; ELEMENTS o P INTERNATIONAL LAW. BY HENRY WHEATON, LL. D., MINISTER OF THE UNITED STATES AT THE COURT OF PRUSSIA; CORRESPONDING MEMBER OF THE ACADEMY OF MORAL AND POLITICAL SCIENCES IN THE INSTITUTE OF FRANCE; HONORARY MEMBER OF THE ROTAL ACADEMY OF SCIENCES AT BERLIN, ETC. ETC. SIXTH EDITION, WITH THE LAST CORRECTIONS OF THE AUTHOR, ADDITIONAL NOTES, AND INTRODUCTORY REMARKS, CONTAINING A NOTICE OF MR. WHEATON'S DIPLOMATIC CAREER, AND OF THE ANTECEDENTS OF HIS LIFE, WILLIAM BEACH LAWRENCE, FORMERLY CHARGE D'AFFAIRES OF THE UNITED STATES, AT LONDON, 62 86.12 BOSTON: LITTLE, BROWN AND COMPANY. 1855. Entered according to Act of Congress, in the year 1855, by Catharine "Wheaton, in the Clerk's Office of the District Court of the District of Massachusetts. RIVERSIDE, CAMBRIDGE: PRINTED BY H. O. HOUGHTON AND COMPANY. I, V a CONTENTS PAGE Introductort Remarks by the Editor, . . • xiii Author's Prefaces ..... clxxxv PART FIRST. DEFINITION, SOUECES, AND SUBJECTS OF INTERNATIONAL LAW. CHAPTER I. DEFES'ITIOX AXD SOURCES OF INTERNATIONAL LAW. § 1 . Origin of international law . . . . .1 2. Natural law defined, by Gi'otius .... 2 3. Natural law identical with the law of God, or divine law . , 3 4. Law of nations distinguished from natural law, by Grotius . 3 5. Law of nature and law of nations asserted to be identical, by Hobbes and Pufiendorf ..... 6. Law of nations derived from reason and usage 7. System of Wolf ..... 8. Difierences of opinion between Grotius and Wolf on the voluntary law of nations ..... 9. System of Vattel ..... 10. System of Hefilter ..... 11. Definition of international law .... 12. Sources of international law .... CHAPTER II. NATIONS AND SOVEREIGN STATES. 426130 § 1. Subjects of international law . . . . .27 2. Definition of a State ..... 27 34 IV CONTENTS. 3. Sovereign princes the subjects of international law . . 28 4. Individuals or corporations the subjects of international law . 28 5. Sovereignty defined . . . . .29 6. Sovereignty, how acquired .... 30 7. Identity of a State . . . . . .31 8. Identity of a State, how affected by external violence • . 32 9. By the joint effect of internal and external violence confirmed by treaty 33 10. Province or colony asserting its independence, how considered by other foreign States ..... 11. International effects of a change in the person of the sovereign, or in the internal constitution of the State . 12. Sovereign States defined 13. Semi-sovereign States .... 14. Tributary and vassal States 15. Single or united States .... 16. Personal union under the same sovereign 1 7. Real union under the same sovereign 18. Incorporate union 19. Union between Russia and Poland 20. Federal union . . • . . 21. Confederated States, each retaining its own sovereignty 22. Supreme federal government, or compositive State 23. Germanic Confederation .... 24. United States of America 25. Swiss Confederation .... 36 45 45 51 55 55 56 56 57 58 59 59 59 72 79 PART SECOND. ABSOLUTE INTERNATIONAL EIGHTS OF STATES. CHAPTER I. RIGHTS OF SELF-PRESERV.A.TION AND INDEPENDENCE. § 1. Rights of sovereign States with respect to one another . . 85 2. Right of self-preservation . . . . 85 3. Right of intervention or interference . . . '87 4. AVars of the French Revolution .... 94 5. Congress of Aix la Chapelle, of Troppau, and of Laybach . . 95 6. Congress of Verona ' .... 96 7. War between Spain and her American colonies . . .97 8. British interference in the affairs of Portugal, in 1826 . . 98 9. Interference of the Christian powers of Europe in favor of the Greeks 100 CONTENTS. V PAGE 10. Interference of Austria, Gi'eat Britain, Prussia, and Russia, in the inter- nal affairs of the Ottoman Empire, in 1840 . . . 103 11. Interference of the five great European powers in the Belgic revolu- tion of 1830 ..... 105 12. Independence of the State in respect to its internal government . 106 13. Mediation of other foreign States for the settlement of the internal dis- sensions of a State. Treaties of mediation and guaranty . 106 14. Independence of every State in respect to the choice of its rulers . 108 15. Exceptions growing out of compact or other just right of intervention 108 16. Quadruple alliance of 1834, between France, Great Britain, Portugal and Spain ...... 109 CHAPTER II. EIGHTS OF CIVIL AND CRIMINAL LEGISLATION. § 1. Exclusive power of civil legislation . . . , . 112 2. Conflict of laws . . . . .113 3. Lex loci rtei sita3 . . . . . .116 4. Droit d'aubaine . . . . . 117 5. Lex domicilii . . . . . .119 6. Personal status . . . . .121 7. Lex loci contractus ...... 140 8. Lex fori . . . . . . 143 9. Foreign sovereign, his ambassador, army, or fleet, within the territory of another State ..... 143 10. Jurisdiction of the State over its public and private vessels on the high seas ....... 158 11. Consular jurisdiction ... . . . 165 12. Independence of the State as to its judicial power . " . 168 13. Extent of the judicial power over criminal offences . . 174 14. Extra-territorial operation of a criminal sentence . . . 181 15. Piracy under the law of nations . . . .184 16. Extent of the judicial po^ver as to property within the territory . 196 17. Distinction between the rule of decision and the rule of procedure as affecting cases in rem . . . . .196 18. Conclusiveness of foreign sentences in re7« , . . 197 19. Extent of the judicial power over foreigners residing within the terri- tory , . . . . . . 200 20. Distinction between the rule of decision and rule of proceeding in cases of contract ...... 202 21. Conclusiveness of foreign sentences in personal actions . . 205 CHAPTER III. KIGHTS OF EQUALITY. § 1. Natural equality of States modified by compact and usage . . 210 2. Roval honors ...... 210 a* VI CONTENTS. PAGE 3. Precedence among princes and States enjoying royal honors . . 210 4. Usage of the altei-nai ..... 212 5. Language used in diplomatic intercourse . . .213 6. Titles of sovereign princes and States . . . 214 7. Maritime ceremonials ..... 215 CHAPTER IV. RIGHTS OF PROPEKTY. § 1. National proprietary rights . . . . .217 2. Public and private property . . . . 21 7 3. Eminent domain . . . . . .217 4. Prescription . . . . . . " 218 5. Conquest and discovery confirmed by compact and the lapse of time . 218 6. Maritime territorial jurisdiction .... 233 7. Extent of the term coasts or s/iore .... 234 8. Right of fishery ..... 236 9. Claims to portions of the sea upon the ground of prescription . 238 10. Controversy respecting the dominion of the seas . . 245 11. Rivers forming part of the territory of the State . . . 252 12. Right of innocent passage on rivers flowing through different States 253 13. Incidental right to use the banks of the rivers . . 253 14. These rights imperfect in their nature .... 254 15. Modification of these rights by compact . . . 254 16. Ti-eaties of Vienna respecting the great European rivers . . 254 1 7. Navigation of the Rhine .... 255 18. Navigation of the Mississippi . . . . .257 19. Navigation of the St. Lawrence .... 261 PART THIRD. INTERNATIONAL RIGHTS OF STATES IN THEIR PACIFIC RELATIONS. CHAPTER I. RIGHTS OF LEGATION. § 1. Usage of permanent diplomatic missions . . .273 2. Right to send and obligation to receive public ministers . 273 3. Rights of legation, to what States belonging . . . 274 4. How affected by civil war or contest for the sovereignty . 275 5. Conditional reception of foreign ministers . • • 276 6. Classification of public ministers .... 277 CONTENTS. VU PAGE 7. Letters of credence . . .... 281 8. Full power ...... 282 9. Instructions ...... 282 10. Passport ...... 282 11. Duties of a public minister on arriving at his post . . . 282 12. Audience of the sovereign or chief magistrate . . 283 13. Diplomatic etiquette ..... 283 14. Privileges of a public minister .... 283 15. Exceptions to the general rule of exemption from the local jurisdiction 284 16. Personal exemption extending to his family, secretaries, servants, &c. 286 17. Exemption of the minister's house and property . . .287 18. Duties and taxes ..... 299 19. Messengers and couriers ..... 300 20. Public minister passing through the territory of another State than that to which he is accredited .... 301 21. Freedom of religious worship . . . . 304 22. Consuls not entitled to the peculiar privileges of public ministers 304 23. Termination of public mission .... 306 24. Letter of recall . . . . • .315 CHAPTER II. EIGHTS OF NEGOTIATION AND TREATIES. § 1. Faculty of contracting by treaty, how limited or modified . .317 2. Form of treaty . . . . . .317 3. Cartels, truces, and capitulations .... 318 4. Sponsions ...... 318 5. Full power and ratification ..... 319 6. The treaty-making power dependent on the municipal constitution 328 7. Auxiliary legislative measures, how far necessary to the validity of a treaty ...... 8. Freedom of consent, how far necessary to the validity of treaties . 331 9. Transitory conventions perpetual in their nature • . 332 10. Treaties, the operation of which cease in certain cases . . 342 11. Treaties revived and confirmed on the renewal of peace . 343 12. Treaties of guaranty ..... 344- 13. Treaties of alliance ..... 345 14. Distinction between general alliance and treaties of limited succor and subsidy ....... 346 15. Casus /ceteris of a defensive alliance . . • 346 16. Hostages for the execution of treaties .... 354 17. Interpretation of treaties ..... 355 18. Mediation . . . . . .355 19. Diplomatic history .... * 355 329 VIU CONTENTS. PART FOURTH. INTERNATIONAL EIGHTS OF STATES IN THEIR HOSTILE RELATIONS. CHAPTER I. COMMENCEMENT OP WAR, AND ITS IMMEDIATE EFFECTS. PAGE § 1. Redress by forcible means between nations . . • 361 2. Reprisals . . . . . .362 3. Effect of reprisals ...... 363 4. Embargo previous to declaration of hostilities . . 363 5. Right of making war, in whom vested .... 364 6. Public or solemn war . . . . . . 364 7. Perfect or imperfect war . ... 365 8. Declaration of war, how far necessary . . . 365 9. Enemy's property found in the territory on the commencement of war, how far liable to confiscation . . . .366 10. Rule of reciprocity ..... 369 11. Droits of admiralty . . ; . . .370 12. Debts due to the enemy . . . . . 379 13. Trading with the enemy, unlawful on the part of subjects of the bel- ligerent State . . . . . .381 14. Trade with the common enemy, unlawful on the part of allied subjects 390 15. Contracts with the enemy prohibited . . . 392 16. Persons domiciled in the enemy's country liable to reprisal . 392 17. Species of residence constituting domicile . . . 394 18. Merchants residing in the east . . . .407 19. House of trade in the enemy's country . . . 408 20. Converse of the rule . ..... 409 21. Produce of the enemy's territory considered as hostile so long as it * belongs to the owner of the soil, whatever may be his national char- acter or personal domicile .... 409 22. National character of ships ..... 413 23. Sailing under the enemy's license .... 414 CHAPTER II. EIGHTS OF WAR AS BETWEEN ENEMIES. §1. Rights of war against an enemy .... 416 2. Limits to the rights of war against the person of an enemy . 416 3. Exchange of prisoners of war ..... 417 4. Persons exempt from acts of hostility . . . 419 CONTENTS. ix PAGE 5. Enemy's property, how far subject to capture and confiscation . 419 6. Ravaging the enemy's territory, -when lawful . . 420 7. Distinction between private property taken at sea, or on land . 429 8. What persons are authorized to engage in hostilities against the enemy 430 9. Non-commissioned captors .... 430 10. Privateers ....... 431 11. Title to property captured in war . . . . 432 12. Recaptui'cs and salvage . . . . .437 13. Validity of maritime captures determined in the courts of the captor's country . . . . . .456 14. Jurisdiction of the courts of the captor, how far exclusive . . 458 15. Condemnation by consular tribunal sitting in the neutral country 460 16. Responsibility of the captor's government for the acts of its commis- sioned cruisers and courts .... 460 1 7. Title to real property, how transferred in war. Jus postliminii . 469 18. Good faith towards enemies . . . .470 19. Truce or armistice . . . . . .470 20. Power to conclude an armistice . . . .471 21. Period of its operation ..... 471 22. Rules for interpreting conventions of truce *. , . . 472 23. Recommencement of hostilities on the explication of truce . . 473 24. Capitulations for the surrender of troops and fortresses . 473 25. Passports, safe-conducts, and licenses . . . .475 26. Licenses to trade with the enemy .... 475 27. Authority to grant licenses ... . . . 476 28. Ransom of captured property . . . .478 CHAPTER III. RIGHTS OF WAR AS TO NEUTRALS. § 1. Definition of neutrality ..... 480 2. Diiferent species of neutrality .... 481 3. Perfect neutrality . . . . . .481 4. Imperfect neutrality ..... 482 5. Neutrality modified by a limited alliance with one of the belligerent parties ...... 489 6. Qualified neutrality, arising out of antecedent treaty stipulations, admit- ting the armed vessels and prizes of one belligerent into the neutral ports, whilst those of the other are excluded . . 490 7. Hostilities within the territory of the neutral State . . 491 8. Passage through the neutral territory . . . 491 9. Captures within the maritime territorial jurisdiction, or by vessels stationed within it or hovering on the coasts . . .492 10. Vessels chased into the neutral territory and there captured . 493 11. Claim on the ground of violation of neutral territory, must be sanctioned by the neutral State . . • • • .494 X CONTENTS. PAGE 12. Restitution by the neutral State of property captured within its juris- diction, or otherwise in violation of its neutrality . . 494 13. Limitations of the neutral jurisdiction to restore in cases of illegal capture ...... 497 14. Eight of asylum in neutral ports dependent on the consent of the neu- tral State ...... 498 15. Neutral impartiality, in what it consists .... 498 16. Arming and equipping vessels, and enlisting men within the neutral territory, by either belligerent, unlawful . . . 499 1 7. Prohibition enforced by municipal statutes . • . 500 18. Immunity of the neutual territory, how far it extends to neutral vessels on the high seas . . . • . 503 19. Usage of nations subjecting enemy's goods in neutral vessels to capture 504 20. Neutral vessels laden with enemy goods subject to confiscation by the ordinances of some States ..... 505 21. Goods of a friend on board the ships of an enemy . . 505 22. The two maxims, of/ree ships free goods, and enemy ships enemy goods, not necessarily connected . . . . .507 23. Conventional law as to /ree s^i/js/ree (70o^7s . . • 508 24. Contraband of war . ^ . . . . . 535 25. Transportation of military persons and despatches in the enemy's service 562 26. Penalty for the carrying of contraband . . . 567 27. Rule of the war of 1756 . . . . .572 28. Breach of blockade . . . . .575 29. Right of visitation and search . . . .587 30. Forcible resistance by an enemy master . . . 592 31. Right of a neutral to carry his goods in an armed enemy vessel . 593 32. Neutral vessels under enemy's convoy, liable to capture . 594 CHAPTER IV. TREATY OF PEACE. § 1. Power of making peace dependent on the municipal constitution 607 2. Power of making treaties of peace limited in its extent . . 608 3. Effects of a treaty of peace ' . . . . 610 4. Uti possidetis the basis of every treaty of peace, unless the contrary be expressed . . . . ' . . 612 5. From what time the treaty of peace commences its operation . 613 6. In what condition things taken are to be restored . . 615 7. Breach of the treaty ..... 615 8. Disputes respecting its breach, how adjusted . . .616 CONTENTS. xi APPENDIX. PAGE 1. Additional note on naturalization, by the editor , . . 626 2. Act to remodel the diplomatic and consular systems of the United States 634 3. Debate on neutral rights, House of Commons, July 4, 1854 . . 643 Addenda to the Notes . . . .670 Table of Cases ...... 695 Index ...... 701 INTRODUCTOP.Y REMARKS BY THE EDITOR. The position, which Mr. Wheaton occupied in the world of letters, and the space, which he fills in the legal and diplomatic annals of his own country, would give interest to the most ample details connected with his biography. These the Editor hopes to be able to present, at a future day, with a selection from those miscellaneous writings, — the results of the favor- able opportunities for the cultivation of the elegant arts, as well as for investigations more particularly appertaining to his pecu- liar pursuits, which his long residence in different capitals of Europe afforded. His public despatches, and the correspond- ence w^hich he carried on with many of the most eminent of his contemporaries, both at home and abroad, on subjects which have entered into the permanent history of the world, or which tend to elucidate questions of constitutional or international law, will likewise impart additional value to " The Life of Henry Wheaton." The pages allotted to an Editorial Notice will not admit of any extended remarks, not immediately applicable to the treatise of which it forms the Introduction. The rank, however, which is accorded to the " Elements of International Law," in the cabinets of Christendom, where it has replaced the elegant trea- tise of Vattel, whose summary long formed a substitute for the more elaborate works of Grotius and Wolf, and the conside- ration which it enjoys, not only among diplomatists, but in legis- lative assemblies and in the tribunals administering the common b XIV INTRODUCTORY REMARKS. jurisprudence of nations, seem to render it proper, in oSiering to the public the first American edition of his great, work, that has appeared since Mr. Wheaton's death, to furnish a brief sketch of his pubhc career and prehminary pursuits. Those who are acquiring from his labors the fundamental principles of that science, of which he was not only a teacher, but which he successfully applied to the service of his country, may well desire a personal acquaintance with the author. It will, it is believed, at least, tend to dispel the illusion, that eminence in diplomacy is attainable by different means from those which are required in other pursuits of life, and show that a minister, worthy of the name, is no more to be created by an executive fiat than a general or an admiral. Henry Wheaton was born at Providence, in the State of Rhode Island, on the £7th of November, 178-5. He was descended from a family identified with that Commonwealth from its earliest colonization. His father, Seth Wheaton, ac- quired, by commerce and navigation, a fortune sufficient to ena- ble him to aflbrd to his son those advantages of liberal culture and early foreign travel, that so eminently contributed to his success in the subsequent pursuits of life. The elder Mr. Wheaton maintained, during a long business career, a distin- guished position among his fellow-citizens ; and he held, at the time of his death, the Presidency of the Rhode Island Branch of the Bank of the United States, a station which, from the controlling influence possessed by the parent institution over the currency of the country, till its fatal contest with the govern- ment of the Union, in President Jackson's administration, was regarded as the most honorable distinction that could be con- ferred on a retired merchant. Mr. Wheaton's mother is represented to have been a woman of strong intellect and of rare delicacy and refinement ; and it was by the intercourse with her brother, Dr. Levi Wheaton, not only eminent as a physician, but distinguished for his literary culture, and who, afterwards, became his father-in-law, that our INTRODUCTORY REMARKS. XV author's early taste for knowledge was stimulated and encou- raged. Mr. Wheaton, after receiving the ordinary preliminary in- struction, graduated at the College of his native State, now Brown University, in 1802. During the ensuing three years he prepared himself, in the office of Nathaniel Searle, then among the prominent practitioners at Providence, for admission to the bar. His studies were, from his earliest days, of a cha- racter appropriate to the education of a publicist. Besides his proficiency in the classical and mathematical departments, he was particularly distinguished, at school and college, for his fondness for general literature, and especially for historical research and the investigation of the political annals of nations. In the spring of 1805, he went to Europe, and though his desire for intellectual improvement and his sound moral prin- ciples would, probably, have proved an adequate protection against all improper temptations, it was, perhaps, well for his future success that his father's moderate views of expense did not permit him, at once, to luxuriate in a great metropolis. He established himself at Poitiers, where there was a school of law. His object seems to have been to acquire a familiarity with the use of the French language, in which he had been early instructed ; while he availed himself of the opportunity to frequent the tribunals and study the civil law. Indeed, in this branch of jurisprudence, Mr. Wheaton might almost be deemed a pioneer among his countrymen. Even Pothier, whose works contributed so largely to the Napoleon Code, had not then been made accessible to the American lawyer. Nor had Kent and Story, whose decisions derive so much value from their abundant stores of continental lore, and both of whom had repeated occasion to appreciate the early studies of Mr. Wheaton, then assumed their places in the tribunals, which they subsequently illustrated — the one as Chancellor of New York, the other as a member of the Supreme Federal Judi- ciary. At the time of Mr. Wheaton's residence in France, the XVI INTRODUCTORY REMARKS. legislation, substituting- a uniform system for the somewhat diversified modifications of the civil law, existing before the Revolution in the several provinces, had only been a year in operation.