law of nations, or a violation of our neutrality ; and that so far as it stands prohibited by our municipal laws the penalties are personal, and do not reach the case of restitu- tion of captures made in the cruise, during Avhich such augmenta- tion has taken place. It has never been held by this court that an augmentation of force or illegal outfit affected any captures made after the original cruise was terminated. By analogy to other cases of violations of public law the offence mny well be deemed to be de- posited at the termination of the voyage, and not to affect future transactions. But as to captures made during the same cruise, the doctrine of this court has long established that such illegal augmen- tation is a violation of the law of nations, as well as of our own municipal law's, and as a violation of our neutrality, by analogy to other cases, it infects the captures subsequently made with the char- acter of torts, and justifies and requires a restitution to the partiei 412 BELLIGERENTS AND NEUTRALS. [1"A1;T IL Avho liave been i:ijure(l by such miscoiuluct. It does not lie in the mouth of wrongdoers to set up a title derived from a violation of our neutrality. " 'J'he cases in which this doctrine has been recognized and applied, have been cited at the bar, and aresoimmerous and so uniform, that it would be a waste of time to discuss them, or to examine the rea- soning by which they are supported. ^lore especially as no inclina- tion exists on the part of the court to question the soundness of these decisions. If, indeed, the question were entirely new, it would de- serve very grave consideration, whether a claim founded on a viola- tion of our neutral jurisdiction could be asserted by private persons, or in any other manner than a direct intervention of the government itself. In the case of a capture made within a neutral territorial jurisdiction, it is well settled, that as between the captors and the captured, the question can never be litigated. It can arise only upon a claim of the neutral sovereign asserted in his own courts or the courts of the power having cognizance of the capture itself for the purposes of prize. And l)y analogy to this course of proceeding, the interposition of our own government might seem fit to have been re- quired before cognizance of the wrong could be taken by oui- courts. But the practice from the beginning in this class of causes, a period of nearl}^ 30 years, has been uniformly the other way ; and it is now too late to disturb it. If anj' inconvenience should grow out of it, from reasons of state policy or executive discretion, it is compe- tent for Congress to apply at its pleasure the proper remedy. * * * " Upon the whole, it is the opinion of the court that the decree of the circuit court be affirmed, Avith costs." UXITED STATES r. QFIXCY. • Supreme Coikt of the Uxitkd States, 1832. (6 Peters, 445.) Held, that, if a vessel be fitted out in the United States witli the intent that she shall engage in hostilities agaiast a friendly nation, it is an infringement of the neutrality act of 1818, and subjects the owner to the penalties attached to that act. But if the intention was to send the vessel to the West Indies in search of funds with which to complete her armament, with no present intention of preying upon the commerce of a friendly state, he was not guilty. So, if there was no fixed intention, but a mere wish to fit her out, etc. . it would not be illegal. 3Ir. Justice Thompson delivered the opinion of the court : — CUAI'. III.] UNITED STATES V. QUINCY. 413 '' This case conies up from tlie Circuit Court of the United States for the ^Maryhind district, on a division of opinion of the judges, upon certain instructions prayed for to the jury. "The indictment upon which the defendant was put upon his trial, contains a number of counts, to which the testimony did not apply, and which are not now drawn in question. The twelfth and thirteenth are the only counts to which the evidence applied ; and the offence charged in each of these is substantially the same ; to wil, that the said Jolin D. Quincy, on the 31st day of Deceml)er, 1828, at the district of Maryland, etc., with force and arms, was knowingly concerned in the fitting out of a certain vessel called the Bolnuii\ otherwise called Xa.s Dumas Argentinas, Avitli intent that sucli vessel should be employed in the service of a foreign people, that is to say, in the service of the United Provinces of IJio de la Plata, to commit hostilities against the subjects of a foreign prince ; that is to say, against the subjects of his imperial majesty, the con- stitutional emperor and perpetual defender of Brazil, with whom the United States then were, and still are at peace, against the foi-m of the act of Congress in such case made and provided. " The act of Congress under which the indictment was found, 0th Vol., Laws U. S., 321, sect. 3, declares, 'that if any person shall, within the limits of the United States, fit out and arm, or attempt to fit out and arm, or procure to be fitted out and armed, or shall knowingly be concerned in the furnishing, fitting out, or arming of any ship or vessel, with intent that such ship or vessel shall be em- ployed in the service of any foreign prince or state, or of any colony, district or people, to cruise or commit hostilities against the sub- jects, citizens or property of any foreign prince or state, or of any colony, district or people with whom the United States are at peace, etc., every person so offending, shall be deemed guilty of a high mis- demeanor, and shall be fined not more than ten thousand dollars, and imprisoned not more than three years, etc' " The testimony being closed, several prayers, both on the part of the United States and of the defendant, were presented to the court for their opinion and direction to the jury ; and upon which the opinions of the judges were opposed, and which will now be noticed in the order in which they were made. " On the part of the defendant the court was requested to charge the jury, that if they believe that when the BoUcar left Baltimore, and when she arrived at St. Thomas, and during the voyage from Baltimore to St. Thomas, she Avas not armed, or at all prepared for war. or in a condition to commit hostilities, the verdict must be for the defendant. 414 liELLIGERENTS AND NEUTKALS. [lAKT II. "The prayer on the part of the United States upon this part of the case, was, in suhstance, that if the jury find from the evidence that the defendant was, witliin the district of Maryland, knowingly concerned in the fitting out the privateer Bolivar^ with intent that she should be employed in the manner alleged in the indictment, then the defendant was guilty of the offence charged against him, although the jury should find that the equiimients of the said pri- vateer were not complete within the United States, and tliat the cruise did not actually commence until men were recruited, and further equipments were made at the island of St. Thomas in the "West Indies. "The instruction which ought to he given to the jury under these prayers involves the construction of the act of Congress, touching the extent to which the preparation of the vessel for cruis- ing or committing hostilities must he carried before she leaves the limits of the United States, in order to bring the case within the act. " On the part of the defendant it is cordended, that the vessel must 1)6 fitted out and armed, if not complete, so far at least as to be prepared for war, or in a condition to commit hostilities. " We do not think this is the true construction of the act. It has been argued that, although the offence created by the act is a mis- demeanor, and there cannot, legally speaking, be principal and ac- cessory, yet the act evidently contemplates two distinct classes of offenders. The principal actors, who are directly engaged in jd-e- paring the vessel, and another class, who, though not tiie chief actors, are in some way concerned in the preparation. " The act, in this respect, may not be drawn with veiy great per- spicuity. But should the view" taken of it by the defendant's coun- sel be deemed correct (which, however, we do not admit), it is not perceived how it can affect the present case. For tlie indictment, according to this construction, places the defendant in the second- ary class of offenders. He is only charged with being kiiowingly concerned in the fitting out the vessel, witli intent that she should be employed, etc. "To bring him Avithin the words of the act, it is not necessary to chai'ge liim with being concerned in fitting out and arming. The words of the act are, fitting out or arming. Either will constitute the offence. But it is said such fitting out must be of a vessel armed and in a condition to commit hostilities, otherwise the minor actor may be guilty wiien the greater would not. For, as to the lat- ter, there nuist be a fitting out and arming in order to bring him within the law. If this construction of the act be well founded, the indictment ought to charge, that the defendant was concerned in c.'iAi*. III.] uxitp:d states v. QTINCV. 11.") fitting out the lio/irar, hclug a vessel fitted out and armedy etc. liut this, we apiirehend, is not recjuired. It would be going beyond tlic l)l;iiii meaning of the words used in definhig the otl'ence. It is suf- ficient if the indictment charges tlie otl'ence in the woi-ds of the act ; and it cannot be necessary to prove what is not cliarged. It is true, that, with respect to those who have been denominated at the l»ar the chief actors, the law would seem to make it necessary that tliey Bhould be charged witli fitting out and arming. These words may require that both should concur; and tlie vessel be put in a con- dition to commit hostilities, in order to bring her within the law. But an attempt to fit out and arm is made an offence. This is cer- tainly doing something short of a complete fitting out and arming. To attempt to do an act does not, either in law or in common par- lance, imply a completion of the act, or any definite progress to- wards it. Any effort or endeavor to effect it will satisfy the terms of the law. "This varied phraseology in the law was probably employed with a view to embrace all persons of every description who might be en- gaged, directly or indirectly in preparing vessels with intent that they should be employed in committing hostilities against any powers with whom the United States were at peace. Different de- grees of criminality will necessarily attach to persons thus engaged. Hence the great latitude given to the courts in affixing the punish- ment, viz., a fine not more than ten thousand dollars and imprison- ment not more than three years. " We are, accordingly, of opinion, that it is not necessary that the jury should believe or find that the Bolivai\ when she left Balti-- more, and when she arrived at St. Thomas, and during the voyage from Baltimore to St. Thomas, was armed, or in a condition to com- mit hostilities, in order to find the defendant guilty of the offence charged in the indictment. "The first instruction, therefore, prayed on the part of the de- fendant, must be denied, and that on the part of the United States given. " The second and third instructions asked on the part of the de- fendant, were : " That if the jury believe that, when the Bolivar was fitted and equipped at Baltimore, the owner and equipper intended to go to the West Indies in search of funds, with which to arm and equip the said vessel and had no 2y}'esent intention of using or enqiloying the said vessel as a pi-ivateer, but intended, when he equipped her, to go to the West Indies, to endeavor to raise funds to prepare her for a cruise ; then the defendant is not guilty. 41u BELLIGERENTS AND NEUTRALS. [PAltT IL " Or if the jury Lelieve that, Avhen the Bolivar was equipped at Baltimore, and when slie left the United States, the equipper Jiad no fixed inttntlon to onploy her as a privateer, but had a wish so to employ her, the fultilment of wiiich wish drix'nded on his ability to ol)tain funds in the West Indies, for the purpose of arming and preparing her for war; then the defendant is not g'uilty. " We think these instructions ought to be given. The offence consists principally in the intention with which the preparations were made. These preparations, according to the very terms of the act, must be made within the limits of the United States ; and it is equally necessary that the intention with respect to the employ- ment of the vessel should be formed before she leaves the United States. And this must be a fixed intention; not conditional or con- tingent, depending on some future arrangements. This intention is a question belonging exclusively to the jury to decide. It is the material point on which the legality or criminality of the act must turn ; and decides whether the adventure is of a commercial or warlike character. " The law does not prohibit armed vessels belonging to citizens of the United States from sailing out of our ports : it only requires the owners to give security (as was done in the present case) that such vessels shall not be employed b}'- them to commit hostilities against foreign powers at peace with the United States. The col- lectors are not authorized to detain vessels, although manifestly built for warlike purposes, and about to depart from the United States, unless circumstances shall render it probable that such vessels are intended to be employed by the owners to commit hostilities against some foreign power, at peace with the United States. "All the latitude, therefore, necessary for commercial purposes, is given to our citizens ; and they are restrained only from such acts as are calculated to involve the country in Avar. " The second and third instructions, asked on the part of the United States, ought also to be given. For, if the jury shall find (as the instructions assume) that, the defendant was knowingly concerned in fitting out the Bolivar within the United States, with the intent that she should be employed as set forth in the indict- ment, that intention being defeated by what might afterwards take place in the West Indies, would not purge the offence, which was previously consummated. It is not necessary that the design or in- tention should be carried into execution in order to constitute the offence. " The last instruction or opinion asked on the part of the de- fendant, was : CHAI'. irr.] UNITED .STATES V. (,)rrN'CY. 417 "That, accordinf? to tlie evidence in tlie cause, the United Pi-ov- inces of Uio de la Pkxta is, and was, at the time of the offence al- leged in the indictment, a government acknowledged by the United States, and tlius was a state, and not i\ pnoph, witliin the meaning of the act of Congress, under which the defendant is indicted ; the word people in that act being intended to describe communities under an existing government, not recognized by the United States ; and that the indictment cannot l)e supposed on this evi- dence. " The indictment cliarges tliat the defendant was concerned in fit- ting out the £oliccn\ with intent that slie should be employed in tlie service of a foreign peo2)le ; that is to say, in the service of the United Provinces of Kio de la Plata. It was in evidence, that the United Provinces of Rio de la Plata had been regularly acknowl- edged as an independent nation by the executive department of the government of the United States, before the year 18'27. And, there- fore, it is argued that the word people is not properly applicable to that nation or power, " The objection is one purel}^ technical, and we think not well- founded. The word people^ as here used, is merely descriptive of the power in whose service the vessel was intended to be employed; and it is one of the denominations applied by the act of Congress to a foreign power. The words are, ' in the service of any foreign prince or state ; or of any colony, district or people? The applica- tion of the word people is rendered sufficiently certain l)y what fol- lows under the videlicet, ' that is to say, the United Provinces of Rio de la Plata.' This particularizes that which by the word p>eople is left too general. The descriptions are no way repugnant or in- consistent with each other, and may well stand together. That which comes under the videlicet, only serves to explain what is doubtful and obscure in the word people. " This instruction must therefore be denied, and the one asked on the part of the United States, viz., that the indictment is sufficient in law, must be given. " These answers must accordingly be certified to the circuit court." 27 4i8 BELLIGEIIENTS AND ^•EUTKALS- TpaUT U. THE "METEOR." IT. S. Circuit Court for So. New York, 1866. (3 Whartoii.s Digest. 561.) A vessel may be fitted out in the United States for war, whether with arma- ment, or without, and sent to a belligerent port in search of a market. The case of the Jleteor, which has been the subject of mucli discussion in this reUition is reported in brief in 1 American Law, liCV., 401. Accordmg to this report, the JItieor was built in the United States in 1865, during the war tlien pending between Chile and Spain, and sold to the Cliilean government, without armament, and tlien, it was alleged, commissioned, when in the United States, as a Chilean privateer. She ^^■as libeled in New York and seized January 23, 1866 ; and on the hearing before Judge Betts it was maintained by the claimant to " be no ott'eiise (under the act of 18ls) to issue a commission within tlie United States for a vessel fitted and equipped to cruise or commit hostilities, and intended to cruise and commit hostilities, so long as such vessel was not armed at the time, and was not intended to be armed within the United States, although it could be shown that a clear intent existed, on the part of the per- son issuing or delivering the commission, that the vessel should receive her armament the moment she should be beyond the jurisdic- tion of the United States."' It was said, however, by Judge Betts. that "the court cannot give any such construction to the statute. Such a construction was repudiated by the supreme court. * * * The J/efeor, although not completeh^ fitted out for military opera- tions, was a vessel-of-war, and not a vessel of commerce. She has in no manner been altered from a vessel-of-war so as to fit her to be only a merchantman and so as to unfit her to be a vessel-of-war. It needed only that she should reach a point beyond the jurisdiction of the United States, and there have her armament and ammunition put on board of her, to become an armed cruiser of the Chilean gov- ernment against the government of Spain. * * * To say that the neutrality laws of the United States have never prohibited the sale of a vessel-of-war as an article of commerce, is merely to say that they have not prohibited the fitting out and arming, or the attempting to fit out and arm, or the furnishing or fitting out or arming, of a vessel, within the limits of the United States, provided CHAP. III.] THE "METEOR." 419 the unlawful nnd prohil>ite(l intent did not exist."" The court i-elied as uuthority on Dana's AVheaton, 502, 563, note 215, where it is said tliat "an American merchant may build and fully arm a vessel and suppl}'^ her with .stores, and offer her for sale in our own market. If he does any acts, as an agent or servant of a belligerent, or in pur- suance of an arrangement or understanding with a belligerent, that she shall be employed in hostilities when sold, he is guilty. lie may, without violating our law, send out such a vessel, so equipi)ed, under the flag and paj^ers of his own country, with no more force of crew than is suitable for navigation, with no right to resist search or seizure, and to take the chances of capture as contraband mer- chandise, of blockade, and of a market in a belligerent port. In such case the extent and character of the equii)ment is as innnaterial as in the other class of cases. The intent is all. The act is open to great suspicions and abuse, and the line may often be scarcely trace- able ; yet the principle is clear enough. Is the intent one to pre- pare an article of contmband merchandise, to be sent to the market of a belligereiii, -M'tject to the chances of capture and of the mar- ket? Or, on the o' her hand, is it to fit out a vessel which shall leave ■our port to cruise, iiipiiediately or ultimately, against the commerce •of a friendly nation ? The latter we are bound to prevent. The former the belligerent must prevent- Judge Betts then proceeded to say: *' The evidence in the present case leaves no rational doubt that what was done here in respect to the Meteor was done with the intent that she should be employed in hostile operations in favor of Chile against Spain ; and that what was done by her owners towards dispatching her from the United States was done in pursuance of an arrangement with the authorized agents of Chile for her sale to that government, and for her employment in hostilities against Spain, and that the case is not one of a bona fide commercial dealing in contraband of war. With these views, there must be a decree condemning and forfeiting the property under seizure, in accord- ance with the prayer of the libel." Judge Betts' decree was reversed in the circuit court, where the following opinion Avas delivered by Mr. Justice Nelson : — "This is an appeal in admiralty from a decree of condemnation in a libel of information for the violation of the neutrality laws of the United States. "NYe have examined the pleadings and proofs in the case, and have been unable to concur in the judgment of the court below, but from the pressure of other business have not found time to write out at large the grounds and r asons for the opinion arrived at. We must, therefore, for the present, be content in the state- ment of our conclusions in the matter. 420 BELLIGERENTS AND NEUTItALS. [PAKT 11. " 1. Although negotiations were commencetl and carried on be- tween the owners of the Meteor and agents of the Government of Chile, for the sale of her to the latter, w ith the knowledge that she would be employed against the Government of Spain, with Avhicli Chile was at war, yet these negotiations failed and came to an end from the inability of the agents to raise the amount of the purchase- money deniandt'd : and if the sale of the vessel, in its tlien condition and equipment, to the Chilean (iovernment would have been a viola- tion of our neutrality laws, of which it is unnecessary toex})ress any opinion, tlie termination of the negotiation put an end to this ground of complaint. " 2. The furnishing of the vessel with coal and provisions for a voyage to Panama, or some other port of South America, and the purpose of the owners to send her thither, in our judgment, was not in pursuance of an agreement or understanding with the agents of the Chilean Government, but for the purpose and design of finding a market for her, and that the owners were free to sell her on her arrival there to the Government of Chile or of Spain, or of aTiy othei Govermnent or person witli whom they might be able to negotiate a sale. "3. The witnesses chiefly relied on to implicate the owners in the; negotiations witli the agents of tiie Chilean (Tovernment, with a view and intent of fitting out and equip{)ing the vessel to be employed in the war with Spain, are persons who had volunteercil to negotiate on l)ehalf of the agents with the owners in expectation of large com. missions in the event of a sale, or persons in the expectation of em. ployment in some situation in the command of the vessel, and very clearly manifest their disappointment and chagrin at the failure of the negotiations, and whose testimony is to be examined with con- siderable distrust and suspicion. "We are not satisfied that a case is made out, upon the proofs, of a violation of the neutrality laws of the United States, and must, therefore, reverse the decree below, and enter a decree dismissing the libel." xVn appeal was taken by the Government from the decision of the circuit court to the Supreme Court of tlie United States, but was not prosecuted to a hearing, being dismissed by consent Xovember 9, 180S.1 ' In a criticism on Judge Betts' ruling, in the " North American Review " for October, 1866 (vol. 103, p. 188), we have the following :— " It ha.s been by many supposed that the decision in this Meteor case will be of great weight and impoilance as a precedent in the question of the Alabama and other Confederate vessels, now pending bet^veen this country and Great Britain, and the siuspicion has been intimated liy some that the law was a little warped by CHAl'. HI. J THE TEIICEIIIA AFEAlll. 421 THE TERCEIRA AFFAIR, 1827. {Phillimore, 3d Ed„ III., 287.) An expedition having left English ports to attack the government of Portugal, a British squadron was despatched in pursuit ; finding the vessels of the expedi- tion in Portuguese waters, the English captain kept a close watch upon them, and finally ordered them out of the ueigborhood. " In 1827, Don Pedro, having retained to himself the empire of the IJrazils, formally renounced the throne of Portugal in favor of his daughter, Donna Maria, having delegated to his brother, Don Miguel, the learned judge with the charitable intent of aiding Mr. Seward in the contro- versy. To justify either of these ideas, it is of course primarily necessary that the cases should be at least substantially parallel. That they are far- from being so may be briefly shown. The Meteor was built as a purely commercial enter- prise to be sent to a foreign land, there to take her chance of finding a market, subject to the risk of capture on the way, to be followed by confiscation as con- traband of war, and to tlie further risk, should she reach her destination in safety, of finding no market in case the war should be drawing to a close, or terms could not be agreed on ; liable, also, to be sold to any other bidder who would pay a better price. She differed nowise from any other contraband merchandise, ex- cept in the wholly insignificant fact that instead of being of such a nature as to require to be caiTied she was able to move herself. She was simply a mercantile speculation in contraband merchandise, which is of all men and nations confess- edly and avowedly legitimate. The Alahanui presents no one of these charac- teristics. * * * The question then being as Mr. Dana says, of intent, the vital difference is readily distinguishable. The English builders had assured their trade before they entered upon the undertaking ; tlie American mercJiants only had in view a quite probable purchaser. The former were not free to dispose of their ship to any person who might offer her price, for she was bespoken ; the latter would have been veiy glad to have received and closed with a fair offer from any source. In short, the action of the former betrays clearly the intent, the element of illegality, but how the action of the latter can have been regarded in the same light we must confess ourselves unable to see. AVhere, then, is the similarity ? Or why should it have been conceived necessary to sacrifice the Meteor, to overrule old and good law, to create a new necessity requiring to be met by new statutes of untried efficiency, simjilyfor the purpose of creating a precedent which is after all no precedent ? " Dana says of the Practice of the United States (note to Wheaton, p. 562) : " As to the preparing of vessels within our jurisdiction for subsequent hostile opera- tions, the test we have applied lias not been the extent and character of the prep- arations, but the intent with which the particular acts are done. If any person does any act, or attempts to do any act, towards such preparation, with the intent that the vessel shall be employed in hostile operations, he is guilty, witliout I'efer- 422 r.Kij.:(;i:i;i:NTs and Ni:["n:ALS, [i'Ai;t ii. the office of Refjeiicy of the kiii;^«hnn, with the intention thut he should iiiiury his niece. " Donna Maria II. was recognizfd hy (iieat Ihitain and the other great power.s of Europe as tlie legitimate sovereign of Portugal. cnce to the completion of the preparations, or to the extent to wliich they have j^one, and aitliough liLs attempt may have residted in no definite progress towards tlie comjdftion of the preparation.s. The pro<;ui-Lng of niateriaLs to be used, knowingly and vviLli tlio intent, etc.. Is an offence. * * * " On tlie i)(>int()f th(;int(;nt, more nicety and dLscrimination are necessary-. If tlie person cliarj^cd lias liiinKclf th<; control of the vessel, t resist search or seizure, and to take the chances of capture as contraband merchandise, of blockade, and of a market inabelUgerent port. In such ca.se, the extent and character of the efjuipments is as immaterial as in the other cla.ss of ca.ses. The inUjnt Ls all. The act is o|)en t^) great susjiicions anil abiLse, and the line may ofU-n be scarcely traceaJde ; yet the prinri|)le is clear enough. Is the intent on(; to [nvparean articl<^ of contraliaiid merchandise, to bn Kent to the market of a belligerent, subject to the chances of capture and of the market? Or, 0:1 thrjotlur hand, is it to fit out a vessid which .shall leave our port I » crui.se, immediately or ultimately, against the commerce of a friendly nation ? 'riie Iatt«;r wearebrjund to prevent. The former the belligerent must prevent. Intheformerca.se, the ship Ls merchandise, undiT bona fide neuti'al flag and ]i:iperK, with a jxirt of destination, subject to search and capture as contraband merchandLse by the other belligerent, or to the risks of blockade, and vvithuo OHM'. III.] THE TEUCErilA AFFAIR. 423 " Don Miguel, however, after a very short period, violated all his engageiuents, placed himself at the head of the Absolutists, procured himself to be proclaimed king iu 1828, proscribed the Constitutional- ists, and plunged tiu; country into the horrors of a civil war. " The sov(;r(;igns of Europe, excc{)t the King of Spain, still kept aloof from any connnuni(;atioii with tlie usui'per — from any act w hich might be considered a recognition of his title, ''i'lie Portu- guese refugees, and the Ministers of J)ou I'edro, insisted that they ought to do more, and drive him from his throne by positive inter- ference. These applications were addressed particularly to the IJi-iLish Ministry. "The British Government refused, however, to interfere in this domestic quarrel ; and, holding that it was not entitled to make any distinction between the claimants of the Portuguese crown, in so far as their respective pi'etensions were supported only by domestic force, considered itself bound to observe, in regard to all military operations, a strict neutrality. A great number of Portuguese refu- gees, most of them niilitai'y men, had arrived in England, taking up their residence principally in Poi'tsmouth, Falmouth, and the neigh- borhood. As it was believed that they were meditating to fit out some expedition from these [)oi'ts against Don Miguel, the liritish government, holding that to pei-mit this would be a breach of neu- trality, informed the Brazilian minister that it would not allow such designs to be carried on in 15ritish har])ors, and that, for security's sake, the refugees must remove farther from the coast. The Envoy then stated that those troops were about to be conveyed to Brazil; and accordingly four vessels, having on board G52 officers and men, under the command of General Count Saldaidia, who htfd been the constitutional Minister of War, sailed from Plymouth. The British govei-nment suspected that the true design was to land these troops at Terceira, although the ostensible destination was Brazil, Notice was given to them before they sailed, that any such attempt woukl be resisted, and a small force of armed vessels, under the command of Captain Walpole, of the Ranger, was despatched beforehand to Terceira, to enforce the prohibition. ITis instructions were to cruise right to resist search and seizure, and liable to be treated as a pirate by any nation, if she does any act of Jiostility to the property of a belligerent, as much as if she did it to tliat of a neutral. Such a trade in contraband, a belligerent may cut off by cruising the seas and ))y blockading liis enemy's ports. But, to protect liimself against vessels sailing out of a neutral port to commit hostilities, it would benecessary forhim tolioverofTtlie ports of the neutral; and, to do that effect- ually, he must maintain a kind of Ijlockade of the neutral coast ; which, as neutrals will not permit, they ought not to give occasion for." 424 BELLIGEUENTS AND NEUTRALS. [PAP.T II. off tlie isliind, to inform the Portuguese if tliey appeared that he had authority to prevent tlieir landing- ; ' and, should they persist, not- withstanding such warning, in hovering about, or in makmg any efforts to effect a landing, you are then to use force to drive them awa}^ from that neighborhood, and keep sight of them until you shall be convinced, by the course they may steer, and the distance they may have proceeded, that they liave no intention of returning to the Western Islands, or to proceed to Madeira.' " The expedition of Count Saldanha appeared off Terceira on the IGtli of January, and was discovered by Captain Walpole stand- ing right in for Port Praya. He fired two shots to bring them to, but they continued their course. The vessel, on board of which was Saldanha, although now within point-blank range of the Banger s guns, seemed determined to push in at all hazards. To prevent him from effecting his object Captain Walpole was under the necessity of firing a shot at the vessel, which killed one man and wounded an- other. The vessels then lay to, and to a note from Captain ^Val- l)ole, inquiring what was their object in coming thither, Saldanha answered, ' My object in appearing here is to fulfil the orders of ITer ^Majesty the Queen of Portugal, and which prescribe me to conduct, unarmed, without any hostile appearance, to the isle of Terceira. the men that are on board the four vessels in sight, which island has never ceased to obey and acknowledge, as its legitimate sovereign. Her Faithful Majesty Donna Maria II. As a faithful subject and soldier, I think it unnecessary to assure you that I am determined to fulfil my duty at all peril.' Captain Walpole replied, that he too had instructions to obey, and an imperious duty to perform; that botli of them prevented him from allowing the Count, or any part of his force, to land, either at Terceira, or on any of the Western Islands or the Azores, or even to continue in that neighborhood ; that, there- fore, unless the Count immediately quitted the vichiity of the islands he should be obliged, and was determined, to use force to compel him to do so. Saldanha then declared that he considered himself and his men as being, in these circumstances. Captain Walpole's prisoners. " Count Saldanha, and his squadron, instead of returning to Eng- land proceeded to Brest. " The act of the British Government produced a great excitement in England, and very animated debates in Parliament, in which the principles of International Law were laid down with great ju'ecision, and discussed with no ordinary ability. " The Government defended the instructions given to Captain Wal- pole upon the ground that the refugees had fitted out a warlike ar- niamejit in a British port ; that the armament having been equipped CHAP. III.] THE '• ALAP.A.MA."' 425 under the disguise of a destination to Brazil, had not been prevented from sailing-, as it otherwise would have been, out of the port of Plymouth ; and that they were, therefore, bound, by the duties of neuti-ality, to prevent by force an armament so equipped from dis- embarking-, even in the harbor of the Queen of Portugars dominions. The Government were snpi)ortc'd by a majority in both Houses of Parliament; but in the protest of the House of Lords, or in the reso- lutions of the House of Connnons, the true principles of International Law are to be found. " The protest of the House of Lords is as follows : — " ' Because the forcible detention or interruption of the subjects of a belligerent state, upon the high seas, or within the legitimate juris- diction of either of the belligerents, by a neutral, constitutes a direct breach of Neutrality, and is an obvious violation of the Law of Xations. And such an act of aggression, illegal and unjust at all times against a people with whom the interfering power is not act- ually at M'ar, assumed in this instance a yet more odious and un- generous aspect, inasmuch as it was exercised against the unarmed subjects of a defenseless and friendly sovereign, whose elevation and right to the Crown of Portugal had been earnestly reconnuendedand openly recognized by His Majestj^ and whose actual residen(;e in Great Britain, bespeaking conlidence in the friendship and protection of the king, entitled both her and her subjects to especial favor and countenance, even if considerations of policy precluded His Majesty's government from enforcing her just pretensions by arms.'" Resolutions moved in the House of Commons suggested, " That the use of force in intercepting these unarmed vessels, and prevent- ing them from anchoring and landing their passengers in the harljor of Porto Praira, was a violation of the sovereignty of the state to which the island of Terceira belonged ; and that the further inter- ference to compel those merchant ships or transports to quit tlie neighl)orhood of the Azores was an assumption of jurisdiction upon the high seas, neither justified by the necessity of the case, nor sanc- tioned by the general Law^ of Xations." (Quoted from Cobbett's ''Cases," p. 2G4.) THE "ALABAMA," 1862. {Pcq^ers Relating to the Treaty of Washington.) The Alabama, known in the shipyard as the " 290," was built at Liverpool by Messrs. Laird & Co., and launched on the 15th of May, 1SG2. Mr. Dudley, L'nited States consul at Liverpool, having ob- 426 BELLIGERENTS AND NEUTP.ALS. [PAUT II taiued evidence that the " 290 " was constructed as a vessel of war and was being built for the Confederate government, transmitted this information to Mr. Adams, tlie United States minister in Lon- don. On the 23d of June, 1862, Mr. Adams wrote to Earl Russell, foreign secretary, enclosing the letter of Mr. Dudley, and said: " This vessel has been built and launched from the dockyard of per- sons, one of whom is now sitting as a member of the House of Com- mons, and is fitting out for the especial and manifest object of carry- ing on hostilities b}' sea. It is about to be conuuanded by one of the insurgent agents, the same who sailed in the Oreto. The parties engaged in the enterprise are persons well known at Liverpool to be agents and officers of the insurgents in the United States, the nat- ure and extent of whose labors are well explained in the copy of an intercepted letter of one of them, which I received from my gov- ernment some days ago, and which I had the honor to place hi your lordship's hands on Thursday last." On the 1st of July, 1862, the commissioners of customs, to whom had been referred Mr. Adams' letter to Earl Russell, and itsinclosure reported to the Lords Commissioners of the Treasury, that the ves- sel was undoubtedly intended for a ship of war, but as yet there were neither guns nor gun-carriages on board, "and, having referred the matter to our solicitor, he has reported his opinion that at pres- ent there is not sufficient ground to warrant the detention of the vessel or any interference on the part of this department, in which rei)ort we beg to express our concurrence." The comTuissioners further suggested that the American consul should submit any evi- dence he might procure to the collector of customs at Liverpool, " who would thereupon take such measures as the provisions of the Foreign Enlistment Act would require." This suggestion was acted upon by Mr. Dudley, and a mass of evidence, including six affidavits showing the true state of affairs, were laid before Mr. Edwards, the collector at Liverpool. Tliis evidence was again referred to the commissioners of customs, who again advised, Julj^ 22d, that there was not sufficient evidence to detain the vessel. The same evidence having been submitted to 3Ir. R. P. Collier, barrister, he gave the following opinion on July 2:jd : " I have perused the above affida- vits and am of opinion that the collector of customs would be justi- fied in detaining the vessel. Indeed, I should think it his duty to detain, and that if, after the application which has been made to him, supported by the evidence which has been laid before me, he allows the vessel to leave Liverpool, he will incur a heavy responsi- bility, of which the board of customs, under whose direction he ap- pears to be acting, must take their share. CHAP, in.] THE " ALABAMA." 427 "It appears difficult to make out a stronger case of infringement of the Foreign Enlistment Act, Avhich, if not enforced on this occa- sion, is little better than a dead letter. "It well deserves consideration whether, if the vessel be allowed to escape, the Federal government would not have serious grounds of remonstrance." Finally, on July 24th, Mr. Adams sent to Earl Russell copies of two additional affidavits, and of Mr. Collier's opinion, and on the same day the commissioners of customs referred the matter to the law officers of the Crown, as did Earl Russell on the 26th. On Tuesday, the 29th, the law officers, before whom all the evi- dence had been laid, reported to the Secretary of State for Foreign Affairs their opinion that the vessel should be detained. But on the morning of the 29th of July the " 290 " w^ent to sea, without a clearance, ostensibly on a trial trip, carrying with her a party of ladies and gentlemen, who were, however, sent back by a tug from the mouth of the river. She proceeded to Moelfra Bay, on the coast of Anglesea, where she remained at anchor until the morn- ing of July 31st, and took on board about 40 men, who had been sent after her from Liverpool in a tug. And although it was known to the customs officers at Liverpool on July 30th that the tup; was to take men to the " 290," no steps were taken to follow or seize her. On July 31st the "290" sailed for Terceira, in the Azores, where she was met by two vessels,the Af/rijypina, from London, and tho BdJwma, from Liverpool, which brought out her armament and ad ditional supplies and seamen. Here the transshipment of the arma . ment was effected, and the " 290," now the Alabama, under the com- mand of Captain Semmes, and a crew nearly all British seamen, pro- ceeded on her cruise to destroy the commerce of the United States. From this time until her destruction by the Kearsarge, on the 19th of .June, 1864, the Alahama was received in British ports as a for- eign belligerent ship of war, being allowed the privilege of refitting and of procuring coal and provisions. The Alabama captured 70 L^nited States vessels, of which 9 were bonded, 2 released, 2 detained, and -57 burned. 428 BELLIGEBENTS A^D NEUTEALS. [PART II. THE "FLORIDA," 1862. (Prqjcrs Rchttiiig to the Treaty of Wasliiiigtmi.) The Florida^ originally known as the Oreto, was an h'on screw gunboat of about seven hundred tons burden, built in 1861-1862, by Fawcet, Preston & Co., of Liverpool, on the oi-der of the govern- ment of the Confederate States. To avoid sus[)icion, it was given out that she was to be built for the Italian government, but the Ital- ian consul at Liverpool disclaimed ail knowledge of her, and Mr. Chai'les Francis Adams, the United States minister in London, in- formed Earl Ivussell on the ISth of February, 1862, that she was in- tended for the Confederate Government. As the result of inquiries set on foot by the British government, the commissioners of customs reported on February 22d, that the Oreto was a vessel pierced for guns, but had neither guns nor gun-carriages on board, and that she was intended for the use of Thomas Brothers, of Palermo. Mr. Adams again on the 26th of March, called the attention of Earl Russell to the probable destination of this vessel ; but on March 22d she had sailed with a general cargo and a crew of 52 men for Palermo and Jamaica. Next appearing at Nassau, in New Providence, slie aroused the suspicions of the American consul and of British naval officers, who strongly recommended her arrest. Other vessels had ari'ived from England with equipment and guns. The arrest was finally made, but the Vice-Admii'alty Court released her for alleged lack of evidence. Sailing from Nassau on July 7th, ostensibly for St. Johns, N. B., she was followed by v^essels bearing her arman)ent, to Green Cay, another of the Bahama islands, and was there equipped as a vessel of war. After leaving British waters the Oreto, now the Florida, proceeded to Cuba, and soon after entered the port of Mobile, eluding the blockading fleet by the ruse of carrying the British flag. Issuing from that port January 16, 1863, she again appeared at Nassau and was permitted to take in a supply of coal. After that she was re- ceived at various ports of the liritish West Indies, and in some cases remained several days, refitting and procuring coal and provisions. She had by October, 1864, destroyed 36 vessels belonging to the merchant marine of the L'nited States. The end of her career was now reached. "NVliile lying in the neu- tral i)ort of Bahia, Brazil, the U. S. war steamer Wadmsetts cut her CHAP. III.] THE " GEORGIA.'' 429 out and towed her to sea, and on reaching the waters of tlie United States, she accidentally sank in Hampton TJoads. For tliis violation of neutral rights the United States made every possible reparation to the government of Brazil. The Florida captured 36 United States vessels, of which 4 were bonded and 32 destroyed. THE "SHENANDOAH," 1864. ( Papers Relating to the Treaty of Washington. ) The SJienandoaJi was originally a British merchant vessel known as the Sea King. On October 8, 1864, she cleared from London to Bombay with a large supply of coal and a crew of forty-seven men. The Laurel having sailed the same day from Liverpool with guns, equipment and men, the two vessels met off the island of Madeira, and as in the case of the Alabama, and Florida., the Sea King was transformed into a Confederate cruiser, under the name of the Shenandoah, and proceeded to prey upon the commerce of the L^nited States. She crossed the Atlantic, rounded Cape Horn, and arrived at Melbourne on the 25th of January, 1865. Notwithstanding the remonstrance of the United States consul at Melbourne, she was allowed to make extensive repairs, to take in supplies and coal and to enlist more than forty seamen. Proceeding on her cruise, she destroyed many LTnited States whaling vessels in the Northern Pacific, and a considerable number after the war had ended. Finally, having made her way back to Liverpool, she was surrendered to the English government, by wiiom she was transferred to the United States consul. The Shenandoah captured 36 L'nited States vessels, 31 of which were destroyed, 3 bonded, and 2 ransomed. THE "GE0RGL4," 1863. (Papers Relating to the Treaty of Washington.) The Georgia., previously known as the Japan., and the Yirginia, was built at Dumbarton, on the Clyde, and was equip[)ed by a Liverpool firm. Her crew were shipped by the same Liverpool firm for Shanghai, and sent round to Greenock by steamer. She was entered on the 31st of March, 1863, as for Point de Galle and Hong 430 BELLIGERENTS AND NEUTRALS. [I'ART II. Kong, with a crew of forty-eight men. She cleared on the 1st of April, and left her anchorage on the 2d, ostensibly to try her en- gines, but did not return. She had no armament on leaving Green- ock, but a few days after her departure a small steamer named the Allar, freighted with guns and anununition, and having on board a partner of the Liverpool firm who had equipped her, left Newhaven and met the Georgia off the coast of France, near Ushant. The cargo of the Alku' was transferred to the Georgia on the 8th or 9th of April, and the Allar put into Plymouth on the 11th, bringing the Liverpool merchant who had directed the proceedings throughout, and bringing also fifteen seamen who had refused to proceed in the Georgia^ on learning her real character. The rest of the crew, Brit- ish subjects, remained. The Georgia was received in various British ports as a Confeder- ate man-of-war; but not being very successful in capturing ships she returned to Liverpool on May 2, 1864, and at Birkenhead was dis- mantled, her stores sold, and the vessel disposed of to an English merchant. The United States did not, however, recognize the validity of this transfer, and she was subsequently captured oil Lisbon by an American cruiser, and condemned as prize. The Georgia captured 9 vessels, 2 of which were bonded. Two members of the Liverpool firm, wlio had engaged in enlisting men for the Georgia, were indicted under the Foreign Enlistment Act, and, on conviction, sentenced to fines of £50. CASES OF THE "SUMPTER" AND OTHEPt VESSELS, 1861-1865. {Papers Relating to the Treaty of Washington.) The Sumpter, previously the merchant steamer Havana, was fitted out at New Orleans as a vessel of war, and sailed the 30th of June, 1861, under the command of Captain Semmes. On the 30th of July she entered the harbor of Trinidad, and was the first of the Confed- erate cruisers to receive the recognition of England as a legitimate ship of war of a recognized belligerent. She remained six days, and was allowed to supply herself with coal a)i(l other necessary articles. The Sumpter having entered the y-ort of Gibraltar, she was there practically blockaded by the Ignited States steamer Tui^caroi-a, and in consequence, was dismantled and sold to an agent of Frazer, Tren- holm & Co., of Liverpool, at which port she arrived on the ITtli of CHAP. III.] GENEVA AWARD. 431 February, 18G3. She was subsequently wrecked in attempting to run the blockade of Charleston with a cargo of contraband. The Siimpter captured 18 vessels, 8 of which wei'c released, 1 recaptured, 2 bonded, the rest destroyed. The IVashville ran out of Charleston through the blockade in Xoveinber, 1861. Her Confederate commission was recognized in the ports of Bermuda and Soutliam[)ton, where she was permitted to repair ship and take in coal and jirovisions. She afterwards re- turned to Charleston, and was not heard of again as a cruiser. The Nashville destroyed 2 vessels. The Tallahassee appeared off the coast of Xew York in July, 1804. She was probably built in an English port ; little, however, is known of her construction and outfit, the chief complaint in her case being that she was received in British ports. She destroyed 29 United States vessels. The Tacony^ the Tuscaloosa, the (Jlarence, and the Lajyvring, were tenders to the Alabama and the Florida. These were vessels captured by the Alabama and Florida, and converted into gunboats, at sea, and which acted as tenders to those two vessels. These tenders destroyed or bonded 24 United States vessels. GENEVA AWARD, 1872. (3 Wharton's Digest, 630. ) Article VI. of the Treaty of Washington of 1871, providing, among other things, for an arbitration to determine British liability for the depredations on the commerce of the United States by the Alabama and other Confederate cruisers which left British waters, is as follows : "In deciding the matters submitted to the arbitrators they shall be governed by the following three rules, which are agreed upon by the high contracting parties, as rules to be taken as applicable to the case, and by such principles of international law, not inconsist- ent therewith, as the arbitrators shall determine to have been appli- cable to the case : — " RULES. "A neutral Government is bound — " First. To use due diligence to prevent the fitting out. arming, or equip- ping, within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or to carrj' on war against a power with which it is at peace ; and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or earn,- on war as above, such 432 BELLIGERENTS ANT) NEUTKALS. [PAltT U. xe?s^\ having been specially adapted, in whole or in part, within such juris- diction, to warlike use. ' ■ Secondly. Not to permit or suffer either belligerent to make use of its ports or waters as the base of naval oiJerations against the other, or for the purpose of the renewal or augmentation of military supplies or arm3, or the recruitment of men. " TliL'-'ily. To exercise due diligence in its own ports and waters, and as to all pei-sons within its jurisdiction, to prevent any violation of the foregoing obhgations and duties. " Her Britannic Majesty has comraandecl lier liig-h commissioners and plenipotentiaries to declare tliat Her Majesty's Government can- not assent to tlie foregoing^ rules as a statement of the i^rinciples of international law which were in force at the time when the claims mentioned in Article I. arose, but that Her Majesty's Government, in order to evince its desire of strengthening the friendly relations between the two countries, and of making satisfactory provision for the future, agrees that in deciding the questions between the two countries, arising out of those claims, the arbitratoi's should assume that Her Majesty's Government had undertaken to act upon the principles set forth in these rules. " And the high contracting parties agree to observe these rules as between themselves m future, and to bring them to the knowledge of other maritime powers, and to invite them to accede to them." DECISION AND AWAKD. " The tribunal having since fully taken into their consideration the treaty and also the cases, counter-cases, documents, evidence, and arguments, and likewise all other communications made to them by the two parties during the progress of their sittings, and having impartially and carefully examined the same, " ILis arrived at the decision embodied in the present award : " Whereas, having regard to the sixth and seventh articles of the said treaty, the arbitrators are bound under the terms of the said sixth article, ' in deciding the matters submitted to them, to be gov- erned by the three rules therein specified and by such principles of international law, not inconsistent therewith as the arbitrators shall determine to have been applicable to the case;' ''And whereas the 'due diligence,' referred to in the first and third of the said rules, ought to be exercised by neutral govern- ments in exact proportion to the risks to which either of the bellig- erents may be exposed, from a failure to fulfill the obligations of neutrality on their part ; "And whereas the circumstances out of which the facts consti- tuting the subject-matter of tlie present controversy ai'ose were of a CHAP. III.] GENEVA AWAllI). 433 iKiiure to ciill for the exercise on the part of Tier I>ritannic .Majesty's Govermiient of all possible solicimde for the f)l)servan('e of the rights and duties involved in the [)roclainalion of neutrality issued by Her Majesty on the lotli day of May, ISGl. "And whereas the effects of a violation of neutralitj^ coniinitted by means of the construction, equipment, and armament of a vessel is not done away with by any connnission which the govei-n- ment of the belligerent power, benefited by the violation of neutrality, may afterwards have granted to that vessel; and the ultimate step, by which the offense is com[)letcd, cannot l)e admissible as a ground for the absolution of the offender, nor can the consummation of his fraud become the means of establishing his innocence. "And Avhereas the privilege of extra-territoriality^ accorded to vessels of war, has been admitted into the law of nations, not as an absolute right, but solely as a proceeding founded on the principle of courtesy and mutual deference between different nations, and, therefore, can never be appealed to for the protection of acts done in violation of neutrality ; "And whereas the absence of a previous notice cannot be re- garded as a failure in any consideration required by the law of na- tions, in those cases in which a vessel carries with it its own con- demnation; And whereas, in order to impart to anj'- supplies of coal a charac- ter inconsistent with the second rule, prohibiting the use of neutral ports or waters, as a base of naval operations for a belligerent, it is necessary that the said supplies should be connected with special circumstances, of time, of persons, or of place, which may combine to give them such character ; "And whereas, with respect to the vessel called the Alabama, it clearly results from all the facts relative to the construction of the ship, at first designated by the number ' 290,' in the port of Liver- pool, and its equipment and armament in the vicinity of Terceira, through the agency of the vessels called the Agrippina and the Bahama., dispatched from Great Britain to that end, that the British Government failed to use due diligence in the performance of its neutral obligations, and especially that it omitted, notwithstanding the warnings and official representations made by the diplomatic agents of the United States during the construction of the said number '290,' to take in due time any effective measures of preven- tion, and that those orders which it did give at last, for the deten- tion of the vessel, were issued so late that their execution was not practicable ; 28 434 BELLIGEKEXTS AND NEUTltALS. [PAUT II. " And -uiiereas, after the escape of that vessel, the measures taken for its pursuit and arrest were so imperfect as to lead to no re- sult, and therefore cannot be considered su£Bcieiit to release Great Britain from the responsil)ility already' incurred ; " And whereas, in despite of the violations of the neutrality of Great Britain, committed by tbe ' 290,' this same vessel, later known as the Confederate cruiser Alabama^ was on several occa- sions freely admitted into the ports of the colonies of Great Britain, instead of being proceeded against as it ought to have been in any and every port within British jurisdiction in which it might have been found ; " .\nd whereas the Government of Her Britannic Majesty cannot justify itself for a failure in due diligence on the plea of insuffi- ciency of the legal means of action which it possessed : " Four of the arbitrators for the reasons above assigned, and the fifth, for reasons separately assigned by him, are of opinion that Great Britain has in this case failed, by omission, to fulfill the duties prescribed in the first and the third of the rules, established by the sixth article of the treaty of Washington. " And whereas, with respect to the vessel called the Florida, it results from all the facts relative to the construction of the Oreto in the port of Liverpool, and to its issue therefrom, which facts failed to induce the authorities in Great Britain to resort to measures ade- quate to prevent the violation of the neutrality of that nation, not- withstanding the warnings and repeated representations of the agents of the United States; that Her Majesty's government has failed to use due diligence to fulfill the duties of neutrality ; "And wiiereas it likewise results from all the facts relative to the stay of the Oi-eto at Nassau, to her issue from that port, to her en- listment of men, to her supplies, and to her armament, with the co- operation of the British vessel Prince Alfred, at Green Cay, that there was negligence on the part of the British colonial autho- rities ; " And whereas, notwithstanding the violation of the neutrality of Great Britain, committed by the Oreto, this same vessel, later known as the Confederate cruiser Florida, was, nevertheless, on several occasions freely admitted into the ports of British colonies ; " And whereas the judicial acquittal of the Oreto at Nassau can- not relieve Great Britain from the responsibility incurred by her under the principles of international law ; nor can the fact of the entry of tlie Florida into the Confederate port of Mobile, and of its stay there during four montlis, extinguish the responsibility pre- viously to that time incurred by Great Britain ; CHAP. III.] GENEVA AWARD. 435 "For these reasons the tribunal, l)y a majority of four voices to one, is of opinion, that Great Britain has in this case failed, by omission, to fultill the duties prescribed in the first, in the second, and in tlie tliird, of the rules established by ^Vrticle VI., of the Treaty of Washington, " And whereas, with respect to the vessel called the SJienandodli^ it results from all the facts relative to the de])arture from L- mitted to the same decision which applies to them respectively. " And so far as relates to the vessel called Retribution, the tri- bunal, by a majority of three to two voices, is of opinion, that Great Britain has not failed, by any act or omission, to fulfill any of the duties prescribed by the three rules of Article VI., in the Treaty of Washington, or by the principles of international law not incon- sistent therewith. 436 BELLIGEKEXTS AND NEUTRALS. [PAKT II. "And so far as relates to the vessels called the Georru, in 1880-1881. This great power of inflicting injury upon one of the belligerents, it is fair to say, 438 BELLIGERENTS AND NEUTRALS. [PAKT U. Sectio.v 42. — Ajd to Insurgents. (fi) Loiina of JSIoaey. DE WUTZ V. IIKXDRICKS. Common Pleas, 1824. (9 Moore, 586.) The question of the legality of a contract to negotiate a loan in aid of in- surgents. This was an action of trover for certain papers, and which were described in tlie declaration to be a power of attorney, and sundry engravings. At the trial, before Lord Chief Justice Bi:st, at Guildhall, at the Sittings after the last Terra, it appeared that the plaintiff had pro- posed to raise money by way of loan, to espouse tlie cause of the Greeks against the government of the Porte. That he stated pub- licly that he Avas authorized to do so, and, in consequence, applied to the defendant, a stockbroker, to negotiate the loan, who required certain securities to be left with him for that purpose ; that the plaintiff accordingly lodged with him a power of attorney, Avhich, he stated, was signed and executed abroad by the Exarch of Ravenna, authorizing him, the plaintiff, to raise money for the Greek cause ; he also requested the defendant to procure certain scrip receipts to be engraved, which he accordingly did, and which were afterwards stamped at the stamp office, as such receipts. The defendant suspect- ing the accuracy of the plaintiff's statement or authority, the intended loan failed, and no money was raised by him. The plaintiff' then claimed the power of attorney and engraved scrip receipts from the defendant, wliicli he refused to deliver up, until the engraver's bill ought not to be permitted to neutral citizens ; and the neutral nation Ls alone in a position to restrain them. In view of these facts, it ls believed that the doctrine set up b}' the United States Neutralitj' Act and by the Federal Courts, that the ' ' intent " of the owner or shipbuilder Ls the criterion by which his guilt or innocence is to be judged, is wholly inadequate ; it would not for a moment stand the test of tlie rule of " due diligence." as applied by the Geneva tribunal. The English Foreign Enlistment Act of 1870 is perhaps the best and fairest expression of tlie modern rule anywhere to be found in puljiic laws. CHAP. III.] DE WUTZ V. HENDRICKS. 439 and other expenses had been paid. On their amount being tendered, the defendant claimed a commission for scrip on part of the loan, which the plaintiff also offered to pay, provided the defendant would transfer tlie scrip to him, on which lie claimed such commission; but none Mas in fact ever raised, as the i)r()jected loan fell to the ground in the first instance. Tlie plaintiff having again formally demanded the above documents from the defendant, who refused to deliver them up, he coannenced the present action. For the defendant, it was submitted, that the whole of the trans- action was a fraud on the part of the plaintiff, as he had no authority to negotiate the loan in question. And his Lordship being of opinion, that a resident m this country could not enter into an engagement to raise money by way of loan, to assist subjects of a foreign state, so as to enable them to prosecute a war against a government in alliance with our own, without the license of the Crown ; the Jury accordingly found a verdict for the defendant. Lord Chief Justice Best. — " I am of opinion, that the whole of the transaction on which the plaintiff rested his claim to recover the articles in question from tlie defendant, was bottomed in fraud; the Jury so found at the trial ; and I am perfectly satisfied with their verdict. " I then thought that it was contrary to the law of nations, for persons residing in this country, to enter into engagements to raise money, by way of loan, for the purpose of supporting subjects of a foreign state in arms against a government in alliance with our own ; and that no right of action could arise out of such a transac- tion ; and I consequently suggested a nonsuit ; but as it was not insisted on by the defendants' counsel, I allowed the cause to pro- ceed. A case in circumstances precisely similar to the present, except that a different loan was pro^Dosed to be raised, was lately decided in the Court of Chancery in which the Lord Chancellor enter- tained the same opinion as myself, and in which he is stated to have said, that English Courts of Justice will not take notice of, or afford any assistance to persons who set about raising loans for subjects of the King of Spain, to enable them to prosecute a war against that sovereign ; or, at all events thnt such loans could not be raised without the license of the Crown. I left the question to the Jury on the merits, and they found that the power of attorney was an abro- gated fabrication. It appeared on the face of it to have been executed in Greece, it was drawn up in the modern Greek language, and was pretended to have been sent from that country. The plaintiff, how- ever, adduced no evidence to show that it was a genuine instrument; but, on the contrary, it was proved to have been executed in London, 440 BELLIGEEENTS AND NEUTRALS. [PART U. but by whom did not appear. The other articles sought to be re- covered, and described in the dechiration as engravings, were scrip receipts, which could be of no value, as the whole of the transaction to which they were intended to be applied fell to the ground, as it was founded and bottomed in fraud. It was proved for the defend- ant, that he was employed by the plaintitf to negotiate the loan in question ; that many articles had been written on the subject, and that placards had been stuck up in the city, stating, that the plaintiff was not authorized by the Greek government to raise any money, and that it was altogether a fraud. " I told the Jury, that, with respect to the power of attorney, the plaintiff could not be entitled to recover, unless he shewed that it was a genuine instrument, as it was so described in the declaration ; and that to render it valid, he should have proved that it was ex- ecuted in Greece ; but there was no evidence whatever to shew that fact ; — on the contrary, it was proved to have been concocted and executed in ^Mincing Lane. I also told the Jury, that if the plaintiff was attempting a fraud on the public by raising money under a false pretence, and that he caused the papers in question to be delivered to the defendant in furtherance of such attempt, he could not be entitled to recover them back in this action. The Jury, under these circumstances, were fully Avarranted in considering the transaction as fraudulent ; and I am not only satisfied with their verdict, but am decidedly of opinion that there is no ground whatever to dis- turb it. " The rest of the Court concurring, Rule refused." TIIOMPSOX V. PO^YLES. Chaxcery, 1828. {2Simo7iAM.) Loans to unrecognized communities. The contract in this case was for the purchase of Guatemala bonds, which were in the hands of the London agents of that government. The plaintiff was led into the venture by the fraud and misrepre- sentations of the agents and their partners in guilt, and now files a bill in Chancery for the recovery of his money, the Guatemalan government liaving repudiated its agents and all their engagements because of these frauds. CHAP. III.] kenx::tt v. chambees. 441 The following is an exlr; ct from the judgment of the Vice-Clian cellor : — "l)Ut there is this further considenition ; that this is represented to have been a contract, by the plaintiff, to p\irchase the obligations of persons who were stated to be the Government of the Federal Republic of Central America. "I confess that, after all 1 have heard fall from the mouth of Lord Eldon, on the subject of persons representing themselves to be Governments of Foreign Countries, which this Country had not ac- knowledged to be Governments, and which the courts cannot acknowl- edge them to be, till the Government of the country has recognized them to be so, it does appear to me that this is a contract entered into by the plaintiff for the purpose of purchasing that which, by the law of the land, he could not purchase. I think tliat the eon- tract, being to purchase securities from these i)ersons, mIio, as the plaintiff says, were the Government of Guatemala, cannot be con- sidered as being a contract which this court ought to sanction. The whole case being founded on that, I do not think that I could give relief to the party, who builds his case for relief entirely on a trans- action originating in such a manner ; and it appears to me that, on that ground, I must allow this demurrer." KENNETT v. CHAMBERS. Supreme Court of the United States, 1852. ( 14 Howard, 38.) Held, that a contract to raise money to aid the Texans in their war with Mexico, Texan independence not then being recognized by the United States, was invalid. The following is an extract from the opinion of the court, delivered by Mr, Chief Justice Taxey : — "To this bill the respondent (Chambers) demurred, and the prin- cipal question which arises on the demurrer is, whether the contract was a legal and a valid one, and such as can be enforced by either party in a court of the United States. It appears on the face of it, and by the averments of the appellants in their bill, that it was made in Cincinnati, with a general in the Texan army, who was then en- gaged in raising, arming, and equipping volunteers for Texas, to carry on hostilities with Mexico ; and that one of the inducements of 412 BELLIGEUEXTS AND NEUTRALS. [PART II. the appellants, in entering into this contract and advancing the money, was to assist him in accomplishing these objects. " The District Court decided that the contract was illegal and void, and sustained the demurrer and dismissed the bill ; and we think that the decision was right. "■ The validity of this contract depends upon the relation in which this country then stood to Mexico and Texas ; and the duties which these relations imposed upon the government and citizens of the United States. " Texas had declared itself independent a few months previous to this agreement. But it had not been acknowledged by the United States ; and the constituted authorities charged with our foreign re- lations, regarded the treaties we had made with Mexico as still in full force, and obligatory upon both nations. " By the treat}' of limits, Texas had been admitted by our govern- ment to be a part of the Mexican territory ; and by the first article of the treaty of amit}', commerce, and navigation, it was declared, ' that there should be a firm, inviolable, and universal peace, and a trtie and sincere friendship between the United States of America and the United Mexican States, in all the extent of their possessions and territories, and between their people and citizens respectively, without distinction of persons or place.' " These treaties, while they remained in force, were, by the Con- stittition of the United States, the supreme law, and binding not only upon the government, but upon every citizen. Xo contract could lawfully be made in violation of their provisions. " Undoubtedly, when Texas had achieved her independence, no previous treaty could bind this country to regard it as a part of the Mexican territory. But it belonged to the government, and not to individual citizens, to decide when that event had taken place. And that decision, according to the laws of nations, depended upon the question whether she had or had not a civil government in successful operation, capable of performing the duties and fulfilling the obliga- tions of an independent power. It depended upon the state of the fact, and not upon the right which was in contest between the parties. " And the President, in his message to the Senate, of December 22, 183G, in relation to the conflict between Mexico and Texas, which was still pending, says : ' All questions relative to the government of foreign nations, whether of the old or the new world, have been treated by the United States as questions of fact only, and our pre- decessors have cautiously abstained fioin deciding upon tliem until the clearest evidence was in their possession, to enable them not only CHAP. IIT.] UNITED STATES V. TRUMRULL. 443 to decide correctly, but to shield their decision from every uinvortliy imputiition.' Senate Journal of 1S3(), 37, p. 54. u * * * \\(,^ therefore, hold this contract to \)Q illegal and void, and alflrin tlie decree of tlie District Court." Mr. Justice Daxikl and Mr. Justice Gkiku dissented. (h) Shijys, 3Iunitions, and other Si(2'>2'>lies. UNITED STATES v. TRUMBULL. U. S. DisTiiiCT Court fou Caltfokxia, 1891. (48 Federal Reporter, 99.) Held, that it is not in contravention of the neutrality laws of the United States, to deliver to a vessel belonging to Chilean insurgents, in our waters, arms and amniunilions. Indictment of Ti'umbull and Burt for violation of neutrality laws. The opinion was delivered by Ross, J. : — "The indictment in this case contains 11 counts, the first 4 of which, in effect, charge that on the 9th day of May, 1891, at a certain designated place in this judicial district, near the island of San Clemente, the defendants unlawfully attempted to fit out and arm, fitted out and armed, procured to be fitted out and armed, and were knowingly concerned in furnishing, fitting out, and arming, a certain steamship called the Itata, whicjh was then and there in the posses- sion and under the control of certain citizensof the republic of Chile, known as the ' Congressional Party,' and who were then and there, in said republic, organized and banded together in great numbers in armed rebellion and attempted revolution, and carrying on war against the repul)lic of Chile, and the government thereof, with which the United States, then and at the time of the finding of the indict- ment were at peace, with intent that said ship slioidd be employed in the service of the aforesaid Congressional Party, to cruise or com- mit hostilities against the then established and recognized govern- ment of Chile, with which this government then was at peace, con- trary to the provisions of section 52S3 of the Revised Statutes of the United States, which section is as follows : — " ' Every person who, within the limits of the United States, fits out and arms, or attempts to fit out and arm. or proc;ures to be fitted out and armed, or know- ingly is concerned in the furnisliing, fitting out, or armiiig of, any vessel, with 414 EELLlGEriENTS AND NEUTIiALS. [PAT.T II. intent thac such vessel shall be employed in the service of any foreign prince or state, or of any colony, district or people, to cruise or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any col- ony, district, or people, with whom the United States are at peace, or who issues and delivers a commission within the ten-itory or jurisdiction of the United States, for anj^ vessel, to the intent that sJie shall be so employed, shall be deemed guilty of a high misdemeanor, and shall be fined not more than ten thousand dollai-s, and imprisoned not more than three years. And every such vessel, her tackle, apparel, and furniture, together with all materials, arms, ammunition, and stores, which may have been procured for the building or equipment thereof, shall be forfeited, one-half to the use of the informer, and the other half to the use of the United States.' " The next three counts of the indictment, in effect, charge that the defendants, at the same time and place, increased, unlawfully procured to be increased, and were knowingly concerned in increas- ing, the force of a certain ship of war and armed steamship called Itata^ whicli arrived at the port of San Diego in this judicial dis- trict on the "id day of May, 1891, and was at the time of her said ar- rival, and to and including the 9th day of May, 1891 (during A\hicli time she remained within the jurisdiction of the United States, and of this court), a ship of war in the service of a certain foreign jjeople called the ' Congressional Party,' then citizens of and residing in the republic of Chile, and w'ho were then and there banded together in large numbers, in open-armed rebellion, and attempted forcible revo- lution, and making war against, and being at war with a certain foreign state, namely, the republic of Chile, and the lawful govei'u- ment thereof, with which the United States then, and at the finding of the mdictment, were at peace, by adding to the force of said armed vessel an equipment solely applicable to war, viz., by adding to her equipment 10,000 rifles, 10,000 bayonets, and 500,000 cartridges there- for, contrary to the provisions of Section 5"28o of the Revised Stat- utes of the United States, which is as follows :— " ' Every person who, within the territory or jurisdiction of the United States, increases or augments, or procures to be increased or augmented, or knowingly is concerned in increasing or augmenting, the force of any ship of war, cruiser, or other armed vessel, which, at the time of her arrival within the United States, was a ship of war, or cruiser, or armed vessel, in the service of any foreign prince or state, or of any colony, district, or people, or belonging to the subjects or citizens of any such prince or state, colony, district or people, the same being at war with any foreign prince or state, or of any colony, district, or jjeople, with whom tlie United States are at peace, by adding to the number of tlieguns of such vessel, or by changing those on board of her for guns of a larger caliber, or by adding thereto any equipment solely ajjplicable to war. shall l)e deemed guilty of a high jnisdemeanor, and shall be fined not more than one thousand dollars, and imprisoned not more than one year.' CHAP. III.] UNITED STATES V. TKUMBULL. 446 "The Uist four counts of tlie indictment, in effect, charge tlmt tlie defendiUits, at the same time and place, began, set on foot, [>rovi(led the means for, and prepared the means for, a certain military ex[)e- dition to be carried on from thence against the territory and domin- ions of a foreign state, namely, the republic of Chile, — the United States, then and there, and at the time of the finding of the indict- ment, being at peace with said republic, — contrary to the provisions of section 5286 of the licvised Statutes of the United States, which is as follows : " ' Every person who, within the territory of the United States, begins or sets on foot, or provides or prepares the means for, any military expedition or enter- prise, to be carried on from thence against the territory or dominions of any foreign prince or state, or of any colony, district, or people, with whom the United States are at peace, shall be deemed guilty of a high misdemeanor, and shall be fined not exceeding three thousand dollars, and imprisoned not more than three years.' " The evidence introduced by the United States in support of the indictment being concluded, the court is asked by the defendants to direct the jury to return a verdict of not guilty, on the ground that the evidence introduced on the part of the prosecution is insufficient to sustain any count of the indictment. For the purposes of the motion, every fact that the evidence tends to establish must, of course, be considered as proven. " Briefly stated, these facts are as follows : In January of this year the steamship Itata was an ordinary merchant vessel. Early in that month she was captured in the harbor of Valparaiso, Chile, by the people designated in this indictment as the ' Congressional Party,' and who were then engaged in an effort to overthrow the then estab- lished and recognized government of Chile, of which Balmaceda was the head. The Itafxi was by the Congressional Party put in com- mand of one of its officers, and was used in their undertaking as a transport to convey troops, provisions, and munitions of war, and also as an hospital ship, and one in which to confine prisoners. Four small cannon were also put upon her decks and she carried a jack and pennant. Some time prior to the following April the de- fendant Trumbull came to the United States as an agent of the Con- gressional Party, and about the month of April went to the city of New York, and there bought from one of the large mercantile firms of that city, dealing in such matters, 5,000 rifles and 2,000,000 car- tridges therefor, witli the intention and for the purpose of sending them to the Congressional Party in Chile for use in their efforts to overthrow the Balmacedan government. The sale and purchase of 446 BELLIGERENTS AND NEUTRALS. [PART IL the arms and ainniuiiitioii were made in the usual course of ti-ade. Trumbull caused them to be shipped by rail to San Francisco, and engaged the defendant Burt to accompany them, which he did. Ar- rangements had been made by Trumbull with his principals in Chile, by which they were to send a vessel to the United States to get the arms and amnnniition, and convey them to Cliile for the use of the Congressional Party there. The Itata was disp.itched by that party for that purpose, and was accompanied as far as Cape San Lucas by the Eiiineralda, a war ship then in the service of the Congressional l*arty. At one of the Chilean ports the Itata took on board some soldiers, with their arms, by one witness stated to be about 150, and by another to be about 12, in number. " .\t San Lucas the captain of the Esmeralda took command of the Itata, and the captain of the latter was left there in command of the Esmeralda. The Itata then proceeded to San Diego, really in com- mand of the Esmeralda' s captain, but ostensibly in command of an- otlier, wlio represented to the customs officers at that port that slie w^as an ordinary merchantman, and was bound to some poi't on the northern coast. Before coming into the port of San Diego, or into the waters of the L'nited States, the Itata hauled down her jack and pennant, the cannon theretofore carried on her decks were removed and stowed in her hold, as were also the arms of the soldiers she carried ; and their uniforms, as well as those of the officers, were removed, and all appeared in civilian's dress. At that port she laid in stores of coal and provisions, all of wdiicli were bought in the open market, and some of which were marked 'Esmeralda.' " Meanwhile Trumbull had chartered a schooner, called the Hohert and JImnie, in San Francisco to take the arms and ammunition from there to a point in this judicial district, then expected to be near the island of Catalina, where she could meet the Itata, and deliver them on board of her to be conveyed to Chile for the purposes already stated. The schooner Bobert and Minnie accordingly took on board the arms and annnunition at the port of San Francisco, and, in charge of the defendant Burt, proceeded to the neighborhood of Catalina Island, where she expected to meet the Itata. In the meantime the suspicion of some of the officers of the Ignited States that the neu- trality laws were being violated was aroused, and the marshal of this district was directed by the attorney-general to detain the Itata, if such was found to be the case; and, acting upon those and certain instructions from the district attorney of the judicial district, he went on board the ship at San Diego, and put a keeper in charge of her, and then went in search of the Robert and 3Iinnie, which he did not find in the waters of the United States. Communication was, CHAP, in.] UNITED STATES V. TRUMBULL. 447 however, had between the Itata and the schooner and a point near San Clemente Ishmd was fixed upon as the place of meeting for the purpose of transferring the arms and ammunition from the scliooner to the sliip. Accordingly, the Itata, on the Gth of May, 1891, with- out obtaining clearance papers, and against the protest of the person left on board and in charge of her by the marshal, weighed anchor, and steamed out of the harbor of San Diego, Avith him on board, to meet the liohert and Minnie^ and receive the arms and ammunition. The marshal's keeper was, however, put ashoi'e at I'oint Ballast, before leaving the harbor. While steaming out of it, one or more of the Itata's cannon were brought on deck, and some of the soldiers on board of her appeared in uniform. On the 0th of May, the Itata and Ilohert andMinnie came together about a mile and a half south- erly of San Clemente Island, and there the arms and annnunition in question were taken from the schooner, and put on board the ship in original packages, and the latter at once left with them for Chile. " No evidence was introduced tending to show that the Congres- sional Party ever received any recognition of any character from the government of the United States until September 4th, wlien it was recognized as the established and only government of Chile. " But since the argument and submission of the motion, the counsel for the United States have called the attention of the court to the following facts furnished by the respective depai-tments, to- wit : On March 4th, the secretary of the navy cabled Admiral ]\fcCann ' to proceed to Valparaiso, and observe strict neutrality, and take no part in troubles between parties further than to protect American interests.' On March 2Gth, the secretary of the navy cabled Admiral Brown, who had superseded Admiral McCann, 'to abstain from pro- ceedings in nature of assistance to either, that is, the Balmaceda or Congressional Party ; that the ships of the latter were not to be treated as piratical, so long as they waged war only against the Bal- raaceda government.' On April 25th, Secretary of State Blaine cabled the American minister, ' Yoti can act as mediator with Bra- zilian minister and French charge razil, and France most cordially ; those of England and Germany declined.' On May 7th, Acting Secretary of State Wharton acknowledged the dispatch of Minister Eagan, and ' expressed hope that through com- bined efforts of the governments in question, the strife which has been going on in Chile may be speedily and happily terminated.' On May 14th Acting Secretary of State Wharton cabled ^linister Eagan that 'French minister reports threats to shoot the insurgent envoys 448 BELLIGERENTS AND NEUTRALS. [PART II. 1)3' Balmaceda,' and directed that they should have ordinary treat- ment under flag of truce. " The foregohig are the facts of the case as now presented, and the question the court is called upon to decide is %Aiiether they are suffi- cient to justify a verdict against the defendants upon any count of the indictment. The counsel for the United States concede that they are insufheient to justify a verdict against the defendants under either of the counts that are based on section 5285 of the Revised Statutes. It seems to me the same thing is equally true in respect to those counts that are based on section 5286. The very terms of that statute imply that the military expeditions or enterprises there- by prohibited are such as originate within the limits of the United States, and are to be carried on from this country. ' Every person who, within the limits or jurisdiction of the United States, begins or sets on foot, or provides or prepares the means for, any military ex- pedition or enterprises, to be carried on from thence,' — that is to saj-, from the United States, — is the language of the statute. "If the evidence shows that in this case there ever was any mili- tar}' expedition begun or set on foot, or provided or prepared for, within the sense of this statute, it was begun, set on foot, provided and prepared for in Chile, and was to be carried on from Chile, and not from the United States. But I think it perfectly clear that the sending of a ship from Chile to the United States, to take on board arms and amnninition purchased in this country, and carry them back to Chile, is not the beginning, setting on foot, providing or pre- paring the means for any military expedition or enterprise, within the meaning of section 5286 of the Revised Statutes. "The cases of The Mary A. Hogan, 18 Fed. Rep., 529; U. S. v. T'loo Hundred and Fourteen Boxes of Arms, etc., 20 Fed. Rep., 50 ; and U. S. v. Band, 17 Fed. Rep., 142, cited by counsel for the United States in support of their position in respect to this point, do not at all support it. In each of those cases there was a military expedi- tion, and it was organized within, started from, and was to be car- ried on from the United States. The facts of those cases are wholly different from the facts of the present case. " There remains for consideration the fotir counts of the indict- ment that are based on section 5283 of the Revised Statutes. The first of these, as has been seen, charges that the defendants, on the 9th of May last, at a certain designated place within this judicial district, unlawfully fitted out and armed a certain steamship called the Itata, which was then and there in the possession and under the control of certain citizens of the republic of Chile, kno\vn as the ' Congressional Party,' and wixo w ere then and there, in said repub- CHAP. Jll.J UNITED STATES V. TRUMBULL. 