^ He was thus induced, at an early day, to study the codes which had not then been rendered into English, and of which he made a translation, the publication of which was only prevented by the accidental destruction of the manuicript. A witness of the transition from the droit coutiimier^ and from a system composed of the Roman civil law and of royal ordi- nances and local regulations, to a uniform written law, he was preparing himself to exercise an enlightened judgment on codi- fication — a subject which, as a Commissioner of New York, under the first law passed by any State of the Union, for the liberal revision of its statutes, he had, twenty years after- wards, occasion to discuss, with a view to its practical appli- cation. After visiting Paris, where General Armstrong, with whom he was in after life brought into intimate relations, represented the United States, he went to London. He was very kindly received there by our minister, Mr. Monroe, subsequently President of the United States, and he passed six months in that metropolis. As he was in England during the change of Ministry, when Mr. Fox came into power, and during the pro- ceedings against Lord Melville, in which the judicial authority 1 By the laAV of 21st March, 1804, the Roman law, the ordinances, the general and local customs, the statutes and riglemens, ceased to have the force of general or particular law upon the matters, which form the subject of the civil code ; but the code itself frequently refers to local customs or usages, which are founded on the ancient coutumes or laws. France had been divided into two great sys- tems, that of the pays coutumier and that of the pays de droit icril. Each of these systems was subdivided into an infinite number of branches. There were more than one hundred and eighty coutumes ginerales, which were modified by a great number of local customs. The dj-oit Scrit, also, varied in different places. The jurisprudence of the parliaments and the local usages had modified, in dif- erent ways, the Roman law, from which the droit icrit was drawn. There were, moreover, royal decrees, and ordinances. The different countries, successively incorporated with France, had also their usages and laws. Pailliet, Droit Fran- cois, Introduction, p. 4, note. INTRODUCTORY REMARKS. XVU of the House of Lords was exercised, on the presentation of the Commons, as the grand inquest of the nation, he had a favorable opportunity of studying the constitutional system of our mother country, the knowledge of which is so essential to the thorough understanding of our omi. He was, also, enabled to compare the practical working of the common law, in the country to which we refer its origin, with the administration of the civil law, whose tribunals he had just quitted. But it was not merely by the study of the constitutional and municipal jurisprudence of what were then the two greatest nations of Europe, that his foreign residence was beneficial to the future diplomatist. Paris was the centre of all that was attractive, of all that was interesting on the Continent of Europe. The Italian campaigns had already embellished her palaces and her museums with the chefs d'ceuvre of art, which centuries had accumulated in the capital of the ancient world, and in the most favored cities of the Republics of the Middle Ages. The territorial arrangements, which the Treaty of Utrecht was sup- posed to have settled on a firm basis, were, despite the succes- sive coalitions to uphold the obsolete fabric of European organi- zation, at an end. Even England had recognized, in 1802, by the short-lived peace of Amiens, concluded with the First Consul, the new order of things, to which every other power had previously given its adhesion. The French Revolution itself had been, it was supposed, brought to a close by the assumption, on 18th of May, 1804^, with the almost unanimous approbation of the people, of the sceptre by Napoleon, and by his coronation, under circumstances of peculiar solemnity, on the 2d of December following, as Emperor of the French. It was while the American student was still at Poitiers, that, by the battle of Austerlitz, the undisputed sway of the Conti- nent, and which was scarcely affected by the untoward move- ments of Prussia, terminating in the Treaty of Presburg and the affiliation of the French and Russian Emperors, became the property of Napoleon. On the other hand, by the battle of XVlll INTRODUCTORY REMARKS. Trafalgar, contemporaneous with the capitulation of Ulm, the dominion of the sea was secured to England. A state of war is emphatically the period for the practical application of the law of nations. The relations of his country towards the great European powers, which divided the supre- macy of the world, were well calculated to lead an inquisitive mind to the investigations on which Mr. Wheaton's lasting* fame reposes. The accession of Mr. Fox, who was understood not to coincide, as to many points affecting neutral rights, with the administration which had preceded him, inspired at Wash- ington new confidence of a settlement of all pending difficulties. This expectation was, also, strengthened by the prospect of a general European pacification, as the members of the new go- vernment, when out of office, had been opposed to the policy that had prevailed in reference to the French Revolution. These hopes, however, were destined to an early disappointment. The Treaty of 179^ with England, objectionable as it was in other respects, had established a joint commissio'n to ascertain the amount of damages sustained by citizens of the United States, for irregular and illegal captures and condemnations, under color of British authority, and for which adequate com- pensation could not be obtained in the ordinary course of judi- cial proceedings.^ Between 1793 and 1800 serious injuries had, also, been inflicted on our commerce, by. the capture and condemnation of our vessels and the seizure of our property by France, in violation of the law of nations and existing treaties. All demands for redress were, however, met by counter claims of that power, growing out of the alleged infraction, on our part, of the stipulations of the treaties of alliance and of com- merce, of 177^? and of the consular convention of 1788. After hostile measures, extending even to what our author terms an imperfect war,^ had been resorted to by the United States, 1 United States Statutes at Large, vol. viii. p. 121. 2 Part IV. c. 1, § 7, p. 365, note 1. See also for acts passed on this subject. INTRODUCTORY REMARKS. XIX < the respective pretensions of the two parties, not specially re- served, were abrogated by the operation of the treaty of peace, of September 30, 1800, or were renounced, at least as between the countries, by the circumstances connected with its ratifica- tion. Reclamations, which had been reserved by that treaty, or such as were, at the time, deemed to be valid by the plenipo- tentiaries of the two powers, were provided for by one of the conventions, concluded on the SOth of April, 1803, for the pur- chase of Louisiana.^ The Berlin and Milan decrees, the commencement of that system which had for its object the exclusion of English pro- duce and manufactures from the whole European Continent, had not, with the Orders in Council professed to be based on them, then been issued. But, the practice of paper blockades was begun, and an apology for those decrees and other obnox- ious imperial ordinances, which laid tbe foundation for claims that occupied our diplomacy for more than a quarter of a cen- tury, and until their liquidation under President Jackson, had, according to that belligerent code which considered the spolia- tion of one enemy a just ground for an equivalent violation of neutral property by the other, already been afforded. The prac- tice of impressing seamen from our merchantmen, when visited by British men-of-war, under the belligerent plea of the right of search for contraband, or, according to the rule that then prevailed, for enemy's property, which had been a ground of complaint from the earliest days of the French Revolution, and which, at all events, had no pretension of retaliation, founded on the enemy's proceedings, to support it, had been resumed on the termination of the peace, established by the Treaty of Amiens. Not only had the rule of the war of '56 — never asserted in the intervening one of the American Revolution, and for captures under which compensation had been made, United States Statutes at Large, vol. i. pp. 561, 565, 572, 578, 624, 743. Vol. ii. pp. 7, 39. 1 See Part IV. c. 4, § 3, p. 611, note. XX INTRODUCTORY REMARKS. in pursuance of the Treaty of 1794-, been revived ; but, instead of its being confined to a prohibition of the direct trade between the enemy's colonies and the mother country, colonial produce, though reexported from the United States, in accordance with the rule, as announced by Lord Hawkesbury to the American Minister, Mr. Rufus King, in 1801, was captured and con- demned in the Courts of Admiralty.^ What was well calculated to increase the offensive character of the British proceedings was, that, while they excluded all neutral vessels from the trade assumed to be open to them in war but not in peace, that is to say, from the enemy's colonial and coasting trade, a communication with the enemy's colonies was encouraged, by licenses and other means. Thus, by the Act of 45 Geo. III. c. 57,2 (27th of June, 1805,) free ports were established in the English West India islands, and an intercourse formed between them and the enemy's colonies and settlements. The articles therein mentioned, being the growth, produce, or manufacture of any of the colonies or plantations in America, belonging to any European State, were allowed to be imported, from any of those colonies or plantations, into the enumerated ports, in any foreign vessel whatever, not having more than one deck, and o^\'^led and navigated by persons inha- biting those colonies or plantations. Tobacco w^as especially permitted to be exported from those countries to the enume- rated ports, and from thence to the United Kingdom. The exportation from those ports to any of the colonies or planta- tions in America, belonging to or under the dominion of any foreign European sovereign, in any vessel in which importa- tions were authorized, of " rum, the produce of any British island, and also" (in order, it would seem, to encourage the British navigation engaged in the slave-trade,) "of negroes, which shall have been brouo^ht into the said island in British- 1 American State Papers, vol. vi. p. 268. 2 British Statutes at Large, INTRODUCTORY REMARKS. XXI built ships, owned, navigated, and registered according- to law," was particularly favored. All other articles, except those specially prohibited, might likewise have been thus exported. Goods, also, from any port of Europe, were allowed to be, in the same way, brought into the British islands, and from thence to be exported in a British vessel to any British colony in America or the West Indies, and an Order in Council, of the oth of August, 1805, prohibited, under the penalty of confiscation of the vessel and cargo, all intercourse of neutrals with the ene- my's colonies, except through the free ports. The same course was subsequently pursued, in reference to the trade with the Continent of Europe, after the blockade of the French coast. By the Act of 48 Geo. III. c. SJ,^ (14th April, 1808,) the king was empowered by an Order in Coun- cil to permit, during hostilities, goods to be imported into any port of Great Britain or Ireland, frOm any port or place from which the British flag was excluded, in any ship or vessel belong- ing to any country, whether in amity with England or not. And it is stated that, while all regular neutral commerce was interdicted, 8, 00(T English licenses were granted in 1811, and that in 1808 and 1809 the system had been carried to a still greater extent. Thus English vessels had been authorized by their own government to violate a blockade, which this same government had been obliged, according to their own declara- tion, to establish for the purpose of legitimate defence, and which it so vigorously maintained against neutrals.^ It was the seizure, in 1805—6, of a large number of vessels, whose cargoes had been landed and the duties on them paid, which it had been previously declared would be deemed to break the continuity of the voyage, that, in connection with the subject of impressment, induced President Jefferson, in April, 1806, to 1 British Statutes at Larjge, 2 See Martens, Eecueil, Supp. torn. v. p. 449, for the Orders in Council regulating the trade. Manning's Law of Nations, p. 340. Hautefeuille, Droits des Nations Neutres, torn. i. p. 158. XXll INTRODUCTORY REMARKS. unite Mr. Pinkney with Mr. Monroe in that mission, which led to the conclusion, sub spe rati^ of the treaty with Lord Holland and Lord Auckland, that failed to meet the approbation of the Executive. The absence of any provision with regard to impress- ment would have been sufficient to have prevented its submission to the Senate. The official note, which the American Plenipoten- tiaries had received from the British Commissioners, pledging their government to caution in the exercise of the practice, so far from being deemed a substitute for an express stipulation, might have been regarded as a recognition of the pretension ; while a proposed reservation, at the moment of signing the treaty, and which was intended to justify the retaliatory measures that might be founded on the French decree of November 21st, 1806, and control our proceedings towards a third party, for the vindication of our neutral rights, would alone have rendered a ratification, on our part, inadmissible. By the British it was expressly declared, that their ratification would not be given, unless the French either withdrew the Berlin decree or the United States gave their government assurances that they would not submit to it.^ On Mr. Wheaton's return to America, he entered on the practice of his profession in his native town, but the character of the business, usually intrusted to a young lawyer in a provin- cial capital, is not such as was calculated to call into exercise the particular attainments of our author. There was, however, in the condition of the world ample scope for the talents of a young American, conversant by practical observation with the events that characterized the first part of the nineteenth century. The seven years from 1806 to 1813, which com- prise the period that elapsed between Mr. Wheaton's return home and his final removal from his native State, were pre- cisely those during which the neutral powers were exposed to the alternate aggressions of the two great belligerents ; " the 1 American State Papers, vol. vi. p. 368. INTRODUCTORY REMARKS. XXIU conduct of both of whom," in the language of Mr. Madison, when Secretary of State, " displayed their mutual efforts to draw the United States into a war with their adversary ; " and among maritime States, America, after the gross violation of the law of nations by England towards Denmark, in 1807, stood alone. Mr. Wheaton, whose nearest relatives were of the school of Jefferson, and whose republican sentiments were unavoidably strengthened by his European residence, was, during these years of comparative leisure, an efficient supporter, by his contributions to the periodical press, of the administrations of Jefferson and Madison. The Rhode Island Phoinix, afterwards the Rhode Island Patriot, copies of which are still preserved in the Histo- rical Society of the State, contain many papers from his pen. Among his fellow laborers of that period were the present vene- rable Judge Pitman, of the United States District Court, and the late Governor Fenner, both of whom belonged to the Republican party, as the friends of the administration were then termed, while its opponents, according to the political nomenclature of the day, were called Federalists. Jonathan Russell was also associated with him in the task of instructing the public mind of New England, as to the wrpngs which their country was receiving at the hands of the European belligerents ; and with him, while the diplomatic representative of the United States, successively in Paris and London, in 1810, 1811, 1812, as well as during his residence abroad, as a Commissioner at Ghent, and our first Minister to Sweden, he carried on a continued correspondence, which would elucidate many details connected with that eventful period of our diplomacy. The letters addressed to Mr. Wheaton, at this time, from distinguished citizens in different sections of the Union, show, that his reputation was already being established beyond the limited bounds of his native State, and it would seem that his appointment as Secretary of Legation, either to Paris or Lon- don, was then contemplated. Among his correspondence of 1811 there is a letter from one of the Heads of Department, XXIV INTRODUCTORY REMARKS. enclosing a communication, which he fully endorses, from the editors of the National Intelligencer, not only the ablest journal at the seat of government, but then, as it was under- stood, the exponent of the views of the Administration, thank- ing him in strong terms for a political article, which he had furnished, and inviting further contributions. While yet resident at Providence, he delivered, on the 4-th of July, 1810, an oration before his townsmen, in acknowledging the receipt of which Mr. Jefferson says : " he rejoices over every publication wherein such sentiments are expressed. While these prevail all is safe." In 1811, Mr. Wheaton married his cousin Catharine, the daughter of Dr. Wheaton, to whom he had been attached from an early day, and who, after partaking with him all his vicissi- tudes of fortune, at home and abroad, still survives her irrepar- able loss. He appears, at this period, to have sought a wider field than his native place afforded for his talents, and to have intended to exercise his profession in the State of New York. This, however, was prevented by the old system of apprentice- ship or clerkship, only fully abrogated by the Constitution of 1846. It, at the time referred to, required a novitiate of at least three years, which. Judge Spencer wrote to his father in law, could not then be dispensed with, even in the case of a practitioner from another State, or in consequence of attain- ments however extensive. Towards the close of 1812, and some months after the declaration of the war with England, Mr. Wheaton was in- duced to take charge of a paper in New York, established under the title of the National Advocate, as the organ of the Republican party, in that city. The editorship of a daily news- paper at that time presented no flattering position. With the exception of the National Intelligencer, and of a few other cases, the newspapers of the United States, forty years ago, instead of being the vehicles of sound political intelligence and the means of diffusing correct information among the people, on the great INTRODUCTORY REMARKS. XXV topics of public interest, were the mere conduits of personal invective and party acerbity. Tlie establishment of the National Advocate constitutes a new epoch in the history of the newspaper press of the coun- try. At the conclusion of the first year, the Editor remarks : " Our ideas of the manner in which a free press should be con- ducted were developed in the Prospectus, and we contracted the obligation that this print should be conducted in conformity to them. We promised that it should never wound the feelings of virtue ; never infringe the laws of decorum ; and never spare the vices of political turpitude. It is for our readers to deter- mine how far we have performed our engagements." ^ In the Advocate were discussed, with the pen of a gentle- man and scholar, the great questions of violated neutral rights, which had given rise to the belligerent position of the country. The new duties which war had created, on the part of our country, towards other nations, and the rights which it gave us, as well as the obligations of the several State governments to the Federal government, and the paramount allegiance of the citizens of the different States to the United States, were eluci- dated with the learning of an accomplished publicist. The period was one well calculated to arouse the patriotism of a republican editor. War had been declared, when there had been a refusal to make an adjustment on the subject of impress- ment, and after it had been officially announced to the Ameri- can government, that the obnoxious Orders in Council would not be repealed, without a repeal of internal measures of France, which, not violating any neutral rights, we had no pretence to call on her to abrogate, and with regard to which England, therefore, had no excuse for asking us to interpose, even if one belligerent could make it a ground of offence towards a friendly power, that it had neglected to exact from the other all that 1 National Advocate, December 15, 1813. c XXVI INTRODUCTORY REMARKS. its neutral rights would authorize. Great Britain, after first requiring- us to obtain the repeal of the Berlin and Milan decrees to induce an abandonment of the Orders in Council, was not satisfied with their abrogation, as regarded the United States, but demanded that their repeal should be general, and should extend to the removal of the prohibition of English pro- duce and manufactures from the continent of Europe, where they operated as internal and municipal regulations not contra- vening any rights of neutrality. The diplomatic papers of the American government, indeed, show that there was ground enough for a resort to extreme measures against both the great European belligerents, espe- cially after the case of The Horizon,^ in I8O7. The effect of such an anomalous condition of things would scarcely have changed the actual position of the parties, inasmuch as the navy of Great Britain, by driving from the ocean not only the mili- tary, but mercantile, marine of France, had left her unassailable by us, in a maritime war, — the only species of hostilities that we could carry on against a strictly European power. Moreover, the avowed withdrawal of her hostile decrees, by France, in 1810,^ though the indemnity for past spoliations was deferred, had, already, induced a distinction in her favor as to our retali- atory interdicts on commercial intercourse. And the conviction, which circumstances subsequently confirmed, that the savages had been, while peace with the mother country still continued, excited by her provincial authorities, to carry the horrors of barbarous warfare into our frontier settlements, and that a secret agency had been instituted to separate the New Eng- land States from the Union, was deemed to justify a difference of conduct towards the two nations. War was consequently declared, on the 18th of June, 1812, against England alone. 1 American State Papers, vol. vi. p. 463. 2 Ibid. vol. vii. p. 441. INTRODUCTORY REMARKS. XXVII At this day, looking- not only to the causes of the war — the utter disregard of our flag- in the impressment of our seamen, aggravated, even so early as June, 1 807, hy the act of a British admiral, scarcely disavowed and most inadequately atoned for, in wresting, after the loss of several lives, four of the crew from a ship of war of the United States,^ and the condemna- tion of our vessels, in pursuance of Orders in Council, which even the British courts of admiralty did not venture to assert were consistent with the law of nations, but to the manner in which it was conducted — subjecting to conflagration edifices consecrated to legislation, setting at naught the ties of a com- mon origin and introducing the tomahawk of the Indian among the weapons of British warfare, it is scarcely possible to believe that those, to whom the Constitution confided the conduct of our foreign affairs, did not receive the unanimous support of the American people and of the State authorities. Such, however, was not the fact. It is true that some of the most illustrious, in the annals of federalism, merged all party considerations in their patriotic obligations, — that the coadjutor of Jefferson in the declaration of Independence and his great rival, at the origin of the government, the Ex-President Adams, exclaimed, " How it is possible that a rational, social, or moral creature can say that the war is unjust, is to me utterly incom- prehensible. I have thought it both just and necessary for five or six years.'' Such, also, were the often reiterated opinions of Oliver Wolcott, Secretary of the Treasury under the adminis- trations of Washington and Adams. Samuel Dexter, another member of the last cabinet of the federal party, whose political reputation was merged in his forensic fame, and Rufus King, deservedly esteemed one of the most enlightened statesmen among the founders of the government, and who was looked to as the individual, on whom alone President Madison's opponents 1 See case of The Chesapeake. American State Papers, vol. v. p. 480. XXVlll INTRODUCTORY REMARKS. could consistently rally for the chief magistracy, though not approving the war in advance, achieved for themselves an eternal claim to the gratitude of their country, by sustaining the administration, when menaced by foreign armies and inter- nal foes. Not only were the energies of the government shackled by local legislatures denying, in the very midst of hostilities, the sufficiency of the causes of the war, and justifying the acts of Great Britain as being retaliatory of those of France, while even the victories achieved by our own infant navy were availed of to repudiate their glorious exploits, as unbecoming the appro- bation of a moral and religious people ; but the federal author- ities were, in 1818, brought into direct collision with those of Massachusetts and Connecticut. The Governors of those States assumed the right of determining for themselves the exigencies, which authorized the calling out of the militia, even in time of war, and refused to allow them to be placed in any case under the orders of the officer of the United States, commanding the regular troops within the military department. The unconstitutionality of these pretensions, which it was obvi- ous would have defeated the main object for which the federal government was formed, and which, as pronounced by the Supreme Court of the United States, it was one of his last acts, when connected with that tribunal, to report,^ was, at the time, ably exposed by Mr. Wheaton in the columns of his journal. It was, also, his duty to point out the highly objectionable nature of the convention of delegates from some of the New England States, held at Hartford, in 1814, for the purpose of consider- ing their sectional interests ; but which the news of peace, arriv- ing almost simultaneously with their adjournment, rendered wholly innocuous. Among the articles of the Advocate, which appropriately ' Wheaton's Reports, vol.xii. p. 29. Martin v. Mott. .See also Ibid. vol. v. p. 1. Houston V. Moore. Kent's Com. vol. i. p. 265. INTRODUCTORY REMARKS. XXIX belong to the department of international law, was a vindica- tion on the authority of Vattel and Bynkershoek, of the right of expatriation, in answer to Gouverneur Morris, an eminent states- man and diplomatist of the Anti-Republican party. Nor was this subject then a mere theoretical question. Great excitement had prevailed, in consequence of the menaces of the enemy to execute the naturalized citizens of B;-itish origin, who might be taken prisoners of war, the barbarity of which was not a little increased by the fact that military service was exacted from natives of the United States domiciled in Canada. The retali- atory measures of the American government, in selecting as hostages British prisoners to double the number of the indi- viduals whose lives were in jeopardy, seems to have prevented a perseverance in the threat. Questions of maritime law were frequently discussed, and in the columns of his friend's paper first appeared Judge Story's opinion, deciding the illegality of enemy's licenses — a subject which, from the extent to which they were then used in order to supply with provisions the British armies in the Spanish Peninsula, attracted great attention. Enjoying, as Mr. Wheaton did, the confidence of the mem- bers of the Cabinet, the Advocate was frequently selected as a* medium through which to acquaint the people with the views of the administration. Such was the case, as regards the statement of the reasons, which, at an eventful period of the war, induced the removal of General Dearborn from the command of the army, and of the causes of the failure of the subsequent cam- paigns of Generals Wilkinson and Hampton, with which he was furnished by the Secretary of War, General Armstrong. He received, after the conclusion of peace, through the •Attorney- General, Mr. Pinkney, an expression of the obligations of all his colleagues for the able support which he had rendered to the government, with a special commendation of the papers published by him on the treaty, and which that eminent jurist declared to be " as well as could be wished." XXX INTRODUCTORY REMARKS. Of an oration pronounced on 4th of July, 1814, and while the war still continued, a notice remains in a letter of the gentle- man who succeeded Mr. Pinkney as Attorney-General. He says: " I have read it with equal attention and pleasure. It is filled with correct, enlarged, patriotic, forcible thoughts, purely ex- pressed, and oftentimes with energy and eloquence. I am glad to see the republican mind getting roused to the assertion of our great principles in times like these, when the aristocracy of the other hemisphere is so boldly attacking them. I am particularly delighted with the manner in which you have handled the European question." It was not merely to American affairs that the discussions of the Advocate were confined. His knowledge of Europe, with his intercourse with those most familiar with passing events, in- cluding the French Minister, Mr. Serurier, of whom he was a correspondent, enabled its editor to present the different aspects of the great pending contest, which was destined to change the whole fabric of European organization. His sagacity anticipated the permanent predominance, which Alexander was already achieving for Russia in the affairs of Europe ; while the Em- peror's accordance with us in maritime questions is shown to ^have been the reason, why, though united with him in an alliance, for continental matters, on which the destinies of both seemed to depend, Great Britain refused his proffered media- tion, in the war with the United States. While engaged in his editorial avocations, Mr. Wheaton re- ceived the commission of Division Judge- Advocate of the army. The unanimous confirmation of the appointment, on the 26th of October, 1814, was announced to him not only by letters from two distifiguished Senators, but the venerable Vice-President Gerry made it the subject of a congratulatory communication, in which he says : — " Your appointment was not only unani- mous, but the voice of the Senate was expressed with cordial- ity." This was the more flattering, as General Armstrong had already quitted the War Office, and the National Advocate had 1 INTRODUCTORY REMARKS. XXXI continued, in opposition to popular prejudice, excited against him on account of the disastrous affair of Washington, to sup- port and sustain him, as "entitled to the gratitude of the nation, for having put out of the way the superannuated generals, and for bringing forward a set of generals, (Brown and Scott.) who rescued our country from eternal disgrace." In May, 1815, Mr. Wheaton left the National Advocate, on being appointed one of the Justices of the Marine Court, — a tribunal of limited jurisdiction, and which is now shorn of much of its former consideration ; though in presiding over it, some of those, who were afterwards distinguished as the most eminent at the bar, passed a portion of their professional no- vitiate. Whilst occupying a seat in this court, which he con- tinued to fill till July, 1819, he had occasion to vindicate the paramount treaty-making power of the Federal Government. The case arose in 1816, under the commercial convention with Great Britain of the preceding year, and the question was, whether the reciprocity provision extended to the exemption of British vessels from the discriminating charges imposed by a local law of the State on foreign vessels. In 1815, under the modest title of a " Digest of the Law of Maritime Captures or Prizes," Mr. Wheaton published his first systematic treatise. This was a subject to which he anpears to have directed his attention from the period when, by the decla- jration of war by the United States against England, the admi- ralty jurisdiction became a matter of serious attention to the members of the legal profession, resident in the seaports. But, though its preparation was induced by the want of a work, for the daily reference of the practising lawyer, its utility was far from being limited to the circumstances out of which it arose. The " Digest " is not a mere index, but presents an exposition of the law of nations, as then understood and administered ; and though the language of the original authorities, to insure accuracy, is properly employed in preference to his own, no position is stated, the full effect of which is not appreciated by the writer. XXXH INTRODUCTORY REMARKS. Intended as a practical treatise, Mr. Wheaton gives a full analysis of the adjudications of the tribunals of different coun- tries, and especially of England and the United States, on ques- tions of prize, and which necessarily involved a review of all those debateable points of maritime law, which had been the subjects of our diplomatic discussions. The opinions on which the reputation of Sir William Scott (Lord Stowell) is based, had already been promulgated, with his views of the influence which the instructions of his government ought to have even over tribunals professedly acting as the exponents of the law of nations. And if any important additions have since been made to the authorities, on which reposes the law, deduced from the decisions of Admiralty Courts, as it was understood prior to the commencement of the present war, it is mainly in the reports of that tribunal, with which Mr. Wheaton's name is indissolubly connected, that they are to be found. In reference to this work. Judge Story wrote to the author, on 13th of December, 1815: — "You have honorably dis- charged that duty, which every man owes to his profession, and I am persuaded that your labors will ultimately obtain the rewards which learning and talents cannot fail to secure." At the same time, the Attorney-General of the United States, Mr. Rush, who was subsequently Minister, at different periods, to England and France, informed him that he had made his book the basis of a work on the state of American jurisprudence. Thirty years after its publication, an English writer, a high authority on international law, declared the work on captures to be, " in point of learning and methodical arrangement, very superior to any treatise on this department of the law, which had previously appeared in the English language." ^ Nor has it been superseded by the other books of Mr. Wheaton. It embraces a department of public law not discussed, or at most only incidentally touched on, in the more general treatises with 1 Reddle's Researclies, Historical and Critical, in Maritime International Law. INTRODUCTORY REMARKS. XXXIU which he has enriched the, science of international jurispru- dence. Though intended as an exposition of the existing state of prize law, as administered in our tribunals, nowhere else can so clear and accurate a view of the English and French edicts against neutral commerce be found ; and in no other publica- tion are they so ably brought to the test of the universal law of nations. Mr. "Wheaton also prepared, in 1815, a bankrupt law, and endeavored to procure its passage through Congress. This measure was, at that time, deemed the more important, as the constitutionality of the State Insolvent Laws began to be ques- tioned, and it was believed that the power delegated to the General Government could alone meet the provisions on this subject, supposed to be required in a commercial community. He also published, after the peace of Ghent, "An Essay on the Means of Maintaining the Commercial and Naval Interests of the United States." He advocated, as called for by the restrictive policy then existing in Europe, a navigation act, giv- ing special advantages to our vessels, and excluding all foreign sailors from our merchant marine. The former measure has been rendered inapplicable, in a great degree, in consequence of the arrangements since made with most maritime States by our reciprocity treaties, or by means of the acts of Congress, proffering to all nations a mutual abrogation of the discriminat- ing duties on the tonnage of their respective vessels, and on the produce, manufactures, and merchandise* imported in them.^ The exclusion of alien seamen was repeatedly proposed by by the Executive, not, however, on politico-economical con- siderations, but in connection with an arrangement with the British government on the impressment question, but without result. Though we cannot distinguish between native citizens ^ See act March 3, 1815, United States Statutes at Large, vol. iii. p. 224; act January 7, 1824, Ibid. vol. iv. p. 2; May 24, 1828, Ibid. p. 308; May 31, 1830, Ibid. p. 425 ; July 13, 1832, Ibid. p. 579. XXXIV INTRODUCTORY REMARKS, and those who are already entitled by naturalization to the same rights, save in the exceptional cases expressed in the Con- stitution ; yet it was supposed that the Act of 1813, requiring a continuous residence during the probationary term, which is wholly incompatible with the nature of the sea-faring life, might have been received by England, as a practical exclusion from the commercial service of all foreign-born seamen. That provi- sion was repealed in 1848; ^ and the Act of March 27, 1804<, denationalizing any American vessel, the owner of which, in whole or in part, if a naturalized citizen, shall reside more than a year in the country from which he originated, or more than two years in any foreign country, which still remains in force,^ would seem to be the only discrimination now known to our laws between native and naturalized citizens. In 1816, Mr. Wheaton became Reporter of the Supreme Court of the United States, in which capacity he continued till I827. Twelve volumes of Reports, containing, as it is well termed in a German notice of our author, " the golden book of American law," permanently connect his name with the juris- prudence of the Union. Already familiar with the languages and literature of Europe, and with her legal systems, he was called on to record the application of every branch of public and municipal law to the diversified objects of international and federal relations, as well as of private rights. It was his fortune to be associated with that high tribunal during the period when the Prize Code, which he had already traced, as far as it was then established, was completed by the subsequent adjudica- tions of the cases growing out of the recent war. In his time, also, the power intrusted to the Court, and which is peculiar to institutions like ours, of bringing to the test of the Constitution the validity of all the proceedings of Congress and of the State legislatures, was exercised to such an extent, as to leave little room for the further interpretation of our organic law. 1 See Part II. ch. 2, § 10, p. 164, note a. 2 United States Statutes at Large, vol. ii. p. 296. INTRODUCTORY REMARKS. XXXV 111 a review by Mr. Wheaton of one of the volumes of the Reports of Judge Story's Circuit decisions, and which includes many prize cases, he thus gives a history of prize law to the time of the late war : " Among the leading principles of law, developed and settled during the war of the Revo- lution, and which have ever since been recognized as a part of the prize code of this country, are the following : — The exclu- sive jurisdiction of the Court of Admiralty over all the inci- dents of prize and its right to entertain a supplemental libel for distribution of the prize proceeds after condemnation.