449 lie, organized and banded together in great nunihers in armed rebel- lion and attempted revolution, and carrying on Avar against the republic of Chile and tlie government thereof, with which the United States then, and at the time of the finding of the indictment, were at peace, with intent that said ship should be employed in the service of the aforesaid Congressional Party, to cruise or connnit hostilities against the then established and recognized government of Chile, with which this government then was at peace. The second count charges that the defendants, at the same time and place, attempted to do the same thing; the third count charges tluit, at the same time and place, tliey unlawfully procured the same thing to be done; and the fourth, that, at the same time and place, defendants were ' un- lawfully and knowingly concerned in the furnishing, fitting out, and arming of the Itata^ with intent, etc. " It is contended on behalf of the defendants that section 528.3 has no application to this case, for the reason that the people designated in the indictment as the ' Congressional Party ' do not constitute a people, within the meaning of that section. It is beyond question that the status of the people composing the Congressional Party at the time of the commission of the alleged offense, is to be regarded by the court as it was then regarded by the political or executive department of the United States. This doctrine is firmly estab- lished. Gehton v. Hoyf, 3 Wheat., 24G, 324; U. S. v. Palmer, Id., GIG, G35 ; Kcnnett v. Chambers, 14 How., 38 ; Whart. Int. Law Dig., pp. 551, 552, and cases there cited. " If the dispatches from the secretary of the navy, the secretary of state, and acting secretary of state, already referred to, are to be considered as indicating the light in Avhich the people composing the Congressional Party of Chile were regarded by the executive depart- ment of this government prior to their recognition, on the 4th of September, the position of the United States towards them seems to have been similar to that taken by the United States towards the insurgents against Hayti in 18G9. That position was thus stated by Mr. Fish, then secretary of state, in a letter dated September 14, 1869:— " ' (1) That we do not dispute the right of the government of Hayti to treat the officers and crew of the Qaaher City and Florida (vessels in the service of the insurgents against Hayti) as pirates for all intents and purposes. How they are to be regarded by their own legitimate government is a question of municipal law, into which we have no occasion, if we had the right, to enter. "'(2) That this government is not aware of any reason which would require or justify it in looking upon the vessel named in a 29 450 BELLIGERENTS AND NEUTRALS. [PAKT 11. different light from any other vessel employed in the service of the insurgents. "'(3) That, regarding- them simj)l3Mis armed cruisers of tlie in- surgents, not yet acknowledged by this government to have obtained belligerent rights, it is competent to the United States to deny and resist the exercises by those vessels, or any other agents of the rebellion, of the privileges which attend maritime war, in respect to our citizens or their property entitled to their protection. We may or may not, at option, as justice or policy may require, treat them as pirates in the absolute and unqualified sense, or we may, as the cir- cumstances of any actual case shall suggest, waive the extreme right, and recognize, where facts warrant it, an actual intent, on the part of the individual offenders, not to depredate in a criminal sense and for private gain, but to capture and destroy jure belli. It is sufficient for the present purpose, that the United States will not admit anj'^ commission or authority proceeding from rebels as a jus- tification or excuse for injury to persons or property entitled to the protection of this government. They Avill not tolerate the search or stopping, by cruisers in the rebel service, of vessels of the United States, nor any other act which is only privileged by recognized bel- ligerency. " ' (4) While asserting the right to capture and destroy the ves- sels in question, and others of similar character, if any aggression upon persons or property entitled to the protection of this govern- ment shall recommend such action, we cannot admit the existence of any obligation to do so in the interest of Hayti or of the general security of commerce.' 3 Whart. Int. Law Dig., pp. 465, 466. " Does section 5283 of the Kevised Statutes apply to any people whom it is optional with the United States to treat as pirates ? That section is found in the chapter headed 'Neutrality,' and it was car- ried into tlie IJevised Statutes, and was originally enacted in fur- therance of the obligations of the nation as a neutral. The very idea of neutrality imports that the neutral will treat each contend- ing party alike; that it will accord no right or privilege to one that it withholds from the other, and will withhold none from one that it accords to the other. In the case of U. S. v. Quina/, 6 Pet., 445, the Supreme Court of the United States said that the word 'people' in the 3d section of the act of April 20, 1818 (and from that carried into the Revised Statutes as section 5283), ' is one of the denomina- tions applied by the act of Congress to a foreign power.' This can hardly mean an association of people in no way recognized by the United States, or by the government against which they are rebel- ling, whose rebellion has not attained the dignity of war, and who CHAr, III.] UNITED STATES V. TRUMBULL. 451 may, at the option of the United States, be treated by them as pirates. Prior to the passage of the act of April :20, 1818, the Supreme Court of the United States, in the case of deUton v. JToyt^ 3 Wheat., 24G, speaking through ]Mr. Justice Stouy, Iield that sec- tion 3 of the act of 1794, prohibiting tlie fitting out any sliip, etc., for the service of any foreign prince or state, to cruise against the subjects, etc., of any foreign prince or state, with which the United States were at peace, did not apply to any new government, unless it had been recognized by the United States or by the government of the country to which such new country belonged; and that a plea which set up a forfeiture under that act, in fitting out a ship to cruise against such new state, must aver such recognition, or it is bad. "Congress, in passing the subsequent act of April 20, 1818, by which the provision referred to of the act of 1794 was, in substance, re- enacted, must be presumed to have known the construction that had been theretofore put by tlie Supreme Court upon the words ' prince or state' in the act of 1794, and with that knowledge, in passing the act of 1818, inserted in the same clause the words 'colony, district, or people.' " This was done, according to Dana's "Wheat. Int. Law, § 439, note 215, and Wharton's Int. Law Dig., j). 561, upon the suggestion of the Spanish minister that the South American provinces, then in revolt, and not recognized as independent, might not be included in the word ' state.' But in every one of those instances the United States had acknowledged the existence of a state of war, and, as a conse- quence, the belligerent rights of the provinces. The Ambrose Liy pi'oof ; and, since the evidence does not tend to show that the defendants, or either of them, attempted to do, or procured to l)e done, anything they did not in fact do, the second and third counts would also fall. If, as is thus conceded, and as seems to me to be clear, the putting on board the Itatd of the arms and ammunition, under the circum- stances and for the purposes stated, did not constitute the fitting out and arming of that vessel, it is difficult to understand how the same acts, committed under the same circumstances and for the same [)ur- poses, constituted the 'furnishing' of her. There is nothing in tiio evidence tending to show that any of the arms or ammunition were intended for use by the Itata. On the contrary, the whole case sliows that the defendants caused them to be put on board of her with the intention that she should transport them to Chile, for the use of the insurrecting party there. " Tliis does not constitute the fitting out, arming, or furnishing of the Itata^ with intent that she should h^ employed to cruise or com- mit hostilities in the service of the insurrectionary party against the then government of Chile. In principle, the case is, I think, mucii like that of Tlie Florida, decided by Judge Blatchford in 1871, and reported in 4 Ben., 452. This was a suit against the Florida for an alleged forfeiture incurred under the third section of the act of April 20, 1818, now, in substance, section 5283 of the Revised Statutes. " The court said : — " 'Admitting that persons acting as agents of the insurrectionary party in Cuba were the real owners of the vessel and her cargo of arms and munitions of war, and that the transaction of the borrow- ing, by Darr from Castillo, of the money wherewith the vessel and her cargo were purchased, was a sham, and that the vessel was to proceed with her cargo to Vera Cruz, and there vessel and cargo were to be transferred by Darr, their nominal owner, to persons act- ing for the insurrectionary party in Cuba, and that thence tlie vessel was to take the cargo to sonie point off the coast of Cuba, and land it on the shore by the use of rafts made out of the lumber on board, towed by the steam-launch on board, through shallow water, to the shore, and that Darr and such real owners of the vessel and cargo had an intent to do all this in fitting out tlie vessel, and putting her cargo on board, still a violation of the third section of the act 1818 is not thereby made out, A vessel fitted out wiih intent to 454 " BELLIGEltENTS AND NEUTllALS. [PAKT II. do this, is not fitted out ^vith intent to cruise or commit hos- tilities, within the sense of tliut section. If so, then every vessel fitted out to run a blockade, with a cargo of munitions of war, is necessaril}' fitted out, within tlie sense of that section, to commit hostilities against the country whose forces have instituted the blockade. * * * There is no satisfactory evidence that the vessel was furnished or fitted out or armed, or attempted to be furnished or fitted out or armed, with intent that she should be employed to cruise or commit hostilities, in the sense of the third section of the act, m the service of the insurrectionary party in Cuba, against the government of Spain. There is no evidence that she wa3 intended to do anything more than transport her cargo to the coast of Cuba, and cause it to be landed there on rafts, by the aid of the launch on board. To do this was no violation of the third section of the act, which is the one on which the libel is founded.' " In a letter from Attorney-General Speed to 3Ir. Seward, then secretary of state, he said : — " ' I know of no law or regulation which forbids any person or government, whether the political designation be real or assumed, from purchasing arms from the citizens of the United States, and shipping them at the risk of the purchaser.' 11 Op. Atty.-Gen. U. S., 452. '• Tlie fact that secrecy and deception were resorted to in the pres- ent case, as was also done in the case of the Florida^ cannot bring it within the purview of the statute, if not otherwise within it ; nor can the circumstance that the Itata^ in leaving the port of San Diego in the manner disclosed by the evidence, violated other provisions of law. The case alleged must, of course, be proved ; otherwise the defendants are entitled to a verdict of not guilty. " Entertaining the views above expressed, it becomes unnecessary to decide what effect, if any, should otherwise be given in this case to the recognition by the United Stfites, on the 4th of September, of the government established by the Congressional Party, or to deter- mine other questions raised, all of which have been elaborately and very ably argued by counsel. " The evidence introduced on behalf of the prosecution being, in my opinion, insufficient to warrant a conviction under either count of the indictments, the motion made on belialf of the defendants is granted, and the jury are instructed to find a verdict of not guilty." * 1 This decision has since been aflfirmed by the Circuit Court for California. CHAP. III.j THE " SALVxUiOK." 455 THE "SALVADOR" Peity Council, 1870. (3 Privy Council Rep., 218.) Held, that a British vessel fitted out in aid of insurgents in the island of Cuba, was Uable to forfeiture under the 7th section of the Foreign Enlistment Act of 1819. The Proclamation of the 24th of March, 1869, stated that an in- surrection against the Government of Spain was reported to have taken place, and to be then existing in the Island of Cuba, and upon the fact of that I'eport being well-founded, and a state of insurrec- tion actually existing in Cuba, the Proclamation against Her 3Iaj- esty's subjects in the Bahamas enlisting or engaging in a Foreign service in aid of such insurrection was legally and properly issued. All the witnesses show, and the learned Judge of the Vice- Ad- miralty Court below himself admits, that there was a very serious insurrection or revolt in the Island of Cuba against the Spanish Government. But the learned Judge, though apparently satisfied that there was a state of insurrection in Cuba, hesitates to apply the penal section of the " Foreign Enlistment Act, because he cannot find that such insurrection is in favor of any persons assuming the powers of Government, or pretended Government, in the Island of Cuba ; though the nature and object of the expedition for whicli the Saloador was equipped and fitted-out is from the evidence proved to have been in aid of this insurrection, and she, being a British vessel, was engaged in and for a military expedition, for the purpose of attacking the dominions of a friendly Power, yet the Judge of the Vice-Admiralty Court refused to declare the vessel liable to for- feiture within the meaning of the 7th section of the Act. Their Lordships' judgment was delivered by Lord Catrxs: — " This is an appeal from the decision of the Vice- Admiralty Court of the Bahamas, upon an information filed on behalf of the Crown before that Court under the Foreign Enlistment Act, with regard to the ship Salvador, and seeking her confiscation. "The section in the Foreign Enlistment Act which has to be considered is the seventh. It has frequently been remarked, that the interpretation of that section is attended with some difficult}', mainly owing to the great quantity of words which are used in the 4o6 BELLIGI<:HENTS AND NEUTRALS. [I'AltT H. clause ; but endeavoring" for the moment to set aside the verbiage of the section, it is obvious tliat, in order to constitute an offence under it, five propositions must be establislied. In tbe first place, the ship, which in other respects is found to be acting within the meaning of the section, must be acting without the leave and license of the Sovereign of this Country. 'J'hat is the first element of the charge under the section. The second is this, the ship must be equipped, furnished, fitted-out or armed, or there jnust be a procuring, or an attempt or endeavor to equip, furnish, fit-out, or arm tlie ship. The third is, that the equipping, furnishing, fitting-out, or arming of the siiip must be done with the intent or in order that the ship or vessel shall be employed in the service of some ' foreign Prince, State, or Potentate, or some foreign colony, province, or part of any province or people, or of any person or persons exercising, or assuming to ex- ercise, any powers of government in or over any foreign State, colony, province, or part of any province or people.' "Then the fourth element in the se3tion is this, there must be an intent to enq)l()y the ship in one of two capacities either 'as a trans- port or storeship, against any Prince, State, or Potentate,' or ' with intent to cruise or commit hostilities against any Prince, State, or Potentate.' T pause for the purpose of observing that the words are not very happily chosen which i-epresent her as being employed ' as a transport or storeship against any Prince, State, or Potentate ; ' but it is clear, open as the words may be to criticism, that the intent is, that the ship should be employed in one of the two capacities I have mentioned, and not only so, but employed ' against,' that is in the way of aggression against, some foreign Prince, Potentate, or State. This should be done, as T have already said, against some Prince, State, or Potentate, 'or against tlie subjects or citizens of any Pi'ince, State, or Potentate, or against the persons exercising or assuming to exercise the powers of goverinucnt in any colony, province, or part of any province or country, or against the inhabitants of any foreign colony, province, or part of any province or country.' .And the fifth element is, that this foreign State or Potentate, and so on, should be one with whom the Sovereign of this country should not then be at war. "Those are the five elements which go to make up the whole charge under the 7th section. " Xow, with regard to the first Avhich I have mentioned, the ab- sence of leave and licence on the part of Iler Majesty, no question arises. " With regard to tlie second, namely, that there nnist l)e an equip- ping, furnishing, fitting-up, or arming, or a procuring, or an attempt CHAP. III. J THE " SALVADOR." 457 to do SO, no question can arise in tliis case when we read the evidence of Mr. Duniaresq, the Keceiver-Genoi-al and Treasurer of the Island, who states the condition in which he found the sliip, and tlie pre[)- arations made on boai'd of lier, whittli seem to tlieir Lordsliips to amount to a fitting-out or arming-, or an attempt to do so, witliin tlie meaning of tliis section. The learned Judge of the Vice- Admiralty Court seems to have entertained no doubt himself upon this part of the case. " I pass over the third element which I mentioned, for the moment, in order to say that upon the fourth and fifth heads to wdiich I have referred there can also be no doubt entertained, as it seems to their Lordships ; and here, again, no doubt Avas entertained by the learned Judge of the Court below. It is quite clear, that the ship was in- tended to be used as a transport or storeship against a Prince, State, or Potentate with whom Her Majesty Avas not at Avar. She Avas to be used obviously as a transport or storeship for the purpose of con- veying to Cuba men and materials ; and in that Avay to do the duty of a transport ship, and so to inflict injury upon the Spanish govei-n- ment, Avho, at that time Avere, and are now, the hiAvful authority having the dominion over Cuba. Here, again, no doubt Avas enter- tained by the learned Judge in the Court below, and no doubt could be entertained by any one who looks at the evidence of Mr. Duma- resq, to Avhom I have already adverted, and also the evidence of Mr. Butler, the collector of revenue, both of Avhom state Avhat the report Avas Avhich Avas made to themselves by Carlin, the master of this vessel, as to her conduct Avhen she Avent to the coast of Cuba — hoAV she landed all the men she had on board, plainly for the purpose of taking part in the insurrection Avhich Avas going on in Cuba — how they abandoned the ship when they saw a Spanish shj[i of Avar in sight — hoAV they AA'cre prepared to set fire to their ship it the Spanish ship approached them — and how afterAvards, Avhen they found that they Avei'e unnoticed, they took possession of the Salvador again, and brought her back to Nassau. " That leaA^es uncoA^ered only the third element of charge in this section, and it is upon that alone that the learned Judge of the Vice- Admiralty Court entertained any doubt, " The third element is, that the ship must be employed in this way in the service of some ' foreign Prince, State, or Potentate, or of any foreign colony, province, or part of any province or people, or of any person or persons exercising or assuming to exercise any poAA'ers of Government in or over any foreign State, colony, province, or part of any province or people.' It is to be observed that this part of the section is in the alternative. The ship may be employed in the 458 BELLIGERENTS AXD XEUTRALS. [PART II service of a foreign Prince, State, or Potentate, or foreign State, colony, province, or part of any province or people ; that is to say, if you find any consolidated body in the foreign State, whether it be the Potentate, who has the absolute dominion, or the Government, or a part of the province or of the people, or the whole of the prov- ince or the people acting for themselves, that is sufficient. " But by way of alternative, it is suggested that there may be a case where, although you cannot say that the province, or the people, or a part of the province or people are employing the ship, there yet may be some person or persons who may be exercising, or assuming to exercise, powers of Government in the foreign colony or State, drawing the whole of the material for the hostile i^roceedings from abroad ; and, therefore, by way of alternative, it is stated to be suffi- cient, if you find the ship prepared or acting in the service of ' any person or persons exercising, or assuming to exercise, any powers of Government in or over any foreign State, colony, province, or part of any province or people ; ' but that alternative need not be resorted to, if you find the ship is fitted-out and armed for the purpose of being ' employed in the service of any foreign State or people, or part of any province or people.' " Upon that the observation of the learned Judge was this : — ' We have no evidence of the object of the insurrection, who are the leaders, what portion of Cuba they have possession of, in what manner this insurrection is controlled or supported, or in what manner they govei-n themselves. How, therefore, can I say that they are assum- ing the powers of Government in or over any part of the Island of Cuba?' " Xow, it appears to their Lordships, that the error into which the learned Judge below fell, was in coiitining his attention to what I liave termed the second alternative of this part of the section, and in disregarding the first part of the alternative. It may be (it is not necessary to decide whether it is so or not) that you could not state who were the person or i^ersons, or that there were any person or persons exercising, or assuming to exercise, powers of Government in Cuba, in opposition to the Spanish authorities. "That may be so: their Lordships express no opinion upon that subject, but they will assume that there might be a difficulty in bringing the case within that second alternative of the section ; but their Lordships are clearly of opinion, that there is no difficulty in bringing the case under the first alternative of the section, l)ecause their Lordships find these proi)ositions established beyond all (loul)t, — there was an insurrection in the Island of Cuba; there were in- surgents who had formed themselves into a body of people acting CHAP. III.] THE SALE OF ARMS, ETC., TO FKANCE. 459 together, undeilakiiig- and conducting- hostilities; tliese insurgents, beyond all doubt, formed part of the province or people of Cuba ; and beyond all doubt the ship in question was to be employed, and was employed, in connection with and in the service of this body of insurgents. " Those propositions being established, as their Lordships think they clearly are established, both by the evidence of Dumaresq and Butler, to which I have already referred, and further, by the evidence cJf the three witnesses, Loinaz, Wells, and j\Iama, their Lordships think that the requisitions of the seventh section in this respect are entirely fuliilled, and that the case is made out under this head, as it is upon all other heads of the section. " Their Lordships, therefore, will humbly recommend to Tier Majesty that the decision of the Vice-Admiralty Court should be reversed, and that judgment should be pronounced for the Crown, according to the prayer of the information. " It has been intimated to their Lordships, that on the 7th of February last, there was a decree by their Lordships for the appraise- ment and sale of the vessel. She has been sold, and the net pro- ceeds, £163, 4s. 8f?., paid into Her Majesty's Commissariat Chest in the Bahamas. The Colonial Government, it appears, have incurred expenses to the amount of £145, 5s. lOd. in keeping the vessel while she was under arrest, and they claim to be reimbursed those expenses out of the proceeds of the sale. That, of course, will be proper, and if it is necessary to make that part of this Order, it will be done." Section 43. — The Sale of Munitions of War by a Neutral State. THE SALE OF ARMS, ETC., TO FRAXCE, 1870. Report of Senate Committee, 1870. ( 3 Wharton's Digest, 512. ) During the Franco-Prussian war, tlie government of the United States pro- ceeded to sell a quantity of arms and munitions which it had accumulated during tlie civil war, but with no intention tliat these articles should go into the hands of either belligerent. The committee reported that the sale was lawful and proper, and would have been so, if the sale had been made directly to one of the belligerents. Early in 1872 complaints were made to the Senate of the United States that certain " sales of ordinance stores " had been " made by 460 BELLIGERENTS AXD NEUTRALS. [fAHT II. the Government of the United States duiing the fiscal year ending the 30th of June, 1871, to parties wlio were agents of the French Government, such stores to be used by France in the war tlien pend- ing with Germany. A committee was appohited to investigate the subject, and on June 30, 1871, tliis committee, through 2>lv. Carpenter, cliairman, submitted a report, in which it was observed that tlie Government being hi possession, at tlie close of the civil war, of a large quantity of " muskets and other military stores," for which it had no occasion, a statute was passed in 1808 (15 Stat. L., 250), au- thorizing the sale of such arms and stores as were "unsuitable" for use. Under this provision certain large sales were made " without " (as the report stated) " the least preference to purchasers as to op- portunities or conditions of purchase, except that persons were ex- cluded from the opportunity to ptirchase who were suspected of being agents of France, then at war with Germany." On the question whether the sales were " made under such cir- cumstances as to violate the obligations of the United States as a neutral power pending the war between France and Germany," the committee reported as follows : " This subject involves two questions — one in regard to the law a[)plicable to the transactions or the question what the Government hiujht do under the circumstances, and the other a question of fact, "What teas done ? As to the first question, it is the dtity of a power desiring to respect the obligations of neutrality, to maintain strict iuq-)artiality in regard to the belligerent powers. This, however, is more a question of intention than of fact. If a nation be inider treaty obligations witli another, the treaty havhig been entered into when no war was existing or anticipated, to furnish such other nation ships or other siq)plies in the event of a future war, the ol)ligations of such a treaty may be discharged during the existence of such war without impairing the position of the contracting nation as a neutral. So if a nation has a fund on hand which it is accustomed to loan, or is engaged in the manufacture and sale of arms and other military supplies, it may loan such money or prosecute such sale during the existence of war between other nations, provided it does so in the fair pursuit of its own interest, and without any intention of in- fluencing the strife." After quoting Yattel to sustam this position, the committee went on to say : "Congress having, by tlie act of 18G8, directed the Secretary of "War to dispo.se of these aims and stores, and the Government being engaged in such sales prior to the war between France and Germany, had a right to continue the same during the war, and might, ia the CHAI'. III.] THE SALE OF ARMS, ETC., TO FRANCE. 461 city of Washington, liave sold and delivered any amount of such stores to P'redericli: William or Louis Napoleon in person, without violating the obligations of neutrality, providing such sales were made in good faith, not for the purpose of influencing the strife, hut in execution of the lawful purpose of the Government to sell its surplus arms and stores." It was then stated that after certain sales to Remington & Sons had been agreed on, but before delivery, the Secretary of War re- ceived a telegram, which led him " to suspect that Remington & Sons might be purchasing as agents of the French Government," and he then gave orders that no further sales should be made to them. The sale already made, however, was not repudiated, and the articles were delivered subsequent to the reception of the telegram. The committee, after an examination of the facts, reported as follows : " Your committee, without hesitation, report that the sales of arms and military stores during the fiscal year ending June 30, 1871, were not made under such circumstances as to violate the obligations of our Government as a neutral power ; and this, to recapitulate, for three reasons : (1) The Remingtons were not, in fact, agents of France during the time when sales were made to them; (2) if they were such agents, such fact was neither known nor suspected by our Government at the time the sales were made; and (3) if they had been such agents, and if that fact had been known to our Govern- ment, or if, instead of sending agents, Louis Napoleon or Frederick William had personally appeared at the War Department to pur- chase arms it Vv"ould have been lawful for us to sell to either of them, in pursuance of a national policy adopted by us prior to the com- mencement of hostilities." ^ 1 See the Senate Report, 42d Cong. , 2d sess. , Rep. 183. And see House Report, 46, 42d Cong. , 2d sess. Perels, Int. Seerecht, 251, says that the Government of the United States sold in October, 1870, at pubhc auction, 500,000 muskets, 163 carbines, 35,000 revol- vers, 40,000 sabers, 20,000 horse-trappings, and 50 batteries with ammunition ; and that the export from New York to France from September to the middle of December of that year included 378,000 muskets, 45,000,000 pa^rojieu, 55 cannon, and 3,000 pistols. (3 Wharton's Digest, p. 513.) It is to be hoped that the report of the Senate committee does not express tl:e settled law of the United States upon tliis subject. It confounds the rights and duties of a neutral state with those of the private citizens of a neutral state, whicli is a very different matter. Such a transaction, however innocent the intention, can hardly fail to raise the suspicion of bad faith on the part of the neutral gov- ernment. For it is undoubtedly true that a war between foreign states provides just the opportunity for the sale of such articles to the best advantage. 462 BELLIGERENTS AND NEUTRALS. [I'ART II. Section 44. — Coxtrabaxd of War. PROCLAMATIOX OF CHAPtLES I., 1625. ( Collectanea Alaritima. 54.) "Forasmuch as the many injuries and indignities obtruded upon the King's most excellent Majest}', and his most deare and onlie Sister and her children, and his royal Father, of ever blessed memory, deceased, by the King of Spaine, under colour of treaties and alli- ances, tlie many violences offered bj'^ him to divers of his Majestie's subjects, in taking, slaying and ransoming divers of them, in a hostile manner, whilest thej' intended onelj' their merchandize at sea. The King of Spayne's restlesse ambition to aspire to an universall mon- archye, discovered to the whole world, to the disquieting of that peace Avliich other Princes and States, his neighbours, would gladly rest in and enjoy, have, out of an unavoidable necessity, drawn his most excellent IMajestie to take up amies against the said King, for defence of himselfe, his dominions, and subjects, and of other Princes and States, his confederates and allies, there being none other safe meanes for the obteyning of an assured peace to himself and his subjects, and to his confederates and allyes, which his highness shall be ever most ready to imbrace, when with safety and honour it may be had. His Majestic, in his princely wisedome and providence, foreseeing that whilst the said King of Spaine contynneth in these termes and courses of hostilitye, itt is neither agreeable with the rules of policie, or law of nations, to permitt the said King, or his subjects, to be furnished and supplyed with corne, victual, armes, or provision for his shipping, navye, or armes, if the same can be prevented ; for although theis violent hostilities of the said King of Spayne, to the trouble of a great part of the Christian domynions, are mightily maynteyned by the aboundance of his treasure from the Indyes, wherein he trusteth, and with the opinion whereof he is puffed up. Yett itt is manifest, that to maynteyne his armes, and renew his shipping, his monies in their pro[)per nature would not suffice, if he were not contynually supplied with corne, and other victualls, and furnished with munition, and materialls for armes and shipping, from foreigne countries, whereof neither his Indies, nor Spayne, nor any other parte of his owne dominions, are able to serve, CHAP. III.] PROCLAMATION OF CHARLES I. 4G8 but the same are knowiie to be brought into Spayne, Portugall, Bnrgundie, and other his countryes from forraigne parts, not in liis owne subjection, and tliat especially from the Hans Towns, and Marchants of the Northeast countries, Avhoe for the desire of gayne are contented to furnish the said King, tliough to their owne ex- treanie hazard and prejudice of their neighbours, with all things requisite to niayntayne his unjust warrs, " For this cause his Majestye, " Being amongst other Princes and States herein principally inter- ested, for the defence of hymselfe, his countries and subjects, against the said King of Spayne's great preparations of his navyes and armies by sea and by land ; and his Majesty being persuaded, that if such his provisions for hostilitie to be brought unto him by sea from forrayne parts might be stayed, or interrupted, until the said King might be disposed to live in peace, his Majestic might the sooner forbeare to continue his charge in maintaineing his forces both by sea and land, which he is now constrained yearlie to renewe, only for the just defence of himselfe and his dominions, and of his con- federates and allies. "Doth by these presents, by the advice of his Privy Councell, notifye to all manner of persons of all conditions, that shall send or carrie into Spayne, Portugall, Burgundy, or any other the said King of Spaine's countries, or dominions, any manner of graine, or other victualls, or any manner of provisions to serve to build, furnish, or arme any shipps of warr, or any kind of munition for the warr, or materialls for the same, being not of the nature of meere merchan- dize ; that as it is lawful for his Majesty, being a Monarch and Prince Sovereigne, and as other Kings, in like cases, have alwayes used to doe, he will not only authorize his owne admiralls, and captaines of his owne shipps of warr, serving on the seas, but will also allow and approve all other his subjects, to arme their shipps at their will, and with them to impeach and arrest all shipps that shall sayle, either out of the East parts, or out of the Lowe Countries, or from any other parts, with intention to passe to Spaine, Portugall, Burgundy, or any other the King of Spain's countries or dominions, or to any the King of Spain's shipps, being on the seas, haveing on board any such graine, victuals, or provisions of warre, or furniture for ship- ping, or materialls for the same ; and the same to bring in to the next good port, there to be ordered as goods duely forfeited for the benefitt of his Majesty, where his IMajestie's shipps shall arrest the same, and to the benefitt of such others as being not in his Majestie's wages, shall, by their travell and adventure, have stay'd and arrested such shipps and goods prohibited, provided that all others, besides 464 BELLIGEREXTS AND NEUTRALS. [PART II. the ca|)tiiiiies of his Majesties owne shipps, that sliall he disposed to ai'iiie tlieir shi[)ps for this purpose, shall iiotifle their intent to the Lord Ilio-h Admiral of England, making declaration of their condi- tion, of their manner of ship[)ing- of the furniture thereof, of the nuniher of men requisite to serve therein, with their quantity of victualls and munition, and of all other things requisite to be cer- tified to the Lord Admirall, which lu'ing hy him allowed thereuppon, the owners of the said shi[)ps, and ca[)laines and conductors thereof, to be bound to his ^lajesty's use, in good sonnnes of money for them- selves, and, as cause shall require, to the Lord Admirall, with suflS- cient sureties, that they do their best endeavour without fraud, for gaine, or composition, to arrest such shi[)ps having, as aforesaid, grane, victuall, armes, munition, or furniture for shipping, or any materiall for the same, intended to be carryed to any of the King of Spayne's dominions, or countries as aforesaid : and likewise to be bound, as is aforesaid, that with the said shipps noe harme shall be wittingly done to any person on the seas being- in friendship with his -^lajestie, and that shall not be privy to the carriage of any such grane, victuall, provision, furniture, or materialls, into any the said King- of Spaine's dominions, or towards any of his countries, or to any tlie King of Spaine's shippes, being on the seas. And in case any sliall be found to have committed any such offence, whereby their bonds shall be forfeited, the partes dampnified, shall be fully recompenced for all their losses and damages, with the sommes of money forfeited, and otherwise as there shall be cause, and the of- fendors alsoe severely punished according to their offences, by due course of lawe. "Given at our Honor of Hampton Court, the one and thirtieth day of December. Pel' ipsimi Itegeni} 1 In a sujiplementary proclamation of the next j^ear. to make more definite the list of pi-ohibited goods, it is decreed as follows : " Concerninge therefore those kindes wherewith his Majestie male not suffer his said enemj'es to be furnished, his ^Majestie doth by these presents publish and notifie that he liouldeth theis tilings following, to be of that quality and condi- tion, videlicet, ordinance, amies of all sortes, powder, shott, match, brimstone, copper, iron, cordage of all kindes, hempe, saile, canvas, danuce pouldavis, cables, anchors, mastes, rafters, boat ores, balks, capraves, deale hoard, clap board, pipe staves, and vessels and vessel staflfe, pitch, tarr, rosen, okam. come graine, and vichialls of all sortes, all provisions of shipping, and all munition of warr, or of provisions for the same, according to former declarations and acts of state, made in this behalfe in the tj'me of Queen Elizabetli, of famous memorie. '* And therefore if any person whatsoever, after three moneths from the pub- CHAP. III.] THE '' PETEIIHOFF." 465 THE " PETERTTOFF.?' Supreme Court of the United States, 1866. (5 Wallace, 28, 58.) Classification of contraband ; non-contraband goods belonging to the owner of contraband on board the same ship are subject to confiscation. The following is an extract from the opinion of the court, deliv- ered by JNIr. Chief-Justice Chase : — " The classification of goods as contraband or not contraband has much perplexed text-writers and jurists. A strictly accurate and satisfactory classification is perhaps impracticable; but that which is best supported by American and Englisli decisions may be said to divide all merchandise into three classes. Of these classes, the first consists of articles manufactured and primarily and ordinarily used for military purposes in time of war; the second, of articles which may be and are used for purposes of war or peace, according to cir- cumstances ; and the third, of articles exclusively used for peaceful purposes. " ^Merchandise of the first class, destined to a belligerent country or places occupied by the army or navy of a belligerent, is always contraband ; merchandise of the second class is contraband only when actually destined to the military or naval use of a belligerent ;, while merchandise of the third class is not contraband at all, though liable to seizure and condemnation for violation of blockade or' siege. lication of theis presentes, shall, by anie of liis Majesties owne sliippes, or of the shippes of anie his subjects authorized to that effect, be taken sayling towards the places aforesaid, or returuing thence in the same voyage, having vented or disposed of the said prohibited goods, his Majestie will hould both the shipps and goods soe taken for lawful prize, and cause them to be ordered as duely forfeited, whereby as his Majestie doth putt in practice noe innovation, since the same course hath been held, and the same penalties have been heretofore inflicted by other States and Princes, upon the like occasions, and avowed and maintayned by public wrytings and apologies, so nowe his Majestie is in a manner inforced thereunto, by proclamations set -forth by the King of Spaine and the Arch- duchesse, in which the same and greater severity is professed against those that shall carry or have carried without limitation the like commodities into theis his Majesties domynions. " Given att our Court att Newmarket, the fowerth day of ]\Iarch. " Per ipsum regem." 30 ■iG6 BELLIGERENTS AND NEUTRALS. [PAET II. " A considerable portion of the cargo of the Peterhoff was of the third class, and need not be further referred to. " A large jiortion, pei-haps, was of the second class, but is not proved, as we think, to have been actually destined to belligerent nse, and cannot therefore be treated as contraband. Another por- tion was, in our judgment, of the first class, or, if of the second, destined directly to the rebel military service. This portion of the cargo consisted of the cases of artillery harness, and of articles de- scribed in the invoices as ' men's army bluchers,' ' artillery boots,' and 'government regulation gray blankets.' These goods come fairly under the description of goods primarily and ordinarily used fur military purposes in time of war. They make part of the neces- sary equipment of an army. "It is true that even tliese goods, if really intended for sale in the market of Matamoras, would be free of liability; for conti'aband may be transported by neutrals to a neutral port, if intended to make part of its general stock in trade. But there is nothing in the case which tends to convince us that such was their real destina- tion, while all the circumstances indicate that these articles, at least, were destined for the use of the rebel forces then occupying Ih-ownsville, and other places in the vicinity. '- And contraband merchandise is subject to a different rule in re- spect to ulterior destination than that which applies to merchandise not contraband. The latter is liable to capture only when a viola- tion of blockade is intended ; the former when destined to the hostile country, or to the actual military or naval nse of the enemy, whether blockaded or not. "The trade of neutrals witli belligerents in articles not contra- band is absolutely free, unless interrupted by blockade; the convey- ance by neutrals to belligerents of contraband and articles is always unlawful, and such articles may always be seized during transit by sea. Hence, while articles, not contraband, might be sent to Mata- moras and beyond to the rebel region, where the conmiunications were not interrupted by blockade, articles of a contraband char- acter, destined in fact to a state in rebellion, or for the use of the rebel military forces, were liable to capture, though primarily des- tined to Matamoras. " We are obliged to conclude that the portion of the cargo which we have characterized as contraband must be condemned. " And it is an established rule that the part of the cargo belonging to the same owner as the contraband portion must share its fate. This rule is well stated by Chancellor Kkxt, thus : ' Contraband articles are infectious, as it is called, and contaminate the Avhole CHAP, m.] THE " JONGE MARGARETHA." 