^ That an ally is bound by the capitulation made by another ally with the inhabitants of a conquered country, by which their property is exempted from capture.^ But that an ally is not bound by a mere voluntary suspension of the rights of war against a part of the enemy's dominions, by a co-belligerent, not growing out of a capitulation.^ The distinction between a perfect war and an imperfect war, or partial hostilities.^ That in a perfect war nothing but a treaty of peace can restore the neutral character of any of the belligerent parties ; and consequently that the British proclamation of 1781, exempting from capture all Dutch ships carrying the produce of Dominica according to the capitu- lation by which that island had surrendered to the French, did not restore back to a Dutch ship her original neutral char- acter, so as to protect her cargo from capture by American cruisers under the ordinance of Congress of April 1, 1781, by which the United States temporarily adopted the principles of the armed neutrality, which had been formed in Europe the pre- ceding year.^ That the rule recognized by this ordinance of free ships free goods^ did not extend to the case of a fraudu- lent attempt by neutrals, to combine with British subjects to 1 Dallas' Rep. vol. ii. p. 37. 2 Jbid. p. 15. sibid. p. 17. 4ibid. p. 21. 5 Ibid. pp. 18-21. XXXVl INTRODUCTORY REMARKS. Avrest from the United States and France the advantages they had obtained over Great Britain by the rights of war in the capitulation of Dominica, by which all commercial intercourse between that island and Great Britain was prohibited. 'That Congress did not mean by their ordinance to ascertain in what cases the rights of neutrality should be forfeited in exclusion of all other cases ; for the instances not mentioned were as flagrant as the cases particularized.^ That the papers which a vessel is directed to sail with, by the municipal law of her own country, are the documents which a prize court has a right to look for as evidence of proprietary interest ; though not conclusive evi- dence.^ The fraudulent blending of enemy's and neutral pro- perty in the same claim involves both in the same condemna- tion.^ The domicile of a party is conclusive as to his national character in a prize court.* The municipal laws of any particu- lar country cannot change the law of nations : as between captor and captured, the property is divested instantly on the capture ; but a neutral claimant is not barred until a final condemnation in a competent prize court. All other municipal regulations of salvage extend only to the citizens of the country making those regulations.^ The authority of the prize court to make distribu- tion of the prize proceeds where there is no agreement between the owners, officers, and crew of the capturing vessel.^ And its authority to decree a sale where the 7'es in litigation is perish- able." The conclusiveness of sentences of condemnation upon the property.^ The simplicity of the prize proceedings upon the papers found on board, and the examination of the captured per- sons.^ That the omission of the captors to bring in all the 1 Dallas' Rep. vol. ii. p. 23. 2 Ibid. p. 1 1. 3 Ibid. p. 33. ^ Ibid. p. 42. 5Ibid. p. 37. eibid. p. 37. 7 1bid. p. 41. Sibid. p. 41. 9 Ibid. p. 40. INTRODUCTORY REMARKS. XXXVll captured persons and papers will not forfeit their rights of prize, unless a fraudulent omission.^ And lastly, the illegality of trade by a citizen with the enemy." ^ Mr. Wheaton very happily contrasts our system of admiralty courts, as at present organized, with those of other countries. " The subjects of foreign States have had reason to rejoice that the decision of their rights have been vested in the same pure hands, with which the people of this country have intrusted their dearest privileges. Nor does the experience of other countries give us or them any reason to regret that our prize jurisdiction is not placed in a cabinet council, or judges removable at the pleasure of such a council. Even that highly gifted and accom- plished man, (Sir W. Scott,) has been compelled to avow that he was bound by the king's instructions ; and we know that his decrees are liable to be reversed by the privy council, from which those instructions emanate.^ So, also, in France, both under the royal and imperial governments, the prize jurisdiction has been almost constantly vested in the Council of Prizes, — a board composed of members removable at the pleasure of the crown — a mere commission created at the breaking out of every war, and dissolved on its termination. During the anarchy of the Revolution, it was exercised by judges, many of whom were notoriously concerned in privateers, the fruits of whose plunder from innocent neutrals they were to adjudge.'* The rapacity 1 Dallas' Kep. vol. ii. p. 33. ~ Cranch's Rep. vol. viii. p. 102. " The Orders in Council, in reference to neutral ti'ade, gave rise to discussions in the British courts of admiralty as to the obligatory force of the King's instruc- tions. Sir W. Scott appeared, at one time, to regard the text of these instructions as binding on his judicial conscience, (Robinson's Adm. Rep. vol. ii. p. 202,) and at another he held it indecorous to anticipate the possibility of their Conflicting with the law of nations, (Edwards's Adm. Rep. p. 604) ; while Sir James Mackintosh declared that if he saw in such instructions any attempt to extend the law of nations injuriously to neutrals, he should disobey them, and regulate his conduct by the known and generally received law of nations. (Hall's Law Journal, vol. i. p. 217.) 4 A decree of July 18, 1854, established a Council of Prizes to decide on the d XXXVlll INTRODUCTORY REMARKS. and injustice of the French and British courts of vice-admiralty in the colonies, are notorious." ^ Even while the United States, after the achievement of their independence, were at peace with all the world, controversies between the assured and the underwriters presented questions requiring the application of the principles of the law of nations, and in that way the law of blockade, of commercial domicile, and other points affecting the international code, as well as the innovations which the belligerents were attempting to introduce into maritime law, were judicially considered. The court, also, in the decision of the cases, growing out of the war of 18 IS, reported before Mr. Wheaton's connection with them, had declared that, as the United States at one time formed a component part of the British Empire, their prize law was, as understood at the time of the separation, the prize law of the United States, thouoh no recent rules of the British courts were entitled to more respect than those of other countries ; yet that, where there were no reasons to the contrary, they should regard the decisions of the English courts of admiralty.^ In the case of The Nereide,^ they had not only affirmed the rule, that the goods of an enemy in the vessel of a friend were prize of war, and that those of a friend in the vessel of an enemy were to be restored, to be a part of the law of nations, but they also decided that the stipulation in the treaty of 179-5, with Spain, that " free ships shall make free goods," does not imply the converse proposition that " enemy ships shall make enemy goods." In the same case, they differed from Sir William validity of" all prizes made under French authority, during the present war with Russia. It is composed of a President, who is a Counsellor of State, and six members, who are named by an imperial decree on the nomination of the ministers of foreign affairs and of the marine. Annuaire des Deux Mondes, 1853-4, App. p. 911. 1 North American Review, vol. viii. p. 256. 2 Cranch's Rep. vol. ix. p. 191. Thirty hogsheads of sugar v. Boyle. 3 Ibid. p. 388. INTRODUCTORY REMARKS. XXXIX Scott, and recognized the right of a neutral to carry his goods in an armed vessel of the enemy. And in the case of The Ade- line,^ it was decided, that the law of France denying restitution upon salvage after twenty-four hours possession by the enemy, the property of persons domiciled in France should be condemned as prize by our courts, on recaption, after being in possession of the enemy that length of time. The volumes of Wheaton contain decisions, declaring the pro- perty of a citizen engaged in trade with the enemy liable to capture and confiscation as prize of war, under whatever circum- stances it might be carried, whether between an enemy's ports and the United States or between such port and any foreign country ; ^ that the sailing under an enemy's license was suffi- cient of itself to subject to confiscation without regard to the object of the voyage or port of destination ; ^ that a citizen of the United States, who had acquired a domicile abroad, but had returned to the United States and become a redintegrated Ame- rican citizen could not, flagrante hello^ acquire a neutral domi- cile, by again emigrating to his adopted country ; * that the stipulation in a treaty, " free ships make free goods," although they should belong to enemies, contraband excepted, does not exempt the goods belonging to citizens of the captor's country engaged in trade with an enemy ; ^ that the property of a house of trade in an enemy's country is confiscable, notwithstanding the neutral domicile of one or more of the partners ; ^ that there can be no restitution, on payment of salvage to the original owner, where a vessel captured and condemned, was recaptured 1 Cranch's Rep. vol. ix. p. 244. 2 Wheaton's Rep. vol. i. p. 74. The Rugen. 3 Ibid. p. 440. The Hiram. Ibid. vol. ii. p. 143. The Ariadne. Ibid. vol. iv. . 100. The Caledonia. 4 Ibid. vol. ii. p. 77. The Dos Hermanos. 5 Ibid. p. 247. The Pizarro. 6 Ibid. vol. i. p. 169. The Antonia Johanna. xl INTRODUCTORY REMARKS. by an American privateer, the original title being extinguished by the condemnation.^ The Supreme Court also decided that it is the exclusive right of governments to acknowledge new States arising in the revolutions of the world, and until such recognition by our government, or that to which the new State belonged, courts of justice are bound to consider the ancient order of things as remaining unchanged ; ^ that in case of the Spanish American governments, the government of the United States having recognized the existence of a civil war between Spain and her colonies, the courts of the United States were bound to consider as lawful those acts, which were authorized by the law of nations, and which the new governments may direct against their enemies, and their captures were to be regarded as other captures jure helli^ the legality of which cannot be determined in the courts of a neutral country.^ The court likewise decided, in reference to the acts declaring the slave-trade piracy, passed by the United States and Great Britain, that the right of visitation and search did not exist in time of peace, and that a vessel engaged in the slave-trade, though it was prohibited by the country to which it belonged, could not 1 Wheaton's Rep. vol. ili. p. 79. The Star. 2 Ibid. p. 324. Gelston v. Hoyt. In the case of the Rhode Island controversy in 1842, the same rule was adopted in relation to conflicting claims to the govern- ment of a State of the Union. The Chief Justice (Taney) said : " No one, we believe, has ever doubted the proposition that, according to the institutions of this country, the sovereignty in every State resides in the people of the State, and that they may alter and change their form of government at their own pleasure, But, whether they have changed it or not by abolishing an old government, and establishing a new one in its place, is a question to be settled by the political power. And when that power has decided, the courts are bound to take notice of its decision, and to follow it." Ploward's Rep. vol. vii. p. 47. Luther v. Borden. 3 Ibid. vol. iv. p. 53. The Divina Pastora. Ibid. vol. vii. p. 377. The San- tissima Trinidad. * INTRODUCTORY REMARKS. xli be seized on the high seas and brought in for adjudication in the courts of another country.^ But, it is by the important adjudications, defining the hmits of the federal and state jurisdictions, that the judicial administra- tion of Marshall, who presided during the whole period, was distinguished. That the repeal or alteration, by a State, of the charter of a private corporation, which a college was declared to be, was a violation of the constitutional prohibition to pass any law impairing the obligations of contracts^ — that it was com- petent for Congress to establish a national bank, which could not be taxed by any individual State ^ — and that no State could grant 1 Wheaton's Rep. vol. x. p. 67. The Antelope. In declaring the slave-trade piracy, it was the expectation of the United States that it would be ultimately so regarded under the law of nations. The act of 15th May, 1820, (United States Statutes at Large, vol. iii. p. 600,) declared guilty of piracy every citizen of the United States, on board of a foreign vessel, and every person, whether on board of a vessel owned in whole or in part by, or navigated on behalf of, a citizen of the United States, engaged in the slave-trade ; and by a resolution of the House of Representatives, in 1823, the President was requested to enter into negotiations with the maritime powers of Europe and America for the ultimate denunciation of the slave-trade as piracy, under the law of nations, by the consent of the civilized world. President Monroe, in a message, in relation to the convention signed at London, on 13th March, 1824, (the ratification of which, though the treaty was assented to by England as originally proposed by us, failed in the Senate,) said that conventions for a mutual right of search had been resisted by the Executive, on two grounds : one, that the constitution of mixed tribunals was incompatible Avith our constitution ; and the other, that the concession of the right of search in time of peace, for an offence not piratical, would be repugnant to the feelings of the nation. But, by making the crime piracy, the right of search attaches to the crime, and which, when adopted by all nations, will be common to all. In the meantime, the obvious course seemed to be, to carry into effect with every power such treaty as may be made by each in succession. In negotiating the treaty in question with the British government, it was made an indispensable con- dition, that the trade should be made piratical by act of Parliament, as it had been bj-^ct of Congress; but, instead, of subjecting the persons detected in the slave- trade to trial by the courts of the captors, as would be the case, if such trade was piracy by the law of nations, it was stipulated that, until that event, they should be tried by the courts of their own country only. Cong. Doc. 18 Cong. 2d Sess. 2 Ibid. vol. iv. p. 518. Dartmouth College v. Woodward. 3 Ibid. p. 316. M'Culloch v. The State of Maryland. Ibid. vol. ix. p. 738. Osborn v. The Bank of the United States. d* xlii INTRODUCTORY REMARKS. a right for the exclusive use of its navigahle waters/ nor pass a bankrupt or insolvent law, affecting preexisting contracts, or contracts between citizens of different States,^ are among the decisions to be found in Wheaton's Reports ; while, — what con- nects these adjudications immediately with the treatise to which these remarks are introductory, — the faith of international obli- gations was upheld, not only by establishing the appellate juris- diction of the Supreme Court, in a case where the validity of a State law was called in question, as repugnant to a treaty of the United States, but by asserting, what is the distinguishing fea- ture between our existing institutions and those of the old con- federacy, the power to carry into full effect the judgment, without the aid of the State Court.^ The character, which Mr. Wheaton at once acquired as a reporter, was unrivalled. He did not confine himself to a summary of the able arguments by which the cases were elucidated, but there is scarcely a proposition on any of the diversified subjects to which the jurisdiction of the court ex- tends, that might give rise to serious doubts in the profession, that is not explained, not merely by a citation of the authorities adduced by counsel, but copious notes present the views which the publicists and civilians have taken of the question. Not only are Pothier and the civil code constantly quoted, and their con- clusions compared with those of the common law ; but, on the introduction of a case from Louisiana, we have an explanation of the jurisprudence, which prevailed in that colony at the time of its annexation, showing how far the French and Spanish laws respectively, were in force.* The value of some of the more extended notes, as well as the general character of the reports, we can have no better means 1 Wlieaton's Eep. vol. ix. p. 1, Gibbons i'. Ogdeu. ~ Ibid. vol. iv. p. 122, Sturges v. Crowninsbleld. Ibid. vol. xil. p. 213. Ogden V. Saunders. 3 Ibid. vol. i. p. 305. Martin v. Hunter. 4 Ibid. vol. iii. p. 202. Sliepbard v. Hampton. INTRODUCTORY REMARKS. xliii of estimating than by the contemporaneous remarks, in reference to the first volume, of the learned Judge of the Court, to whose correspondence with the author we have already adverted. Judge Story says : " I received yesterday your obliging favor, accompanied with a copy of your reports. I have read the whole volume through hastily, but con amore. I am extremely pleased with the execution of the work. The arguments are reported with brevity, force, and accuracy ; and the notes have all your clear, discriminating, and pointed learning. They are truly a most valuable addition to the text, and at once illustrate and improve it. I particularly admire those notes, which bring into view the civil and continental law, a path as yet but little explored by our lawyers, but full of excellent sense and judicial acuteness. In my judgment there is no more fair or honorable road to permanent fame than by the breathing over our municipal code the spirit of other ages. In my judgment your reports are the very best in manner of any that have ever been published in our country, and I should be surprised, if the whole profession do not pay you this voluntary homage. Respecting the note on the rule of 1756, I have already written my opinion ; it is the best comment that the rule has ever received. The kind notice of our friend. Dexter, in the preface, is delightful to us all ; and on turning to the argument in Martin ik Hunter, I perceive the -splendid paragraph preserved in its original brightness." ^ The work, also, received the approbation of all the other members of the court, and among other commendations, from judicial author- ities, of the manner in which Mr. Wheaton's task was performed we may refer to that of the great English admiralty judge. Sir William Scott. Judge Story's letter renders unnecessary the insertion of the equally strong testimony of the merits of the reports by William Pinkney, whose note lies before us. Daniel W^ebster, to whom 1 Judge Story to Mr. Wheaton, Salem, January 8, 181' xliv INTRODUCTORY REMARKS. the North American Review was indebted for an article on one of the early volumes, says : " We wish to express our high opinion of the general manner in which the Reporter has exe- cuted his duty in the volume before us. Mr. Wheaton has not only recorded the decisions with accuracy, but has greatly added to the value of the volume by the extent and excellence of his notes. In this particular his merits are, in a great degree, peculiar. No reporter in modern times, as far as we know, has inserted so much and so valuable matter of his own. Those notes are not dry references to cases, of no merit, but as they save trouble of research. They are an enlightened adaptation to the case reported of the principles and rules of other systems of jurisprudence, or a connected view of decisions on the principal points, after exhibiting the subject with great perspicuity and in a manner to be highly useful to the reader. Mr. Wheaton's annotations evince a liberal and extensive acquaintance with his profession. His quotations from the treatises of the continental lawyers are numerous and well selected. This is a branch of learning not much cultivated among us. Mr. Wheaton appears to have pursued it to some extent and to good purpose. It enables him to give a peculiar interest to his volume, nor is there a better mode in which he could communicate his own acquisitions of this sort to the profession than by judicious and appropriate notes to reported cases." ^ In a notice of the subsequent volumes, the writer, in suggesting a work on the admiralty jurisdiction exercised by our courts, before and since the adoption of the Federal Constitution, remarks, "A work embracing this and its cognate topics is a desideratum ; and we know no man who could accomplish it with greater facility or talent than Mr. Wheaton. We will hazard a suggestion that when he shall publish another edition of his valuable treatise on prize law, he will greatly enhance the obligation of the profes- sion, by adding an historical sketch of the kind we have above 1 North American Review, vol. viii. p. 70. INTRODUCTORY REMARKS. xlv mentioned. Let us not be supposed, however, to have over- looked his excellent notes on the prize jurisdiction and practice appended to the two first volumes of his reports. There is no systematic treatise on the jurisdiction of the admiralty in Eng- land, or here, that is accurate and thorough. True and lasting fame awaits the jurist who shall produce one." ^ Mr. Duponceau, the jurist, as well as philologist, and whose annotations of Bynkershoek, in common with the original treatise, are cited in the " Elements," among the authorities on which international law is based, names the notes of Mr. Wheaton, giving comparative views of the laws of diflferent countries on the various subjects treated of in the body of the work, among the most valuable contributions made to the science of law; while he alludes to the treatise on captures, ^n connection with Judge Story's and Chancellor Kent's works, as being " the fruits of the cultivation of the branches of jurisprudence not accessible to ordinary lawyers."