467 cargo belonging to the same owners, and the invoice of any par- ticular article is not usually admitted, to exempt it from general confiscation.' " So nnich of the cargo of the Pef)'.rhoJf\ therefore, as actually be- longed to the owner of the artillery harness, and the other contra- band goods, must be also condemned." THE "JONGE MARGARETHA." High Court of Admiralty, 1799. (IC. Robinson, 189.) Provisions going to a port of naval e(]uipment of the enemy may be treated as contraband of war. And if the ship belongs to the owner of the contraband, it is also condemned. This was a case of a Papenberg ship, taken on a voyage from Amsterdam to Brest with a cargo of clieese, April, 1797. Judgment, — Sir W. Scott : — "There is little reason to doubt the property in this case, and therefore passing over the observations which have been made on that part of the subject, I shall confine mj'^self to the single ques- tion : Is this a legal transaction in a neutral, being the transactitm of a Papenberg ship carrying Dutch cheese from Amsterdam to Brest, or Morlaix (it is said), but certainly to Brest; or, as it may be otherwise described, the transaction of a neutral carrying a cargo of provisions, not the product and manufacture of his own country, but of the enemy's ally in the war — of provisions which are a capi- tal ship's store — and to the great port of naval equipment of the enemy. " If I adverted to the state of Brest at this time, it might be no unfair addition to the terms of the description, if I noticed, what was notorious to all Europe at this time, that there was in that port a considerable French fieet in a state of preparation for sallying forth on a hostile expedition; its motions at that time were ^A■atched with great anxiety by a British fleet which lay off the harbor for the purpose of defeating its designs. Is the carriage of such a sup- ply to such a place, and on such an occasion, a traffic so purely neutral as to subject the neutral trader to no inconvenience? " If it could be laid down as a general position, in the manner in which it has been argued, that cheese being a provision is uni- versally contraband, the question would be readily answered : but 4G8 BELLIGERENTS AND NEUTRALS. [PAIIT XL the court lays down no such position. The catalogue of contraband has varied ver}' much, and sometimes in such a manner as to make it very difficult to assign the reason of the variations; owing to par- ticular I'ireunistanees, the history of which has not accompanied the history of the decisions. In lOTo, when many unAvarrantable rules were laid down hy public authority respecting contraband, it was expressly asserted l)y Sir \l. Wiseman, the King's advocate, u])on a formal reference made to him, that b}^ the practice of the English Admirait}^ corn, wine, and oil were liable to be deemed contraband. 'I do agree,' says he, reprobating the regulations that had been pub- lished, and observing that rules are not to be so hardly laid down as to press upon neutrals, ' that corn, ^^'ine, and oil will be deemed con- traband.' " These articles of provisions then were at that time confiscable, according to the judgment of a person of great knowledge and expe- rience in the practice of this court. In much later times many other sorts of provisions have been condemned as contraband. In 1747, in the Jonge Andre((s, butter, going to Rochelle, was condemned. IIow it happened that cheese at the same time was more favourably con- sidered, according to the case cited by Dr. Swaljey, I don't exactly know. The distinction api)ears nice. In all j)robal)ility the cheeses were not of the species Miiich is intended for ship's use. Salted cod and salmon w^ere condenmed in the Jonril, 1814, b}' the private armed schooner Lawrence^ on a voyage from Limerick, in Ireland, to Bilboa, in Spain. The cargo consisted of barley and oats, the property of British subjects, the exportation of which is generally prohilnted by the British government ; and, as well by the official papers of the custom-house as by the private let- ters of the shippers, it appears to have been shipped under the special permission of the government for the sole use of his Britannic Majesty's forces then in Spain. The following is an extract from the opinion of the court, deliv- ered V)y Story, J. : — "The single point now in controversy in this cause is, whether the ship is entitled to tlie freight for the voyage. The general rule that the neutral carrier of enemy's property is entitled to his freight, is now too firmly established to admit of discussion. But to this rule there are many exceptions. If the neutral be guilty of fraudulent or unneutral conduct, or has intei-posed himself to assist the enemy in carrying on the war, he is justly deemed to have forfeited his title to freight. Hence, the carrying of contraband goods to the enemy; the engaging in the coasting or colonial trade of the enemy ; the ' See to the same effect : Tlie Frau Margarefha. C C. Rob.. 92 ; the Zelden Runt, 6 C. Rob., 93; the Ranger, 6 C. Rob., 125 (ship's biscuit condemned); tlie Edward, 4 C. Rob., 68. CHAP. III.] THE "COilMEllCEN." 471 spoliation of papers, and the fraudulent suppression of enemy inter- ests have been held to affect the neutral with the forfeiture of freight, and in cases of a more flagrant character, such as carrying despatches or hostile military passengers, an engagement in the transport service of the enemy, and a breach of blockade, the pen- alty of confiscation of the vessel has also been inflicted. By the modern law of nations provisions are not, in general, deemed contra- band, but they may become so, although the property of a neutral, on account of the particular situation of the war, or on account of their destination. If destined for the ordinary use of life in the ene- my's country they are not, in general, contraband ; but it is other- wise if destined for military use. Hence, if destined for the army or navy of the enemy, or for his ports of naval or military equipment, they are deemed contraband." ^ ' Provisions. — In the case of Maissonnaire^. Keating, 2 Gallison, the question was as to the vaUdity of a Russian document, in which the legahty of the cap- ture had to be passed upon. It was the case of a cargo of provisions ; and tlie court held that provisions gomg to a port of naval equipment of the enemy, and a fortiori, if destined for the supply of his army, became contraband, and sub- jected the vessel (probably belonging to owner of cargo) and cargo to confiscation bj' the other belligerent. Res ancipitis tisiis. — As to the question: what articles shall be regarded as contraband of war? there has been, and still is, a wide difference of opinion. The English prize courts, as shown by the cases given, have treated provisions as contraband in certain circumstances ; and the American courts followed this practice. The French decrees and decisions, on the other hand, have taken the opposite view, that provisions are in no case to be treated as contraband. And yet, in 1885, the French government announced that it proposed to treat rice bound for open Chinese ports as contraband of war. As to other articles ancipitis iisus, those most in controversy have been naval stores, including in that term everything used in the construction of ships of war. The cases in which these articles have been confiscated by the Enghsh prize courts are very niimerous. A few of the leading cases are as follows : — Tlie Staat Emhden, 1 C. Rob., 26 (masts) ; the Endrauglit, 1 C. Rob., 22 (tun- ber) ; theJonge Tobias, 1 C. Rob., 329 (tar) ; the Sarah Christina, 1 C. Rob., 237, 241 (tar and pitch) ; the Ringende Jacob, 1 C. Rob., 89 (hemp, iron bars) ; the Neptiums, 3 C. Rob., 108 (sail cloth). The greater number of these articles were treated by Sir William Scott ss goods absolutely contraband, if going to an enemy's port, without considering the nature of the port. The government of the United States, in 1797, held the same view : " Ship timber and naval stores," said the Secretary of State, "are by the law of nations contraband of war." It will be seen by the French cases la Minerve and others, that the French practice is the reverse of that of Eng- land and the United States. The recent changes in naval warfare, brought about by the introduction of steam power and steel ships, have introduced a large number of new articles into the list of contraband or " occasional contraband " goods. This may be ■±r2 BELLIGERKST6 AMD MEUTKALS. [pAliT IL "TL VOLAXTE." Le Coxseil des Prises, 1807. {Pistoye et Duterdy, I., 409.) France does not regard timber for the construction of ships as contraband of war. Le corsaire VEtoile de Bonaparte avait capture lenavireantrichi en il Yolante ; cette capture a donne lieu a la decision suivantedu Con- seil des prises. " Le Co>'seil: — Attendu qu'il est constant, par les pieces de bord, que le navire et le chargenient sont proprietes neutres ; que le port de Messine, pour lequel I'expedition etait destinee, malgre I'autorite que peuvent y exercer les Anglais, n'est point soumis au blocus qui, aux termes du decret du 21 novembre 1806, a lieu pour les ports et les lies Britauniques ; et que les sucres, suivant le nianifeste et le connaissement, proviennent de Lisbonne, et ont ete raffines par la seen m ]Mr. G. Lushington's " ilanual of Naval Prize Law" (edition of 1866), in wliich goods absolutely contraband are enumerated as follows : — ' ' Anns of all kinds and machinery for manufacturing arms. Ammunition and materials for ammunition, including lead, suljjhate of potash, muriate of potash, chlorate of potash, and nitrate of soda. Gunpowder and its materials, saltpetre and brimstone ; also gun-cotton, " ]\Iilitary equipments and clothing. Militaiy stores. " Naval stores, such as masts, spars, rudders, and ship timber, hemp and cordage, sail-cloth, pitch and tar : copper fit for sheathing vessels ; marine en- gines, and the component paiis thereof, includhig screw-projjellers, paddle- wheels, cylinders, cranks, shafts, boilers, tubes for boilei-s, boiler-plates, fire- bars ; marine cement and the materials in the manufacture thereof, as blue-Uas and Portland cement. Iron in any of the following forms : Anchors, rivet- iron, angle-iron, round bars from f to f of an inch diameter, rivets, strips of iron, sheet plate-iron exceeding i of an inch, and low-moor and bowUng plates." Goods conditionally contraband comprise : " Provisions and liquors fit for the consumption of army or navy ; money ; telegraph materials, such as wire, porous cups, platma, sulphuric acid, and zinc. Materials for the construction of a railway, as iron bars, sleepers, etc. " Coals, hay, horses, rosin, tallow, timber." Pre-emption. — See as to the doctrine of pre-emption set up by the English prize courts, the cases of thn Haabet, 2 C itob., 1»2 ; thu iSaiuk Lhiisliitu, 1 C. Rob., 237. CHAP. III.] " IL VOLANTE." 473 Compagnie de Trieste et Fiume; — Atteiulu que le nioj^eu (ic'iliiil dc la qnalite ties bois eomposaiit la majeure paitie de la cai-g'ai.soii. et sur letpiel les eapteurs out le plus iusiste, ue peat etre aceueilli si I'ou cousidcTu (pie, loiu ([u'il soit dcnioutrii que ees bois ap[)artieuiicut exclusiveineut a la eoustruetiou des batiuieuts de guerre, eouune Tout peuse les experts qui out operc liors de la preseuce des p.irties interessees, le contraire semble resultei-, taut de la teueur du proces- verbal de visite qu'ils out irreguliereuieut dresse, que de la diineu- sion des ])lauches et de leur uouibre compare avec la capacite du navire; — Qu'au reste, et eu abordaut la question de contrebande elevee par le corsaire, il est facile de se couvaiucre que la solution lui en est contraire. En etfet, les bois de construction ne sont de- clares contrebande de guerre paraucun traite particulier ; c'est faute d' avoir la le traite de 1742, conclu entre la France et le Daneuiark, qu'on a dit qu'il comprenait sous cette denomination les bois de construction. Si, par Tarrete du Direetoire du 12 ventose an V, ils ont ete ranges parmi les objets prohibes, ce n'a ete que relativement aux Aniericains qui avaient souftert, par leur traite de 1794 avec les Anglais, que ces objets fussent regardes comme de contrebande; et la disposition de cet arrete, de droit annulee par la convention du 8 vendeniiaire an IX, passee entre la France et les Etats-Unis d'Ame- riqne, qui, en speclfiant tons les articles de contrebande, n'y a point compris les bois de construction. Lors meme que Ton aurait pu soutenir avec quel que fondement que la prohibition contenue dans I'arrete du 12 veutose an V eut ete applicable a, tons les neutres, elle se tronverait implicitement rapportee par I'arrete du 29 frimaire an VIII, qni, a Tegard de la navigation des neutres, a retabli les dispo- sitions du reglement du 26 juillet 1778, dont Part. 15 ordonne I'exe- cuiion de Tordonnance de la marine de 1681, laquelle, dans Tenume- ratiou des objets de contrebande de guerre, ne place point les bois de construction : d'oti il faut conclure que la destination pour un port eimemi des planches chargees sur le navire il Volante, quel qu'en dut etre Temploi, ne les a pohit rendues confiscables, et que tout au plus elle serait susceptible, avec les autres circonstances de la prise, d'exenqiter les eapteurs des dommages et inter^ts ; — Decide que la prise, faite par le corsaire fran9ais VEtoile de Bonaparte, da navire autrichien il Volante, est invalide ; en fait pleine et entiere mainlevee au profit des propiietaires." ^ ' Ajid see, La Minerve, Pistoye et Duverdy, I., 410. 474 BELL10EitE^■T6 A.ND NEL'TilALS. [PAET U. THE " XEUTRALITET." High Court of Admiralty, 1801. (3 C. Robinson, 295.) Penalty for carrying contraband. It does not as a rule involve the confisca- tion of the ship. This was a case of a Danish ship taken with a cargo on a voj^age from Archangel to Dordrecht. Tlie ship had been a Dutch vessel, and was asserted to have been purchased by Mr. Schultz, of Altona. She then went from Holland to Altona, and was from thence sent on to Archangel, to carry a cargo to Dordrecht, under a charter party made by the asserted owner. Judgment, — Sir W. Scott : — " The modern rule of the la^^■ of nations is, certainly, that the ship shall not be subject to condemnation for carrymg contraband articles. •' The ancient practice was otherwise, and it cannot be denied, that it was perfectly defensible on every principle of justice. If to supply the enemy with such articles is a noxious act with respect to the owner of the cargo, the vehicle which is instrumental in effect- ing that illegal purpose cannot be innocent. The policy of modern times has however introduced a relaxation on this point; and the general rule now is, that the vessel does not become confiscable for that act. But this rule is liable to exceptions: Where a ship be- longs to the owner of the cargo, or where the ship is going on such service, under a false destination or false papers; these circum- stances of aggravation have been held to constitute excepted cases out of the modern rule, and to continue them under the ancient one. The circumstances of the present case compose a case of exception also ; for it is a case of singular misconduct on the part of the asserted ship owners. They are subjects of Denmark, and as such are under the peculiar obligations of a treaty not to carry goods of this nature for the use of the enemies of Great IJritain. " A reference has been made to ancient cases of Dantzick ships, which were restored, though taken carrying masts to Cadiz. The particulars of those cases ai-e not vei-y exactly stated; but they were clearly the cases of proprietors exporting the produce of their own CHAP. III.] SETON V. LOW. 475 territoiT, or of n('igiil)oriiiq- ports, without the breach of any obliga- tion V)ut such as the general law of nati(jns imposed. " In this instance the ship was freighted at Allona, to go to Arch- angel, for the purpose of canying a cargo of tar to Holland, which is a commerce expressly prohibited by the Danish treaty. Tar is an article which a Danish ship cannot lawfully carry to an enemy's poi't, even when it is the produce and manufacture of Denmark. This ship goes to a foreign port, to effect that which she is pro- hibited from doing, even for the produce of her own country ; in this respect, throwing off the character of a Danish ship by vio- lating the treaties of her country ; and all this is done with the full privity of the asserted owner, who is the person entering into the charter party. In such a case as the present, the known ground on which the relaxation was introduced, the supposition that freiglits of noxious or doubtful articles might be taken, without the personal knowledge of the owner, entirely fails ; and the active guilt of tlie parties is aggravated by the circumstances, of its being a criminal traffic in foreign commodities, and in breach of explicit and special obligations. The confiscation of a ship so engaged will leave the general rule still untouched, that the carriage of contraband works a forfeiture of freight and expenses, but not of the ship. "Ship condemned." SETON V. LOW. Supreme Coukt of New^ York, 1799. ( 1 Johnson, 1.) A trade by a neutral in articles of contraband is a lawful trade. And a contract of insurance on such goods is valid. This was an action on a policy of insurance, which included "all kinds of lawful goods and merchandises" on board the Hannali^ etc. The ship having been captured and a part of the goods condemned as contraband, the defendants refused to pay the insurance, on the ground that the plaintiff's had not informed them of the nature of the cargo. The following is an extract from the judgment : Kekt, J. — " Two questions were raised on the argument in this case. " 1. Whether the contraband goods were lawful, within the mean- ing of the policy. 47-3 BELLIGERENTS AND NEUTRALS. [PAET II. "•2. If lawful, whether the iissured were bouiul to disclose to the defendant the fact, that part of the cargo was contraband of war. " On the first point, I am of opinion, that the contraband goods were lawful goods, and that whatever is not prohibited to be ex- ported, by tlie positive law of the country, is lawful. It may be said, that tlie law of nations is part of the municipal law of the land, and that by that law (and which, so far as it concerns the present question, is expressly incorporated into our treaty of counnerce with Great Britain) contraband trade is prohibited to neutrals, and, con- sequentl}', nnhuAful. This reasoning is not destitute of force, but the fact is, that the law of nations does not declare the trade to be unlawful. It only authorizes the seizure of the contraband articles by the bel- ligerent po\Aers; and this it does from necessity. A neutral nation has nothing to do with the war, and is under no moral obligation to abandon or abridge its trade; and yet, at the same time, from the Jaw of necessity, as Vattel observes, the powers at war have a right to seize and confiscate the contraband goods, and tliis they may do from the principle of self-defence. The right of the hostile power to seize, this same very moral and correct writer continues to ob- serve, does not destroy the right of the neutral to transport. They i'.re rights which may, at times, reciprocally clash and injure each other. But this collision is the eft'ect of inevitable necessity, and the neutral has no just cause to complain. A trade by a neutral in articles contraband of war is, therefore, a lawful trade, though a trade, from necessity, subject to inconvenience and loss." Ex-PAETE CHAYASSE, ix ke GRAZEBROOK. Court of Appeal ix Baxkruptcy, 1865. (34 L. J. n. s., Bdukruptcy, 17.) Trade in contraband articles by a neutral Ls lawful. Chavasse and (irazebrook went into jiartnership in the furnishing of contraband articles to the Confederac3^ Botli parties became baidv- rupt, and the assignees of Chavasse presented a petition to have the proceeds of these transactions apportioned, Chavasse never having received anything from them. This i)etit:ion was dismissed with costs on the ground of the illegality of the contract. An appeal was allowed, the Lord Chancellor considering that there was a valid partnership. He cites the Santissima Trinidad (7 Wheat., B40), and quotes the following passage to be a very correct rei^resenta- CHAl'. III.] THE " ATALAXTA." 477 tion of the present state of the hiw of England also : — " There is noth- ing in our laws, or in the law of nations, that forbids our citizens from sending armed vessels as well as nnuiitions of war to foreign ports for sale. It is a commercial adventure which no nation is bound to prohibit, and which only exposes the persons engaged in it to the penalty of confiscation." He also said: "But this commerce, "v^iiich was perfectly lawful for the neutral with either belligerent country before the war, is not made by the war unlawful or capable of being prohibited by both or either of the belligerents ; and all that international law does is to subject the neutral merchant who transports the contraband of war to the risk of having his ship and cargo captured and condemned by the belligerent power for whose enemy the contraband is destined." ^ Section 45. — Despatches axd Persons as Contraband. THE "ATALANTA." High Court of Admiralty, 1808. ( 6 C. Robinson, 440.) Carrying dispatches from the Governor of the Isle of France to the Ministei- of ]\Iarine, at Paris, is cause of confiscation of the ship. This was a case of a Bremen ship and cargo, captured on a voyage from Batavia to Bremen, on the 14th of July, 1797, having come last from the Isle of France ; wliere a packet containing dis- patches from the Government of the Isle of France to the Ministei* of Marine, at Paris, was taken on board by the master and one of the supercargoes, and was afterwards found concealed in the pos- session of the second supercargo, under circumstances detailed in the judgment. Extract from judgment, — Sir W. Scott : — "The question then is, what are the legal consequences attaching on such a criminal act? — for that it is criminal and most noxious is scarcely denied. What might be the consequences of a simjjle trans- mission of dispatches, I am not called upon by the necessities of the present case to decide, because I have already pronounced this to be Q. fraudulent case. That the simple carrying of dispatches, between ' The only penalty by the modern law of nations for cariying contra- band is the loss of freight and expenses. The Ringende Jacob, 1 C. Eob., 90 ; the Sarah Christina, lb., 242, and others. 478 BELLIGERENTS AND NEUTRALS. [PAKT IL the colonies and the mother country of the enemy, is a service highh' injurious to tlie otlier Belligerent, is most obvious. In the present state of the world, in the hostilities of Evropean powers, it is an object of great importance to preserve the connection between the mother countrj^ and her colonies ; and to interrupt that connec- tion, on the part of the other Belligerent, is one of the most ener- getic operations of war. The importance of keeping up that connec- tion, for the concentration of troops, and for various military pur- poses, is manifest ; and I may add, for the supply of civil assistance, also, and support, because the infliction of civil distress, for the pur- pose of compelling a surrender, forms no inconsiderable part of the operations of war. It is not to be argued, therefore, that the im- portance of these dispatches might relate only to the civil wants of the colony, and that it is necessary to shew a military tendency ; because the object of compelling a surrender being a measure of w^ar, whatever is conducive to that event must also be considered in the contemplation of law, as an object of hostility, although not pro- duced by operations strictly military. How is this intercourse with the mother country kept up, in time of peace? by ships of war or by packets in the service of the state. If a war intervenes and the other Belligerent prevails to interrupt that communication, any per- son stepping in to lend himself to effect the same purpose, under the privilege of an ostensible neutral character, does, in fact, place him- self in the service of the enemy-state, and is justly to be considered in that character. Nor let it be supposed, that it is an act of light and casual importance. The consequence of such a service is indefi- nite, infinitely beyond the effect of any contraband that can be con- veyed. The carrying of two or three cargoes of stores is necessarily an assistance of a limited nature ; but in the transmission of dis- patches may be conveyed the entire plan of a campaign, that may de- feat all the projects of the other Belligerent in that quarter of the world. It is true, as it has been said, that one hall might take off a Charles the Xllth, and might produce the most disastrous effects in a campaign; but that is a consequence so remote and accidental, that in the contemplation of human events it is a sort of evanescent quantity of which no account is taken ; and the practice has been a(:co7-diiif/h/, that it is in considerable qiTantities only that the offence of contraband is contemplated. The case of dispatches is very dif- ferent ; it is impossible to limit a letter to so small a size, as not to be capable of producing the most important consequences in the operations of the enemy. It is a service, therefore, which, in what- ever degree it exists, can only be considered in one character, as an act of the most noxious and hostile nature. CHAP. III.] THE "ATALANTA." 470 '• This country, which — ho\yever much its practice may he misrep- reseiited by foreign writers, and sometimes by our own, has always administered the law of nations with lenity, adopts a more indulgent rule, inflicting on the s])i[) only a forfeiture of freight in ordinary cases of contraband. But the offence of carrying dispatches is, it has been observed, greater. To talk of the confiscation of the nox- ious article, the dispatches, which constitutes the penalty in contra- band, would be ridiculous. There would be no freight dependent on it, and therefore the same precise penalty cannot, in the natui-e of things, be applied. It becomes absolutely necessary, as Avell as just, to resort to some other measure of confiscation, which can be no other than that of the vehicle. " Then comes the other question, whether the penalty is not also to be extended further, to the cargo, being the property of the same proprietors— not merely oh continentiani delicti, but likewise be- cause the representatives of the owners of the cargo, are directly in- volved in the knowledge and conduct of this guilty transaction ? On the circumstances of the present case I have to observe, that the offence is as much the act of those who are the constituted agents of the cargo, as of the master, who is the agent of the ship. The general rule of law is, that, where a party has been guilty of an in- terposition in the war, and is taken in delicto, he is not entitled to the aid of the court, to obtain the restitution of any part of his property involved in the same transaction. It is said, that the term,, 'interposition in the war' is a very general term and not to be loosely applied. I am of opinion, that this is an aggravated case of active interposition in the service of the enemy, concerted and con- tinued in fraud, and marked witli every species of malignant eon • duct. In such a case I feel myself bound, not only by the general rule, oh continentiani delicti, but by the direct participation of guik, in the agents of the cargo. Their own innnediate conduct not only excludes all favourable distinction, but makes them pre-eminently th/i object of just punishment. The conclusion therefore is, that I must pronounce the ship and cargo subject to condemnation. " The court observed afterwards : — I will mention, though it is a cir- cumstance of no great consequence, that I have seen the dispatches in this case, and that they are of a noxious nature, stating the strength of the different regiments, &c., and other particulars en- tirely military." 480 BELLIGEUEXTS AND NEUTRALS. [PAKT II. THE "RAPID." High Court of Admiualty, 1810. {Edwards. 228.) As a rule, canying dispatches to the enemy involves the confiscation of the shi]) : but where the master denied all knowledge of the presence of the dis- patcli, he was subjected to loss of expenses and time only. This was the case of an American ship which was captured on her voyage from New York to Tonningen, on suspicion of an intention to push into the Texel. But the question of destination being abandoned by the captors, they now contended that the case came within the principle laid down by tlie court in the case of the Ata- la/(ta, as it had been discovered, that among the papers given up by the master at the time of capture, there was a dispatcli addressed to tlie Dutch colonial minister at tlie Hague, under cover to a commer- cial lionse at Tonningen. •Judgment, — Sir William Scott : — '• The question of destination being disposed of, I have now only to consider what will be the legal effect of carrying these dis- patches ; and as it appears that the practice of conveying papers of this description, for the enemy, prevails to a considerable extent, I must take occasion to remind the proprietors of neutral vessels, that wherever it is indulged without sufficient caution, they will inevi- tably subject themselves to very grievous inconveniences. I should certainly be extremely unwilling to incur the imputation of im- poshig any restrictions upon the correspondence which neutral na- tions are entitled to maintain with the enemj'-, or, as it was sug- gested in argument, to lay down a rule which would in effect deter masters of vessels from receiving on board any private letters, as they cannot Ivuow wliat they may contain. But it nuist be under- stood, that where a party, from want of proper caution, suffers dis- patches to be conveyed on board his vessel, the plea of ignorance will not avail him. His caution must be proportioned to the cir- cumstances under which such papers are received. If he is taking his departure from a hostile port in a hostile country, and still more, if the letters which are brought to him are addressed to persons resident in an hostile country, he is called upon to exercise the ut- most jealousy with regard to what papers he takes on board. On CHAP. in. J THE "i;ai'ii)." 481 the other hand, it is to be ohserved, that where the commencement of the voyag-e is in a neutral coiniti'y, and it is to terminate at a neutral port, or, as in this instance, at a port to which, tliough not neutral, an open trade is allowed, in such a case there is less to ex- cite his vigilance, and, therefoi-e, it may be proper to make some al- lowance for any imposition which may be practiced upon him. l>nt when a neutral master receives papers on l)oard in a hostile port, lie receives them at his own hazard and cannot be heard to aver his ignorance of a fact which, by due enquiry, he might have made him- self acquainted with. The party in the present case has the benefit of the favourable distinction : these papers, with some others, were put on board in an envelope, addressed to a person at Tonningen, who w^as instructed to for\^ard them to Holland, but of this the master swears he knew nothing". They turn out to be of a i)ubliG nature, conveying intelligence of importance to the government of the enemy at the Hague, and they begin, I observe, with an as- sertion which I hope is not true. The writer says: ' The letter and accompanying inclosures which I this day dispatch to His Excel- lency, the minister of the colonies, via Tonningen, will, I exjiect, be connnunicated to you. I trust my condu ;t v.ill be approved of by His Excellency, and that he will please explain himself, both with regard thereto, as also respecting the contents of my letter to the ^Marshal Daandels. The surest mode of correspondence, is by way of England or Paris, through the channel of the Dutch mmister, as the American minister will not refuse to inclose for him a letter to me in. Ids dispatches.'' This, I hope, is rashly and injuriously said ; the court cannot bring itself to believe, that the accredited minister of a country in amity with this would so far lend himself to the pur- poses of the enemy as to be the private instrument of conveying the dispatches of the enemy's government to their agent. The papers in question come from a person who seems to be invested with something of a public character, though of a peculiar kind, and thej are upon public business, but I do not know whether they come- strictly within the definition of dispatches. The writer of them had been sent to America from Batavia by the governor, to beat up for volunteers among the American merchants, in the hope of inducing them to embark themselves in the trade of that settlement. How far he had been acknowledged by the American government does not appear ; from the contents of the papers themselves he seems to have been stationed in America, not by the government of Holland, but by the Dutch governor of Batavia, rather as a commercial agent to drive a bargain with individuals, and to induce them to join in these speculations for the relief of the Batavian trade, than for any 31 482 BELLIGERENTS AND NEUTRALS. [rAl'.T II. purposes of a more diplomatic nature. Ilis commission was such that it n)ig'ht exist without his being- acknowledg-ed as a pubhc ac- credited minister by the American government, and therefore the claimant is, perhaps, entitled to the benefit of the distinction which has been taken, that these papers, though mischievous in their own nature, proceed from a person who is not clothed with any public ofiicial cbaracter. Tbey came to the hands of this American master among a variety of other letters from private persons ; they were concealed in an envelope, addressed to a private person, and were taken on board in a neutral country; these are circumstances which would rather induce the court to consider this case as excepted from the general rule which does not permit a neutral master, carrying dispatches for the enemy, to shelter himself under the plea of ig- norance. In the present instance the American master denies all knowledge of the contents of these papers, and the benefit of that denial will extend to the cargo ; it is not, therefore, a case in which the property is to be confiscated, although in this, as in every other instance in which the enemy's dispatches are found on board a ves- sel, he has justly subjected himself to all the inconveniences of seizure and detention and to all the expenses of those judicial in- quiries which they have occasioned." THE "MADISON." High Court of Admiralty, 1810. {Edicards, 224.) Carrying dispatches from an enemy's government to its officials in a neutral country Ls lawful ; and no penalty attaches to the ship therefor. The following are extracts from the judgment, Sir Wm. Scott : — "Now I am of opinion, that a communication from the Danish government to its own consul in America, does not necessarily im- ply anything that is of a nature hostile or injurious to the interests of this country. It is not to be so presumed; such communica- tions must be supposed to have reference to the business of the con- sul-general's office, which is to maintain the commercial relations of Denmark with America. If sm li cominuiiications wei'e interdicted the functions of the official persons would cease altogether. * * * "A Danish consul-general in Ameiica is not stationed there merely for the purpose of Danish trade, but of Danish-American CHAP. III.] THE " OROZEMBO." 483 trade ; his functions relate to the joint commerce in which the two countries are engaged, and the case, therefore, falls within the prin- ciple which has been laid down in the case of the (JaroUiie in regard to dispatches from the enemy to his ambassador resident in a neu- tral country." THE "OROZEMBO." High Court of Admiralty, 1807. (6 C. Robinson, 430.) A neutral vessel chartered by the enemy to convey military persons is subject to confiscation as engaged in an unlawful commerce. This was a case of an American vessel that had been ostensibly chartered by a merchant at Lisbon " to proceed in ballast to 3Iacao, and there to take a cargo to America," but which had been after- wards, by his directions, fitted up for the reception of three military ofiBcers of distinction and two persons in civil departments in the government of Batavia, who had come from Holland to take their passage to Bataviu, under the appointment of the Government of Holland. There were also on board a lady, and some persons in the capacity of servants, making in the whole seventeen passengers. Judgment, — Sir W. Scott : — "This is the case of an admitted American vessel ; but the title to restitution is impugned, on the ground of its having been employed, at the time of the capture, in the service of the enemy, in transport- ing military persons first to Macao and ultimately to Batavia. That a vessel hired by the enemy for the conveyance of military persons is to be considered as a transport subject to condemnation, has been in a recent case held by this court, and on other occasions. "What is the number of military persons that shall constitute such a case, it may be difficult to define. In the former case there were many, in the present there are much fewer in number ; but I accede to what has been observed in argument, that number alone is an insignificant circumstance in the considerations, on which the principle of law on this subject is built, since fewer persons of high quality and character may be of more importance, than a much greater number of persons of lower condition. To send out one vet- eran general of France to take the command of the forces at Batavia, might be a much more noxious act than the conveyance of a whole 484 BELLIGERENTS AND NEUTRALS. [PAHT II. regiment. The consequences of such assistance are greater; and therefore it is what the belligerent has a stronger right to prevent and punish. In this instance the military persons are three, and tliere are, besides, two other persons, ■who were going to be employed in civil capacities in the government of Batavia. Whether the prin- ciple would ap})ly to them alone, I do not feel it necessarj'' to deter- mine. I am not aware of any case in which that question has been agitated ; but it appears to me, on principle, to be but reasonable that, whenever it is of sufficient importance to the enemy that such persons should be sent out on the public service, at the public ex- pence, it should afford equal ground of foi-feiture against the vessel that may be let out for a purpose so intimately connected with the hostile operations. " It has been argued, that the master was ignorant of the charac- ter of the service on \Ahich he was engaged, and that, in order to support the penalty, it would be necessary that there should be some proof of delinquency in him, or his owner. lUit, I conceive, that is not necessary ; it will be sufficient if there is an injury arising to the belligerent from the employment in which the vessel is found. In the case of the Swedish vessel there was no Diens rea in the owner, or in any other person acting under his authorit}'. The master was an involuntary agent, acting under compulsion, put upon him by the officers of the French government, and, so far as intention alone is considered, perfeclh/ inuoceitt. In the same mannei", in cases of bona fide ignorance, there may be no actual delinquency, but if the service is injurious, that will l)e sufficient to give the belligerent a right to prevent the thing from being done, or at least repeated, l)y enforcing the penalty of confiscation. If imposition has been practiced, it operates as force; and if redress in the way of indemnification is to be soiight against any person, it must be against those, who have, by means either of compulsion or deceit, exposed the property to dan- ger. If, therefore, it w-as the most innocent case on the part of the master, if there was nothing Avhatever to affect him with privity, the wdiole amount of this argument would be, that he must seek Ids re- dress against the freighter ; otherwise such opportunities of convey- ance would be constantly used, and it would be almost impossible, in the greater number of cases, to prove the knowledge, and privity of the immediate offender. " It has been argued throughout, as if the ignorance of the master alone would be sufficient to exempt the property of the owner from confiscation. But may there not be other persons, besides the mas- ter, whose knowledge and privity would carry with it the same consequences ? CHAP, in.] THE "OROZEMBO." 485 " Suppose the owner himself hud knowledge of the engagement, would not thiit produce the raens rea, if such a thing is necessary V or if those who had been employed to act for the owner, had thought tit to engage the ship in a service of lliis nature, keeping the master in profound ignoran(;e, would it not he just as effectual, if the meiiH red is necessary, that it should reside in those persons, as in the owner ? " The observations which I shall have occasion to make on the re- maining parts of this case will, perhaps, appear to justify such a supposition, either that the owner himself, or those who acted for him in Lisbon or in Holland, were connusant of the nature of the whole transaction. But I will first state distinctly, that the prin- ciple on which I determine this case is, that the carrying military persons to the colony of an enemy, who are there to take on them the exercise of their military functions, will lead to condemnation, and that the court is not to scan with minute arithmetic the number of persons that are so carried. If it has appeared to be of sufficient importance to the government of the enemy to send them, it must be enough to put the adverse government on the exercise of their right of prevention ; and the ignorance of the master can afford no ground of exculpation in favour of the owner, who must seek his remedy in cases of deception, as well as of force, against those v:\io have imposed upon him." ^ ' See the cases of the Friendship, 6 C. Rob., 420 ; and the Caroline, 4 C. Eob., 256. In all these cases the offense is rather the engagement of the vessel as an enemy transport than the mere carrying of hostile persons as passengers. In a note to tlie case of the Friendship, Dr. Robinson says : '• The act of car- rying the soldiers of the enemy has been in former wars assimilated to contra- band, by pvibUc proclamation and instructions, and has been declared to render the ship liable to condemnation. The declaration of war, 25th March, 1744, concludes with the following clause : "'And we do hereby command our own subjects, and advertise all other persons of whatever nation soever, not to transport or carry any soldiers, arms, powder, ammunition, or other contraband goods, to any of their teiTitories, lands, plantations, or countries of the said French king, declaring, that whatso- ever ship or vessel shall be met withal transporting or carrying any sol- diers, arms, powder, ammunition, or other contraband goods, etc. * * * ^ the same being taken, shall be condemned as good and lawful prize.' " The same declaration is also inserted in the second article of the instruction to cruisers, of the same date ; also in the second article of the instructions ir the war with Spain, 20th Dec, 1768." 48G BELLIGEIIEXTS A^'D ^'EUTHALS. [PAE-T II. THE "TREXT," ISGl. (Lau'rcnce's 'iMieatoii, 939 ; Dana's ^M^eaton, 644.) Tlie Trent was carrying, as passengers, Messrs. Mason and Slidell, agents of the Confederate Government, between the neutral ports of Havana and St. Thomas ; when these passengers were forcibly removed by Captain Wilkes of the United States steamer San Jacinto. Mr. Seward admitted that these persons could not be lawfully taken from the Trent at sea, but contended that she might have been brought in as prize. At an earl}' stage of the civil war in the United States, in October, 18G1, the Confederate Government appointed INIr. Mason to England and Mr. Slidell to France, each with a secretary, to act as commis- sioners or ambassadors to those countries. The government had not been recognized by any nation, and conld not maintain diplomatic relations ; but it had been recognized as a lawful belligerent. The object of the mission of Mason and Slidell was to aid the insurgent government by all means in their power ; to urge its recognition by the European States ; to effect treaties of commerce or alliance ; to procure, if desired by their government, the intervention of European powers. It may be said to have been essential that these agents should make the passage under neutral flags. They succeeded in running the blockade in fast steamers to Havana. At Havana they took passage, on their way to Europe, in a British steamer, the Trent, bound from Havana to St. Tliomas, from ^^ilich latter place a regular line of steamers, connecting witli the Trtnt, ran to England. The Trent carried the regular mails from the South American continent and Cuba to England, to transfer them at St. Thomas to the next steamer on the route. She had a large number of passengers, most of whom were also bound to England. jMessrs. Mason and Slidell, and their secretaries, had disi)atches and instructions from their own government, which were under their personal charge. On the high seas, nine miles from the coast of Cuba, she was stopped and searched by the United States steamer San Jacinto, Captain Wilkes. Messrs. Mason and Slidell were found on board ; but the dispatches they seci'eted, and confided to some of the passengers to be taken to Europe. Tliei-e was no evidence or cliarge tliat the commander of the 2Ve//< aided in the concealment or forwarding of these dispatches. CHAP. III.] THE ''TltENT." 487 He did, liowever, deny the rig-lit of search, refused all facilities for it, and o])structed it by everything but actual force; and made it known to Captain Wilkes that he yielded only to superior power, and that, if made a prize, he and his crew would lend no aid in carry- ing the Trent into port. Captain Wilkes took IMessrs. Mason and Slidell and their suite from the Trent, permitted her to proceed on her passage, and carried his prisoners to the United States. Earl Russell, in his demand upon the United States Government (letter to Lord Lyons, Xov. 30, ISGl), stated the proceeding as simply a case of a forcible taking of four passengers from an innocent British vessel at sea by an American ship of war, making no refer- ence to their ofl&cial character, or even to their nationality. Mr. Seward's reply (letter to Lord Lyons of Dec. 29, 1861) goes at length into the subject. He considers, first, whether these persons were, as he terms it, contraband of war. He cites Vattel as saying, " War allows us to cut off from our enemy all his resources, and to hinder him from sending ministers to solicit assistance," and Sir William Scott, as saying, " You may stop the ambassador of your enemy on his passage," and applies the test, in the words of Sir William Scott, " If it is of sufficient importance to the enemy that such persons should be sent out on the puldic service at the public expense, it should afford equal ground of forfeiture of the vessel that may be let out for a purpose so intimately comiected with the hostile o[)era- tions : " and he comes to the conclusion, that these persons were, from the nature of their office and destination, contraband. Assuming, then, which was not denied, that Captain Wilkes had a right to visit and search the Trent, as an act of maritime belligerency, and showing that he exercised the right of search in a proper man- ner, he examines the last question, whether the taking of these per- sons out of the ship, by Captain AVilkes, was justifiable, under the accepted law of nations. He at once disclaims, what Lord Russell assumed to be the ground of the act, a right to take rebels or other criminals or enemies, as such, from a neutral vessel, as an exercise of ocean police. He states that the whole course of Captain Wilkes was in the exercise of a belligerent right of search and capture. In this connection, he alludes to the claim long made and enforced by Great Britain, and resisted by us, of a right to take her own seamen from American vessels. As such seamen are not enemies, nor enemy's property, nor contraband, the exercise of that power was simply an exercise of ocean police, for municipal })urposes, over vessels of a foreign country. He treats this reclamation of Lord Russell as a renunciation of such a claim in the future by Great Britain ; and agrees, that, if such 488 BELLIGERENTS AND NEUTllALS. [I'AET II. had been the character of Captain Wilkes's act, it would liave been indefensible. Having- resolved the question of contraband in favor of the captors, he proceeds to discuss the rights and duties of a cruiser which finds contraband persons on board of a neutral vessel. lie contends that it is clearly the i-ig-ht and duly of the cruiser to make the vessel a prize, and send her in for adjudication. He adverts to the fact that, in such cases, the prize proceedings can only be against the vessel. A prize court is not competent to decide abstractly upon the character of persons on bcKird, and decree them to be either })rize or prisoners of Avar. Its only function is to pro- nounce on property, whether it be prize or no prize; and it passes upon the status and character of persons, only as means of deter- mining the status and predicament of the res. He remarks upon the unsatisfactory nature of such a circuitous proceeding as a mode of determining the character and fate of persons, owing to the liability of a defeat of the purpose by the accidents and incidents of all trials. The vessel may be restored or condemned on grounds independent of the character of the persons in question. The prize court has no power directly to control the persons found on board, after their evidence is given, or to restore them to the claimants ; so that, after all, the question must be left to diplomacy. Still, he considers that this process, though unsatisfactory, is all that the laws of war have provided, unless the cruiser can take the contraband persons from the vessel Jfrre belli, leaving her to proceed on her course. As to such a right, he says that the United States have always denied its existence, and that to claim it in this instance, would be to reverse the whole course of our history. After pointing to the evils that might follow the exercise of the right, he says, "I think all unprejudiced minds will agree, that, imperfect as the present judicial remedy may be supposed to be, it Avould be, as a general practice, better to follow it than to adopt the summary one of leav- ing the decision with the captor, and relying u^x))! diplomatic debate to review his decision." Had the act of Captain Wilkes, thei'cfore, \>een for the purpose of taking C(mtral)and persons out of a neutral vessel, it would have been disclaimed. But, having been for the purpose of making a prize of the vessel, with the contraband persons on board, ]Mr. Seward next proceeds to consider the effect of the release of the vessel. He ol)serves upon the fact that it was not a case in which, at the request or with the consent of the neutral, what had been seized was surrendered to the captors, upon a release of the vessel. The master of the Trent made no request or assent ; and the release was CHAP. III.] THE " TRENT." 489 the act of Captain Wilkes solely. Mr. Seward then refers to llie exceptions to the rule that the captor must send in his prize for adjudication, and finds them all to be cases of substantial necessity, excusing- the performance of what is else a duty. lie then examines the statements of Captain "Wilkes as to the motives which induced him to release the vessel, and finds that he was governed maiidy by a desire to relieve the large number of passengers, and an unwilling- ness to subject the mails to the delays consequent upon the scnding- in of the vessel ; although it also appeared that the want of force to bring in both vessels, conveniently and safely, operated somewhat upon his mind. JMr. Seward concludes that, while the comity of Captain Wilkes, and his willingness to relinquish for himself and his crew their large possible interest as captors, are to be ap[)lau(I('d, he did in fact, without being aware of it, take a step which made the detention and bringing in of Mason and Slidell unjustifiable, under those rules of war for which the United States have argued, negotiated, and fought. Mr. Seward concludes by declaring that the persons in question, held as prisoners of war, would be liberated. By an arrangement between Mr. Seward and Lord Lyons, they were placed on board an English war vessel, which took them to St. Thomas, the port of destination of the Trent ; thus ])lacing things, as far as possible, in statu quo ante. Earl Russell, in his letter to Lord Lyons, of Jan. 2.3, 1862, reviews the letter of Mr. Seward on the point of the contraband character of Messrs. Mason and Slidell, and comes to a different result. As the affair was now settled, this letter was for the purpose of precluding an inference, in case of silence, that he agreed to Mr. Seward's posi- tion. He places his argument on two grounds, — -first., that the office and character of the persons detained were not such as to make them contraband ; and second, that, if contraband in the abstract, they were not, on board the Trent, contraband in such a sense as to involve her in any penalties, since her passage was between neutral ports. On the first point, Earl Russell contends that Messrs. ]\rason and Slidell have the protection which is accorded to diplomatic agents, by the decisions of Sir William Scott. He argues that this })rotecti()n cannot be confined to persons who have been already received as diplomatic agents, or persons sent from regularly recognized sover- eignties. The nations of Europe having recognized the Confederate Government as belligerent, and their subjects having many impor- tant rights of person or property under the control of that de facto government, and the recognition of belligerency carrying with it 490 BELLIGERENTS AND NEUTRALS. [I'ART II. rights as well as duties, neutral nations have an interest in such imperfect diplomatic relations as they ma}^ maintain with commis- sioners or other diplomatic agents from such <^?e/acart of the municipal laws of all civilized states, regulating their mutual intercourse and duties, and thence called the law of nations, must be admitted : as, for instance, the law of nations affecting the rights and the security of ambassadors. IJut we do not consider the law of nations, ascertaining what voyages or merchandise are contraband of war, as having the same extent and effect. It is agreed by every civilized state that, if the suljjcct of a neutral power shall attempt to furnish either of the belligerent sovereigns with goods contraband of war, the other may rightfully seize and condemn them as prize. But we do not know of any rule established by the law of nations that the neutral shipper of goods contraband of war, is an offender against his own sovereign, and liable to be punished by the municipal laws of his own country. When a neutral sovereign is notified of a declaration of war, he may, and usually does, notify his subjects of it, with orders to declme all contraband trade with the nations at war, declaring that, if they ai-e taken in it, he cannot protect them, but not announcing the trade as a violation of his own laws. Should their sovereign offer to protect them, his conduct would be incompatible with his neutrality. And as, on the one hand, he cannot complain of the confiscation of his subjects' goods, so, on the other, the power at war does not inq^ute to Jiim these practices of his subjects. A neutral merchant is not obliged to regard the state of war between other nations, but if he ships goods prohibited J«;'6 belli, they may be rightfully seized and condemned. It is one of the cases where two conflicting rights exist, which either party may exercise without charging the other with doing wrong. As the transportation is not prohibited by the laws of the neutral sovereign, his subjects may lawfully be concerned in it ; and, as the right of war lawfully authorizes a belligerent power to seize and condemn the goods, he may lawfully do it. ' Lastly, in Seton, Maitland &, Co. v. Loto, 1 Johnson, 5, Mr. Justice Kent says : — ' I am of opinion that the contraband goods were lawful goods, and that whatever is not prohibited to be exported by the positive law of the country is lawful. It may be said that the law of nations is part of the municipal law of the land, and that by that law con- traband trade is prohibited to neutrals, and, consequently, unlaw- ful. This reasoning is not destitute of force ; but the fact is that the law of nations does not declare -the trade to be unlawful. It only authorizes the seizure of the contraband articles by the be) ligerent powers.' * * * 502 CELLIGEEENTS AND XEUTUALS. [PART 11. "In the English Courts tlie only case in which the point has been actual]}' decideil is the recent case before the Lord Chancellor, which I have already adverted to. "With regard to the cases in Mr. Duer's book, Xaylor v. Tn]jloi\ Medtiross v. Ilill^ it is enough to say that, ill the view which the court eventuall}'' took of the facts, the question of law did Jiot arise. It is in tliese two cases inipossil)le to say with certainty Avhat was the opinion of the judges at nisi prias. "I cannot entertain any doubt as to the judgment I ought to j)ro- nounce in this case. It appears that principle, authority, and usage unite in calling on me to reject the new doctrine that, to carry on trade with a blockaded port, is or ought to be a municipal offence by the law of nations. I must direct tiie -ith article of the answer to be struck out. I cannot pass by the fact that the attempt to intro- duce this novel doctrine comes from an avowed ^:)ar(;*c6/:>s criminis^ who seeks to benefit himself by it. xVs he has failed on every ground, he must pay the cost of his experiment." ISectiox 47. — Rule of tue Wae of 1756. TIIE " niMAXUEL." High Coura^ of Admiralty, 1799. (2C. RoUnson,\m.) Neutrals will not be permitted to engage in a trade, during a war. from which they were excluded in time of peace. This applies especially to the colonial trade. This was the case of an asserted Ilambtirg ship, taken 14th August, 1799, on a voyage from Hamburg to St. Domingo, having in her voyage touched at Bourdeaux, where she sold part of the goods brought from Ibunburg, and took a quantity of iron stores and other articles for St. Donnngo. A question was first raised as to tlie prop- erty of the ship and cargo ; 2dly, supposing it to be neutral prop- perty, whether a trade from the mother country of France to St. Domingo, a P'rench Colony, was not an illegal trade, and such as would render the property of neutrals engaged in it liable to be con- sidered as the property of enemies, and suV)ject to confiscation ? The following are extracts from the judgment. Sir Wm. Scott. — " Upon the breaking out of a war, it is the riglit of neutrals to carry on their accuHtomed trade, Avith an exception of the particular cases of a trade to blockaded places, or in contraband CHAr. III.] THE " IM.MANUEL.'' 503 articles (in l)oUi which cases their i)n)perty is liable to be condemned), and of their ships being liable to visitation and search ; in which case however they are entitled to freig-ht and expenses. I do not mean to say that in the accidents of a war the property of neutrals may not be variously entangled and endangered ; in the nature of liunian connections it is hardly possible that inconveniences of this kind should be altogether avoided. Some neutrals will be unjustly engaged in covering the goods of the enemy, and others will be un- justly suspected of doing it ; these inconveniences are more than fully balanced by the enlargement of their commerce ; the trade of the belligerents is usually interrupted in a great degree, and falls in the same degree into the lap of neutrals. But without reference to accidents of the one kind or other, the general rule is, that the neutral has a right to carry on, in time of war, his accustomed trade to the utmost extent of which that accustomed trade is capable. " Very different is the case of a trade which the neutral has never possessed, which he holds by no title of use and habit in times of peace, and which, in fact, can obtain in war by no other title, than by the success of the one belligerent against the other, and at the expense of that very belligerent under whose success he sets up his title ; and such I take to be the colonial trade, generally speaking. " AVhat is the colonial trade (/eneraUi/ si:>eahinfj ? It is a trade generally shut up to the exclusive use of the mother country, to which the colony belongs, and this to a double use; — that, of sup- plying a market for the consum[)tion of native commodities, and the other of furnishing to the mother country the peculiar commodities of the colonial regions ; to these two purposes of the mother coun- try, the general policy respecting colonies belonging to the states of Europe, has restricted them. With respect to other coimtries, gen- erally speaking, the colony has no existence ; it is possible that indirectly and remotely such colonies may affect the commerce of other countries. * * * " Upon the interruption of a war, what are the rights of bellig- erents and neutrals respectively regarding such places? It is an indubitable right of the belligerent to possess himself of such places, as of any other possession of his enemy. Tliis is his connnon right, but he has the certain means of carrying sucli a right into effect, if he has a decided superiority at sea : Such colonies are dependent for their existence, as colonies, on foreign supplies ; if they cannot be supplied and defended they must fall to the belligerent of course — and if the belligerent chooses to apply his means to such an ol)ject, what right has a third party, perfectly neutral, to step in and prevent the execution ? No existing interest of his is affected by it ; he can 504 BELLIGEKEXTS AND XEUTRALS. [PAET U. have no right to appl}- to his own nse tlie beneficial consequences of the mere act of tlie belhgerent ; and say, ' True it is, you have, by force of arms forced sucli places out of the exclusive pussession of the enemy, but I will share the benefit of the conquest, and by shar- ing its benefits prevent its progress. You have in effect, and by lawful means, turned the enemy out of the possession which he had exclusively maintained against the Avhole w^orld, and with whom we had never presumed to interfere ; but Ave will interpose to prevent his absolute surrender, l)y the means of that very opening, AAhicli the prevalence of your arms alone has affected; supplies shall be sent and their products shall be exported ; you have lawfully de- stroyed his monopoly, but you shall not be permitted to possess it yourself; we insist to share the fruits of your victories, and your blood and treasure have been expended, not for your own interest, but for the common benefit of others.' " L'pon these grounds, it cannot be contended to be a rlill)oa in Spain, and claimed on behalf of Messrs. W. and X. IIoo[)er of Marblehead in the state of Massachusetts, had been con- dennied 17th July, 18U0. Among the papers was a certificate from the collector of the cus- toms, "that this vessel had entered and landed a cargo of cocoa belonging to Messrs. W. and X. Hooper, and that the duties had been secured agreeable to law, and that the said cargo had been re- shipped on board this vessel bound for Bilboa. Judgment, — Sir William Grant : — " The question in this case is, whether that part of the cargo which has been the subject of further proof, and which, it is admitted, was, at the time of the capture, going to Spain, is to be considered as coming directly from Laguira within the meaning of his Majesty's instructions. According to our understanding of the law, it is only from those instructions that neutrals derive any right of carrying on \Aitli the colonies of our enemies, in time of war, a trade from which they were excluded in time of peace. The instructions had not permitted the direct trade between the hostile colony and its mother country, but had, on the contrary ordered all vessels engaged in it to be brought in for lawful adjudication ; and what the present claimants accordingly maintain, is not that they could carry tlie produce of Laguira directlj^ to Spain ; but that they were not so carrying the cargo in question, inasmuch as the voyage in Avhicli it was taken was a voyage from North America, and not directly from a colony of Spain. " What then, with reference to this subject, is to be considered as a direct voyage from one place to another? Xobody has ever sup- posed that a mere deviation from the straightest and shortest course, in wljirh the voyage could be performed, would change its denomi- nation, and make it cease to be a direct one within the intendment of tlie instructions. " Xothing can depend on the degree or the deviation — whether it be of more or fewer leagues, whether towards the coast of Africa, or towards that of America. X'either will it be contended that the point from which the commencement of a voyage is to be reckoned changes as often as the ship stops hi the course of it ; nor will it tlie more change, because a party may choose arbiti-arily by the sliip's papers, or otherwise, to give the name of a distinct voyage to each stage of a ship's progress. The act of sliifting the cargo from the ship to the shore, and from the shore back again into the ship, does not necessarily amount to the termination of one voyage and the commencement of another. It may be wholly unconnected with any CHAP. III.] THE " ^yILLIAM." 507 purpose of iinportiitioii into the pliice Avliero it is done : Supposiii"- the hmdhig to he merely for the purpose of airing- or drying the goods, or of repairing tlie sliij), would any man think of de.scrihing the voyage as heginning at the place where it happened to become necessary to go through such a process? "Again, let it be supposed that the party has a motive for desiring to make the voyage appear to begin at some other place than that of the original lading, and that he therefore lands the cargo [)urely and solely for the purpose of enabling himself to affirm, that it was at such other place that the goods were taken on board, would thi.s contrivance at all alter the truth of the fact ? Would not the real voyage still be from the place of the original shipment, notwith- standing the attempt to give it the appearance of having begun from a different place? The truth may not always be discernible, but when it is discovered, it is accordiiig to the truth and not according to the fiction, that we are to give to the transaction its character and denomination. If the voyage from the place of lading be not really ended, it matters not by what acts the party may have evinced his desire of making it appear to have been ended. That those acts have been attended with trouble and expence cannot alter their quality or their effect. The trouble and expence may AA^eigh as cir- cumstances of evidence, to shew the purpose for which the acts were done; but if the evasive purpose be admitted or proved, we can never be found to accept as a substitute for the observance of the laAv, the means, however operose, which have been employed to cover a breach of it. Between the actual importation by which a voyage is really ended, and the colourable importation which is to give it the appearance of being ended, there must necessarily be a great resemblance. The acts to be done must be almost entirely the same ; but there is this difference between them. — The landing of the cargo, the entry at the custom-house, and the payment of such duties as the law of the place requires, are necessaru ingredients in a genuine importation; the true purpose of the owner cannot be effected with- out them. But in a fictitious importation they are mere voluntary ceremonies, which have no natural connection whatever Avith the purpose of sending on the cargo to another market, and Avhich, there- fore, Avould never be resorted to by a person entertaining that pur- pose, except Avith a view of giving to the voyage Avliich he has resolved to continue, the appearance of being broken by an importation, Avhicli he has resolved not really to make. " XoAV, Avhat is the case immediately before us ? The cargo in que.-ition Avas taken on board at Laguira. It Avas at the time of the capture xu'oceedhig to Spain; but the ship had touched at an Ameri- 508 BELLIGERENTS AND NEUTltALS. [PAKT IL can port. The cargo was landed and entered at the custom-house, and a bond was given for the duties to the amount of 1,239 dolhirs The cargo was re-shipped, and a debenture for 1,211 doHars by way of drawback was obtained. All this passed in the course of a few days. The vessel arrived at Marblehead on the 29tli of May ; on that day the bond for securing the duties was given. On the 30th and 31st the goods were landed, weighed, and packed. The permit to ship them is dated the 1st of June, and on the 3d of June the vessel is cleared out as laden, and ready to proceed to sea. We are frequently obliged to collect the purpose from the circumstances of the transaction. The landing thus almost instantaneously followed. In' the re-shipment, has little a})pearance of having been made with a view to actual importation ; but it is not upon inference that the conclusion in this case is left to rest. The claimants, instead of shoeing that they really did import their cargo, have, in their at- testation, stated the reasons which determined them not to import it. They saj-, indeed, that when they ordei'ed it to be purchased, 'it was with the single view of bringing it to the United States, and. that the)'' had no intention or expectation of exporting it in the said schooner to Spain.' Supposing that from this somewhat am- biguous statement we are to collect that their original intention was to have imported this cargo into America, with a view only to the xVmerican market, yet their intention had been changed before the arrival of the vessel. For they state that in the heginning of May they had received accounts of the prices of cocoa in Spain, which satisfied them that it would sell much better there than in America, and that they had therefore determined, to send it to the Spanish market. Nothing is alleged to have happened between the landing of the cargo and its re-shipment, that could have the least influence on their determination. It was not in that short interval that American prices fell, or that information of the higher prices in Spain had. been received. Knowing beforehand the comparative state of the two markets, they neither tried nor meant to try that of America, but proceeded with all possible exj)edition to go through the forms which have been before enumerated. If the continuity of the voyage remains unbroken, it is immaterial whether it be by tlie prosecution of an original purpose to continite it, as in the case of the Esse.i\ or, as in this case, b}' the relinquislniient of an original purpose to have brought it to a termination in ^Vmerica. It can never Ije contended, that an intention to import once entertained is equivalent to importation. And it would be a contradiction in terms to say that by acts done after the original intention has been aban- doned, such original intention has been carried into execution. Why CHAP. III.] THE "STEPHEN HAirr." 509 should ii cargo, wliicli iliure was to be no attempt to sell in Anieiica, have been entered at an American custom-house, and voluntarily- subjected to the payment of any, even the most tiiliing- duty? Not because importation was, or in such a case could be intended, but because it was thought expedient that something should be done, which iu a British Prize Court might pass for importation. Indeed, the claimants seem to have conceived that the inquii-y to be made here was, not, whether the importation was real or pretended, but whether the pretence had assumed a particular form, and was ac- companied with certain circumstances which by some positive rule were, in all cases, to stand for importation, or to be conclusive evi- dence of it. * * * "But supposing that we had uniformly held that payment of the import duties furnished conclusive evidence of importation, would there have been any inconsistency or contradiction in holding that the mere act of giving a bond for an amount of duties, of which only a very insignificant part was ever to be paid, could not have the same effect as the actual payment of such amount? The further proof in the Essex first brought distinctly before us the real state of the fact in this particular. It has been already mentioned that we had called for an account of the drawbacks, if any, that had been re- ceived. This produced the information that although the duties secured amounted to 5,278 dollars, yet a debenture was immediately afterwards given for no less than 5,080 dollars ; so that on that valuable cargo no more than 198 dollars ^vould be ultimately pay- able, which sum is said to be more than compensated for the advan- tage arising from the negotiability of the debenture. * * * " The consequence is, that the voyage was illegal, and that the sentence of condemnation must be afBrmed," THE "STEPHEN HART." U. S. District Court for So. New York, 1863. ( Blatchford's Prize Cases, 387.) The mere touching at a neutral port, or even a trans-shipment insucli port, will not be considered as breaking the voyage, if the intention was, on sailing, to carry contraband goods to Confederate ports, or to break the blockade mstituted against them. The schooner f'itephen Hart was captured, as lawful prize of war, by the United States vessel of war ISiqiphj, on the 29th of January. 510 BELLIGERENTS AND NEUTRALS. [PAUT IL 1862, off the southern coast of Florida, about 25 miles from Key West, aiul about 82 miles from Point de Yeaeos, in Cuba, bound os- tensibly from London to Cardenas, in Cuba, with a cargo of muni- tions of war and army supplies. Extract from the decision of Betts, J. : — " Many of the principle questions involved in the present case, and in the cases of the >Sprinf/bo/c and the Peterhoiff-\ are alike ; and, as the conclusion at which the court has arrived in all of those cases is to condenni the vessels and their carj^oes, I shall announce, in this case, the leading principles of public law wliich lead to a condemna- tion in all the cases. " On behalf of the libellants, it is urged in this case, 1st. That the Steplien Hart and her cargo were enemy's property when the voyage in question was undertaken, and when the capture was made ; 2d. That the schooner was laden with articles contraband of war, des- tined for the aid and use of the enemy, and on transportation by sea to the enemy's country at the time of capture ; od. That, with a full knowledge, on the part of the owner of the vessel and of the owners of her cargo, that the ports of the enemy were under block- ade, the vessel and her cargo were despatched from a neutral port with an intention, on the part of the owners of each, that in viola- tion of the blockade, both the vessel and her cargo should enter a port of the enemj^ " On the part of the claimants, it is maintained, 1st. That the transportation of all articles, including arms and munitions of war, between neutral ports in a neutral vessel, is lawful in time of war; 2d. That if a neutral vessel, with a cargo belonging to neutrals, be in fact on a voyage from one neutral port to another, she cannot be seized and condemned as lawful prize, although she be laden with contraband of war, unless it be determined that she was actually destined to a port of the enemy upon the voyage on which she was seized, or unless she is taken in the act of violating a blockade. " It is insisted, on the part of the claimants, that the Stephe?i Hart ■was, at the time of her capture, a neutral vessel, carrying a neutral cargo from London to Cardenas — both of them being neutral ports — in the regular course of trade and commerce. On the other side it is contended that the cargo was composed exclusively of articles contraband of war, destined, when they left London, to be delivered to the enemy, either directly, by being carried into a port of the enemy in the Stephen Hart or by being trans-shipped at Cardenas to another vessel; that Cardenas was to be used merely as a port of call for the Stephen Hart, or as a port of trans-shipment for her cargo ; that the vessel and her cargo are equally involved in tlie forbidden CHAP. HI.] THE " STEPHEN HAP.T." 511 transaction ; and that the papers of the vessel Avere simulated and fraudulent in respect to her destination and that of her cai-go. A con- demnation is not asked if the cargo was in fact neutral property, to be delivered at Cardenas for discharge and general consumption or sale tliere, but is only claimed if the cargo was really intended to be delivered to the enemy at some other place than Cardenas, after using that port as a port of call or of trans-shipment, so as to thus render the representations contained in the papers of the vessel false and fraudulent as to the real destination of the vessel and her cargo. " It would scarcely seem possible that there could be any serious debate as to the true principles of public law applicable to the solu- tion of the questions thus presented ; and, indeed, the law is so aa-cII settled as to make it only necessary to see whether the facts in this case bring the vessel and her cargo within the rules which have been laid down by the most eminent authorities in England and in this country. "The principles upon which the government of the United States, and the public vessels acting under its commission, have proceeded, during the present war, in arresting vessels and cargoes as lawful prize upon the high seas, are very succinctly embodied in the in- structions issued by the Xavy Department on the IStli of August, 1862, to the naval commanders of the United States, and which hi- structions are therein declared to be a recapitulation of those there- tofore from time to time given. The substance of those instruc- tions, so far so they are applicable to the present case, is, that a vessel is not to be seized ' without a search carefully made, so far as to render it reasonable to believe that she is engaged in carrying contraband of war for or to the insurgents, and to their ports di- rectly or indirectly by trans-shipment, or otherwise violating the blockade.' " The main feature of these instructions, so far as they bear upon the questions involved in this case, is but an application of the doc- trine in regard to captures laid down by the government of the United States at a very early day. In an ordinance of the Congress of the Confederation, which went into effect on the 1st of February, 1782, 5 Wheaton, Appendix, p. 120, it was declared to be lawful to capture and to obtain condemnation of all ' contraband goods, wares, and merchandises, to whatever nations belonging, although found in a neutral bottom, if destined for the nse of an enemy!' " The soundness of these principles, and the fact that the law of nations, as applicable to cases of prize, has been observed and applied by the government of the United States and its courts during the present war, was fully recognized by Earl Russell, her Britannic 512 BELLIGERENTS AXD NEUTRALS. [rAET U. Majesty's principal secretary of state for foreign affairs, in his re- marks made in the House of Lords on the iSth of May last. Earl Iiussell there stated that the judg-ments of the United States prize courts, which had been reported to her ]\Iajesty's government durhig the present war, did not evince any disregard of the estab- lished i)rinciples of international law ; that the law officers of the Crown, after an attentive consideration of the decisions which had been laid before tliem, were of opinion that there was no rational ground of complaint as to the judgments of the American prize courts; and that the law of nations in regard to the search and seiz- ure of neutral vessels had been fully and completely acknowledged by the government of the United States. On the same occasion Earl Russell remarked : ' It has been a most profitable business to send swift vessels to break or run the blockade of the southern ports, and carry their cargoes into those ports. There is no munic- ipal law in this or any country to punish such an act as an offence. I understand that every cargo which runs the blockade and enters Charleston is worth a million of dollars, and that the profit on these transactions is immense. It is well known that the trade has attracted a great deal of attention in this country from those who have a keen eye to such gains, and that vessels have been sent to Xassau in order to break the blockade at Charleston, "Wilmington, and other places, and carry contraband of war into some of the ports of the Southern States.' He added : ' I certainly am not prepared to de- clare, nor is there any ground for declaring, that tlie courts of the United States do not faithfully administer the law; that they will not allow evidence making against the captors ; or that they are likely to give decisions founded, not upon the law, but upon their own passions and national partialities.' He also said, that in a case of simulated destination — that is, a vessel pretending that she is going to Xassau, when she is in reality bound to a port of the ene- my — the right of seizure exists. " The then solicitor-general of England ( Sir Roundell Palmer) stated, in the House of Commons, on the 29th of June last, referring to the cases of the Dolphin and the Pearly decided by the district court for the southern district of Florida (those vessels having been captured while ostensibly on voyages from Liverpool to Nassau, and it having been held by the court that the intention of the owners of the vessels was that they should only touch at Xassau, and then go and break the blockade at Charleston), that ' if the owners imagined that the mere fact of the vessel touching at Xassau Avhen on such an expedition exonerated her, they \vere very much mistaken ;' that the principles of the judgment in the case of the Dolphin 'were to OHAP. TI!.] THE "STEPHEN HART." 513 be found in every volnme of Lord Stowell's decisions ;' that it was well known to everybody that there was a large contraband trade between Elngland and America by way of Nassau ; that it was absurd to pretend to shut their eyes to it; and that the trade witli Nassau and ]\Iatanioras liad become what it was in consequence of the war. " The Foreign Office of Great Britain, in a letter to the owner of the Peterhoff, on the 3d of April last, announced as its conclusion, after having communicated with the law officers of the Crown, that the government of the United vStates has no right to seize a British vessel honafide bound from a British port to another neutral port, unless such vessel attempts to touch at, or has an intermediate or contingent destination to, some blockaded port or place, or is a car- rier of contraband of war destined for the enemy of the United States ; that her Majesty's government, however, cannot, without violating the rules of international law, claim for British vessels navigating between Great Britain and such neutral ports any gen- eral exemption from the belligerent rigiit of visitation by the cruisers of the United States, or proceed upon any general assumption that such vessels may not so act as to render their capture lawful and justifiable ; that nothing is more common than for those who con^ template a breach of blockade or the carriage of contraband, to dis- guise their purpose by a simulated destination and by deceptive papers ; and that it has already happened, in many cases, that Brit- ish vessels have been seized while engaged in voyages apparently law- ful, and have been afterwards proved in the prize courts to have been really guilty of endeavoring to break the blockade, or of carry- ing contraband to the enemy of the United States. " The cases of the Stephen Hart, the /Sprinr/bok, the Peterhoff, and the Gertrude illustrate a course of trade which has sprung up during the present war, and of which this court will take judicial cognizance, as it appears from its own records and those of other courts of the United States as well as from public reputation. Those neutral ports have suddenly been raised from ports of comparatively in- significant trade to marts of the first magnitude. Nassau and Car- denas are in the vicinity of the blockaded poi'ts of the enemy, while Matamoras is in Mexico, upon the right bank of the Rio Grande, directly opposite the town of Brownsville, in Texas. The course of trade, in respect to Nassau and Cardenas, has been generally to clear neutral vessels, almost always under the British flag, from English ports for those places, and, using them merely as j)orts either of call or of trans-shipment, to either resume new^ voyages from them in the same vessels, or to trans-ship their cargoes to fleet steamers, with which to run the blockade, the cargoes being- composed, in almost 33 514 BELLIGEKEXTS AMD NErTRALS. [PAKT II. all cases, more or less, of articles contraband of war. The character and. course of this trade, and its sudden rise, are verj^ properly com- mented upon in a despatch from the Secretary of State of the United States to Lord Lyons, of the 12th of May, 1863. " The broad issue upon the merits in this case is, whether the ad- venture of the /Stephe?i Hart was the honest voyage of a neutral vessel from one neutral port to another neutral, carrying neutral goods between those two ports only, or was a simulated voyage, the cargo being contraband of war, and being really destined for the use of the enem}', and to be introduced into the enemy's country by a breach of blockade by the Stephen Hart, or by trans-shipment from her to another vessel at Cardenas. It is conceded in the argument of the leading counsel for the claimants that if the property was owned by the enem}-, and was fraudulently on its way to the enemy as neutral property, it was enemy's property, and was liable to capture, no matter whence it came or whither it was bound ; and that, if the vessel were really intending and endeavoring to run the blockade, the property was liable to capture, no matter to whom it belonged or what was its character; but that if it was neutral prop- erty, in Imrfid commerce, it was safe from seizure. "The question whether or not the property laden on board of the Stephen Hart was being transported in the business of lawful com- merce, is not to be decided by merely deciding the question as to Avhether the vessel was documented for, and sailing upon, a voyage from London to Cardenas. The commerce is in the destination and intended use of the property laden on board of the vessel, and not in the incidental, ancillary, and temporary voyage of the vessel, Avhich may be but one of many carriers through which the property is to reach its true and original destination. If this were not the riile of the prize law, a very wide door would be opened for fraud and evasion. A cargo of contraband goods, really intended for the enemy, might be carried to Cardenas in a neutral vessel sailing from England with papers Avhich, upon their face, import merely a voyage of the vessel to Cardenas, wliile in fact, her cargo, when it left Eng- land, was destined by its owners to be delivered to the enemy by being trans-shipped at Cardenas into a swifter vessel. And such, indeed, has been the course of proceeding in many cases during the present war. * * * "The law seeks out the truth, and never, in any of its branches, tolerates any such fiction as that under Avhicli it is sought to shield the vessel and her cargo in the present case. If the guilty intention, that the contraband goods should reach a port of the enemy, existed when such goods left their English port, that guilty CHAr. Il[.] THE "MARIA." 515 intention cannot be obliterated by tlie innocent intention of stoppings at a neutral port on the way. If tliere be, in sto[)[)ing at sucli port, no intention of trans-shipping the cargo, and if it is to proceed to the enemy's country in the same vessel in wliich it came from Enghmd, of course there can be no purpose of lawful neutral commerce at the neutral port by the sale or use of the cargo in the market there ; and the sole purpose of stopping at the neutral port must merely be to have upon the papers of the vessel an ostensible neutral terminus for the voyage. " If, on the other hand, the object of stopping at the neutral port be to trans-ship the cargo to another vessel to be transported to a port of the enemy, while the vessel in which it was brought from England does not proceed to the port of the enemy, there is erpially an absence of all lawful neutral commerce at the neutral port ; and the only commerce carried on in the case is that of the transporta- tion of the contraband cargo from the English port to the port of the enemy, as was intended when it left the English port. This court holds that, in all such cases, the transportation or voj'^age of the contraband goods is to be considered as a unit, from the port of lading to the port of delivery in the enemy's country; that if any part of such voyage or transportation be unlawful, it is unlawful throughout ; and that the vessel and her cargo are subject to capture ; as well before arriving at the first neutral port at which she touches after her departure from England, as on the voyage or transporta- tion by sea from such neutral port to the port of the enemy. * * * " There must, therefore, be a decree condemning both vessel and cargo." ^ Section 49. — Visit axd Search. THE "MARIA." A vessel sailing under convoy of an armed shii? for the purpose of avoiding visitation and search is liable to condemnation. This was the leading case of a fleet of Swedish merchantmen, car- rying pitch, tar, hemp, deals, and iron, to several ports of France, ' Cases involving the same principles, are the Springhok, 5 Wallace, 1 : The Peterhoff, 5 Wallace, 28, and others. The judgment of Betts, J., in the Stephen Hart was subsequently briefly affirmed by the Supreme Court, and it (Beits' judgment) is on the whole the clearest and most forcible statement of the prin- ciples and the circumstances involved in these cases, to be found in the reports. 