^ And we may here A-enture the hope that in the improved con- dition of judicial science, it may not be by the piratical abridg- ment, to which we shall have occasion to refer, that the decisions of the Supreme Court during its most glorious days are to be kno\\Ti to posterity. The adjudications of that tri- bunal, explanatory as they are of the fundamental principles of our Constitution, would lose much of their value, if they are hereafter to go forth, unaccompanied by the commentaries of the eminent advocates and statesmen' — ^of Pinkney and his contemporaries and successors in forensic fame, Dexter, Harper, Wirt, Emmett, Hunter, Edward Livingston, Ingersoll, Clay, and Webster, who constituted a bar worthy of Marshall, Wash- ington, Livingston, Story, and Thompson. It was not only as the medium of communication with the public that Mr. Wheaton was connected with the Supreme 1 Nortb American Review, vol. xvii. p. 126. 2 Duponceau on Jurisdiction, Preface, p. 20. xlvi INTRODUCTORY REMARKS. Court. Associated with the jurists of historical fame, to whom we have just alluded, in the argument of causes, the decisions of which he reported, we find his contributions to the common stock of legal learning, combined with theirs in every volume to which his name is attached. The law of real property, the principles regulating commercial contracts, as well as those relating to that department of jurisprudence, prize law, with which he had shown a peculiar acquaintance, were discussed by him in the character of counsel. Nor did he omit to take an efficient part in those questions on which the interpretation of our organic law is based. In the great case which settled the limits of the state and federal legislation, in reference to bankruptcy and insolvency, and which, first argued in 1824, was held under advisement and not finally disposed of till after a second argument, in 1827, he was throughout the sole associate of Daniel Webster; while- there were, at different times, arrayed against them Mr. Clay, Mr. Ogden, Mr. Haines, Mr. Wirt, (Attorney-General,) Mr. Edward Livingston, Mr. Jones, and Mr. Sampson, most of whom are known in the political as well as the legal annals of our country. Indeed, such was the position which Mr. Wheaton's industry and learn- ing had acquired for him, that, on the death of Judge Livingston, in 1823, he was, already, prominently brought forward to fill the vacancy on the bench of the Supreme Court, an appoint- ment which, it is understood, that he would have received, had it not been conferred, by President Monroe, on a member of his cabinet.* 1 " Brockholst Livingston, an associate Judge of the Supreme Court of the United States, died this year, (1823.) He possessed an intellect of the highest order, and was an able lawyer. Several distinguished lawyers from this State were announced as candidates for the office, which had become vacant by Judge Livingston's death, among whom were Chief Justice Spencer and Mr. Henry Wheaton. The President finally appointed Smith Thompson, late Chief Justice of this State, then Secretary of the Navy." Hammond's Polit. Hist, of New York, vol. ii. p. 136. INTRODUCTORY REMARKS. xlvii In 1821, Mr. Wheaton was elected a delegate from the city of New York to the convention for forming a new constitution for the State. The original constitution, adopted in 1777? was objected to on account of the restrictions on the right of suffrage, a freehold qualification being required from the electors of the Governor and Senate, and the payment of a tax, with the rent- ing of a tenement of, at least, the specified annual value, from every one who voted for members of the lower house. Excep- tion was, also, taken to the provision, which blended the judicial, executive and legislative powers in the Council of Revision, composed of the Governor, Chancellor, and Justices of the Supreme Court, to whom a veto on the acts of the two houses was accorded, as well as to the irresponsible nature of the ap- pointing power vested, with a concurrent right of nomination in all the members, in a council, consisting of the Governor and one Senator, chosen by the lower house, from each of the four senatorial districts of the State. In the law providing for the election of delegates, the principle was recognized that whatever restrictions might exist for ordi- nary legislation, the whole people had a right to participate in the formation of their organic law, and the convention was chosen according to a rule intended to approximate, as near as practicable, to universal suffrage. The members were selected from among the most eminent citizens, and in some degree, without reference to party designation or local residence. Among them were the two Senators in Congress, Rufus King and Martin Van Buren, since President of the United States, who represented a county where he did not live, as well as the actual Vice-President, Daniel D. Tompkins. The Chancellor, Kent, and Chief Justice, Spencer, were delegates from Albany; while Mr. Wheaton had as an immediate col- league Nathan Sanford, the successor of Chancellor Kent, in his judicial office, and, both before and subsequent to this period, a Senator of the United States. In this assembly Mr. Wheaton bore a conspicuous part. xlviii INTRODUCTORY REMARKS. Among the propositions which he introduced was one render- 'ing it the duty of the legislature to pass general laws on the subject of private corporations, and prohibiting their establish- ment by special acts. The importance of such a measure was then particularly apparent, inasmuch as private banking was interdicted and the business regarded as a legislative franchise. The obtaining of bank charters had given rise to an extended system of corruption, from the suspicion of which, even the judges, through their connection with the legislation of the State, as members of the Council of Revision, were not wholly exempt. Though the article was not adopted, its wisdom was recognized, when the constitution was again remodelled in 1846, and it now forms a portion of the fundamental law of the State. He also proposed a constitutional provision, making it the duty of the legislature to cause the cities and towns to raise the sums necessary, in addition to the amounts received from the common school fund, to maintain public schools in every town for the instruction of all the children. On the subject of the Judiciary, for the .independence of which he was a strenuous advocate, opposing the provision to make the Judges removable by the joint resolution of the two houses of the legislature, he contributed valuable suggestions. In the canvass for the Presidential term, to commence on the 4th of March, 1825, .though following the second election of Mr. Monroe, which had been made with entire unanimity, there seemed to be no concurrence of opinion. Mr. Crawford, the Secretary of the Treasury, who had been designated by the caucus, as the meeting of the republican members of Congress for that purpose was denominated, according to the system which had prevailed at several previous elections, was opposed by all the other aspirants for the station, however much they might diiFer among- themselves. These candidates were John Quincy Adams, Secretary of State, Mr. Calhoun, Secretary of War, Mr. Clay, Speaker of the House of Representatives, and Andrew Jackson, whose administration of the government INTRODUCTORY REMARKS. xlix during two subsequent terms forms so memorable a portion of our history. Though the last named was then known to the nation at large only by his military fame, as having with far inferior forces, composed mainly of militia, triumphantly repelled the veteran legions of England, in their attempted invasion of Louisiana, his course, during the canvass, was already such as to disarm the opposition of many, who had entertained appre- hensions from the elevation of a successful general to the high- est civil office. "Jackson," said one of the most eminent of his associates in the Senate, and to whom we have before had occa- sion to refer, as rising above the dictates of party in the war of 1812, "conducts himself in a most unexceptionable manner, and so as to remove prejudices, which may be enter- tained to his disadvantage."^ As the distinctive appellation of " People's Party," assumed by those to whom Mr. Wheaton attached himself, implied, he was opposed to the candidate of the caucus ; and while Mr. Cal- houn remained before the public for the chief magistracy he was his confidential correspondent. To advance the pretensions of the Carolina statesman to the highest office was Mr. Whea- ton's motive, in permitting himself to be elected a member of the New York State Assembly, in November, 1 B23 ; and it is not a little remarkable, when we look to the views which Mr. Calhoun subsequently took of our system of government, that our author's original preference for him was induced by a concurrence of sentiment on the subject of the Federal Judiciary. To preserve to the Supreme Court the exposition of the Consti- tution, in the last resort, was then deemed by Mr. Calhoun, as his letters of that period show, an object of primary importance. And it may well incline us to regard with indulgence the changes which inferior minds undergo, when we find one afterwards so eminent in the liberal school of political economy, and whose integrity of purpose and purity of life are unassailable, writing 1 Mr. Rufus King to Mr. Wheaton, January, 31 1824 e 1 INTRODUCTORY REMARKS. to his friends in the legislature of New York, to suggest " the propriety of adopting some resolutions not to support any one not known to be openly in favor of domestic manufactures and internal improvements." " The adoption of such," he added, " would go far to prostrate the hopes of the radicals, at once, in your State." ^ The immediate object, aimed at by Mr. Wheaton and those who voted with him, was the election of Presidential electors by the people, instead of their being chosen, as had been previously the usage in New York, by the two houses of the legislature. In this effort, notwithstanding the Governor was induced to call an extra meeting to consider the matter, after its failure at the regular session, they were not successful. But, in the final result, only four electors favorable to Mr. Crawford, though he was sustained by the friends of Mr., afterwards President, Van Buren, were chosen, while the remainder were divided between Mr. Adams and Mr. Clay, in the proportion of eighteen for the former and fourteen for the latter. As the loss of the greatest part of the New York votes, though Mr. Crawford was still returned as the third on the list, and therefore eligible to be chosen by the House of Representatives, was deemed fatal to the caucus party, our author received from the most eminent of their opponents, from, among others, John Quincy Adams, Mr. Calhoun, (who was chosen Vice-President by the joint vote of General Jackson's and Mr. Adams's friends,) and Rufus King, the strongest congratulations on the happy result of his labors, in, what the warmth of partisan feeling characterized as, a "struggle for the cause of the people." Mr. Adams's letter thus concludes : " Your share in the legislative labors of the year have been great and conspicuous. I trust it has been introductory for you to movements on a yet \vider field; and observe with pleasure your name among those of the candidates for a seat in the United States Senate." ^ Mr. Calhoun writes : — iMr. Calhoun to Mr. Wheaton, December 23, 1823. 2 Mr. Adams to Mr. Wheaton, November, 1824. INTRODUCTORY REMARKS. H "Never, in this country, has there been a more important political contest. The whole train of future events depended on the result. The part which you have individually taken has been important and honorable to you, and will, I trust, be held in remembrance to your advantage. You have acted under cir- cumstances of great complication, and of relations apparently contradictory, and if you have erred at all on any point, such error may be traced to a firm and virtuous tone of character." i Divisions in the party, which had achieved the victory in the legislature, were occasioned before the termination of the po- litical year by the removal of De Witt Clinton, to whom the successful issue of the New York system of internal improve- ments was ascribed, from the place of Canal Commissioner, and which led to his subsequent election as Governor, an office that he had previously filled. In the resolution, respecting Mr. Clinton, Mr. Wheaton voted with the majority. Whatever his merits as a citizen of the State, his course, though avowedly a Republican, in permitting himself to be the candidate of the Federalists for the Presidency during the war, and in opposi- tion to Mr. Madison, could not readily be forgotten by one who had taken an active and zealous part in support of the adminis- tration of 1812. These circumstances not only prevented the fulfilment of the suggestions to which Mr. Adams refers, and defeated Mr. Wheaton 's election to the House of Represent- atives, for which he was nominated in the city of New York, but caused those public proofs of confidence from the adminis- tration which, on the election of Mr. Adams, he had a right to anticipate, to be deferred. As, however, in matters purely of a professional character, no partizan qualities can serve as a substitute for learning, Mr. Wheaton was, in 1825, associated with Mr. Benjamin F. Butler, afterwards Attorney-General of the United States, and Mr. John Duer, now an eminent member of the New York Judi- 1 Mr. Calhoun to Mr. "Wheaton, November 20, 1824. lii INTRODUCTORY REMARKS. ciary, in a commission for revising the statute law of New York. Though the plan in view was a recompilation of the statutes, and not a codification of the common law, it was contemplated in the appointment of the commissioners that they should not confine themselves to merely bringing together the laws referring to the same subject, but that they should collate and revise all public acts in force, in such a manner as they should deem most useful and proper to render the acts more plain and easy to be understood, with the single restriction that no change should be made in the phraseology or distribution of the sections of any statute, that had been the subject of judicial decision, by which its construction could be affected.^ These labors were of a character particularly agreeable to the taste of Mr. Wheaton. Not merely for the improvement of the existing statutes, but for the preparation of a code of a more comprehensive character, had one been contemplated, he pos- sessed peculiar qualifications, through his varied knowledge of jurisprudence, which included, as has been shown, a familiarity, almost from their origin, with the French codes become, with slight alterations, the law of most of the States of continental Europe. Applying himself to his new duties, while continuing his pro- fessional business and his functions as Reporter of the Supreme Court of the United States, he united with his colleagues in a report to the legislature, at the session of 1826. in which they state the arrangements, which they had made for the classifica- tion of the statutes, and submit, as a specimen, a portion of the revision, embracing the constitutional and administrative law of the State, together with their views as to the general execution of the work. He also zealously engaged in carrying the plan, which the legislature sanctioned, into execution, and a portion of the revision, as completed, was presented for adoption at the session of 18!27; but other duties called him away from the 1 Revised Statutes of New York, Ed. 1836, vol. 3, p. 409. INTRODUCTORY REMARKS. IHi country, before the whole work, as perfected by his associates and Mr. John C. Spencer, eminent as a jurist, and well known as having filled some of the highest stations in his State and in the Union, who had been appointed to succeed him, was enacted as a law. In his letter of resignation he says : " I cannot refrain from expressing the grateful sense I feel at the proof of confidence which has been reposed in me by the legislature of this State, in associating my name with a work of such magnitude and interest. There is, in my view, no public employment of more permanent dignity and importance ; and though considerations, not neces- sary to be adverted to, have induced me, after mature delibera- tion, to relinquish it, I feel very great regret in quitting a work, in which I have labored with a zeal disproportioned to my faculties, and which I deem closely connected with the reputa- tion and prosperity of the State of New York." ^ Mr. Wheaton, at all times, combined the general cultivation of letters with the pursuits more especially connected with his chosen profession ; and his right to be enrolled among the litterateurs of the country was recognized by his alma mater, as early as 1819, by conferring on him the degree of Doctor of Laws, in which she was followed, some years afterwards, by Hamilton College and Harvard University at Cambridge. Of the literary societies, that existed in New York during his resi- dence there, he was, of course, an honored member. As such the Anniversary Address, before the Historical Society in 1 820, was pronounced by him. He selected, as his subject, " The Science of Public or International Law;" and as this essay contains the germ of his great works on the law of nations, it will not be deviating from the proper scope of an intro- ductory notice to refer to the reception which it met with, at the time of its publication, from those of his countrymen most competent to appreciate it. 1 Mr. Wheaton to Governor Clinton, June, 1827. e* liv INTRODUCTORY REMARKS. The venerable John Adams said : " I have read this dis- course with uncommon interest and pecuhar dehg-ht. It is the production of great reading", profound reflection, a discriminating mind, and a pure taste. I have never read any discourse pro- duced in America relative to the science of public law with so much satisfaction. Had I read such a discourse sixty-five years ago, it would have given a different and more respectable cast to my whole life." ^ Mr. Jefferson writes : " I thank you for the very able dis- course you have been so kind as to send me on international law. I concur much in its doctrines, and very particularly in its estimate of the Lacedaemonian character. How such a tribe of savages ever acquired the admiration of the world has always been beyond my comprehension. I can view them but on a level with our American Indians, and I see in Logan, Tecumseh and the Little Turtle fair parallels for their Brasidas, Agesilaus, &c. The difficulty is to conceive that such a horde of barba- rians could so long remain unimproved, in the neighborhood of a people so polished as the Athenians ; to whom they owe alto- gether that their name is now kno\vn to the world. All the good that can be said of them is, that they were as brave as bull-dogs." " Chief Justice Marshall, in a letter in reference to the reports, says : " I did not thank you while in Washington for your anni- versary discourse, delivered before the Historical Society of New York, nor for your digest of the decisions of the Supreme Court, because I had not leisure, while at that place, to look into either. Since my return to this place, I have read the first with a great deal of pleasure, and have glanced over the digest with much satisfaction. " However preeminent the ancients may have been in some of the fine arts, they were, I think you very clearly show, much 1 John Adams to Mr. Wheaton, February 7, 1821. 2 Mr. Jefferson to Mr. Wheaton, February 15, 1821. INTRODUCTORY REMARKS. Iv inferior to us, or a great way behind us, in tlie more solid and more interesting principles of international law ; a law which contributes more to the happiness of the human race than all the statues which ever came from the hands of the sculptor, or all the paintings that were ever placed on canvas. I do not, by this, mean to lessen the value of the arts. I subscribe to their importance, and admit that they improve as well as embellish human life and manners ; but they yield in magnitude to those moral rules which regulate the connection of man with man. " Old Hugo Grotius is indebted to you for your defence of him and his quotations. You have raised in him in my estima- tion to the rank he deserves." ^ Chancellor Kent, who, on occasion of the decision of a case in which Mr. Wheaton was counsel, and which rested on the French law of marriage,^ had acknowledged in the strongest terms his obligations for the elucidation of the nuptial commu- nity of goods which his argument afforded, and which he, alone of the bar, was capable of furnishing', thus addressed him, on the receipt of this pamphlet : — "Be pleased to accept my thanks for your very interesting and able discourse on the His- tory of International Law, delivered before the Historical So- ciety. There is no person (unless it be our mutual friend and great master of jurisprudence, Judge Story) who could have handled the subject with so much erudition and enlightened judgment. It is a subject very much to my taste, and awakens the deepest interest. Be assured, my dear Sir, that I feel with full force the great obligations we are all under to you, for your professional efforts and illustrious attainments." It will be recollected, in this connection, that the Law of Nations forms a branch of those " Commentaries on American Law,' which now occupy with every student of the science 1 Chief Justice Marshall to Mr. Wheaton, March 24, 1821. 2 De Couche r. Savetier, Johns. Ch. E.ep. vol. iij. p. 211, cited in Part II. eh. 2, § 6, p. 138. Ivi INTRODUCTORY REMARKS. the place formerly allotted to Blackstone ; while the name of Kent is associated with that of Wheaton, both at home and abroad, as an authority on International Law. Another occasional discourse, by Mr. Wheaton, was an ad- dress delivered at the opening of the New York Athenaeum, in 1825, which is thus alluded to by Mr. Madison, in a letter expressing his disappointment that the author's occupations would not permit his undertaking a work that had been proposed to him: — "I shall not be singular in regretting that it could not be executed by the pen, which furnished such a specimen of judicious and interesting observations, as distinguished the elegant address at the opening of the New York Athenaeum." In that dis- course, Mr. Wheaton took a rapid survey of what had been accomplished in American literature ; and pointing out the con- nection between the principles on which the ancient republics were founded and the rapid growth of the arts and sciences to which they gave encouragement — tracing analogies and causes in a manner which indicated deep reflection on the nature, spirit, and tendencies of our government — he presented an interesting view of the intellectual prospects of the country. To the periodical literature, and which received no inconside- rable elevation in the respect and consideration of the commu- nity, from the extensive attainments and personal reputation of the conductors of the Reviews established at Boston and Phila- delphia, he Avas a large contributor. Accomplished scholars, such as Edward Everett, Jared Sparks, and Robert Walsh, were able to command the assistance, as collahorateurs, of many of the "most eminent men of the Union; and the Quarterlies of the United States, at one period, would have favorably compared with the first periodicals of Europe. Mr. Wheaton's numerous essays in other journals cannot be accurately traced, but in almost every volume of the North American, commencing with the first number, in May, 1815, may be found papers emanating from his pen, or his name is introduced in connection with notices of his works. His ear- INTRODUCTORY REMARKS. Ivii liest article was a patriotic defence of the United States against the illiberal attacks of the British press ; whose virulence, in- creased by the war, had been holding us up to the derision of Europe, because in our infancy our literature had not attained the ripeness of adolescence, and that while all our efforts were required for the creation of the necessaries, we were wanting in some of the refinements, which belong to nations where a favored class have the leisure to devote themselves to the ele- gancies of life.' Among the reviews furnished by him, while yet at New York, is the exposition of the early Prize Code of the United States, already noticed,^ and he availed himself of the publica- tion of Mr. Cushing's translation of Pothier on Maritime Con- tracts, the work by which the present Attorney-General of the United States marked his legal novitiate, to aid in making his countrymen acquainted with the merits of that most learned law- yer, by whose introduction to the English bar Sir William Jones deemed that he had, in some measure, paid the debt that every man owes to his profession.^ But he was not, as a jurist, exclu- sively absorbed in the civil and international law. His learning in the old Common Law appeared not only in his own Reports, but in the notice which he gave of Mr. Metcalf's edition of Yelverton,* and by the numerous authorities cited in his edition of Selwyn's Nisi Prius ;^ while in making his readers acquainted \vith what he terms, in a letter to his friend, Mr. Butler, " Ver- planck's beautiful speculation on the theory of the Law of Con- tracts, as to price," and in which he contends for absolute equality in contracts, as binding foro conscientioe^ he had an opportunity of considering how far the doctrines of law and equity, as expounded by the courts, accorded with the rules of natural justice.^ 1 North Am. Rev. vol. i. p. 61. 2 ibid. vol. viii. p. 254. Supra, p. 22. 3 Ibid. vol. xvi. p. 19G. ■* Ibid. vol. xvi. p. 169. 5 Reviewed, North Am. Rev. vol. xix. p. 158. 6 ibid. vol. xxii. p. 253. Iviii INTRODUCTORY REMARKS. The review of a trial for manslaughter, which, arising from the killing of a counsellor-at-law, in an affray growing out of the occurrences at a trial, excited intense interest at the time, contains a learned disquisition on the distinctions between the criminal law of the Continent and that of England, especially in reference to the regard which the former pays, in certain offences, to the intent rather than to the event, as constituting the criminality.^ On the other hand, not only had Mr. Wheaton Daniel Web- ster as the reviewer to whom the "Reports" were assigned,^ but Edward Everett was himself the author of the learned notice which the Historical Address received.^ The last labor in which Mr. Wheaton engaged, while still in the United States, out of the regular performance of his professional duties, and disconnected with the offices which he held as Reporter and Revisor, was the preparation of the Life of William Pinkney; if, indeed, writing the biography of the most eminent member of the profession to which he belonged, and who was also among the most distinguished in the one on which he was about to enter, could be deemed a deviation from his appropriate pursuits.* If this enterprise had had no other effect than to elicit from President Madison two letters, explanatory of the events con- nected with the adoption of our restrictive system, and of the immediate circumstances that caused the declaration of war, at the time that it occurred, it would have been the means of add- ing valuable materials to history. In his letter, of the 18th of July, 18^24, Mr. Madison says that the President was unoffi- cially possessed of the Order in Council of November 11, 1807? when the message to Congress, of December 11, 1807, recom- mending an embargo, was sent ; and this fact is corroborated by a note to him from Mr. Jefferson, confirming his recollections. 1 North Am. Rev. vol. xi. p. 114. Goodwin's Trial. 2 Supra, p. 31. 3 North Am. Eev. vol. xiii. p. 154. * Reviewed, Ibid. vol. xxiv. p. 68. INTRODUCTORY REMARKS. lix He also vindicates the efficiency of the restrictive measures, by- referring to the fact, that the repeal of the obnoxious British orders, which took place on the 23d June, 1812, was induced by the influence of the manufacturers, before it was kno\^Ti in Europe that war had been actually declared by us. The letter of 26th February, 1827, states that the declaration of war was recommended, in consequence of the peremptory statement of Lord Castlereagh, made officially through the minister at Wash- ington, that the British orders would not be repealed, Avithout a repeal of internal measures of France which did not violate our neutral rights. " The cause of the war lay, therefore, entirely on the British side. Had the repeal of the orders been substituted for the declaration that they would not be repealed, or had they been repealed but a few weeks sooner, our declara- tion of war, as proceeding from that cause, would have been stayed ; and negotiations on the subject of impressment, the other great cause, would have been pursued with fresh vigor and hopes, under the auspices of success in the case of the Or- ders in Council." The late President Monroe, the colleague of Mr. Pinkney in the negotiations at London in 1806, and his associate in the cabinet of Madison, placed at Mr. Wheaton's disposition the correspondence which had passed between them at the eventful period of their political connection ; and, on his subsequent departure for Europe, he expressed in strong language his satisfaction at his appointment abroad, and sent to him a letter of introduction to Lord Holland, one of the English plenipo- tentiaries with whom those negotiations were conducted. It was not till two years after the commencement of Mr. Adams's administration that Mr. Wheaton received, in the spring of 1827? without any previous intimation to him or his friends, an evidence of the confidence of the Federal Govern- ment, in his appointment as Charge d'affaires to Denmark. The title was the one by which, at that time, all our diplomatic agents in Europe were designated, except in the few cases. Ix INTRODUCTORY REMARKS. limited to the principal courts, at which envoys extraordinary and ministers plenipotentiary were employed. The antecedents of Mr. Wheaton, as the cursory notice of his previous life will have shown, had fully prepared him for the service on which he was about to enter, and might, with propriety, have induced his employment in the highest rank known to our diplomacy. Those places have, however, under our government, been usually accorded to those who have been prominent in local politics, rather than as the results of special attainments ; and we have already adverted to the divisions in "The People's Party," which deprived Mr. Wheaton of the benefit of claims, derived from the distinguished part which he had, in New York, borne in the presidential election. In going abroad, the new diplomatist was not entering on a world with whose habits and usages he was unacquainted. Besides his early European experience, the advantage which he possessed over most of his fellow-citizens, however distinguished in other respects, in having a knowledge of the languages and literature, as well as an acquaintance with the legal and political institutions of other countries, had caused his society, at all times, to be sought by enlightened foreigners. With many of those whom the downfall of Napoleon compelled to leave France, General Lallemand, Real, St. Jean d'Angelly, General Bernard, all historical personages, he was on terms of intimacy. With the last named his acquaintance was, to the advantage of his country, renewed in Paris, where General Bernard, after many years' service in the United States, terminated his career under Louis Philippe, whose Minister of War he was. Mr. Wheaton sailed for England, with his family, in July, 1827' Among the acquaintances which he formed in London were the philosopher of Queen Square Place and his literary executor, Dr. (now Sir John) Bowring, since conspicuous in the parliamentary history of his country and in her East Indian diplomacy, but then distinguished as well for his radical politics, as for his researches in the dialects of Europe least familiar to INTRODUCTORY REMARKS. Ixi his countrymen, and for his contributions to Enghsh Hterature from the Russian, Polish, Dutch and Spanish anthologies, to which he had just added translations from the popular Servian poetry. This association of a congenial character was continued under agreeable circumstances, as his investigations of the lan- guage and literature of Finland brought Dr. Bowring to Copen- hagen, while Mr. Wheaton was occupying his own leisure in the study of whatever appertained to Scandinavia or its adjacent regions. To Jeremy Bentham, whose works, despite the pecu- liarities of the language, contain an exhaustless mine of intel- lectual ore, and whose denomination of " International Law," as applicable to the subject of the accompanying treatise, our author has adopted, he was particularly attached, as the prime apostle in the cause of legal reform to which his own attention had been so recently directed. Repeatedly partaking of his hos- pitality, at those dinners which, never extending beyond a single guest, were literally tete-u-tete^ and which were the sole occa- sions that Mr. Bentham devoted to conversation on the great topics that occupied his mind, he found him " a charming old man, less dogmatical than he expected, who criticized the speci- mens of the New York Revised Laws that had been sent him, in a tone of great politeness, expressing himself satisfied with what the revisors had done, as far as they had attempted to go." Mr. Wheaton arrived at Copenhagen on IQth September, ISSy? ^s the first regular diplomatic agent from the United States to Denmark. The only minister who had preceded him was Mr. George W. Erving, who, in 1811, was appointed on a special mission, in reference to those seizures and condemna- tions of American vessels and their cargoes, which constituted the particular matters now confided to him. Count Schimmelmann, a venerable statesman, who had been for more than fifty years in the public service, was Minister of Foreign Affairs, and by him Mr. Wheaton was very graciously received. He presented him to the king and royal family, by whom he was, at all times during his eight years' residence, f Ixii INTRODUCTORY REMARKS. treated with a consideration, which attached rather to his distin- guished attainments and personal character, than to the diploma- tic rank with which he was invested, and which scarcely indi- cated his true representative character. This was the more flattering, in consequence of the nature of the reclamations which he was making, and which, as it will appear, were not all of a description to preclude discussion. The government of Denmark was, at that time, absolute, without any restriction on the power of the monarch ; but the rectitude of the king, Frederick VI., was universally admitted. He had entered on the administration as Crown Prince, in 1784. Count Schimmelmann, at their first interview, spoke of the king's paternal character ; adding, " mais il a He, tres malheu- reux^ Both he and the King of Saxony, the most virtuous sovereigns in Europe, have been despoiled of their dominions." Alluding to the Court, Mr. Wheaton says ; — " The king's character for honU is uncontested. He enters into all the minutiae of government, which, indeed, is no very hard task in a little kingdom like this. But he is any thing but a roi fai- neant. The army is his hobby. The peasantry, though no longer serfs, are subject to military duty; every farmer's son, of mature age, being liable to serve six years. In the towns, all must serve in some corps ; either the regular troops, or the burgher guard, or fire companies. In short, Denmark is Prussia in miniature. The king gives audience to all his sub- jects every Monday, when every man, woman, or child may present a memorial to him in person, or speak to him. They build a ship of the line, or one or two frigates, every year." In writing, soon after his arrival, to the Editor, who was then in London, he says: — "I have made the acquaintance of several literary men, and have seen Professor Schlegel, among others, who, you will recollect, wrote in 1799 against Sir W. Scott's celebrated judgment in the case of the Swedish convoy. He appears to be a m?in of extensive learning in his profession. He is a judge (or rather assessor) in the High Court, and, at the INTRODUCTORY REMARKS. Ixiii same time, a professor in the University, and the head of the Law Faculty. He has written in Danish on the history of legis- lation. There are here some men who are unknown, if not in the rest of Europe, at least with us, that deserve to be known ; and, in general, the attainments of their savans are much more profound in what they pretend to a knowledge of, than with us ; and I suspect generally, even in England, they do not go to work so doggedly and so pereeveringly." Among his associates will be found not only the names fami- liar to the literary and scientific world, — Rask, Oersted, and the poet Ohlensclager, who made him the subject of some com- plimentary verses, — but others, whose fame less extended else- where, is equally eminent in their own country. The friendly communications of this period, besides those of the individuals already named, which accident has preserved, embrace letters from Miinter, Bishop of Zealand, and his sister, Madame Fre- derika Brun ; whose country-seat of Fredericksdal was the resort of all the distinguished of Denmark, — of Miiller, the successor of Miinter, Rafn, and Magnusen. His diplomas, as a member of the Scandinavian Society and of the Icelandic Literary Society, as the sequel fully shows, im- plied no mere honorary distinctions. A letter from Schlegel, dated March 15, 1830, states his election to the former asso- ciation to have been on his nomination, and at an extraordinary meeting held for the purpose. He adds : — • " Tons les mem- bres reconnurent votre merite et le zele avec lequel vous avez travaille a repandre la connaissance des ouvrages Danois et de I'ancienne litterature du Nord dans les Etats-Unis d'Ame- rique." The election to the Icelandic Society is communicated in a note from Rask, of the 22 d of November of the same year ; and it is even then placed on the ground of " his knowledge of the Northern History, his proficiency in the language, and his zeal in promoting the literature of Scandinavia." Immediately on his arrival, he resumed those literary pur- Ixiv INTRODUCTORY REMARKS. suits, which with him were always more or less connected with the study of his favorite science, now become a professional avo- cation. He imparted to his countrymen, through the pages of the North American Review, the first results of his investiga- tions in the history, mythology, and jurisprudence of the Scan- dinavian nations. The article on the Public Law of Denmark, purporting to be a notice of the work of Schlegel, already adverted to as being written in Danish, and which appeared in America, when he had only been resident at Copenhagen for a twelvemonth, is no slight evidence of his having omitted no opportunity to prepare himself, by a knowledge of the language and institutions of the country to which he was accredited, for an efficient performance of his diplomatic functions. In this paper not only are the institutions of Denmark — the lex regia, which regulated the succession to the throne, and conferred on the king the whole executive and legislative power, as well as the circumstances which went to limit the theore- tical despotism of the monarchy through the Hoieste Rett^ explained, but the political connection with the kingdom of the duchies of Schleswig, Holstein, and Lauenburg, a subject which, several years afterwards, menaced the peace of Europe, is pointed out.^ Into the philology of the Danish language he had so far entered at an early day, as to present, among his contri- butions, a notice of Professor Rask's grammar.