516 BELLIGKKEXTS AND NEUTItALS. [I'AKT H, Portugal, and the Mediterranean ; and taken, Jan., 1798, sailing under convo}' of a ship of war, and proceeded against for resistance of visitation and search by British cruisers. Judgment, — Sir W. Scott. — (Onl}' so much of the judgment is here given as ai)plies to general principles). " * * * Tliis being the actual state of facts, it is j) roper for me to examine, 'idly, what is their legal state, or, in other words, to what considerations they are justly subject, according to the law of nations ; for which purpose I state a few principles of that system of law which I take to be incontro- A'ertible. "1st, That the right of visiting and searching merchant ships upon the high seas, whatever be the ships, Avhatever be the cargoes, whatever be the destinations, is an incontestible right of the law- fully commissioned cruisers of a belligerent nation. I say, be the ships, the cargoes, and the destinations what they may, because, till they are visited and searched, it does not appear what the ships, or the cargoes, or the destinations are ; and* it is for the purpose of ascertaining these points that the necessity of this right of visitation and search exists. This right is so clear in principle, that no man can deny it who admits the legality of maritime capture ; because if jon are not at liberty to ascertain by sufficient inquiry wdiether there is property that can legall}^ be captured, it is impossibde to capture. Even those who contend for the inadmissible rule, that free ships make free [/oodft, must admit the exercise of this right at least for the purjiose of ascertaining whether tlie ships are free ships or not. The right is equally clear in pi-actice ; for practice is uni- form and universal upon the subject. Tlie many European treaties wliich refer to this right, refer to it as pre-existing, and merely reg- ulate the exercise of it. All writers upon the law of nations unani- mously acknowledge it, without the exception even of Ilubner himself, the great champion of neutral privileges. In short, ]io man in the least degree conversant in subjects of this kind has ever, that I know of, breathed a doubt upon it. The right nuist unquestional)h^ be exercised with as little of personal harshness and of vexation in the mode as possible ; but soften it as much as you can, it is still a right of force, though of lawful force — sometliing in the nature of civil process, where force is employed, but a lawful force, which cannot lawfully be resisted. For it is a wild conceit that wherever force is used, it may be forcibly i-esisted; a lawful force cannot lawfully be resisted. The only case Avhere it can be so in matters of this nature, is in the state of war and conflict between two countries, where one party has a perfect i-ight to attack by force, and the other has an equally perfect right to repel by force. But in the relative situation CHAP. III.] THE "MARIA." 517 of two countries at peace with eacli otlier, no suc;li conflicting:: riglits can possibly coexist. "tidly, Tliat tlie authority of the Sovereign of tlie neutral country being interposed in any manner of mere force cannot lef/ally vary the rights of a lawfully-commissioned belligerent cruiser ; I say legally^ because what may be given, or be fit to be given, in the ad- ministration of this species of law, to considerations of comity or of national policy, are views of the matter which, sitting in this Court, I have no right to entertain. AH that I assert is, that le(/(ilhj it can- not be maintained, that if a Swedish commissioned cruiser, during the wars of his own countr}^ has a right by the law of nations to visit and examine neutral ships, the King of England, being neutral to Sweden, is authorized by that law to oljsti'uct the exercise of that right with respect to the merchant-ships of his country. I add this, that I cannot but think that if he obstructed it by force, it would very much resemble (with all due reverence be it spoken) an opjiosi- tion of illegal violence to legal right. Two sovereigns may unques- tionably agree, if they think fit, (as in some late hi stances they have agreed,) by special covenant, that the presence of one of their armed ships along with their merchant-ships shall be mutually understood to imply that nothing is to be found in that convoy of merchant-ships inconsistent with amity or neutrality ; and if they consent to accept this pledge no third party has a right to quarrel with it any more than with any other pledge which they may agree mutually to accept. But surely no sovereign can legally com[)el the acceptance of such a security by mere force. The only security known to the law of na- tions upon this subject, independent of all special covenant, is the right of personal visitation and search, to be exercised by those who have the interest in making it. I am not ignorant, that amongst the loose doctrines which modern fancy, under the various denomi- nations of philosophy and philanthropy, and I know not Avhat, have thrown upon the world, it has been within these few years advanced, or rather insinuated, that it might possibly be well if such a security were accepted. Upon such unauthorized speculations it is not nec- essary for me to descant : the law and practice of nations (I include l)articularly the practice of Sweden when it happens to be belligerent) give them no sort of countenance; and until that law and practice are new-modelled in such a toay as may surrender the known and ancient rights of some nations to the present convenience of other nations, (which nations may perhaps remember to ybrye^ them, when they happen to be themselves belligerent,) no reverence is due to them ; they are the elements of that system which, if it is consistent, has for its real purpose an entire abolition of cai)ture in war — that 518 BELLIGERENTS AND NEUTRALS. [PART II. is, in other words, to change tlie nature of hostility, as it has ever existed among-st nianlvind, and to introduce a state of things not yet seen in the world, that of a military war and a conunercial peace. If it were fit that such a state should be introduced, it is at least necessary that it should be introduced in an avowed and intelligible manner, and not in a way which, professhig gravely to adhere to that system which has for centuries [jrevailed among civilized states, and urging at the same time a pretension utterly inconsistent with all its known principles, delivers over the whole matter at once to eternal controversy and conflict, at the expence of the constant hazard of the harmony of states, and of the lives and safeties of innocent individuals. " odly. That the penalty for the violent contravention of this right is the confiscation of the property so w^ithheld from visitation and search. For the proof of this I need only refer to Vattel, one of the most correct and certainly not the least indulgent of modern profes- sors of public law." ^ See Book III., c. vii., sect. 11-1. Section 50. — Prize Courts. DECISIONS OF PPJZE COURTS. ( Lawrence's WJieaton, 960.) Tlie decision of a prize court is conclusive in I'espect of the title to tlie property. "The constitution of prize courts is an anomaly in jurisprudence. Deriving their authority from one nation, they pass irrevocably on the title to the property belonging to the citizens or subjects of an- other. Tribunals exclusively of the belligerents, they pronounce on the rights of neutrals, who have no other appeal from the admiralty courts in the last resort than to the justice of the sovereign of the captor, through the diplomatic interposition of their own govern- ment. "In England the common law courts, whatever protection they may have given to the rights of propert}^ as well as of person, have from an early day recognized the conclusiveness of foreign prize decisions on the question of title. A case in the King's Bench, which ' See also the case of the Marianna Flora. 11 Wlieaton, 1. For decisions on Visit and Search in time of jjeace, see Le Louis, supra, % 20 (c) -. The Antelope, 10 Wheaton, 119. CHAP. III.] PRIZE COURTS ON BOARD SHIPS. 519 occurred in 1683 (34 Car. 11.), while declaring the absence in such cases of jurisdiction in the court, points out the only remedy for the party ag-grieved. Trover having been brought by the original owner, an English denizen, for a Dutch built ship taken in the war between the Dutch and French, as a Dutch i)rize, and condennied in the French admiralty court, the chief question was, whether the sentence should be examined by the common law courts. ' It was resolved that it shall not, because, though it be in another king's dominions, we ought to give credit to it, or else they will not give credit to the sentences of our court of admiralty. And the defendants are at no prejudice. The way is, if they find themselves aggrieved, to petition the king, who will examine the case, and, if he finds cause of com- plaint, will send to his ambassador residing with the prince or state w^here the sentence was given, and upon failure of redress, will grant letters of marque and reprisal.' " ^ PRIZE COURTS OX BOARD SHIPS. {Captain Semmes : ''Cruise of tJte Alabama,"' I., 346.) Does International Law sanction the establishment of prize courts by com- manders of belligerent cruisers, on board their ships ? Captain Semmes, of the Confederate steamer Stanpter, and later commander of the Alabama, would seem to have turned his cabin into a prize court on the occasion of every capture made by him. It has generally been held that the commander of a belligerent cruiser has no right to decide controverted questions arising in cases of prize. He seizes a vessel on the belief or suspicion that she is enemy's property, or that she is engaged in a forbidden commerce, it is left to the prize court of the captor's country to determine whether these suspicions are warranted or not. During his cruises in the Sumpter and the Alabama, Captain Semmes had occasion to adjudicate in more than seventy cases of prize ; in fifty-nine of these cases, ship and cargo w-ere condemned as enemy's property, and burned ; in nine cases the ships were re- leased on ransom bonds, the cargoes being plainly neutral. But in a large number of the cases of those condemned and burned, there were claims for the cargoes as neutral property. Captain Semmes seems to have condemned the cargo, unless there was positive proof ' For the constitution and functions of prize courts, see Lawrence's ^\^leaton, S60 ; Baker's HaUeck, XL, 411 ; PhiUimore, III., 648-679. 520 BELLIGERENTS AND NEUTRALS. [PART H. of its neutrality. This practice was carried on 1)}' him and others for four years, and was acquiesced in t)y neutral nations ; who per- mitted their ships to be searched and their property adjudicated upon by these connnanders. They received them into their ports, and supplied them with provisions and coal. Who shall say, there- fore, that liereafter a prize court may not be established on the deck of every belligerent man-of-war, the commander constituting sucli court '? The following is a specimen of Captain Semmes' procedure, taken froni his own memorandum. Case of the Lafayette (•• Cruise of the Alabama," I., .846) : — " Ship and cargo condenuied. The cargo of this ship was con- demned by me as enemy's property, notwithstanding there were dej^ositions of the shippers that it had been purchased by them on neutral account. These ex parte statements are precisel}^ such as everj^ unscrupulous merchant would prepare, to deceive his enemy and save his property from capture." After an extended discussion of the case, showing that there Avas fraud, and that the neutrality of the cargo was not established, Captain Semmes continues : — " 3d Phillimore, 599, to the effect, that ' further proof ' is always necessary where the master cannot swear to the ownership of the property (as in this case). And as I cannot send my prizes in for adjudication, I must of necessity condemn in all cases where 'fur- ther proof is necessary, since the granting of 'further proof pro- ceeds on the presumption that the neutrality of the cargo is not sufficiently established ; and where tlie neutrality of the property does not fully appear from the ship's papers and the master's deposi- tion, I had the right to act upon the presumption of enemy's property." Again, in the case of the U.tpress {lb., 167), in which ship and cargo were condemned. "It must be admitted that this is a case in which, perhaps, a prize court would grant ' further proof ; ' but as I cannot do this, and as a distinct neutral character is not impressed upon the property by former evidence, I must act under the pre- sumption of law. See .3d Phill., 580." The following is an extract from the " Cape Argus," giving an in- terview with Captain Semmes : — "You English people won't l)e neighborly. enough to let me bring my prizes into your ports and get them condemned, so tliat I am obliged to sit here a court of uajself try ever}^ case, and condemn the ships I take," APPENDIX. A. THE BEIIRIXG SEA ARBITRATIOX, 1893. i May a State exercise jurisdiction on the high seas for the purpose of protect- ing fur-seals, which, for several months in each year, remain on land in its territory. The controversy in this case g'rew out of the seizure by United States revenue cutters, in Behring Sea, of sixteen Canadian vessels, between August 1st, 1886, and Marcli 27tli, 1890, for talcing seals in that sea. These seizures were all made beyond the three-mile limit, at distances varying from fifteen to one hundred and fifteen miles from land. It was supposed that tlie United States acted upon the assumption that Behring Sea was mare clausuyn. Tliat was the view taken of it by Judge Daavsox, of the District Court of Alaska; who, in charging the jury in the case of one of these vessels (the Thornton)^ said: "All the waters within the boundary set forth to the western end of the Aleutian Archipelago and chain of islands are to be considered as comprised within the waters of Alaska. * * * "If the jury believe the defendant killed any otter, miidc, marten, sable, or fur-seal, or other fur-bearing animals on the shores of Alaska, or in the Behring Sea, east of the 1938 of west longitude, they shall find him guilty. * * *" So, Chief Justice Fuller, in delivering the opinion of the court in the Sayward case, assumed that the seizure was made by right of mare dausum. But the government of the United States did not press thatclaim„ Mr. E. J, Phelps, in a despatch to Mr. Blaine, September 12th, 1888, said : — "Here is a valuable fishery, and a large and, if properly managed, ' On account of the recent date of this decision, it has heen impossible to put it in its proper i:)lace in the body of the book ( ••Jurisdiction on the High Seas " ). Tlie arguments of the English counsel have not come to hand, and therefore are not represented in tliis report. 521 522 APPENDIX. peniianent iiidusti-}', tlie property of the nation on whose shores it is carried on. It is proposed by tlie colony of a foreign nation, in defiance of the joint renionsti-ance of all the conntries interested, to destroy this business by the indisciiniinate slang'hter and extermina- tion of the animals in cpiestion in the open neighboring' sea, during the period of gestation, Avhen the connnon dictates of humanity ought to protect them, were there no interests at all involved. And it is suggested that we are prevented from protecting ourselves against such depredations because the sea, at a certain distance from the coast, is free. "The same Ihie of ai-gunient would take under its protection piracy and the slave trade, when prosecuted in the open sea, or would justify one nation in destroying the commerce of another by placing dangerous obstructions and derelicts in the open sea near its coasts. There are many things that cannot be allowed to be done on the open sea with impunity, and against which every sea is mare (■hiiision. And the right of self-defense as to person and property prevails there as fully as elsewhere. If the fish upon Canadian coasts could be destroyed by scattering poison in the open sea adja- cent, Avitli some small profit to those engaged in it, would Canada, upon the just principles of international law, be held defenseless in such a case? Yet that process would be no more destructive, inhuman, and wanton than this. " If precedents are wanting for a defense so necessary and so proper, it is because precedents for such a course of conduct are like- wise unknown. The best international law has arisen from prece- dents that have been established when the just occasion for them arose, undeterred by the discussion of abstract and inadeciuate rules." The views thus expressed by Mr. Phelps were declared by Mr. Blaine, to be the views adopted by the Government of the United States. J//-. Blaine's statement of the issues, January *J2d, 1890, to Sir Julian Pauncefote : — '■ In the opinion of the President, the Canadian vessels arrested and detained in the Beliring Sea were engaged in a pursuit that was contra honos mores, a pursuit which of necessity involves a serious and permanent injury to the rights of the goverinnent and people of the United States. To establish this ground it is not necessary to argue the question of the extent and nature of the sovereignty of this government over the waters of the Behring Sea ; it is not neces- sary to ex[)lain, certainly to define, the powers and privileges ceded by Ilis Imperial Majesty the Emperor of liussia in the treaty by which the Alaska Territory was transferred to the United States. THE BEHRrXOx SEA AKIIITKATION. 523 The weighty considerations growing; out of tlie acquisition of that Territory, with all the riglits on hind and sea inseparahly connected ilierewith, may be safely left out of view, while tlie grounds are set forth upon which this government rests its justification for the ac- tion complained of Ijy Her Majesty's Government." The grounds set forth ai'e these : — (1) The value of the sealeries and the absence of any interference with them down to 1880. (•2) That the taking of seals in the open water rapidly leads to their extermhiation, because of the indist;riminate slaughter of the animal, especially of the female; with which slaughter Mr. Blaine contrasts the careful methods pursued by the United States Gov- ernment in killing seals upon the Islands. (o) That the right of defense by the United States against such extermination is not confined to the three-mile limit, and Mr. Blaine remarks as follows : " does Her Majesty's Government seriously maintain that the law of nations is powerless to prevent such vio- lation of the common rights of man? Are the supi)orters of justice of all nations to be declared incompetent to prevent wrongs so obvious and so destructive. " In the judgment of this Government, the law of the sea is not lawlessness. Nor can the law of the sea, and the liberty which it confers, and which it protects, be perverted to justify acts which are immoral in themselves, which inevitably tend to results against the interests and against the welfare of mankind." By the treaty of February 29, 1892, the two governments agreed to refer the questions in dispute to a tribunal of arbitration, to be composed of seven arbitrators, two to be named by each of the con- tracting powers, one by the I'resident of the French liepublic, one by the King of Italy, and one by the King of Sweden and Norway- Article II. of the treaty contains the Ave points of dispute to be passed upon by the tribunal, as follows : Art. YI. "In deciding the matters submitted to the Arbitrators, it is agreed that the following five points sliall be sulimitted to them, in oi'der that their award shall embrace a distinct decision upon each of said five points, to wit : — " 1. What exclusive jurisdiction in the sea now kncnvn as the Behring's Sea, and what exclusive rights in the seal fisheries there- in, did Ilussia assert and exercise prior and \i[) to the time of the cession of Alaska to the United States y " 2. How far were these claims of jurisdiction as to the seal fish- eries recognized and conceded by Great Britain ? "3. Was the body of water now known as the Uchi-iug Sea in- cluded in the phrase ' Pacific Ocean,' as used in the treaty of 1«25 524 ' APPENDIX. between Great Britain and IJiissia ; and what rights, if any, in the Beliring Sea were held and exclusively exercised by Kussia after said Treaty ? "4. Did not all the rights of Russia as to jurisdiction, and as to the seal tisheries in Beliring Sea east of the water boundary, in the Treaty between the United States and Russia of the oOth ^lareh, 1867, pass unimpaired to the United States under that Treaty? " 5. Has the United States any right, and if so, what right of pro- tection or property in the fur-seals frequenting the islands of the United States in Behring Sea when such seals are found outside the ordinary three-mile limit?" In the event of a decision against the United States on these points, the seventh article provides for the establishment of concur- rent regulations for the waters beyond the jurisdiction of either party. Under the provisions of this treaty, the tribunal met in Paris in the spring of 1893. The Arbitrators were as follows : — Baron de Courcel, France (President) ; ^Marquis Emilio Yisconti- Venosta, Italy ; M. Gregero W. W. Gram, Sweden and Xorway ; Lord Ilannen, and Sir John S. D. Thompson, Enghuid ; and Justice John M. Harlan, and Senator John T. Morgan, United States. The counsel on the part of the United States were Messrs. Ed- ward J. Phelps, James C. Carter, Frederick R. Coudert, and Henry Blodgett; on the part of England, Sir Charles Russell, Sir Richard "\Vel)ster, and others. When the evidence was before the Tribunal, it appeared that the United States had a very weak case in respect of the first two points to be considered: and this was evident indeed from the moment of the discovery of the false translations of certain Russian documents, imi)osed upon the government of the United States by a peison employed by it. On the third point, the decision was unanimous in favor of the English contention. That being the state of the case as to the first three points, the fourth was of no weight either way. Thus the real issue before the tribunal was upon the fifth point, that the United States had a i-ight of property in the seals, and a furtlier right to protect this property on the high seas, and to these points the chief weight of the American argument was directed. On the question of property in the seals, Mr. Carter said : " The United States hold that tlie ownership of the islands upon which seals breed; that the habit of the seals in regularly resorting thereto and rearing their young theref)n; that their going out in search of food and i-egularly returning thereto, and all the facts and inci- THE P.EIIinNG SEA Ar.BlTKATION. 525 dents of their relation to the islands, give to the United States a property interest therein ; that this property interest was chinned and exercised by Russia during the whole period of its scnereignty over the land and waters of Alaska; that England recognized that property interest so far as recognition is implied by abstaining from all interference with it during the whole period of Russia's owner- ship of Alaska, and during the first nineteen years of the sovereignty of the United States. ]Mr. Carter argues at great length to i)rove, from the Civil Law and the Common Law, the right of property in animals fercn naturae. He quotes Justinian, Savigny, Puffendorf, IJracton, IJowyer, Yattel, Hautefeuille, Kent, and others ; and the cases of The /Swans, 7 Coke, 15b; Keeble v. HicJceringill, 11 East, 574; Amory v. Fhjn, 10 John., 102; Goff^. Kitts, 15 Wend., 550; Blades v. ilUjgs, 12 C. 13. X. S., 512 ; Davis v. PoiDell, Willes, 1787. On the question of the right to protect the seals on the high seas, Mr. Phelps said, the case of the Government of the United States was : " 1st. That in view of the facts and circumstances established by the evidence, it has such a property in the Alaskan seal herd, as the natural product of its soil, made chiefly available by its protection and expenditure, highly valuable to its people, and a considerable source of public revenue, as entitles it to preserve the herd from de- struction in the manner complained of, b}^ an employment of such reasonable force as may be necessary. "2d. That irrespective of the distinct right of property, in the seal herd, the United States Government has for itself and for its people, an interest, an industry, and a commerce derived from the legitimate and proper use of the produce of the seal herd on its territory, which it is entitled, upon all principles applicable to the case, to protect against wanton destruction by individuals, for the sake of the small and casual profits in that way to be gained ; and that no part of the high sea is or ought to be open to individuals, for the purpose of accom- plishing the destruction of national interests of such a character and importance. " Third That the United States, possessing as they alone possess, the power of preserving and cherishing this valuable interest, are in a most just sense the trustee thereof for the benefit of mankind, and should be permitted to discharge their trust without hindrance." In support of this view, Mr. Phelps quotes, Grotius, Kent, Twiss, etc., and the following cases : The Marianna Flora ^ 11 Wheaton, 41 ; Churrh V. Hubbart, 2 Cranch, 287, Queen v. Keyn, L. R., 2 Ex. Div., 63 ; Ease v. Himehj, 4 Cranch, 287 ; The Success, 1 Dod., 133 ; The Fox, Ed., 314 ; The Snipe, Ed., 382. 526 APPENDIX. DECISION. After a preamble stating the case suhiiiitted for decision, the full text of the award runs as follows: (New York Herald^ August 16, 1S93.):— "We decide and determine as to the five points mentioned in ar- ticle 6, as to whicli our reward is to embrace a distinct decision upon each of them : — " As to the first of said five points, we, liaron de Conrcel, John M. Harlan, Lord Ilaniien, Sir John S. D. Thompson, Marquis Emilio Visconti-Venosta and Gregero W. W. Gram, being a majority of said arbitrators, do decide as follows : — "By the ukase of 1821 Russia claimed jurisdiction in the sea now known as Behring Sea to the extent of one hundred Italian miles from the coasts and islands belonging to her, but in the course of the negotiations wdiich led to the conclusion of the treaty of 1824 M'ith the United States and the treaty of 1825 with Great Britain, Russia admitted that her jurisdiction in said sea should be restricted so as to reach a cannon shot from shore. It appears, that from that time up to the time of the cession of Alaska to the United States, Russia never asserted in fact or exercised any exclusive jurisdiction in Behring Sea or any exclusive rights to the seal fisheries therein beyond the ordinary limit of territorial waters. "As to the second of the five points, we, Baron de Courcel, John 31. Harlan, Lord Hannen, Sir John S. D. Thompson, Marquis Emilio Vis- conti-Yenosta and Gregero \Y. W. Gram, being a majority of said ar- bitrators, decide and determine that Great Britain did not recognize or concede any claim upon the part of Russia to exclusive jurisdiction as to the seal fisheries in Behring Sea outside the ordinary territorial waters. " As to the tliii'd point, as to so much thereof as requires us to de- cide whether the body of water now known as Behring Sea was in- cluded in the phrase 'Pacific Ocean' as used in the treaty of 1825 between Great Britain and Russia, Ave unanimously decide and de- termine that the body of water now known as Behring Sea was in- cluded in the phrase ' Pacific Ocean ' as used in said treaty. " On the fourth point Ave decide and determine that all the rights of Russia to jurisdiction and to the seal fisheries passed to the L'nited States, limited by the cession." On the fifth point the decision of the trilnuial, Justice Harlan and Senator Morgan dissenting, was as follows: — "On the fifth point, Ave, Baron de Courcel, Lord Ilannen, Sir John S. D. Thompson, Marquis Emilio Visconti-Venosta and Gregero W. THE BEHWNG SEA ARBITRATION. 527 W. Gram, being the majority of said arbitrators, decide and deter- mine that tlie United States have no right to the protection of or property in the seals freqnenting the ishmds of tlie United States in Behring Sea when tlie same are fonnd outside the ordinary three- mile limit. "And whereas the aforesaid deternnnation of the foregoing ques- tions as to the exclusive jurisdiction of the United States leaves the subject in such a position that tlie concurrence of Great liritain is necessary to tlie establishment of regulations for tiie proper protec- tion and preservation of fur seals habitually ix'sorting to Behring Sea, we, Baron de Courcel, Lord ITannen, Marquis Emilio Yisconti- Vennsta and Gregero W. W. Gram, being a majority of the arbitra- tors, assent to the whole of the nine articles of the following regula- tions as necessary outside of the jurisdiction limits of the respective governments, and that they should extend over the waters herein- after mentioned : — "Art. 1.— The United States and Great B.ritain shall forbid their citizens and sul)jects respectively to kill, capture or pursue at any time or in any maimer v/hatever the animals commonly called fur seals within a zone of sixty miles around the Pribyloff Islands, inclusive of the territoritd water, tiie miles being geographical miles, sixty to a degree of latitude. " Art. 2. — The two governments shall forbid their citizens or sub- jects to kill, capture or pursue in any maniicr whatever during a season extending in each year from May 1 to July 31 inclusive fur seals on the high part of the sea in that part of the Pacific Ocean inclusive of Behring Sea, situated north of the thirty-fifth degree of north latitude, or eastward of the 180th degree of longitude from Greenwich until it strikes the water boundary described in article 1 of the treaty of 1867 between the United States and Russia, follow- ing that line up to Behring Straits. " Art. 3. — During the period of time in the waters in which fur- sealing is allowed only sailing vessels shall be permitted to carry on or take part in fur-sealing operations. They will, however, be at liberty to avail themselves of the use of such canoes or undecked boats, pro- pelled by paddles, oars or sails, as arc in common use as fishing boats. " Art. 4. — Each sailing vessel authorized to carry on fur-sealing must be provided with a special license issued for the purpose by its government. Each vessel so employed shall be required to carry a distinguishing flag prescribed by its government. " Art. 5. — The masters of vessels engaged in fur-sealing shall enter accurately in an official log-book the date and place of each operation, the number and the sex of the seals captured daily. These entries 628 . APPEXDIX. shall be coniinuiiicated Ly each of the two governments to each other at the end of each season. " Art. G. — The use of nets, firearms or explosives is forbidden in fur-sealing-. Tliis restriction sliall not apply to shotguns when such are used in fisliing outside of Behring Sea during the season when sucli may lawfully be carried on. " Art. 7. — The two governments shall take measures to control the fitness of the men auth(n'ized to engage in sealing. These men sjiall have been proved fit to handle with sufficient skill the weapons by means of which seal fishing is carried on. "Art. 8. — The preceding regulations shall not ap^jly to Indians dwelHiig on the coast of the territories of the United States or Great Britain carrying on fur-sealing in canoes or undecked boats not transported by or used in connection Avith other vessels and jiro- pelled wholly by paddles, oars or sails, and manned by not more than five persons, in the way hitherto practised by tlie Indians, provided that such Indians are not employed by other persons, and provided that when so hunting in canoes or undecked boats the Indians shall not hunt fur seals outside the territorial waters under contract to deliver skins to anybody. This exemption is not to be construed to affect the municipal law of either country, nor shall it extend to the waters of Behring Sea or the waters around the Aleu- tian Islands. Nothing herein contained is intended to interfere witli the employment of Indians as hunters or otherwise in connec- tion M'ith sealing vessels as heretofore. " Art. 9. — The concurrent regulations hereby determined with a view to tlie protection and preservation of the fur seals shall remain in force until they have been wholly or in part abolished or modified by a connnon agreement between the United States and Great Brit- ain. Said concurrent regulations shall be submitted every five years to a new examination in order to enable both governments to con- sider whether in the light of past experience there is occasion to make any modification thereof." The arbitrators make a special finding on tlie facts agreed upon by the agents of both governments with reference to the seizure of Brit- ish vessels in Behring Sea in 1887 and 1889. In addition the arbi- trators make certain suggestions to tlie two governments, the most important being that they should come to an understanding to pro- hibit the killing of seals on land or sea for a period of from one to three years, and should enact regulations to carry out the findings of the arbitrators.^ ' This decision forms a fitting end of the struggle of three hundred years for the freedom of the seas ; it is to be hoped that it will not again be questioned. THE DECLARATION OF PAIilS. 529 B. THE DECLARATIOX OF PARrS, 185G. DECLARATION KKSPECTIXG MAUTTIMK T.AAV, SKiXKI) V.Y TIIK PI.KXTPn- TENTIARIKS OF GREAT BRITAIN, AUSTRIA, FRANCE, PRUSSIA, RUSSIA, SARDINIA, AND TURKEY, ASSEMBLED IX CONGRESS AT P.UIIS, APRIL 16, 1856. The Plenipotentiaries ^YIlo signed tlie Treat}^ of Paris of tlie 30th of March, 1856, assembled in conference, — Considering: That Maritime LaAv, in time of war, has long been the subject of deplorable disputes ; That the uncertainty of the law, and of the duties in such a matter, gives rise to differences of opinion between neutrals and. belligerents which may occasion serious difficulties, and even con- flicts; That it is consequently advantageous to establish a uniform doc- trine on so important a point ; That the Plenipotentiaries assembled in Congress at Paris cannot better respond to the intentions by which their governments are animated than by seeking to introduce into international relations fixed principles in this respect : The aboA'e-mentioned Plenipotentiaries, being duly authorized, re- solved to concert among themselves as to the means of attaining this object ; and, having come to an agreement, have adopted the following solemn declaration : 1. Privateering is, and remains abolished. 2. The neutral flag covers enemy's goods, with the exception of contraband of war. 3. Xeutral goods, with the exception of contraband of war, are not liable to capture under the enemy's flag. 4. Blockades, in order to be Ijinding, must be effective, that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy. The Governments of the undersigned Plenipotentiaries engage to bring the present Declaration to the knowledge of the states which have not taken part in the Congress of Paris, and to invite them to accede to it. Convinced that the maxims which they now proclaim cannot but be received with gratitude by the whole world, the undersigned Plenipotentiaries doubt not that the efforts of their governments to obtain the general adoption thereof will be crowned with full suc- cess. 84 O30 APPENDIX. The present Declaration is not and shall not he hindin,tr. except between those Powers who have acceded, or sliall accede t:) it. Done at Paris, April 16, 185G. c. THE DECLAPATIOX OF ST. PETERCCrKO, 18G8. Considering that the progress of civilization should have the effect of alleviating', as nmch as possible, the calamities of war ; That the only legitimate ol)ject which states should endeavor to accomplish during war is to weaken the military force of the enemy ; That for this purpose, it is sufficient to disable the greatest possi- ble number of men ; That this object would be exceeded b}^ the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable ; That the employment of such arms ^^'Ould, therefore, be contrary to the laws of humanity ; The contracting parties engage, mutually, to renounce, in case of war among themselves, the employment, by their military or naval forces, of any projectile of less weight than four hundred grammes, wiiich is explosive, or is charged with fulminating or inflannnable substances. They agree to invite all the states which have not taken part in the deliberations of the International Military Commission, assem- bled at St. Petersburg, by sending delegates thereto, to accede to the present engagement. This engagement is obligatory oidy upon the contracting or ac- ceding parties thereto, in case of war between two or more of them- selves ; it is not applicable with regard to non-contracting powers, or powers that shall not have acceded to it. It will also cease to be obligatory from the moment when, in a w^ar between contracting or acceding parties, a non-contracting party, or a non-acceding party, shall join one of the belligei-ents. The contracting or acceding parties reserve to themselves the right to come to an understanding, hereafter, whenever a precise proposition shall be drawn up, in view of future improvements wliich may be effected in the armament of troops, in order to main- tain the principles which they have established, and to reconcile the necessities of war with the laws of humanity. THE GENEVA CONVENTION. 531 D. TITE GEN^EVA CONVENTION FOII TTTE AMELIORATION OF TUK CONDITION OF THE SICK AND WOUNDED OF AILAIIES IN THE FIELD. Art. I. — Ambulances and iiiilitary hospitals shall be acknowledg-erl to be neuter, and, as such, shall be protected and respected by bel- ligerents so long as any sick or wounded may be therein. Such neu- trality shall cease if the aml)ulances or hospitals should be held l)y a military force. Art. II. — Persons employed m hospitals and ambulances, com- prising the staff for superintendence, medical service, administra- tion, transport of wounded, as well as chaplains, sliall participate in the benefit of neutrality, while so employed, and so long as there remain any wounded to bring in or to succor. Art. III. — The persons designated in the preceding article may, even after occupation by the enemy, continue to fulfill their duties m the hospital or ambulance which they serve, or may withdraw in order to rejoin the corps to which they belong. Lender such circumstances, when these ^lersons shall cease from their functions, they shall be delivered by the occupying army to the outposts of the enemy. Art. TV. — As the equipment of military hospitals remains suliject to the laws of war, persons attached to such hospitals cannot, in withdrawing, carry aAvay any articles but such as are their private property. Under the same circumstances an ambulance shall, on the con- trary, retain its equipment. Art. V. — Inhabitants of the country who may bring lielp to the woinided shall be respected, and shall remain free. The generals of the belligerent powers shall make it their care to inform the inhab- itants of the appeal addressed to their humanity, and the neutrality which will be the consequence of it. Any wounded man entertained and taken care of in a house shall be considered a protection thereto. Any inhabitant who shall have entertained wounded men in his house shall be exempted from the quartering of troops, as well as from a part of the contributions of war which may be imposed. Art. VI. — Wounded or sick soldiers shall be entertained and taken care of, to whatever nation they may belong. Commanders-in-chief shall have the power to deliver immediately, to the outposts of the enemy, soldiers who have been wounded in an 532 APPENDIX. engagement, when circumstances permit this to be done, and with the consent of both parties. Those who are recognized, after their wounds are healed, as inca- pable of serving, shall be sent back to their own counti-y. Tlie others may also be sent back, on condition of not bearing arms during the continuance of the war. Evacuations, together with the persons under Avhose direction they shall take place, shall be protected by an absolute neutrality. Art. VII. — A distinctive and uniform flag shall be adopted for hosiptals, ambulances, and evacuations. It must on every occasion be accompanied by the national flag. An arm badge (brassard) shall also be allowed for individuals neutralized, but the delivery thereof shall be left to military authority. The flag and arm badge shall bear a red cross on a white ground. Art. YIII. — The details of execution of the present convention shall be regulated by the commanders-in-chief of belligerent armies, according to the instructions of their respective governments, and in conformity with the general principles laid down in this convention. Art. IX. — The high contracting powers have agreed to communi- cate the present convention to those governments which have not found it convenient to send plenipotentiaries to the International Convention at Geneva, with an invitation to accede thereto; the protocol is for that purpose left open. Art. X. — The present convention shall be ratified, and the ratifica- tions exchanged at Berne, in four months, or sooner if possible.^ E. IXSTRUCTIOXS FOR TUE GoVERXilEXT OF ArMIES OF TUE UxiTED StATES IX TUE FlELD. GEXEUAL ORDERS,) War Departmext, >• Adji'taxt-Gexeral's Office, Xo. 100. ) Was/iuir/to/i, Ajjril 24, 1S6S. The following " Instructions for the Government of Armies of the United States in the Field," prepared by Fraxcis Lieber, LL. D., and revised ])y a Board of Officers, of which iMajor-General E. A. IIiTcnrocK is president, having been apju-oved by the President of ' The text of the Geneva Convention and of tlie two pi'eceJing Declarations, is taken from the Appendix of Davis" International Law. INSTRUCTIONS FOR U. S. ARMIES IX THE FIELD. 533 the United States, he commands that they he puhhshed for the in- formation of all concerned. By ouDJiii OF THE Secretaky of AVak: E. L>. TOWXSKND, jissistant A<-ljuta)d- General. SECTION I. Martial Law — Military Jurisdiction — Military Necessity — RETALIATIOlSr. 1. A place, district, or country occupied hy an enemy stands, in consequence of the occupation, under the Martial Law of the invad- ing or occupying army, whetlier any proclamation declaring Martial Law, or any public warning to the inhabitants, has been issued or not. Martial Law is the immediate and direct effect and consequence of occupation or conquest. The presence of a hostile army proclaims its Martial Law. 2. IMartial Law does not cease during the hostile occupation, ex- cept by special proclamation, ordered by the commander-in-chief ; or by special mention in the treaty of peace concluding the war, when the occupation of a place or territory continues beyond the conclusion of peace as one of the conditions of the same. 3. Martial Law in a liostile country consists in the suspension, by the occupying military authority, of the criminal and civil law, and of the domestic administration and government in the occupied place or territory, and in the substitution of military rule and force for the same, as well as in the dictation of general laws, as far as military necessity requires this suspension, substitution, or dictation. The commander of the forces may proclaim that the administra- tion of all civil and penal law sliall continue, either wlioUy or in part, as in times of peace, unless otherwise ordered by the military authority. 4. Martial Law is simply military authority exercised in accord- ance with the laws and usages of war. Military oi)pression is not Martial Law ; it is the abuse of the power which that law confers. As Martial Law is executed by mihtary force, it is incumbent upon those who administer it to be strictly guided by tlie principles of justice, honor, and humanity — virtues adorning a soldier even moi'e than other men, for the very reason that he possesses the power of his arms acrainst the unarmed. 534 APPENDIX. 