^ The Public Law of Denmark was soon followed by an Essay on the Scandinavian Mythology, Poetry, and History, in Avhich the sources of the materials, for the early history of the Gothic or Teutonic kingdoms of Norway, Sweden, and Denmark, are indicated.^ These articles, with the subsequent ones, in refer- ence to the ancient laws of Iceland^ and the Anglo-Saxon lan- guage and literature,^ with a glance at the antiquities of a widely 1 North Am. Rev. vol. xxvii. p. 285. See also Part I. c. 2, § 23, note a, p. 73. 2 Ibid. vol. XXX. p. 558. 3 Ibid. vol. xxviii. p. 18. 4 Ibid. p. 556. 5 Ibid. vol. xxxiii. p. 325. INTRODUCTORY REMARKS. Ixv different region and people, disclosed to the world in the un- ravelling of the Egyptian hieroglyphics, through the discoveries of Chanipollion,-^ and on which his friend, Professor Rask, had aided in throwing light, formed the suitable preludes to the classic work which, under the title of the " History of the North- men, from the Earliest Times to the Conquest of England by William of Normandy," appeared in London and Philadelphia, in 1831. It was, on its publication, noticed with the highest commendation in the principal periodicals of Europe and Ame- rica.^ The review of it in the North American is from the pen of Washington Irving. This book at once took a place among the standard works of the language, and after being enriched by the further investiga- tions of Mr. Wheaton, for which the publication in Denmark of the Icelandic Sagas and the labors of Magnusen afforded new materials, it was introduced, in IS^'l', through the transla- tion of M. Guillot, to continental readers. This edition, which received the particular notice of the French Academy, and which Mr. Wheaton, at the time of his death, was preparing for publication in English, was rendered specially interesting to the scholars of the United States, by the new light which it sheds on the Scandinavian discoveries in America, the authenticity of which it establishes. In noticing the French edition, M. de laNourais remarks: — "Mr. Wheaton is not only an historian, but in his Scandinavian researches he did not lose sight of the main avocation of his life, public law. It is as a publicist that he has investigated, interpreted, and almost always with a rare sagacity, the ancient monuments of the Scandinavian law; at the side of historical events he has known how to place the legislation of the people whose annals he recounts. It is principally in this point of 1 North Am. Rev. vol. xxix. p. 361. 2 See, inter al, North Am. Rev. vol. xxxv. p. 343. Monthly Review, vol. iii. p. 1. Amer. Quart. Rev. vol. x. p. 311. The London Athenaaum, 1831, p. 453. The Westminster Rev. vol. xv. p. 442. Ixvi INTRODUCTORY REMARKS. view that we consider the work of Mr. Wheaton within the scope of our labors. He makes known the laws and judicial customs of the people of whom he has rendered himself the historian.^" An English contemporaneous notice says : — " Among the foremost of those who, in our own days, have furnished import- ant contributions to our stock of Scandinavian literature, stands the name of Dr. Wheaton, a gentleman no less distinguished as a lawyer and statesman than for his historical and antiquarian attainments. The ' Histoire des Peuples du Nord ' is less a translation than a new edition of his ' History of the North- men ; ' it has been made under the eye of the author, and enriched by him with many notes and illustrations, and with an entirely new chapter, carrying on the History of the North- men to the extinction of the Norman dynasty in the south of Italy."2 Baron Humboldt, the philosopher and traveller, to whom we shall hereafter have occasion to refer as the personal friend and intimate associate of the King of Prussia, as well as of our author, wrote to the translator : — " ' L'Histoire des Peuples du Nord ' est devenue, grace aux importantes additions de I'auteur, comme grace a vos soins et a votre penetration, un ouvrage bien different de celui qui deja, dans sa forme primitive, avait obtenu le succes le plus merite. C'est un spectacle digne du philosophe, que cette civilisation refugiee, abritee, noblement agrandie dahs un reduit du monde polaire, — cet aspect dune colonic insulaire etendue sur un continent voisin, si diflferent par sa nature et des colonies Helleniques et de celles qui se rattach- ent aux besoins un peu prosaiques des siecles industriels. Je mets un double prix au don que vous avez daigne me faire, Monsieur, a I'interet qu' inspirent des recherches, dont vous avez expose la valeur dans la preface de I'ouvrage avec autant 1 Rev. Etr. et Fr. torn. i. N. S. p. 633. 2 For. Quart. Rev. vol. xxxv. p. 76. INTRODUCTORY REMARKS. Ixvii de gout que de sagacite, ou rimportance historique se joint a la haute estime que dans ce pays on professe a la cour et dans les cercles litteraires, pour Thabile et vertueux diploniate que je suis fier de compter parmi mes amis les plus intimes. Citoyen de I'Amerique tropicale je peux m'enorgueillir de I'amitie d'un grand citoyen des Etats-Unis. Cette profession de foi est permise sur la colline tres monarchique et tres historique que j'habite." ^ And, at the same time, in a note to Mr. Wheaton, he said : — " Votre excellent ouvrage historique, augmente de votre ' Scan- dinavie,' aura aupres du Hoi tout I'attrait et le succes de la nou- veaute. Je desire vivement que le roi oSre au traducteur son image dans la grande medaille d'or destinee aux travaux meri- toires dans les sciences et les arts." Further fruits of his historical studies at Copenhagen also appeared, after he had quitted Denmark. The History of Scan- dinavia was published in 1858, in connection with Dr. Crichton. It contains what was intended by him as a sequel to the His- tory of the Northmen, bringing down the history of Denmark and Norway from the extinction of the Anglo-Danish dynasty, in 1402, to the Revolution of 1660, including the affiiirs of Sweden, under the union of Colmar. It is proper to add, that, for the other portions of the work, Mr. Wheaton, the extent of whose contributions are pointed out in the Preface, is in no wise responsible.^ And so late as 1844, there was an essay from his pen in the Review of French and Foreign Law, at Paris, of which he was a regular contributor, on the ancient legislation of Iceland.'^ Nor was it to these subjects, in addition to the preparation of the works more strictly connected with his public pursuits, and J Baron Alexander Humboldt to M. Guillot, Sans Souci, 21st June, 1844. 2 Scandinavia, Ancient and Modern : being a History of Denmark, Sweden, and Norway, &c. ; by Andrew Cricliton, LL. D., &c., and Henry Wheaton, LL. D., &c. Preface, p. 9. 3 Legislation et Instructions Judiciares de I'lslande, pendant le Moyen Age. Kev. Etr. et Fr. torn. i. N. S. p. 182. Ixviii INTRODUCTORY REMARKS. which were not completed till his transfer to another mission, that the leisure which the intervals of business afforded was exclusively applied. Mr. Wheaton had scarcely been established at Copenhagen, before he directed his attention to a revision of the Life of Pinkney, a new edition of which was published in Sparks's American Biography. The American Quarterly, at Philadel- phia, to which he sent, in October, 1828, an Essay on Scandi- navian Literature,^ and a review of Depping's History of the Normans,^ as well as the European journals, participated with the North American in his contributions to the periodical press. Among other papers, an Essay on the Danish Constitution was, in 1833, inserted in the Foreign Quarterly Review.^ The special subject confided to Mr. Wheaton was the obtain- ing of an indemnity for the alleged spoliations on our commerce by Denmark, during the latter years of the European war. At peace with all the world for eighty years, except a slight diffi- culty with Sweden ; one of the parties to the convention of I78O for the maintenance of the armed neutrality ; and placed geographically at a distance from the contending belligerents, the participation of Denmark, in the hostilities growing out of the French Revolution, was, on her part, no voluntary act. Indeed, she had been, at the commencement of these wars, a common sufferer with the United States and other neutral powers, from the aggressions of the respective belligerents. The unprovoked violation of the law of nations, by Great Britain towards Den- mark, in 1800 and 1807, ^y the bombardment of her capital and the seizure of her fleet in times of peace, when the only crime that could be alleged against her was the maintenance of an impartial neutrality, constitute two of the most wanton acts of flagrant injury, inflicted by a stronger on a weaker power, to be found in the annals of history. 1 Amer. Quart. Rev. vol. iii. p. 481. 2 Jbid. vol. iv. p. 350. 3 Foreign Quart. Rev. vol. xi. p. 128. INTRODUCTORY REMARKS. Ixix Compelled by her conduct to assume the offensive towards England, and deprived, in a great measure, of her national marine, Denmark had recourse, mainly through private armed vessels, to reprisals against the commerce of her enemy ; and though the Berlin and Milan decrees and the other edicts of Napoleon were never formally adopted, yet the execution of the instructions against British commerce, between 1807 ^^id 1811, led to the seizure and condemnation of numerous American vessels. In the latter year, a special mission was intrusted to Mr. George W. Erving, who was measurably successful in arresting further condemnations. As regards past transactions, the effort was without avail, but an intimation was given that when the maritime war was terminated, the subject might be resumed. To prevent those matters passing into oblivion, on two occasions, — in 1818 and 1825, the attention of the Danish government was called to the cases, and in exchanging, in 1 S26, the ratification of the commercial treaty, a note was addressed by the Secretary of State to the Danish Minister, to preclude all idea of indeinnity being abandoned by the United States. The reclamations were respectfully entertained, though at first met by a plea of poverty. Writing to the Secretary of State, November 20, 1 827, Mr. Wheaton says : — " You can hardly have an adequate notion how this country was impove- rished by the war brought upon it by the unjust aggressions of England, and followed by the dismemberment of the kingdom, at the peace. If they had remained neutral, their commerce and navigation must have sensibly declined at the latter epoch. But when we consider that they lost, at a single blow, their navigation and all their capital engaged in commerce; that they made immense pecuniary sacrifices to the faithful observance of their alliance with France ; that the kingdom, with its dimi- nished territory, population, and resources, is now staggering under a debt of upwards of fifty millions of dollars, we cannot wonder at their reluctance to enter into new engagements. They have no means of replacing the capital thus lost. France, IxX INTRODUCTORY REMARKS. after repeated evasions, has, at last, peremptorily refused to repay them a debt of the most sacred character, being for sup- plies furnished the French troops, beyond the stipulations of the alliance. This is their condition, although the king is a man of very simple habits, and observes the most praiseworthy eco- nomy in his household, and in other respects, except the army, vi^hich has been his hobby from his youth. But the former condition of the kingdom has entailed upon him a numerous pension list, and the burden of supporting establishments quite disproportionate to its diminished resources." Partial indemnity, satisfactory to the claimants, for a class of the cases, was accorded at the close of 1827? ^^d within two months of Mr. Wheaton's arrival. In January, 18}29, the Minister of Justice, M. de Stemann, was united with Count Schimmelmann, to discuss with the American Plenipotentiary the means of an amicable adjustment of all the matters in con- troversy. This measure had been preceded by a declaration of the king's desire " to use every means to reduce the losses to which some American citizens had been subjected, by neglecting, without an intention on their part, those forms which would have served to protect their navigation and their strictly neutral transactions," and by putting Mr. Wheaton in possession of the register of sentences, with the grounds on which they M'ere supported by the competent tribunals, from the year 1807 to 1812. The appointment of the Danish Plenipotentiaries was made on the eve of the termination of the administration of President Adams ; but, fortunately for the country, President Jackson, who was inaugurated in the following March, " did not," to use the language of an experienced senator, in reference to this transaction, "change the negotiator — did not substitute a raw for an experienced minister." ^ Mr. Wheaton was met, as Mr. Erving had been at the out- 1 Benton's Thirty Years in the Senate, vol. i. p. 603. INTRODUCTORY REMARKS. Ixxi set, ^^^tl^ the pretension, that the final decrees of tlie highest tribunal could not be reexamined, and that it would be a reflec- tion on their character to suppose that they were not in con- formity with the law of nations. It was no difficult task to show, that though the decrees were conclusive in rem^ as regards the title of the property and as respects the subjects of Den- mark, they could not be deemed so as between nations ; but that, on the contrary, the right of a foreign government to demand redress against an illegal capture only arose after the failure to obtain justice, in the ordinary course, from the courts.^ The alleged grounds, on which the American vessels had been condemned, were, principally: 1. For having simulated papers ; 2. For having French consular certificates, which the Danish government had been informed by that of France could only have been issued to vessels going direct to that country ; and, S. For being found under English convoy. 1. So far as respects simulated papers, it was a question of fact in each individual case, and involved no discussion of prin- ciples. 2. On the second point, besides the answer that a French consular certificate was a document not known to the law of nations, and which American vessels, certainly so far as regards Denmark, were not required to have, it was satisfactorily proved that the instructions to the French consuls to confine them exclusively to vessels going directly to France, was not received in America till after the date of the sailing of the ves- sels in question. 3. The sailing under English convoy presented a subject of consideration not so readily to be disposed of. And Mr. Whea- ton, in giving, in the appropriate place in this work, the sub- stance of the argument, by which he succeeded in accom- plishing the object of his instructions, does not affirm as a prin- 1 Part IV., ck 2, § 16, p. 460. Ixxii INTRODUCTORY REMARKS. ciple, but presents as a proposition to be discussed, the liability to capture of neutral vessels sailing under enemy's convoy. He had, indeed, himself, as counsel in the Supreme Court of the United States, contended, in 1821, as appeared in his Reports, that sailing- under enemy's convoy was cause for the condem- nation both of vessel and cargo ; and he had, then, referred to the correspondence with the Danish government by Mr. Erving, who, he said, admits the extreme difficulty of upholding the contrary doctrine, and only seeks to escape from it by contend- ing that the rule could not be extended to vessels forced into convoy, or accidentally involved in the enemy's fleet. " And this," he adds, " may be readily admitted, without at all weak- ening the general rule." ^ It was denied by the Danes, that our claims came within the exceptional cases. On the contrary, they contended that " the convoy was a matter of preconcert ; that the American vessels being employed to procure naval stores from Russia, for the use of England, they first submitted to an examination before they were received under convoy, declined to submit to search by the other belligerent, and were defended by the convoy if of superior force, or endeavored to escape during the contest. If worsted, they still claimed their neutrality." The naked question, of the effect of sailing under enemy's convoy, has never been passed on in the United States' Courts, except so far as it may be supposed to be involved in the deci- sions respecting the liability to capture of neutral property, on board of an armed vessel of the enemy, as to which, as we have seen, there were conflicting decisions in the British and American Admiralty Courts. But, it is proper to notice, that in his dissenting opinion, in the case of The Nereide, Judge Story lays down in strong language the liability to capture of all vessels under enemy's convoy, and supports himself by a decision of the Lords of Appeal in England ; while in the case 1 Wheat. Kep. vol. vi. p. 34. The Aimable Isabella. I INTRODUCTORY REMARKS. Ixxiii of The Atalanta, in which the previous decision, allowing neu- tral goods to be shipped on board of an armed vessel of the enemy, is affirmed, Judge Johnson distinguishes between such a case and that of sailing under enemy's convoy. The settlement of the claims, by a gross sum to be distri- buted by the American government itself, precluded any fur- ther investigation of the facts by a tribunal, whose authority was recognized by both parties ; but it is understood that those convoy cases, which were admitted by the American Commis- sioners, were proved to have fallen within the exceptional classes, as stated by Mr. Erving, and that their being under British protection was the result of superior force. While the success of Mr. Wheaton, unaided by any hostile menaces, is enhanced by the doubt which attached to a portion of the reclamations, the general result affords the highest proof of the zeal and ability with which his functions were discharged. Indeed, it is only due to the truth of history to record, that without a minister, holding towards the king and the members of the Danish government the relations which Mr. Wheaton maintained, there would never have been an opportu- nity for those free discussions, to which, and not to any formal conferences, the fortunate termination of tbe business is to be ascribed. Such is the testimony borne by the agent, who repre- sented the principal claimants, and on that account visited Co- penhagen. Count Schimmelmann repeatedly told him, that he considered that " the American government had paid them quite a compliment, in sending them such a representative as Mr. Wheaton." And of the position which he occupied there, as well as of the friendly form which the negotiations assumed, tio better proof can be given than is furnished by the follow- ing note, taken from among those from the Danish Minister of Foreign Affairs, which their daily intercourse induced : — " Je suis desole. Monsieur, que votre indisposition me prive aujourd'hui de I'avantage de vous voir ; ce n'etoit pas des com- munications officielles que j'etois charge de vous faire, mais je g Ixxiv INTRODUCTORY REMARKS. voulois aviser avec vous, Monsieur, sur le meilleur moyen de pouvoir les faire sans retard, et avec I'espoir d'un favorable resultat. J'ai averti le ministre, M. de Stemann, de ce qu' une indisposition vous empeche de sortir, et ce ministre est inten- tionne de se rendre aujourd'hui chez vous, pour pouvoir vous entretenir sur I'objet en question." A further evidence of this view of the case is to be found in the declarations of subsequent text-writers. Mr. Manning, one of the most recent of them among the English, in commenting on this negotiation, considers that the Danish instructions, under which the captures were made, were justified. Ortolan, friendly as he is to neutrals, declares that, apart from the circumstances which occasioned the complete success of the American nego- tiator, it cannot be said that the fact of a neutral vessel sailing under the convoy of a belligerent is not an irregular and illegal act ; and Hautefeuille notices the remarkable character of the transaction which, while it accords an indemnity, stipulates that the Convention, it having no other object than to terminate all claims, " can never hereafter be invoked by one party or the other, as a precedent or rule for the future." ^ The Treaty of Indemnity Avas signed on the 28th of March, 1830. By it, including what was paid in 1827—8, on account of the seizure, in 1810, of certain vessels at Kiel, (on the car- goes of which, though they were liberated, a duty in kind of fifty per cent, was imposed during the pendency of the proceed- ings,) and the renunciation of claims against the United States, about three quarters of a million of dollars were secured for our merchants. This was one fifth more than the American Minister was instructed to insist on. But, what was infinitely