5. IMartial Law should be less stringent in places and countries full}' occupied and fairly conquered. ]\Iuch greater severity may be exercised in places or regions -where actual hostilities exist, or are expected and must be prepared for. Its most complete sway is allowed — even in the commander's own country — when face to face with the enemy, because of the absolute necessities of the case, and of the i^aramount duty to defend the country against invasion. To save the country is paramount to all other considerations. G. All civil and penal law shall continue to take its usual course in the enemy's places and territories under Martial Law, unless in- terrupted or stopped by order of the occupying military power ; but all tlie functions of the hostile government — legislative, executive, or administrative — whetlier of a general, provincial, or local character, cease under Martial Law, or continue only with the sanction, or if deemed uecessary, the participation of the occupier or invader. 7. Martial Law extends to propert}', and to persons, Avhether they are subjects of the enemy or aliens to that government. 8. Consuls, among American and European nations, are not diplo- matic ag'ents. Xevertheless, their offices and persons will be sub- jected to Martial Law in cases of urgent necessity only : their prop- erty and business are not exempted. Any delinquency they commit against the established military rule may be punished as in the case of any other inhabitant, and such punishment furnishes no reasonable groimd for international complaint. 9. The functions of Ambassadors, 31inisters, or other diplomatic agents, accredited by neutral powers to the hostile government, cease, so far as regards the displaced govei'ument ; but the conquer- ing or occupying power usually recognizes them as temporarily accredited to itself. 10. ]\Iartial Law affects chiefly the police and collection of public revenue and taxes, whether imposed by the expelled government or by the invader, and refers mainly to the support and efficiency of the army, its safety, and the safety of its operations. 11. The law of war does not only dischdm all cruelty and bad faith concerning engagements concluded with the enemy during the war, but also the breaking of stipulations solemnly contracted by the belligerents in time of peace, and avowedly intended to remain in force in case of war between the contracting powers. It disclaims all extortions and otlier transactions for individual gain; all acts of private revenge, or connivance at such acts. Offences to the contrai-y shall be severely punished, and especially so if committed by officers. 12. "Whenever feasible. Martial Law is carried out in cases of in- IXSTKUCTIONS FOIL U. S. ARMIES IX THE FIELD. E25 (lividntU ofFenders by :\IiliUiry Conrts; Lnt sentences of deutli sliall be executed only with the approvul of the chief executive, provided the urgency of tlie case does not require a speedier execution, and then only with the approval of the chief commander. l.S. Military jurisdictio)i is of two Ivinds: first, that which is con- ferred and dehned by statute ; second, that which is derived fi-om the common law of war. Military offences under the statute law must be tried in the manner therein directed ; but military offences Avhich do not come within the statute nmst be tried and i)unished under the common law of war. The character of the courts wliich exercise these jurisdictions depends upon the local laws of each particular country. In the armies of the United States the first is exercised by courts- martial ; while cases which do not come within the " Rules and Articles of War," or the jurisdiction conferred by statute on courts- martial, are tried by military commissions. 14. Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war. 15. Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally ujicn;oidable in the armed contests of the war ; it allows of the capturing of every armed enemy, and every enemj^ of impor- tance to the hostile government, or of peculiar danger to the captor ; it allows of all destruction of jiroperty, and obstruction of the ways and channels of traffic, travel, or communication, and of all with- holding of sustenance or means of life from the enemy ; of the ap- jDropriation of Avhatever an enemy's country affords necessary for the subsistence and safety of the army, and of such deception as does not involve the breaking of good faith either positively pledged, regarding agreements entered into during the war, or supposed by the modern lavr of war to exist. Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another, and to God. 16. Military necessity does not admit of cruelty, that is, the in- fliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort con- fessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy ; and, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult. 536 APPENDIX. 17. "War is not carried on by arms alone. It is lawful to starve the hostile belligerent, armed or unarmed, so that it leads to the speedier subjection of the enemy. 18. When the commander of a besieged place expels the non- combatants, in order to lessen the number of those who consume his stock of provisions, it is lawful, tliough an extreme measure, to drive them back, so as to hasten on the surrender. 19. Commanders, whenever admissible, inform the enemy of their intention to boml)ard a i)lace, so that the non-combatants, and es- pecially the women and cliildren, may be removed before the bom- bardment commences. But it is no infraction of the common law of war to omit thus to inform the enemy. Surprise may be a necessity. 20. Public war is a state of armed hostility between sovereign nations or governments. It is a law and requisite of civilized ex- istence that men live in political, continuous societies, forming organized units, called states or nations, whose constituents bear, enjoy, and suffer, advance and retrograde together, in peace and in war. 21. The citizen or native or a hostile country is thus an enem}^ as one of the constituents of the hostile state or nation, and as such is subjected to the hardships of tiie war. 22. Xevertheless, as civilization has advanced during the last centuries, so has likewise steadily advanced, especially in Avar on land, the distinction between the private individual lielonging to a hostile country and the hostile country itself, with its men in arms. The principle has been more and more acknowledged that the un- armed citizen is to be spai-ed in person, property, and honor as much as the exigencies of war Avill admit. 23. Private citizens are no longer murdered, enslaved, or carried off to distant parts, and the inoffensive individual is as little dis- turbed in his private relations as the commander of the hostile troops can afford to grant in the overruling demands of a vigorous war. 24. The almost universal rule in remote times was, and continues to be with barbarous armies, that the private individual of the hostile country is destined to suffer every privation of libertj' and protec- tion, and every disruption of family ties. Protection was, and still is with uncivilized people, the exception. 25. In modern regular wars of the Europeans, and their descend- ants in other portions of the globe, protection of the inoffensive citizen of the hostile country is the rule; privation and disttirbance of private relations are the exceptions. 26. Commanding generals may cause the magistrates and civil INSTRUCTIONS FOR U. S. ARMIES IX TIIH FIELD. 537 officers of the hostile country to tuke tlie oatli of tciiiporai-v alle- giuiice or an oath of MeUty to their own victorious government or rulers, and they may expel every one who declines to do so. But Avhether they do so or not, the people and their civil officers owe strict obedience to them as long- as they hold sway over the district or country, at the peril of their lives. 27. The law of war can no more wholly dispense with retaliation than can the law of nations, of which it is a branch. Yet civilized nations acknowledge retaliation as the sternest feature of war. A reckless enemy often leaves to his ()pi)onent no other means of secur- ing himself against the repetition of barbarous outrage. 28. Retaliation will, therefore, never be resorted to as a measure of mere revenge, l)ut only as a means of protective retribution, and, moreover, cautiously and unavoidably ; that is to say, retaliation shall only be resorted to after careful inquiry into the real occur- rence, and the character of the misdeeds that may demand retribu- tion. Unjust or inconsiderate retaliation removes the belligerents farther and farther from the mitigating rules of a regular war, and l)y rapid steps leads them nearer to the internecine wars of savages. 29. Modern times are distinguished from earlier ages by the exist- ence, at one and the same time, of many nations and great govern- ments related to one another in close intercourse. Peace is their normal condition ; war is the exception. The ulti- mate object of all modern war is a renewed state of peace. The more vigorously wars are pursued, the better it is for human- ity. Sharp wars are brief. 30. Ever since the formation and co-existence of modern nations' and ever since wars have become great national wars, war has come to be acknowledged not to be its own end, but the means to obtain great ends of state, or to consist in defence against wrong ; and no conventional restriction of the modes adopted to injure the enemy is any longer admitted ; but the law of war imposes many limita- tions and restrictions on principles of justice, faith, and honor. skctiox ii. Public axd Private Pkopekty of the Exemy — Peotectiox of Per- sons, AND especially Wojeen ; OF Religion, the Arts and Sciences — Punishment of Crimes against the Inharitaxts of Hostile Countries. 31. A victorious army appropriates all public money, seizes all public movable property until further direction by its government, 538 APPENDIX. and sequester.s f )r its own benefit or tliat of its government all the revenues of real })roperty belonging to the hostile government or nation. The title to such real property remains in abeyance during military occupation, and until the conquest is made complete. 32. A victorious array, by the raartial power inhex'ent in the same, may suspend, change, or abolish, as far as the martial j)0wer extends, the relations which arise from the services due, according to the ex- isting laws of the invaded country, from one citizen, subject, or native of the same to another. The commander of the army must leave it to the ultimate treaty of peace to settle the permanency of this change. 33. It is no longer considered lawful— on the contrary, it is held to be a serious breach of the law of war — to force the subjects of the enemy into the service of the victorious government, except the lat- ter should proclaim, after a fair and complete conquest of the hostile country or district, that it is resolved to keep the country, district, or place permanently as its own, and make it a portion of its own countr3\ 34. As a general rule, the property belonging to churches, to hos- pitals, or other establishments of an exclusively charitable character, to establishments of education, or foundations for the promotion of knowledge, whether public schools, universities, academies of leai'ii- ing, or observatories, museums of the fine arts, or of a scientitic character — such property is not to be considered [)ublic i)roperty in the sense of paragraph 31 ; but it ma}^ be taxed or used when the public service may require it. 35. Classical works of art, libraries, scientific collections, or precious instruments, such as astronomical telescopes, as well as hospitals, must be secured against all avoidable injury, even when they are contained in fortified places whilst besieged or bombarded. 30. If such works of art, libraries, collections, or instruments be- longing to a hostile nation or government, can be removed without injury, the ruler of the conquering state or nation may order them to be seized and removed for the benefit of the said nation. The ul- timate ownership is to be settled by the ensuing treaty of peace. In no case shall they be sold or given away, if captured by the armies of the United States, nor shall they ever be privately appro- priated, or wantonly destroyed or injured. 37. The United States acknowledge and protect, in hostile coun- tries occu[)ied by them, religion and morality; strictly private prop- erty; the persons of the inhabitants, especially those of Avomen; and the sacredness of domestic relations. Offenses to the contrary shall be rigorously punished. l^STKUCTIO^'S FOR U. S. AKMIES IN THE FIELD. 539 This rule does not interfei'e Avith tlie rii^lit of tlie victorious in- vader to tiix the people or their property, to levy forced loans, to billet soldiers, or to appropriate property, es[)eoially houses, huid, boats or ships, and chui'ches, for temporary and military uses. 88. Private property, unless forfeited by ei'imes or by oil'enses of the owner, can be seized only by way of military necessity, for the support or other benefit of the army of tlie L'nited States. If the owner has not fled, the connnanding- officer will cause i-e- ceipts to be given, wliich may serve the spoliated owner to obtain indemnity. 39. The salaries of civil officers of the hostile government who remain in the invaded territory, and continue the worlc of their office, and can continue it according to the circumstances arising out of the war — such as judges, administrative or police officers, officers of city or communal governments — are paid from the public I'evenue of the invaded territory, until the military government has reason wholly or partially to discontinue it. Salaries or incomes connected with purely honorary titles are always stopped. 40. There exists no law or body of authoritative rules of action between hostile armies, except that branch of the law of nature and nations which is called the law and usages of war on land. 41. All municipal law of the ground on which the armies stand, or of the countries to which they belong, is silent and of no effect between armies in the field. 42. Slavery, complicating and confounding the ideas of property (that is of a thing)^ and of personalit}^ (tliat is of Jiuinaitili/), exists according to municipal law or local law f)nly. The law of nature and nations has never acknowledged it. The digest of the liOman law enacts the early dictum of the pagan jurist, that "so far as tlie law of nature is concerned, all men are equal." Fugitives escaping from a country in which they were slaves, villains, or serfs, into an- other country, have, for centuries past, been held free and acknowl- edged free by judicial decisions of P^nropean countries, even though the municipal law of the country in which the slave had taken refuge acknowledged slavery within its own dominions. 43. Therefore, in a war between the United States and a Ijelliger- ent which admits of slavery, if a person held in bondage l)y that belligerent be captured by or come as a fugitive under the protec- tion of the military forces of the United States, such person is im- mediately entitled to the rights and pi'ivileges of a freeman. To return such person into slavery would amount to enslaving a free person, and neither the United States nor any officer under their authority can enslave any human being. Moreover, a person so 640 APPENDIX. made free by the law of war is under the shield of the law of na- tions, and the former owner or State can have, b}' the law of post- liminy, no belligerent lien or claim of service. 44. All wanton violence committed against persons in the in- vaded country, all destruction of property not commanded b}'^ the authorized otficer, all robbery, all pillage or sacking, even after tak- ing a place by main force, all rape, wounding, maiming, or killing of such inhabitants, are prohibited under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the offense. A soldier, officer or private, in the act of committing such violence, and disobeying a superior ordering him to abstain from it, may be lawfully killed on the sjjot by such superior. 45. All captures and booty belong, according to the modern law of war, primarily to the government of the captor. Prize money, whether on sea or land, can now only be claimed under local law. 46. Neither officers nor soldiers are allowed to make use of their position or power in the hostile country for private gain, not even for commercial transactions otherwise legitimate. Offenses to the contrary committed by commissioned officers will be punished with cashiering, or such other punishment as the nattire of the ott'ense raa}^ require; if by soldiers, they shall be i)unished according to the nature of the offense. 47. Crimes punishable by all penal codes, such as arson, murder, maiming, assaults, highway robbery, theft, burglary, fraud, forgery, and rape, if committed by an American soldier in a hostile country against its inhabitants, are not only punishable as at home, btit in all cases in which death is not inflicted, the severer punishment shall be preferred. SEfTIOX in. Desehteks — Peisoxeus ok War — Hostages — Booty ox the Battle-field. 48. Deserters from the .\merican army, having entered the service of the enemy, suffer death if they fall again into the hands of the United States, whether by capture, or being delivered up to the American army ; and if a deserter from the enemy, having taken service in the army of the United States, is captured by the enemy, and punished by them with death or otherwise, it is not a breach against the law and usages of war, requiring redress or retaliation. INSTRUCTIONS FOR U. S. ARMII^ IX THE FIEIJ). 541 49. A prisoner of war is a pul)lic enemy iirnied or attached to the hostile army for active aid, who has fallen into the hands of the captor, either lighting or wounded, on tlie field or in the hosi)ital, by individual surrender or by capitulation. All soldiers, of whatever species of arms ; all men who belong to the rising en masse of the hostile country ; all those who are attached to the army for its efficiency and promote directly the object of the war, except such as are hereinafter provided for ; all disabled jneu or officers on the field or elsewhere, if captured ; all enemies who have thrown away their arms and ask for quarter, are prisoners of war, and as such exposed to the inconveniences as well as entitled to the privileges of a prisoner of war. 50. Moreover, citizens who accompany an army for whatever pur- pose, such as sutlers, editors, or reporters of journals, or contractors, if captured, may be made prisoners of war, and be detained as such. The monarch and mendjers of the hostile reigning family, male or female, the chief, and chief officers of tlie hostile goveriunent, its diplomatic agents, and all persons who are of particular and singular use and benefit to the hostile army or its government, are, if cap- tured on belligerent ground, and if unprovided with a safe conduct granted by the captor's government, prisoners of war. 51. If the people of that portion of an invaded country Avhich is not yet occupied by the enemy, or of the whole country, at the ap- proach of a hostile army, rise under a duly authorized levy, en masse to resist the invader, they are now treated as public enemies, and if captured, are prisoners of war. 52. No belligerent has the right to declare that he will treat every captured man in arms of a levy en masse as a brigand or bandit. If, however, the people of a country, or any portion of the same, already occupied by an army, rise against it, they are violators of the laws of war, and are not entitled to their protection. 53. The enemy's chaplains, officers of the medical staff, apothe- caries, hospital nurses and servants, if they fall into the hands of the American army, are not prisoners of war, unless the commander has reasons to retain them. In this latter case, or if, at their own desire, they are allowed to i-emain with their captured companions, they are treated as prisoners of war, and may be exchanged if the commander sees fit. 54. A hostage is a person accepted as a pledge for the fulfilment of an agreement concluded between belligerents during the war, or in consequence of a war. Hostages are rare in the present age. 55. If a hostage is accepted, he is treated like a prisoner of war, according to rank and condition, as circumstances may admit. 042 APPENDIX. 53, A prisoner of war is subject to no punishment for being a public enemy, nor is an 3^ revenge wreaked upon liim b}' tlie inten- tional inflection of any suffering, or disgrace, by cruel imprisonment, Avant of food, by nuUilation, death, or any other barbarity. 57. 80 soon as a man is armed by a sovereign government, and takes the soldier's oath of fidelity, he is a belligerent; his killing, wounding, or other warlike acts, are no individual ci'imes or offenses. ]^o belligerent has a right to declare that enemies of a certain class, color, or condition, when properly organized as soldiers, will not be treated b}' him as public enemies. 58. The law of nations knows of no distinction of color, and if an enemy of the United States should enslave and sell any captured persons of their army, it would be a case for the severest retaliation, if not redressed upon complaint. The United States cannot retaliate b}^ enslavement ; therefore death must be the retaliation for this crime against the law of na- tions. 59. A prisoner of war remains answerable for his crimes commit- ted against the captor's army or people, committed before he was cai)tured, and for which he has not been punished by his own au- thorities. All prisoners of war are liable to the infliction of retaliatory measures. 60. It is against the usage of modern war to resolve, in hatred and revenge, to give no quarter. Xo body of troops has the right to de- clare that it will not give, and therefore will not expect, quarter; but a connnander is permitted to direct his troops to give no quarter, in great sti'aits, when his own salvation makes it iinpossible to cum- ber himself with prisoners. Gl. Troops that give no quarter have no right to kill enemies already disabled on the ground, or prisoners captured by other troops. G2. All troops of the enemy known or discovered to give no quarter in general, or to any portion of the army, receive none. 63. Troops who fight in the uniform of their enemies, without any plain, striking, and uniform mark of distinction of their own, can expect no quarter. 64. If American troops capture a train containing uniforms of the enemy, and the commander considers it advisable to distribute them for use among his men, some striking mark or sign must be adopted to distinguish the American soldier from the enemy. 65. The use of the enemy's national standard, flag, or other em- blem of nationality, for the purpose of deceiving the enemy in battle. INSTRUCTIONS FOR U. S. ARMIES IX TIIK FIELD. 543 is an act of perfidy by wliicli they lose all claim to llie protection of the laws of war. 66. Quarter having been given to an enemy by American troops, under a misapprehension of his true character, he may, nevertlieless, be ordered to suffer death if, within three days after the battle, it be discovered that he belongs to a corps which gives no quarter. 67. The law of nations allows every sovereign government to make war upon another sovereign state, and, therefore, admits of no rules or laws different from those of regular warfare, regarding the treatment of prisoners of war, although they may belong to the army of a government which the captor may consider as a wanton and unjust assailant. 68. Modern wars are not internecine wars, in which the killing of the enemy is the object. The destruction of the enemy in modern war, and, indeed, modern war itself, are means to obttiin that object of the belligerent which lies beyond the war. Unnecessary or revengeful destruction of life is not lawful. 69. Outposts, sentinels, or pickets are not to be fired upon, except to drive them in, or when a positive order, special or general, has been issued to that effect. 70. The use of poison in any manner, be it to poison wells, or food, or arms, is wholly excluded from modern warfare. lie that uses it puts himself out of the pale of the law and usages of war. 71. Whoever intentionally inflicts additional wounds on an enemy already wholly disabled, or kills such an enemy, or who orders or encourages soldiers to do so, shall suffer death, if duly convicted, whether he belongs to the army of the United States, or is an enemy captured after having committed his misdeed. 72. Money and other valuables on the person of a prisoner, such as watches or jewelry, as well as extra clothing, are regarded by the American army as the private property of the prisoner, and the appropriation of such valuables or money is considered dishonorable, and is prohibited. Nevertheless, if large sums are found upon the persons of prisoners, or in their possession, they shall be taken from them, and the sur- plus, after providing for their own support, appropriated for the use of the army, under the direction of the commander, unless otherwise ordered by the government. Nor can prisoners claim, as private property, large sums found and captured in their train, although they had been placed in the private luggage of the prisoners. 73. All officers, when captured, must surrender their side-arms to the captor. They may be restored to the prisoner in marked cases, by the commander, to signalize admiration of his distinguished 54-1 APPENDIX. Lraveiy, or approbation of his liumane treatment of prisoners before his capture. Tlie captured officer to whom they may be restored cannot wear them during captivity. 74. A prisoner of war being- a public enemy, is the prisoner of the government, and not of tlie captor. No ransom can be paid l)y a prisoner of Avar to his indivithial captor, or to any officer in command. The government alone releases captives, according to rules prescribed by itself. 75. Prisoners of war are subject to confinement or imprisonment such as may be deemed necessary on account of safety, but they are to be subjected to no other intentional suffering or indignit^^ The confinement and mode of treating a prisoner may be varied during his captivity according to the demands of safety. 76. Prisoners of v.'dY shall be fed upon plain and wholesome food whenever practicable, and treated with humanity. Tlie}^ may be required to work for the benefit of the captor's government, according to their rank and condition. 77. A prisoner of war who escapes may be shot, or otherwise killed in his flight; but neither death nor any other punishment shall be inflicted upon him simply for his attempt to escape, which the law of war does not consider a crime. Stricter means of security shall be used after an unsuccessful attempt at escape. If, however, a conspiracy is discovered, the purpose of which is a united or general escape, the conspirators may be rigorously punished, even with death ; and capital punishment may also be inflicted upon prisoners of war discovered to have plotted rebellion against the authorities of the captors, whether in union with fellow-prisoners or other persons. 78. If prisoners of war, having given no pledge nor made any promise on their honor, forcibly or otherwise escape, and are captured again in battle, after having rejoined their own army, they shall not be punished for their escape, but shall be treated as simple prisoners of war, although they will be subjected to stricter onflnement. 79. Every captured wounded enemy shall be medically treated, according to the ability of the medical staff. 80. Honorable men, when captured, will abstain from giving to the enemy information concerning their own army, and the modern law of war permits no longer the use of any \iolence against prisoners in order to extort the desired information, or to punish them for having given false information. INSTRUCTIONS FOR U. S. AR]\IIES IN THE FIELD. 545 SECTION IV. Partisans — Ar^nied ene^mies not EKLONoiNr, to the Hostile Army — Scouts — Armed Proavlers — War-rkiu:ls. 81. Partisans are soldiers armed and wearing the uniform of their army, l)ut belonging to a corps which acts detached from the main body for the purpose of making inroads into the territory occupied by the enemy. If captured, they are entitled to all the privileges of the prisoner of war. 82. Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avoca- tions, or with the occasional assumption of the semblance of peace- ful pursuits, divesting themselves of the character or ai')]:»earance of soldiers — such men, or squads of men, are not public enemies, and therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway rol)bers or pirates. 83. Scouts or single soldiers, if disguised in the dress of the countrj^, or in the uniform of the army hostile to their own, emi)loyed in obtaining information, if found within or lurking about the lines of the captor, are treated as spies, and suffer death. 84. Armed prowlers, by whatever names they mnj be called, or persons of the enemy's territory, who steal within tlie lines of the^ hostile army, for the purpose of robbing, killing, or of destroying bridges, roads, or canals, or of robbing or destroying the mail, or of cutting the telegraph wires, are not entitled to the privileges of the prisoner of war. 85. War-rebels are persons within an occupied territory who rise in arms against the occupying or conquering army, or against the authorities established by the same. If captured, they may suffer death, whether they rise singly, in small or large bands, and whether called upon to do so by their own, but expelled, government or not. The}^ are not prisoners of war ; nor are they, if discovered and secured before their conspiracy has matured to an actual rising, or to armed violence. section v. Safe-conduct — Spies — War-traitors — Captured Messengers — Abuse of the Flag of Truce. 86. All intercourse between the territories occupied by belligerent 35 546 APPEXDIX. armies, whether by traflSc, by letter, by travel, or in any other way, ceases. This is the p'eneral rule, to be observed without sjiecial proc- lamation. Exceptions to this rule, whether b}^ safe-conduct, or permission to trade on a small or large scale, or by exchanging mails, or by travel from one teri'itory into the other, can take place only according to agreement approved by the government, or by the highest military authority. Contraventions of this rule are highly punishable. 87. Ambassadors, and all other dii^lomatic agents of neutral powers, accredited to the enem}^ may receive safe-conducts through the territories occupied by the belligerents, unless there are military reasons to the contrary, and unless they may reach the place of their destination conveniently by another route. It implies no interaa- tional affront if the safe-conduct is declined. Such passes are usually given by the supreme authority of the state, and not by subordinate officers. 88. A spy is a person who secretly, in disguise or under false pre- tense, seeks information with the intention of communicating it to the enemy. The spy is punishable with death b}" hanging by the neck, whether or not he succeed in obtaining the information or in conveying it to the enemy. 89. If a citizen of the United States obtains information in a legit- imate manner, and betrays it to the enemy, be he a military or civil officer, or a private citizen, he shall suffer death. 90. A traitor under the law of war, or a war-traitor, is a person in a place or district under martial law who, unauthorized by the mili- tary commander, gives information of any kind to the enem}^ or holds intercourse with him. 91. The war-traitor is always severely punished. If his offense consists in betraying to tlie enemy anything concerning the condi- tion, safety, operations or jjlans of the troops holding or occupying the place or district, his punisliinent is death. 92. If the citizen or subject of a country or place invaded or con- quered gives information to his own government, from which he is separated by the hostile army, or to the army of his government, he is a war-traitor, and death is the penalty of his offense. 93. All armies in the field stand in need of guides, and impress them if they cannot obtain them otherwise. 94. No person having been forced by the enemy to serve as guide is punishable for having done so. 95. If a citizen of a hostile and invaded district voluntarily serves INSTRUCTIONS FOll U. S. AKMrKS IX Tin-: FIICLD. ')47 as a guide to tlie eneni}', or offers to do so, lie is deeiiit'd a Avar- traitor, and shall suffer death. 96. A citizen serving voluntarily as a guide against his own eoun- try comniils treason, and will be dealt with aceordiug to the- law of his country. 97. Guides, when it is clearly proved that they have misled inten- tionally, may be put to death. 98. All unauthorized or secret communication willi the enemy is considered treasonable by the law of war. Foreign residents in an iuvaded oi- occupied territory, or foreign visitors in the same, can claim no immunity from this law. They may communicate Avith foreign parts, or with the inhabitants of the hostile country, so far as the military authority permits, but no further. Instant expulsion from the occupied territory would be the very least punishment for the infraction of this rule. 99. A messenger carrying written dispatches or verbal messages from one portion of the army, or from a besieged place, to another portion of the same army, or its government, if armed, and in the uniform of his army, and if captured while doing so, in the territor_y occupied by the enemy, is treated by the captor as a prisoner of war. If not in uniform, nor a soldier, the circumstances connected Avith his capture must determine the disposition that shall be made of him. 100. A messenger or agent who attempts to steal through the ter- ritory occupied by the enemy, to further, in any manner, the inter- ests of the enemy, if captured, is not entitled to the privileges of the prisoner of war, and may be dealt with according to the cii'cum- stances of the case. 101. While deception in war is admitted as a just and necessary means of hostility, and is consistent with honorable warfare, the common law of war allows even capital punishment for clandestine or treacherous attempts to injure an enemy, because they are so dangerous, and it is so difficult to guard against them. 10'2. The law of war, like the criminal law regarding other offenses, makes no difference on account of the difference of sexes, concerning the spy, the war-traitor, or the war-rebel. 103. Spies, war- traitors, and war-rebels, are not exchanged accord- ing to the common law of war. The exchange of such persons would require a special cartel, authorized by the government, or, at a great distance from it, by the chief commander of the army in the field. 104. A successful spy or war-traitor, safely returned to his o\Am army, and afterAvards captured as an enemy, is not sul)ject to pun- ishment for his acts as a spy or Avar-traitor, but he may be held in closer custody as a person individually dangerous. o48 APPENDIX. sectiox yi. Exchange of Pkisoxers — Flags of Tkuce — Flags of Protection". 105. Exeliang'es of prisoners take place — number for number — rank for rank — wounded for wounded — with added condition for added condition — sucli, for instance, as not to serve for a certain period. 106. In exchanging prisoners of war, such numbers of persons of inferior rank maybe substituted as an equivalent for one of superior rank as may be agreed upon by cartel, Avhich requires the sanction of the government, or of the commander of the army in the field. 107. A prisoner of war is in honor bound truly to state to the cap- tor his rank ; and he is not to assume a lower rank than belongs to him, in order to cause a more advantageous exchange ; nor a higher rank, for the purpose of obtaining better treatment. Offenses to the contrary have been justly punished by the com- manders of released prisoners, and may be good cause for refusing to release such prisoners. 108. The surplus number of prisoners of war remaining after an exchange has taken place is sometimes released either for the pay- ment of a stipulated sum of money, or, in urgent cases, of provision, clothing, or other necessaries. Such arrangement, however, requires the sanction of the highest authority. 109. The exchange of prisoners of war is an act of convenience to both belligerents. If no general cartel has been concluded, it cannot be demanded by either of them. Xo belligerent is obliged to ex- change prisoners of war. A cartel is voidable so soon as either party has violated it. 110. Xo exchange of prisoners shall be made except after complete capture, and after an accurate accotmt of them, and a list of the captured officers, has been taken. 111. The bearer of a flag of truce cannot insist upon being ad- mitted. He must always be admitted with great caution. Unneces- sary frequency is carefully to be avoided. 112. If the bearer of a flag of truce offer himself during an engage- ment, he can be admitted as a very rare exception only. It is no breach of good faith to retain such a flag of truce, if admitted during the engagement. Firing is not required to cease on the appearance of a flag of truce in battle. 113. If the l)earer of a flag of truce, presenting himself duiing an engagement, is killed or wounded, it furnishes no ground of com- plaint whatever. INSTRUCTIONS FOR U. S. ARMIES IN THE FIELD. 549 114. If it be discovered, and fairly proved, that a flag of truce has been abused for surreptitiously obtahiing military knowledge, the bearer of the flag thus abusing his sacred character is deemed a spy. So sacred is the character of a flag of truce, and so necessary is its sacredness, that while its abuse is an especially heinous offense, great caution is requisite, on the other hand, in convicthig the bearer of a flag of truce as a spy. 115. It is customary to designate by certain flags (usually yellow), the hospitals in places which are shelled, so that the besieging enemy may avoid firing on them. The same has been done in battles, when hospitals are situated within the field of the engagement. 116. Honorable belligerents often request that the hospitals within the territory of the enemy may be designated, so that they may be spared. An honorable belligerent allows himself to be guided by flags or signals of protection as much as the contingencies and tlie necessi- ties of the fight will permit. 117. It is justly considered an act of bad faith, of infamy or fiend- ishness, to deceive the enemy by flags of protection. Such an act of bad faith may be good cause for refusing to respect such flags. 118. The besieging belligerent has sometimes requested the be- sieged to designate the buildings containing collections of works of art, scientific museums, astronomical observatories, or precious libraries, so that tlieir destruction may be avoided as much as pos- sible. sectio:n VII. The Parole. 119. Prisoners of war maybe released from captivity by exchange, and, under certain circumstances, also by parole. 120. The term parole designates the pledge of individual good faith and honor to do, or to omit doing, certain acts after he wiio gives his parole shall have been dismissed, wholly or partially, from the power of the captor. 121. The pledge of the parole is always an individual but not a private act. 122. The parole applies chiefly to prisoners of war whom the cap- tor allows to return to their country, or to live in greater freedom within the captor's country or territory, on conditions stated in the parole. 123. Pelease of prisoners of war by exchange is the general rule ; release by parole is the exception. OoO APPENDIX. 1-24. Breaking the parole is ])aiiislied with death when tlie person breaking the parole is captured again. Accurate lists, therefore, of the paroled persons must be kept by tlie belligerents. Vlr). When paroles are given and received, there must be an ex- change of two written documents, in which the name and rank of the paroled individuals are accurately and truthfully stated. 12G. Commissioned officers only are allowed to give their parole, and they can give it only Avitli the permission of their superior, as long as a superior in rank is within reach. 127. Xo non-commissioned officer or private can give his parole except through an officer. Individual paroles not given through an officer are not oidy void, but subject the individual giving them to the pimishment of death as deserters. The only admissible excep- tion is where individuals, properly separated from their commands, have suffered long confinement without the possibility of being paroled tlirough an officer. 12S. Xo paroling on the battle-field, no paroling of entire bodies of troops after a battle, and no dismissal of large numbers of prison- ers, with a general declaration that they are paroled, is permitted, or of any value. 129. In capitulations for the surrender of strong places or fortified camps, the commanding officer, in cases of urgent necessity, may agree that the troops under his connnand shall not fight again during the war, unless exchanged. 130. The usual pledge given in the parole is not to serve during the existing war, unless exchanged. This pledge refers only to the active service in the field, against the paroling belligerent or his allies actively engaged in the same war. Tliese cases of breaking the parole are patent acts, and can be visited with the punishment of death ; but the pledge does not refer to internal service, such as recruiting or drilluig the recruits, fortifying places not besieged, quelling civil commotions, fighting against belligerents unconnected witli the paroling belligei-ents, or to civil or diplomatic service for which the paroled officer may be employed. 131. If the government does not approve of the parole, the paroled officer must return into captivity; and should the enemy refuse to receive him, he is free of his parole. 132. A belligerent government may declare, by a general order, whether it will allow paroling, and mi what conditions it will alhnv it. Such order is communicated to the enenl3^ 138. Xo prisoner of war can be forced by the hostile government INSTRUCTIONS FOR U. S. AIIMIKS IN THE FIELD. 551 to parole himself, and no government is obliged to parole prisoners of war, or to parole all captured officers if it paroles any. As tlie pledging of the parole is an individual act, so is parohng, on the other hand, an act of choice on tlie part of the belligerent. 134. The commander of an occupying army may recpiire of the civil officers of the enemy, and of its citizens, any pledge he may consider necessary for the safety or security of bis army, and ui)on their failure to give it, he may arrest, confine, or detain them. section" viii. Armistice — Capitulation. 135. An armistice is the cessation of active hostilities for a period agreed upon between belligerents. It must be agreed upon in writ- ing, and duly ratified by the higliest authorities of the contending parties. 136. If an armistice be declared, without conditions, it extends no further than to require a total cessation of hostilities along the front of both belligerents. If conditions be agreed upon, they should be clearly expressed, and must be rigidly adhered to by both parties. If eitlier party violates any express condition, the armistice may be declared null and void by the other. 137. An armistice may be general, and valid for all points and lines of the belligerents ; or special — that is, referring to certain troops or certain localities only. An armistice may be concluded for a definite time ; or for an in- definite time, during which either belligerent may resume hostilities on giving the notice agreed upon to the f)ther. 138. The motives which induce the one or the other belligerent to conclude an armistice, whether it be expected to be preliminary to a treaty of peace, or to prepare during the ai'mistice for a moi-e vigor- ous prosecution of the war, do in no way affect the character of the armistice itself. 139. An armistice is binding upon the belligerents from the day of the agreed commencement ; but the officers of the armies are re- sponsible from the day only when they receive official information of its existence. 140. Commanding officers have the right to conclude armistices bindhig on the district overwbich their command extends ; but such armistice is subject to the ratificaticm of the superior authority, and ceases so soon as it is made known to the enemy that the armistice 552 APPENDIX. is not ratified, even if a certain time for tlie elapsing between giving notice of cessation and tlie resumption of hostilities should have been stipulated for. 1-41. It is incumbent upon the contracting parties of an armistice to stipulate what intercourse of persons or traffic between the in- habitants of the territories occupied by the hostile armies shall be allowed, if any. If nothing is stipulated, the intercourse remains suspended, as during actual hostilities. 142. An armistice is not a partial or a temporary peace ; it is only the suspension of military operations to the extent agreed upon by the parties. 14.3. When an armistice is concluded between a fortified place and the army besieging it, it is agreed by all the authorities on this sub- ject that the besieger must cease all extension, perfection, or advance of his attacking work, as much so as from attacks by main force. But as there is a difference of opinion among martial jurists, whether the besieged have the right to repair breaches or to erect new works of defense within the place during an armistice, this point should be determined by express agreement between the parties. 144. So soon as a capitulation is signed, the capitulator has no right to demolish, destroy, or injure the works, arms, stores, or am- munition, in his possession, during the time which elapses between the signing and the execution of the capitulation, unless otherwise stipulated in the same. 145. When an armistice is clearly broken by one of the parties, the other party is released from all obligation to observe it. 14G. Prisoners, taken in the act of breaking an armistice, must be treated as prisoners of war, the officer alone being responsible who gives the order for such a violation of an armistice. The high- est authority of the belligei-ent aggrieved may demand redress for the infraction of an armistice. 147. Belligerents sometimes conclude an armistice while their plenipotentiaries are met to discuss the conditions of a treaty of peace; but plenipotentiaries may meet without a preliminary armi- stice: in the latter case, the war is carried on without any abatement. SFXTIOX IX. ASSASSINATIOX. 14S. The law of war does not allow proclaiming either an indi- INSTRUCTIONS FOK U. S. ARMIES IN THE FIELD. 5.53 vicinal belonginc^ to the hostile army, or a citizen, or a subject of the hostile o-overninent, an outlaw, who may be slain without trial by any captor, any more than tlie modern law of peace allows sucli in- ternational outlawry ; on the contraiy, it abhors such outrage. The sternest retaliation should follow the nmrder conmiitted iu conse- quence of such proclamation, made by whatever authority. Civil- ized nations look with horror upon ott'ei-s of rewards for the assas- sination of enemies, as relapses into barbarism. section x. Insurrection — Civil War — Rebellion. 149. Insurrection is the rising- of people in arms against their government, or a portion of it, or against one or more of its laws, or against an ofiicer or officers of the governnient. It may be confined to mere armed resistance, or it may have greater ends in view. 150. Civil war is war between two or more portions of a country or state, each contending for the mastery of the whole, and each claim- ing to be the legitimate government. The term is also sometimes applied to war of rebellion, when the rebellious provinces or portions of the State are contiguous to those contahiing the seat of govern- ment. 151. The term rebeUion is applied to an insurrection of large ex- tent, and is usuall}^ a war between the legitimate government of a countiy and portions or provinces of the same who seek to throw off their allegiance to it, and set up a government of their own. 152. When humanity induces the adoption of the rules of regu- lar war toward rebels, whether the adoption is partial or entire, it does in no way whatever imply a partial or complete acknowledg- ment of their government, if tliey have set up one, or of them, as an independent or sovereign power. Neutrals have no right to make the adoption of the rules of war by the assailed government toward rebels the ground of their own acknowledgment of the revolted peo- ple as an independent power. 153. Treathig captured rel)els as prisoners of war, exchanging them, concluding of cartels, capitulations, or other Avarlike agree- ments with them ; addressing officers of a rebel army by the rank they may have in the same; accepting flags of truce; or, on the other hand, proclaiming martial law in their territoiy, or levying war-taxes or forced loans, or doing any other act sanctioned or de- manded by the law and usages of public war between sovereign bel- ligerents, neither proves nor establishes an acknowledgment of the 554 APPENDIX. rebellious people, or of the government which they may have erected, as a public or sovereign power. Xor does the adoption of the rules of war toward rebels iniph^ an engagement with tliem extending be- yond the limits of these rules. It is victory in the field that ends the strife, and settles the future relations between the contending parties. 154. Treating, in the field, the rebellious enemy according to the law and usages of war, has never prevented the legitimate govern- ment from trying the leaders of the rebellion or chief rebels for high treason, and from treating them accordingly, unless they are included in a general amnesty. 155. All enemies in regular war are divided into two general classes; that is to say, into combatants and non-combatants, or un- armed citizens of the hostile goverinnent. The military conunander of the legitimate government, in a war of rebellion, distinguishes between the loyal citizen in the revolted por- tion of the country and the disloyal citizen. The disloyal citizens may further be classified into those citizens known to sympathize Willi tlie rebellion, without positively aiding it, and those who, without taking up arms, give positive aid and comfort to the rebellious enemy, without being bodily forced thereto. 156. Common justice and plain expediency require that the mili- tary commander protect the manifestly loyal citizens, in revolted territories, against the hardships of the war, as much as the com- mon misfortune of all war admits. The commander will throw the burden of the Avar, as mucli as lies within his power, on the disloj^al citizens of tlie revolted portion or province, suV)jecting tliem to a stricter police than the non-com])at- ant enemies have to suffer in regular wdv ; and if lie deems it appro- priate, or if his government demands of him, tliat every citizen shall, by an oath of allegiance, or by some other manifest act, declare his fidelity to the legitimate government, he may expel, transfer, impris- on, or fine the revolted citizens who refuse to pledge themselves anew as citizens obedient to the law, and loyal to the government. Whether it is expedient to do so, and whether reliance can be placed upon such oath, the commander or his government have the right to decide. 157. Armed or unarmed resistance by citizens of the United States against the lawful movements of their troops, is levying Avar against the United States, and is therefore treason. CODE OF THE INSTITUTE FOll M'AItS OX LAND. G55 THE LAWS OF WAR OX LAXD. Code kecommended hy the Institute of Ixtekxatioxal Law, l^^O. GeXEUAL l*ltIX( U'LES. 1. The state of war does not admit of acts of violence, save be- tween tlie armed forces of belligerent states. Individuals who form no part of a bellig-erent armed force should abstain from sucli acts. 2. The armed force of a state includes : 1st. The army proper, or permanent niiUtary establishment, in- cluding the niililia and reserve forces. 2d. The national guard, landsturm, free corjjs, and other bodies which fulfill the three following conditions ; i. e., (a.) They must be under the direction of responsible chiefs. (b.) They nuist liave a uniform, or distinguishing mark, or badge, recognizable at a distance, and worn by individuals composing such corps, (c.) They nnist carry arms openly. 3d. The crews of public armed ships, and other vessels used for warlike purposes. 4th. The inhabitants of non-occupied territory, who, at the ap- proach of the enemy, take arms openly and spontaneously to resist an invader, even if they have not had time to organize. 3. Every belligerent armed force must carry on its military opera- tions in accordance with the laws of war. T/ie onhj legitimate end that a state may have in war is to weaken the military strength of the enemy. 4. The laws of war do not recognize in belligerents an unlimited liberty as to the means of injuring the enemy. They are to abstain from all needless severity, as well as from all perfidious, unjust, or tyrannical acts. 5. Agreements made between belligerents duiing the continuance of war, such as armistices, capitulations, and the like, are to be scru- pulously observed and respected. 6. Xo invaded territory is to be regarded as conquered until the end of the war. Until that time the invader exercises, in such terri- tory, only a de facto power, essentially provisional in character. 556 APPENDIX. iVpPLICATIOX OF GeXEKAL PRINCIPLES. I. Hostilities. A. Rules of Conduct with Regard to Individuals. 7. It is forbidden to deal harshly with inoffensive populations. 8. It is forbidden, (a.) To make use of poison, in any form whatever. (/>.) To make treacherous attempts upon the life of an enemy; as, for example, by keeping assassins in pay, or by feigning to surrender. (c.) To attack an enemy by concealing the distinctive signs of an armed force. {c7.) To use improperly the national flag, uniform, or other distinctive signs of the enemies; the flag of truce, or the dis- tinctive signs of the Geneva Convention. 9. It is forbidden, (a.) To employ arms, projectiles, or materials of any kind, cal- culated to cause needless suffering, or to aggravate wounds — notably projectiles of less weight than four hundred grammes (fourteen ounces avoirdupois), which are explosive, or are charged with fulminating or explosive stibstances. (l).) To kill or injure an enemy who has stirrendered, or who is disabled ; or to declare in advance that quarter will not be given, even by those who do not ask it for themselves. 10. Wounded or sick soldiers shall be collected together and cared for, to whatever nation they may belong. 11. Commanders-in-chief shall have jjower to deliver, immedi- ately, to the outposts of the enemy, soldiers who have been wounded in an engagement, when circumstances are such as to permit this to be done, and with tlie consent of both parties. Those who are rec- ognized, after their wounds are healed, as incapable of serving, shall be sent back to their own country. The others may also be sent back, on condition of not again bearing arms during the contin- uance of the war. Evacuations, together with the persons under wdiose direction they take place, shall be protected l)y an absolute neutrality. 12. Persons employed in hospitals and ambulances, comprising the staff for superintendence, medical service, administration, trans- port of wounded, as well as chaplains, and the duly accredited agents of relief associations, who are authorized to assist the regular sani- tary staff, shall participate in the benefit of neutrality while so em- CODE OF THE IXSTITUTE FOR WAK3 OX LAND. 557 ployed, unci so long as there remain any Avounded to Lriiii;- in or to succor. 13. The persons designated in tlie preceding article should, oven after occupation by the enemy, continue to attend, according to their needs, the sick and wounded in the hospital, or amlnilance, to which they are attached. 14. When they request to withdraw, tlie commander of the occu- pying troops shall fix the time of departure, which he shall only be allowed to delay, for a short time, in case of military necessity. 15. Suitable arrangements should be made to assure to neutral- ized persons, Mdio have fallen into the hands of the enemy, the en- joyment of suitable salaries. 16. An arm-badge (brassard) shall be worn by neutralized individ- uals, but the delivery thereof shall be regulated by military author- ity. 17. The commanding generals of the belligerent powers should appeal to the humanity of the inhabitants, and should endeavor to induce them to assist the wounded, by pointing out to them the ad- vantages that will result from so doing. They should regard as inviolable those who respond to this appeal. 18. It is forbidden to rob, or mutilate, the bodies of the dead lying on the field of battle. 19. The bodies of the dead should not be buried until they have been carefully examined, and all articles which may serve to fix their identity, such as names, medals, numbers, pocket-books, etc., shall have been secured. The articles thus collected, from the bodies of the enemy's dead should be transmitted to their army or government. 20. Individuals who form a part of the belligerent armed force of a state, if they fall into the hands of the enemy, are to be treated as prisoners of war, in conformity with articles 61-78 of these instruc- tions. The same rule is observed in the case of messengers who carry official dispatches openly ; and towards aeronauts charged with observing the operations of an enemy, or with the maintenance of communications between the various parts of an army, or theatre of military operations. 21. Individuals who accompany an army, but who are not a part of the regular armed force of the state, such as correspondents, traders, sutlers, etc., and who fall into the hands of the enemy, may be detained for such length of time only as is warranted by strict military necessity. 22. Spies, captured in the act, cannot demand to be treated as prisoners of war. 558 APPENDIX. 23. An individual may not be regarded as a spy, however, who, belonging to the armed force of either belHgerent, penetrates, with- out disguise, into tlie zone of military operations of tlie enemy. Xor does the term apply to aeronauts, or to couriers, or messengers, who carry openly, and witliout concealment, the official disj)atches of the enemy. 24. Xo person, charged with being a spy, shall be punished for that offence, until the fact of his guilt shall have been established before a competent military tril)unal, 25. A spy who succeeds in quitting the territory occupied by an enemy, incurs no penalty for his previous offence, should he at any future time fall into the hands of that enemy. 26. The bearer of a flag of truce, who, Avitli proper authority from one belligerent, presents himself to the other, for the purpose of communicating with him, is entitled to complete inviolability of person. 27. He may be accompanied by a drummer or trumpeter, by a color-bearer, and, if need be, by a guide and interpreter, all of whom shall be entitled to a similar inviolability of person. 28. The commander to whom a flag is sent, is not obliged to re- ceive the flag under all circumstances. 29. The comniander who receives a flag has a right to take such precautionary measures as will prevent his cause from being injured by the presence of an enemy within his lines. 30. If the bearer of a flag of truce almse the trust reposed in him, he may be temporarily detained, and, if it be proven that he has taken advantage of his position to abet a treasonable act, he forfeits his character of inviolability. 1>. IvULES OF CoxnUCT WITU ItEGAIU) TO ThIXGS. 31. It is forbidden, (a.) To pillage, even places taken by assault. (b.) To desti-oy public or private property, unless such destruc- tion be commanded by urgent military necessity. (c.) To attack, or bombard, open or undefended towns. 32. The commander of an attacking force, save in cases of open assault, shall, before undertaking a bombardment, make due effort to give notice of his intention to the local atithorities. 33. In case of bombardment all needful measures shall be taken to spare, if it be possible to do so, buildings devoted to religion and charity, to the arts and sciences, hospitals, and depots of sick and wounded. This on condition, however, that such places be not made use of, directly or indirectly, for purposes of defence. CODE OF TITE INSTITUTE FOR WAItS OX LAND. 559 34. It is the duty of the besieged to desigiiute such buihlhigs Ijy suitable marks or signs, indicated, in advance, to the besieger. 35. Ambuhmces and military hospitals are recognized as neutral, and, as such, are to be protected by belligerents, so long as any sick or wounded remain therein. 36. The same rule applies to buildings, or parts of buildings, in which the sick or wounded are gathered together, or cared for. 37. The neutrality of hospitals and ambulances ceases if they are guarded by a military force. This does not preclude the presence of an adequate police force. 38. As the equipment of military hospitals remains subject to the laws of war, persons attached to such hospitals cannot, in withdraw- ing, carry away any articles but such as are theii- private property. Under the same circumstances, an ambulance shall, on the contrary, retain its equipment. 39. Under the circumstances foreseen in the above paragraphs the term amhulance is applied to field hospitals, and other tempo- rary establishments, which follow the troops on the field of battle to receive the sick and wounded. 40. A distinctive and uniform flag is adopted for ambulances, hos- pitals, and evacuations. It bears a red cross on a white ground- It must, on all occasions, be accompanied by the national flag. II. Occupied Territory. A. Definition. 41. Territory is regarded as occupied when, as the consequence of its invasion by the enemy's forces, the state from wliich is has been taken has ceased, in fact, to exercise there its regular authority, and the invading state, alone, finds itself able to maintain order therein. The limits within which this state of affairs exists determine the ex- tent and duration of the occupation. B. Rules of Conduct with Respect to Persons. 42. It is the duty of the occupying military authority to inform the inhabitants, at the earliest practicable moment, of the jjowers that he exercises, as well as to define the limits of the occupied ter- ritory. 43. The occupying authority should take all due and needful measures to assure order and public tranquillity. 660 APPENDIX. 44. To that end the invader should maintahi the laws in force in the territory in time of peace, and should not modify, suspend, or replace them, unless it becomes absolutely necessary to do so. 45. Tlie administrative officials and civil employees, of every grade, who consent to continue in the performance of their duties, should 1)6 supported and protected by the occupying authority. Their appointments are always revocable, and they have tlie right to resign their places at any time. They sliould be subjected to penalties onh^ wlien they fail to perform duties freely accepted by them, and should be given over to justice only when they have be- trayed them. 46. In case of urgencj^, tlie invader may demand the co-operation of the inhabitants, to enable him to provide for the necessities of local administration. 47. The population of an invaded district cannot be compelled to swear allegiance to the hostile power ; but individuals who commit acts of hostility against the occupying authority are punishable. 48. The inhabitants of an occupied territory, who do not submit to the orders of the occupying authority, may be compelled to do so. The invader, however, cannot compel the inhabitants to assist liim in his works of attack or defence, or to take part in military opera- tions against their own country. 49. Family honor and rights, the lives of individuals, as well as their religious convictions, and the right of religious worship should be respected. C. ItULES OF COXDUCT WITU ReGARD TO PROPERTY. 50. The occupying authority may seize only the cash, public funds, and bills due or transferable, belonging to the state in itso\A'n right, depots of arms and supplies, and, in general, the movable property' of the state, of such character as to be useful in military operations. 51. INIeans of transportation (railways, boats, etc.), as well as tele- graph lines and landing cables, can only be appropriated to the use of the invader. Their destruction is forbidden, unless it be com- manded by military necessity. They are to be restored, at the peace, in the condition in which they are at that time. 52. The invader can only act in the capacity of a provisional ad- ministrator in respect to real property ; such as buildings, forests, agricultural establishment, etc., belonging to the enemy's state. He should protect these properties and see to their maintenance. 53. The property of communes, and that of establishments de- CODE OF THE INSTITUTE FOR WARS OX LAND. 5. 11 fait arn'ter sur-le-cbanip et poursiiivre tout individu coupable d'avoir detourne des objets appartenant au batiment ou a T equipage capture. FORMALITES ADMINISTRATIVES ENVERS LES PRISES. Art. 29-3. 1. Le capitaine ordonne a I'officier d'administration de se rendre a bord de la prise et de faire, on presence de I'otficier charge de la commander, un inven- taire sommaire du batiment, et de dresser un proces-verbal de la capture. 2. Si la prise est un batiment de commerce, il ordonne egalenn'nt a rofficier d'administration de se saisir des livres et papiers de bord, de constater Tetat du chargement, de faire fermer les ecoutilles de la cale, les coffres et les soutes, et d"y apposer les scelles, apres que I'eau et les vivres necessaires pour la navigation en ont ete extraits; .3. 11 est dresse un inventaire special des objets appartenant aux officiers, a I'equipage et aux passagers du batiment capture. Mode d'agir envers les prisonxiers de guerre. Art. 294. 1. Le capitaine veillc a ce que les prisonniers de guerre soient traites avec humanite, qu'ils conservent les effets qui sont a leur usage personnel, et qu'ils rec/oivcnt exactement la ration qui leur est allouee par les reglements; 2. II tient la main a ce que ces prisonniers soient gardes et surveilles de maniere a leur oler tout moyen de succes, sMls tentaient de se revolter ou de s'evader. INSTUUCTIOXS FOR THE FltENClI NAVY. 571 IG. Les lettres officielles et iiarticiUiries trovivces a bord des batiments captures devront in'etre adressees sans delai. 17. Jl'gejikxt dks prises; raxcox. ' Toute prise doit etre jugce, et il ne vous est pas permis de consentir a un traite de ranyon, sauf le cas de force majeure, et, dans ce cas meme. Facte de ranyon, redige conformement au modele joint aux presentes instructions devra ctre sounds a la juridictiou qui est cliargee, en France, du jugement des i^rises. 18. Remise des rkises. Yous conduirez la prise dans le port de France le plus rapprochti, le plus accessible et le plus sur, ou dans le port de la possession i'ran- yaise la plus voisine ; mais, si des circonstances de force majeure ne vous permettaient pas de conduire la prise en France ou dans une possession franyaise, vous pourrez la conduire dans un port oti se trouverait un consul de Sa Majeste Imperiale, avec lequel vous vous concerterez sur la destination ulterieure de la prise. 19. IXDIVIDUS TEOUVES A BOED DES BATIMENTS CAPTURES. Vous ne devez, a moins de cas de force majeure, distraire du bord aucun des individus qui montent le batimeiit capture, s'il s'agit d'un batiment raarchand ; mais les femmes, les enfants et toutes les per- sonnes etrangeres au metier des amies ou a la marine ne devront, en aucun cas, etre traites comme prisonniers de guerre, et seront libres de debarquer dans le premier port o(i le batiment abordera. S'il s'agit d'un batiment de guerre, et sauf la meme excei^tion, vous pourrez, si vous le jugez utile, transborder une partie de I'equipage, et vous conduirez les prisonniers soit dans un port militaire de France, soit dans tout autre port qui pourra etre ulterieurement designe comme lieu de depot pour les prisonniers de guerre. 20. ReARMEMEXT et EMPLOI des BATIMEXTS CAPTURES. Si I'interet public I'exige, vous pouvez rearmer les batiments ennemis captures et les employer pour les besoins du service, apres en avoir fait faire I'estimation par une commission composee, autant que possible, de trois ofQciers superieurs competents, dont un mem- bre du commissariat. Vous ponvez egalement, dans des cas exceptionnels, prebender, pour le service de la flotte, les cargaisons des navires ennemis, apres 572 APPENDIX. en avoir fait dresser vin iiiventaire detaille et un proces -verbal d'estiiiuition. Les proces-verbaux rediges en execution de cette disposition devront etre joints an dossier de la prise, et un double m'en sera adresse sous le timbre de Tadministration de Tetablissenient des Invalides de la marine. 21. Une convention a 6te conclue a Geneve, au mois d'aott 1864, entre tous les Etats europeens, pour Tamelioration du sort des militaires blesses dans les armues en campagne. Yous trouverez ci-apres le texte de cette convention, ainsi que celui du projet d'acte additionnel prepare en 1868 par une commission internationale reunie a Geneve, pour en etendre les dispositions a la marine militaire. Bien que ce dernier acte n'ait pas encore reyu la sanction diplomatique, le Gou- vernement de I'Empereur n'entend pas moius en faire rapjDlication pendant le cours de la presente guerre. Vous voudrez done bien vous conformer, le cas eclieant, aux regies tracees par les deux actes dont il s'agit. liecevez, Messieurs, I'assurance de ma consideration tres-distinguee. L'' Ahilral Mlnistre Secretaire cVJEtat de la marine et des colo)iies, al. rigault de gexouilly. INSTRUCTIONS COMPLEMENTAIRES. VISITE. 1. Ux BATI3IEXT COX VOTE XE T)OIT PAS ETRE VISITE. AUCUXE VISITE XE DOIT s'OPEREK EX DEDAXS DE LA LIMITE DES EAUX TEKKITORIALES. Quelque illimite que soit le droit de visite en temps de guerre, il y a deux cas oii vous devez vous abstenir absolument de I'exercer : 1. Lorsque les batiments que vous rencontrerez seront convoj^es par un butiment de guerre neutre (I'article 14 des instructions gene- rales du 25 juillet 1870 trace la ligne de conduite a suivre en pared cas) ; 2. Lorsque lesdits batiments se trouveront en dedans de la limite des eaux territoriales d'une puissance neutre. (Les eaux territoriales compreniient, sur toutes les cotes, une zone qui s'etend a trois milles au-dela de la laisse de basse mer, cette distance etaut generalement INSTRUCTIONS FOR THE FUEXCII NAVY. r>73 adoptee aujourd'hui eonime liiuite nioyenne de la porU'e du caiiun. (Art. 4 des instructions generales.) 2. Tout batimext MAiiciiAxn peut etre visite. Dans tons les antres cas vous avez le droit de visiter les batiments niarcliands que vous rencontrerez, sauf a n'user de ce droit, confor- mement a I'article 13 des instructions gonerales, que dans les parag'es et dans les circonstances oti vous anriez des motifs fondos de supposer que la visite peut amener la saisie du batiraent visite, 3. Semonce. Lorsque vons serez determines a visiter un navire, vous I'avertirez d'abord de votre intention en tirant un coup de canon de semonce a boulet perdu ou a poudre, et en arborant votre pavilion. A ce signal, le navire est tenu d'arborer aussi ses couleurs et de mettre en panne pour attendre votre visite. S'il continuait sa route et cherchait a fuir, vous le ponrsuivriez et I'arreteriez, au besoin, par la force. En cas de resistance armee de sa part, vous auriez a le capturer sans autre examen. 4. COMMEXT ox PEOCEBE A LA VISITE. Si le navire semonce s'arrete, vous vous arreterez aussi, en vous tenant, autant que les circonstances de mer le permettent, hors de portee du canon, et vous lui envoyez une embarcation portant le pavilion parleraentaire. Un officier accompagne de deux ou trois hommes au plus monte a bord du navire a visiter. II procede avant tout a I'examen des papiers de bord. 5. Papiers jetes a la mer. S'il est constate que des papiers ont ete jetas a la mer, ou autre- ment supprimes ou distraits, a bord du navire visite, ce navire doit etre capture sans qu'il soit besoin d'examiner quels etaient ces jjapiers, par qui lis ont ete jetes et s'il en est reste suffisamment a bord pour justitier que le navire et son chargement appartiennent a des neutres. (Art. 3 du reglement du 26 juillet 1778.) 6. Quels soxt les papiers du bord. Les principaux papiers de bord d'un navire sont : 1. L'acte de propriete, le conge ou passeport et le role d'equipage qui etablissent sa nationalite ; 2. Les connaissements, cbartes-parties et factures, qui etablissent la nature et la nationalite du chargement. II suffit qu'uiie de ces 674 APPEND rx. pieces et. ; succes- sion to rights of, lb. ; rights of on becojning independent, lb. Belligerents, riglit of to interfere with neutral commerce, see riglit of visit and search, xxxix., 515. Bentzen v. Boyle, jiroduce of enemy's soil, xxxiii., 330. Bermuda, case of the — continuous voyages, xxxix. 580 INDEX. Betsy, case of the — blockade, xxxviii. . 492. Bills of exchange negotiated in the enemy's countiy, xxxii., 308. Blockade, xxxviii., 490. Boedus Lust, case of the — hostile eua- baiixo. xxviii., 249. Bombardment of towns, xxxv. Booty, see personal property, xxxv. Bosphoriis and Dardanelles, xix., 43. Boundaries, xviii. Boussniaker, ex parte, xxx., 267. Brown, John, case of, xxi., 144. El•o^vn V. the United States — confisca- tion of debts, XXX., 263. BiTissels Conference, see amicable set- tlement of disputes, xxviii. j Caxals, interoceanic, Suez Canal, xix. Capture, right of, and search, xxxix., 515. i Carlotta, case of the, see salvage, j xxxiv., CGO. I Caroline, case of the. see seK-defense, 177. Cartels, see pacific intercourse of bel- ligerents, xxxii. Cassius, case of the. 405. Castioni, in re — political offenses, xxi., 163. Cazo, case of — j^olitical offense, xxi., 161. Cellamare, Prince, case of — immuni- ties of ambassadors, xx. , 88. Cession, and conquest, xxxvi. Change of sovereignty', effect on pub- lic rights, XV. , 18 ; on private rights, xvi., 21. Charles I. . proclamation touching con- traband of war, 462. Charge d'affaires, see diplomatic agents. Cliarming Nancy, case of the — ran- som contracts, 312. Cliavasse, ex parte, in re Grazebrook — penalty' for carn.-ing contra- band, 476. Chesapeake, case of the — rebels as pirates, xxiii. Chin King, ex pcrf^— citizenship of Chinese, xxiv., 219. Chmx-h V. Hubbert — revenue seizures, xxii., 193. Citizenship and naturalization, xxiv., 219 ; see nationaUty. Civil war, see definition of war, xxix. Coal as contraband, see contraband, xxxvii. Coasting and colonial trade, xxix., 505. Cockburn, Sir A., on nationality, 213. Combatants, who are, xxix. Commereia belli, pacific intercourse of belligerents, xxxii. Commercial domicil, xxxiii., 315. Commercen, case of the — provisions as conti'aband, 470. Confederation, see classification of states, XV. Congo State, how recognized, xv. Conquest, as a mode of acquisition of teiTitory, xviii.; termination of war, xxxvi., 381. Constitution, case of the — immunity of sliips of war, xx., 114. Consuls, origin, functions, etc. , xxvi. ; do not posseso immunities from local jurisdiction, 99 ; judicial functions of in Eastern lands, xxvi. Continuous voyages, xxxix., 505. Contraband of war, general law of, xxxvii. ; proclamation of, 76. , 4G2. Contra bonos mores, 522. Contracts, annulled by war, xxxi.. 274. Contributions and requisitions, xxxv. Convo}', does not avoid right of search, xxxix. Credentials, see rights of diplomatic agents, xxv. Comu V. Blackburn — ransom bills, xxxii., 310, Creole, case of the — merchant ship in foreign port, 136. Cross V. Harrison — occupied territory, xxxv., 371. Cushing, attorney-general, on river- boundarv, 16. INDEX. 581 Cutting's case — offenses committed abroad, xxi., 173. Daxa, E. H., on recognition of bellig- erency, 24. Debts, effect of war on, xxx., 2G0 ; paid to a military occupier, xxxi., 884. Deceit, how far allowable in war, xxx. Declaration of Paris, 529. Declaration 6f St. Petersburg, 530. De facto states, xvi. De Haber v. Queen of Portugal — im- munities of sovereigns, 76. Delagoa Bay, 11. Despatclies, as contraband, xxxviii., 477. Devastation in war, xxx. Dillon's case — consuls not entitled to diplomatic immunities, 99. Diplomatic agents, classification of, XXV. ; refusal to receive, lb. ; must he persona grata, lb.; termination of mission, lb., xx\'l. ; ambassa- dors' rights in third states, lb.; immunities of, from criminal ju- risdiction, xix. , 83, from civil juris- diction, XX., 89. Direct U. S. Cable Co. v. Anglo- Am. Telegraph Co. — as to what bays are territorial waters, xix. , 45. Discovery, as a mode of acquiring property, xvii., 6. Domain, xvii. Domicil, commercial, xxxiii. , 315. Don Pacifico, reprisals, xxviii. , 246. Du Bois, case of — immixnity of diplo- matic agents, 98. Elector of Hesse Cassel^effect of conquest, xxxvi., 381. Elk i\ WUkins — status of Indians, XXV., 230. Ellis V. Mitchell — merchant vessels in foreign ports, xx., 133. Emanuel, case of the — ^rule of the war of 1756, xxxviii., 504. Emden, case of — citizenship, xxiv., 223. Emily St. Pierre, the, xxxiv.. 301. Enemy character, see national char- acter of pi'operty, xxxiii. Envoys, see diplomatic agents. Equality of states, xv. Exchange v. M'Faddon — innnunity of ships of war, xx. , 103. Exchange of prisoners, xxix. Exequatur, .see consuls, xxvi. Expatriation — nationalitj-. xxiv. Exten-itoriality, doctrine of, xix., xx. ; of merchant vessels, xxii. Extradition, xxi. Extraten-itorial crimes, see offenses committed by foreigners, xxi. Fisil, Hamilton, on right of asylum, XX., 142. Fishing boats — not subject to capture in war, xxxiv. Flemings. Page — mUitarj- occupation. XXXV., 365. Florida, case of the — equipment of vessels in neutral j^orts, xxxvii.. 428. Foreign enlistment act (British). xxxvii., 403. Foreign sovereigns, — immunities of. xix. Foreigners, offenses committed abroad by, xxi. ; exemjition from military duty, lb. Fortuna (1802), case of the — freight, 357. Fortuna (1803), case of the — l)lockade, 138. Foster v. Neilson — boundaries, xviii., 14. Franconia, case of the, see Queen v. Keyn. Free ships, free goods, xxxix. Freight, 357. Freindschaft, case of the — house of trade, xxxiii., 337. Fugitives from justice, see extradition, xxi. Furtado v. Rodgers — insurance on enemies ships, xxxii., 303. Gejster.U. Arjistroxg, case of the- 582 INDEX. eaptui-e in neutral watere. xxxvii. , 396. (reneva Award. 481. Geneva Convention, Tlie. 531. Georgia, case of the — equipment of vessels in neuti'al territory, xxxvii.. 429. Gomez, oase of — asylum on merchant vessels, xxi., 149. Grant, President, message of — ex- patination, xxiv.. 216. Grange, case of the — capture in neutral waters, 401. | Grapeshot, case of the, 374. | Gray Jacket, case of the. 294. I Gi-e\"town, bombardment of, 248. ' Giiswold r. Waddington — contracts between enemies, xxxi., 274, Guarantee ti'eaties. xxvii. Guerin. case of — luilitary occupation, XXXV.. .37-5. Guiteau Trial. The. 103. Gyllenborg. case of — immunities of diplomatic agents, xxix., 87. Halleck, General — definition of a state, 5. Hanger v. Abbott — contract between enemies, xxxi., 270. Hai'court v. Gaillard — boundaries, 1.5, Hardy, Le v. La Voltigeante — com- mercial domicil, 337. Harmony, case of the — commercial domicil, xxxiii., 326. Hausding, case of— naturalization, xxiv., 222. Helen, case of the — penaltj" for breach of blockade, xxxviii. , 497. Henrick and Maria, case of the, Hobbs V. Henning — continuous voy- ages, xxxix. Hoop, case of the — trade %\-ith the enemy, xxxi., 283. Huascar, case of the— insurgents as pirates, xxiii., 208. Indelible allegiance, xxiv. Independence, recognition of, xv. Indian Chief, case of the — commer- cial domicil, xxxiii.. 315. Institute of International Law, xxviii. Instructions for the French Navy, Instructions for United States Armies, 532. Insurance on ships of the enemy illegal, xxxii. Insurgents, aid to, xxxvii. Interest does not run during the war, xxxi. Intervention, xxiii. Jax Frederick, case of the — transfer in transitu, xxxiii., 352. Jecker v. ^Montgomery — mUitary oc- cupation, XXXV., 373. Jenkins, Sir Leoline, on pii-acy, xxiii., 195. Johanna Emilie, Johnson v. ilackintosh — discovery, xvii. , 6. Jange Margeretha, case of the, Joseph, case of the — trade with the enemy, xxxii., 292. Jurisdiction, territorial, xix. : on the high seas, xxii. ; over merchant vessels, lb. Kexnett v. Chambers — aid to insur- gents, xxxvii.. 441. Kent, op. of — change of sovereignty, XV., 21. Kei-sliaw v. Kelsey — trade with the enemy, xxxii., 295. King of Spain r. Hullett — immu- nities of sovereigns, 82. Koszta, Martin, case of — Nationality, xxiv., 226. Laws of war. xxix. Legates, see diplomatic agents. Legations, right of asylum in, xx. Legislation — to give effect to treaties. lMiL\xuEL. case of the — rule of the war of 1756, xxxviii., .502. Impressment of seamen — riglit of search, xxii., xxxix. I Leslie, Bishop of Ross — immunities of diplomatic agents, xx., 83. Letters of credence, xxv. ; Lettere patent, R>. INDEX. 583 Letters of marque and reprisal, xxix. License to trade with the enemy, xxxi. Lilla, case of the — decisions of prize courts, 27. Lindo v. Rodney — hostile embargo, 250. Loans of money to belligerents, xxxvii. Louis, case of Le — slave ti'ade as piracy, xxiii., 209. McLeod, case of, 175. MacDonald, case of — nationality, xxiv., 214. Madison, case of the — dispatches as contraband, xxxviii., 482. Magdalina Steam Navigation Co. v. Martin — immunities of diplo- matic agents, 102. Magellan Pu'ates, case of the, xxiii., 205. Manchester v. Massachusetts — terri- torial waters of a state, xix., 47. Mare Clausum, xix. Maria, case of the — right of search, xxxix., 515. Marianna Flora, case of the. Marque, letters of, .see letters of marque. Mendoza, case of — immunities of dip- lomatic agents, xx., 85. Mentor, case of the — termination of war, xxxvi., 385. Meteor, case of the — equipment of vessels of war, xxxvii., 418. Ministers, .see diplomatic agents. Mississippi, navigation of the, 33. Mohr & Haas v. Hatzfeld, — public property of the enemy, xxxiv. , 377. Montezuma, case of the — insurgents as pirates, xxiii., 206. Mimicipal seizures, xxii. Munitions of war — sale of, by a neutral state, xxxvii. Nancy, case of the — blockade, xxxviii., 494. Nashville, case of the, 431. Nationality, xxiv. Naturalization, xxiv. Naval stores, nee chussification of con- traband, xxxviii. Navigation of rivers, xviii. Neptunus, case of tlie — l)lockade, xxxviii., 490. Nereyda, case of the, 407. Neutralitet, case of the — penalty for carrying contraband, xxxviii., 474. Neutral duties, xxxvii. Neutrality Act,'U. S., xxxvii., 402. Neutralized States, xv. New Orleans Mob (1891), xxii., 183. New Orleans Riot (1851), xxii., 181. Newton and the Sally, cases of the — jurisdiction over merchant ves- sels, XX., 121. New York Life Ins. Co. v. Stathem — contracts between enemies, xxxi. , 278. Nitchencoff, case of — immunities of diplomatic agents, 103. Non-combatants — who are? xxix. Nuncio, sec diplomatic agents. Nymph, case of the — termmation of war, xxxvi., 386. Obligation of treaties, xxvii. Occupation as a mode of acquiring territory, xvii. ; mUitary, xxxv. ; of Naples (1495), xxxvi., 384. Ocean, case of the — blockade, xxxviii., 495. Oregon Territory, the, xvii.. 9. Orozembo, case of the — military per- sons as conti-aband, xxxviii., 483. Pacific blockade, xxviii. Pacifico, Don, case of — reprisals, xxxiii. Packet de Bilboa, case of the — transfer in transitu, xxxiii., 339. Parlement Beige, case of the — immu- nities of public ships, xx., 116. Parole. Partnei-ships, see contracts between enemies. Patrixent, case of the — ransom con- tracts, xxxii., 313. 584 INDEX. Peace, effect of ti-eaties of, xxxvi. Peiie, case of the — capture in neutral waters, xxxvii., 398. Peterhoff, case of the, xxxviii., xxxix., 465. PhiUps r. Hatch, 392. Piracy, xxiii. Postliminium, xxxvi. Potts V. BeU — trade with the enem}-, xxxi., 287. Pre-emption, 472. Prescription, xA'ii. • Prins Fretlerik, case of the — immu- nities of public ships, 115. Pi'ioleau i\ United States and Andrew Johnson — immunities of sover- eigns, xix., 77. Prisoners of war, xxix. Privateers, see declaration of Paris. Private International Law, xiv. Prize cases, the, (1) — declaration of war, 254. Prize cases, the, (2) — commercial dom- icil, 334. Prize courts, xl., 518. Prize courts on board ships, 519. Protector, case of the — termination of war, xxxvi., 391. Provisions as conti-aband, see occa- sional contraband, xxxviii. Prussian subject, case of — naturaliza- tion, xxiv., 224. Queen v. Keyn — jurisdiction over marginal seas, xix., 55. Ransom contracts, xxxii. Rapid, case of the — dispatches as con- traband, 480. Recapture, xxxiv. Recognition of belligerency, xvi. Recognition of independence, xv. Regina v. Cunningham — territorial waters, 44. Regina v. Leslie, 187. Reliance, case of the — jurisdiction of merchant vessels, 129. Reprisals, xxviii. Requisitions, xxxv. Bes ancipitis usus, 471. Respublica i'. De Longchamps — im- munities of diplomatic agents, 104. Retorsion, xxviii. Ricord v. Bettenham — ransom bills, 312, Ripperda, Duke of — right of asylum, XX., 139. Rivers, European, navigation of, xviii., 40. Rose V. Himely, 195. Rothschild v. Queen of Portugal, 82. Rule of the war of 1756, xxxviii. Sa, Pantaleon, case of — immunities of diplomatic agents, xx., 86. Sale of arms to France. 459. Sally, case of tlie — ownersliip of goods in transit, xxxiii., 344. Salvador, case of the — aid to insur- gents, xxxvii., 455. San Jose Indiano, case of the — goods m transitu, 342. Santa Craz, case of the — recapture, xxxiv., 358. Santa Lucia, 12. Santissima Trinidad, case of the — equipment of vessels of war, xxxvii., 408. Scotia, case of the, 1. Sea Lion, case of the — license to trade, xxxi., 300. Self-defense, acts of a State in. xxii. Servitudes, xviii. Seton V. Low — penalty for carrying contraband, xxxviii., 475. Shenandoah, case of the. 429. Sliips, public, immunities of, xx. ; right of asj'lum on, xxi. ; mer- chant sliips, jurisdiction over, XX. ; right of asylum on, xxi. Silesian Loan, The — reprisals, xx\-iii., 243. Slave-trade — as piracy, xxiii. Soil, produce of in enemy's country, xxxiii. Sotello, ca.se of — riglit of asylum, xxi.. 147. Sound Dues, The, 41. Sovereigns, immunities of, xix. Spies, XXX. INDEX. 585 state, definition of, xiv. Statutes of Limitations, xxxi. Stephen Hart, case of the — continu- ous voyages, xxxix. , 509. Stoppage in transitu, xxxiii. St. Albans Raid, The, 162. St. Lawrence, navigation of the, 35. St. Lawrence, case of the— trade with the enemy, 290. St. Marks, seizure of, 178. Straits, xix. Sumpter, case of the, 430. Swineherd, case of the, 388. Tacoxy, case of the, 431. Tallahassee, case of the, 431. Taylor v. Best — immunities of diplo- matic agents, xx., 90. Tempest, case of the — merchant ves- sels, XX., 122. Terceira Affair, The — neutral duties, xxxvii., 421. Terrae dominium finitur ubi finitur amorum vis, xix. Territorial waters, xviii. ; property, xvi. Territoriality of merchant vessels. xxii. Teutonia, case of the — declaration of At»ar, xxviii., 250. Texan Bonds — effect of a change of sovereignty upon public rights, XV., 18. Thetis, case of the — termination of war, xxx;vi., 389. Thompson v. Powles — loans to insur- gents, xxxvii., 440. Three-mile zone, xix. Tousig, Siaion, case of, 228. Trade with the enemy, xxxi. Ti'ansfer in transitu, xxxiii. Treaties, xxvi. Trent, case of the — persons as contra- band, XXX vi., 486. Trimble, case of — extradition, surren- der of citizens, xxi., 158. Trois Fr^res, case of, 248. Twenty-four-hour I'ule, see recapture, xxxiv. , Tlie yVmbrose Light vessels as pirates, United States v. — insurgent xxiii., 200. United States v. Dickelman, 138. United States r. Grossniayer — agents residing in the enemy's country, xxxii., 298. United States v. Jeffers, 140. United States v. Liddle, 104. United States v. ]\Ioreno — conquest, xxxvL, 375. United States t>. Artega, 104. United States v. Perclieman, 21. United States v. Prioleau — succession to belligerent communities, xvi., 28. United States i'. Qumcy — equipment of vessels of war in neutral terri- torj-, xxxvii., 412. United States v. Raucliei* — extradi- tion, xxi., 151. United States v. Rice— effect of mih- tary occupation, xxxv., 364. United States t\ Smith — pu-acy, xxiii., 196. United States v. Trumbull — aid to ua- surgents, xxxv., 443. United States v. Wagner, 79. Uti posseditis, xxxii. Vavasseur v. Krupp — immunities of foreign sovereigns, xix., 52. Venus, case of the — commercial dom- icil, xxxiii., 319. Vessels, see ships. Villasseque, case of — military occupa- tion, 380. Virgmius, case of the, 179. Visit and search, xxxix. Volante, case of tlie — contraband, xxxviii., 472. Vrow Heru'ica, case of the — freiglit. 356. Vrow Margaretha, case of the — trans- fer in transitu, xxxiii., 350. Wagner, case of — naturalization, xxiv., 225. War, definition of. xxviii. ; declara- tion of, Ih. ; effects of, xxix. 586 INDEX. "Ware v. Hylton— effect of war upon debts due to enemies, sxx. , 260. Wheaton. H. , case of — immunities of diplomatic agents, xx. . 94 ; on the navigation of rivers. 32. Wildenhus, case of — merchant vessels in foreign ports, xx,, 126, Willendson v. the Forsoket, 132. William, case of the — continuous voy- ages, xxxix,, 505, Williams, J,, case of, 215. Wolff V. Oxholm — confiscation of debts due the enemy, xxx. , 268. Wrech, see Baron de. UC SOUTHERN REGIONAl AA 000 996^24 2 BOOKSELLERS.]