more important, Mr. Wheaton's treaty was the pioneer of the conventions with France and Naples. From those treaties mil- lions were obtained for our citizens, and our right to redress was established for violations of neutral commerce, whose sole 1 See further, on this subject, Part IV., oh. 3, § 32, note a, p. 603. INTRODUCTORY REMARKS. IxxV palliation was the illegal acts of the opposing belligerents. And, in these last cases, it was also shown that, as long as a nation maintains the forms of external sovereignty, neither a change in the reigning dynasty, nor the plea of the prepon- derating influence of a powerful ally, can relieve it from its accountability to foreign States. Besides calling the attention of his government, at an early period of his residence, to the duties imposed by Denmark on the vessels of all countries, in passing the Sound and Belts,^ Mr. Wheaton was, in other respects, able to make his remote mission beneficial to American commerce. He was successful in obtaining some modifications of the quarantine regulations on vessels from America, which were, in 1831-2, more strictly enforced on account of the cholera, and as to which the decision of Denmark was particularly important, in consequence of her acting as the sanitary police for the several Baltic States. In this matter he was enabled, through his personal relations with him, to obtain the efficient cooperation of the Russian Minister at Copenhagen, Baron Nicolay. In 1830, the Governor-General of the Danish Islands, Von Scholten, was deputed on a special mission to Washington, with a view to the arrangement of a treaty, as respected the trade between those colonies and the United States, to be based on a mutual reduction of duties. Mr. Wheaton's efforts were exerted to promote the objects of the mission, advantageous alike to the country which he represented and to that to which he was accre- dited. With a view to the adjustment of such propositions as were likely to be acceptable, many preliminary conferences were, by the invitation of the Danish Minister of Foreign Affairs, held by him with Governor Von Scholten. Of the matters in Europe interesting to the United States, whether connected or not with his own legation, he was an attentive observer; and his suggestions, as well to his colleagues 1 Part III. ch. 4, § 9, note a, p. 244. Ixxvi INTRODUCTORY REMARKS. as to his government, were, at all times, valuable. The subject of our trade with the West Indies, which, on his entering- on his duties, was a leading topic of discussion between us and Great Britain, has, by the recognition of the most liberal principles by that power in relation to her colonies, ceased to have the interest of a pending controversy. But it is, even at this day, worthy of notice that the Danish government, though urged by the British to accept the terms of the Act of Parliament of 18!2.5, the non- compliance with which led to the temporary interruption of our intercourse with the West India Islands, declined to do so. The conditions proposed to powers having colonial possessions were much more favorable than those offered to the United States. It was only required of them, in order to participate in that trade, that they should grant to British ships the like privileges of trading with their colonies, as were granted to their ships of trading with the British possessions abroad ; whereas it was made a condition that we, as having no colonies, should place the commerce and navigation of Great Britain, and of her pos- sessions abroad, upon the footing of the most favored nation. The Danish government, nevertheless, refused the proposition, not knowing what might be the consequence of giving to the English the direct trade to Europe in their colonial produce, and fearing that such an absolute reciprocity might be very injuri- ous to their navigation.' It is satisfactory to learn, that the common sentiment of Europe approved of the decision of President Jackson, in treat- ing as null the recommendation of the King of the Netherlands, which he had substituted for an award, in reference to the North- eastern Boundary line. The despatch of the Danish Minister at that court, which announced the royal decision, and which is stated to have surprised every one there, was sent to Mr. Whea- ton for perusal by Count Schimmelmann. The Danish Envoy expresses the opinion, as being that generally entertained at the 1 Notes of Conference with Count Sclilmmelnaann, September 19, 1827. INTRODUCTORY REMARKS. Ixxvii Hague, that Mr. Preble's protest was suited to the occasion, and quite temperate and dignified.^ Tliough our claims were then still subjects of discussion, on the occasion of the selection of an arbiter, in conformity to the Convention of 18£7? the King of Denmark was, after our first choice the Emperor Nicholas, the sovereign to whom the United States desired, in preference to all others, to submit the controversy. Nor can it be doubted that the knowledge pos- sessed at Washington of the superior fitness of the Minister at Copenhagen, to conduct the reference on our part, was among the motives for placing Denmark second on the list. In the instructions, given on that occasion, it is said : — "If the late Emperor of Russia was still living and on the throne, there would have been a great repugnance against a second application to him, to act as arbitrator between the parties, after he had once assumed the trouble of officiating in that character. But that objection does not apply to the Emperor Nicholas, who may possibly regard asia compliment the manifestation of the same high confidence in him which was entertained for his illus- trious brother. It is probable, therefore, that he may accept the office. No well-grounded objection, on the part of Great Britain, can be anticipated. If, as now appears to us, at this distance to be highly probable from recent information, hostilities have been commenced with Turkey, the fact of Great Britain and Russia being allies, in the prosecution of that war, might render somewhat doubtful the expediency of our agreeing to the choice of the Emperor Nicholas as an arbiter. But, whilst that fact ought to prevent any objection to him on the part of Great Bri- tain, it does not shake the confidence which the President would have in the impartiality and uprightness of his decision, if he should consent to serve." ^ And in a subsequent despatch, in answer to one from the American Charge d' Affaires at London, 1 Mr. Wheaton to Secretary of State, February 19, 1831. 2 Mr. Clay to Mr. Lawrence, 20tli February, 1828. Ixxviii INTRODUCTORY REMARKS. stating- objections, which subsequent events fully sustained, to the King of the Netherlands, on account of the comparatively dependent relation in which he stood to England, even before the division of the kingdom, and asking permission to substitute the King of Prussia as our third choice, the Secretary says: — " We are very desirous to learn whether you have come to an agree- ment for the designation of a sovereign arbitrator. I have nothing to add to former instructions on that subject. It is most desirable that the Emperor of Russia shall be agreed upon. And the King of Denmark would be our second choice. The President weighed all the considerations you have sug- gested, respecting the King of the Netherlands. They did not seem to him to overrule the confidence which he has in the intelligence and personal character of that monarch. As to the King of Prussia, the circumstance of our having no represen- tative near him, was not without its influence on the omission of his name."^ In May, 1830, Mr. Wheaton visited Paris with his family, passing through the Hague, where he attended the deliberations of the States-General. He was very kindly received by the Minister of Foreign Affairs, the Baron Verstolk, and presented by him to the old king. This was a short time before the movement which severed the two portions of the kingdom of the Netherlands, which, he remarks, during his stay there, were then far from being consolidated. He was still absent from his post, at the time of the French Revolution of 1 830, and we find, among his papers, a note from Lafayette, dated a few days before the outbreak, inviting him to Lagrange, as well as a memorandum stating his having dined, immediately after that event, at the Danish Minister's, with Barbe Marbois, who was then approaching four score and ten, and who, besides having experienced various vicissitudes during the first French Revolu- tion, and been employed in eminent posts, both under the Em- ' Mr. Clay to Mr. Lawrence, 17tli May, 1828. INTRODUCTORY REMARKS. Ixxlx pire and the government of the Restoration, is connected with our American annals, as the Charge d' Affaires of Louis XVI., during our Revolution, and as the negotiator of the Treaty of Louisiana — whose history he has also written. It was dur- ing the memorable occurrences of this period, that Mr. Whea- ton made the acquaintance of Louis Philippe, to whom he was presented by Lafayette, and whom he saw take the oath to the charter. The king, during the remainder of Mr. Wheaton's residence in Europe, on repeated occasions, though he was never accredited to his court, conferred freely with him on matters of state and government. With Guizot, Thiers, and the other distinguished men of the Orleans dynasty, who added the official rank of ministers to the highest eminence in the literary world, he was, by congeniality of pursuits, brought into association. With the Duke de Broglie he was on terms of the most friendly intercourse, as he was, also, with the his- torian Mignet, the Perpetual Secretary of the Institute for the Class of Moral and Political Sciences, and with most of the other celebrities, whose society contributes so much to the intel- lectual attractions of the French metropolis. In 1881, Mr. Wheaton visited London by direction of his government, in reference to matters connected with the Danish indemnity. While in England, he not only availed himself of the opportunity of making the acquaintance of the Ministers of State and other public men, as well as of the diplomatic corps, to many of whom he was already knouTi, but he was, at once, recognized as a member of their own fraternity by the most eminent in literature and law. Among the statesmen by whom he was particularly distin- guished on this and the other occasions of his visiting the British capital, were Lord Aberdeen, Lord John Russell, Sir Robert Peel, and Lord Palmerston, and especially the Marquis of Lansdowne. With Sir James Mackintosh, whose judicial independence, when presiding in the Vice- Admiralty Court of a distant possession, contrasted so favorably with the ministerial IXXX INTRODUCTORY REMARKS. subserviency of Sir William Scott, and who, in so many way was a congenial spirit, he was well acquainted. Senior, who, by his able paper in the Edinburgh Review, afterwards contributed to place his merits, as a publicist, pro- perly before the world, was one with whom he was on terms of intimate association, as he was also with Palgrave, Hallam, Hayward,^ Mr. and Mrs. Austin, and others of like fame. It was at this period that the History of the Northmen was pub- lished, and the consideration which its author enjoyed in the literary circles of the metropolis, is the best test of its apprecia- tion. He was, likewise, as a learned jurisconsult, requested to furnish answers to the queries of the common-law commission then in session, and who were occupied with the same investiga- tions to which his own attention, as a commissioner at New York, had been directed. In the autumn of 1833, Mr. Wheaton visited the United States. At New York, he was invited, by a committee of the most influential citizens, at the head of which was the ^ The following is the note, dated Temple, July 21, 1831, by which Mr. Hay- ward introduced himself: — "I take the liberty of requesting your acceptance of a translation which I have printed for private circulation, and the last number of a work of which I am the Editor. I have only just heard of your being in this country, or I should have hastened to oifer my humble tribute of respect before ; and I believe that I may venture to offer the same excuse for several of my friends, who, having interested themselves in foreign jurisprudence, (if such term can be extended to America,) would be naturally desirous of the honor of becom- ing acquainted with so distinguished a jurist as yourself. I chanced to breakfast this morning in company with Mr. Cooper, author of ' Lettres sur la Chancellerle,' &c., Mr. Sutton Sharpe, Editor of the ' Jurist,' and Mr. Miller, author of some approved works on law reform. I found each to be ignorant of your arrival, but each is desirous to offer you every attention in his power. Mr. Cooper, indeed, offered to call with me, but as our professional engagements would compel us to call at an hour when you would probably be out, I have thought it better to write. I beg leave to add, that if you should wish to become acquainted with the few lite- rary lawyers we have, I shall be most happy to be the medium of introduction. I trust to your kind construction of the freedom of this address. Similarity of pursuit Is allowed to dispense with ceremony on the continent, and, in the present instance, I venture to dispense with it here." INTRODUCTORY REMARKS. Ixxxi mayor of the city, as " a mark of their respect for his successful efforts, as a scholar and diplomatist, to sustain the reputation and interests of the country ahroad," to partake of a public dinner. He was also requested by " The New York Law Institute," an association composed of his old professional brethren and of those who had, during his absence, been called to the bar, to pronounce a discourse before them, at their anniversary, in May, 1 834^. Engagements, at Washington, prevented the de- livery of the address, which was, however, prepared and subse- quently published. The subject selected, as furnishing some of the fruits of his studies abroad, was the progress of the science of law in Europe, since the independence of the United States. After tracing what had been previously done on the continent, and giving a rapid analysis of the great quarrel in Germany, between the historical and philosophical schools, on occasion of the introduction, into the conquered countries, of the French codes, he concludes by awarding to Bentham the title of the greatest legal reformer of modern times.^ The principal object of Mr. Wheaton's visit was the prosecu- tion of a suit, which had reached the court of ultimate resort, against his successor in the office of Reporter of the Supreme Court of the United States, who, by the publication of an abridged edition of his Reports, threatened to deprive him of the fruits of twelve years of arduous labor, on which — in accepting an appointment abroad, the compensation of which, it was well understood, would scarcely suffice for his current expenditure — he had relied as a future provision for himself and family. It is seldom that among literary men questions arise rendering necessary a reference to the technical provisions of the copy- right act, and among publishers, even in cases for which the law does not provide, there is a respect generally paid to priority of 1 Rev. Et. and Fr. torn. vlii. p. 243. Ixxxii INTRODUCTORY REMARKS. possession. It was reserved for a counsellor at law, vested with the confidence of the highest tribunal of the country, in the ab- sence, in a foreign land, of a professional brother, to whose voluntary resignation he owed his place, to disregard all these honorable obligations.^ The legal points involved will be found discussed in Peters's Reports. The Court decided that there was no copyright by the common law in Pennsylvania, where the publication was alleged to have been made, especially since Congress had acted on the subject under the Constitution, and that the opinion of the Judges, as published by the Reporter of the Court, were not susceptible of being made private property ; and, entertaining doubts, whether there had been a strict compliance with the requisitions of the statute, they remanded the case to the Circuit Court to ascertain the facts.^ The decision, however, of a majority of the Judges, on the points of law, by reducing the claim of ' What Tvere the difficulties under ■which the reports were originally published, may be inferred from the following letters. Judge Story writes to Mr. AVheaton, May 25, 1816: "Respecting the publication of the Reports, which we most ardently and impatiently desire, I will converse with you when we meet. I am fearful that at present there is not a bookseller in Boston who is able to print them, or give any thing for the copyright. I can readily procure you subscribers." Mr. Duponceau says, in a letter, dated Philadelphia, June 3, 1816 : "I have applied, without success, to most of the booksellers in the law way, who, after taking more or less time for consideration, have uniformly told me that they would not print the work ; by which I understood that they would not give any thing for it, or at least any thing like what they thought you might expect. There is one more to be applied to, and another who has not yet given me an answer. I shall pursue my applications to the end, and let you know the result. Bookselling is at pre- sent a very bad business, and booksellers are all out of spirits, and unwilling to undertake an original work." Mr. Wheaton says, December 19, 1816, to Judge Story : " I beg you to believe (and will thank you to write Mr. Justice Wash- ington to the same effect,) that the delay has been occasioned by causes beyond my control, and that others are responsible for it. I was ready for the press in six weeks after my return from Washington. It was not until the 17th June that I could find a bookseller to publish on any terms, and the delay since has been occasioned solely by Mr. Carey's failure to furnish paper, from time to time, as it was wanted by the printers." ^ Peters's Reports, vol. viii. p. 591. Wheaton v. Peters. INTRODUCTORY REMARKS. Ixxxiii Mr. Wheaton merely to a copyright in the marg-Inal notes and arguments of counsel, and making all indemnity, even on account of them, dependent on affirmative proof of the technical per- formance of certain specified requirements, of which the public offices in those days afforded but imperfect means of furnishing the evidence, was a most severe blow to our author. The un- satisfactory result of the suit was, moreover, aggravated by the circumstance that this controversy led to the severance, for ever, of those friendly ties which had so long existed between him and Judge Story. Mr. Wheaton returned, in August, 18S4<, to Copenhagen, and he refers, in a despatch of the 29th of November, to the accession, by Denmark, to the treaties of 1831 and 1833, be- tween England and France, for the suppression of the slave- trade. He also states, that instructions had been given to the Governor-General to ameliorate the condition of the slaves in the West Indies ; that any slave should be permitted to buy his freedom, whenever he was able to do so from the fruits of his labor, during the intervals allowed him for that purpose ; and that any slave, who was discontented with his master, and could find a purchaser who was willing to buy him, might, in that way, change his master. Though Mr. Wheaton's residence at Copenhagen was not at a capital where the earliest intelligence could be commanded ; yet as the European governments are in the habit of furnishing their agents abroad, from time to time, with an analysis of the reports which they require to be made to them from all their legations, together with their own views of the pending- occurrences, probably nowhere could he have had a better opportunity than at one of the northern courts, removed from the influence of the immediate actors, of studying the politics of the world, and of forming a sound judgment respecting- the future course of international relations. The correspond- ence of Mr. Wheaton during the twenty years of his foreign residence, pointing out, as it does, the causes of events which Ixxxiv INTRODUCTORY REMARKS. are yet, in many cases, cabinet secrets, would afford histo- rical annals inferior in interest to no contemporaneous me- moirs. A large portion of it for the first part of his Dan- ish mission, was addressed, in the form of private or confiden- tial communications, to the President and Secretary of State. So early as December, 1 SQ!7, he appreciated the true position of Turkey, when, after the battle of Navarino, he writes : " I think we have only, as yet, the opening scene of a great drama, which is to be enacted in the Eastern world ; and how the de- nouement is to be brought about without a partition of the Ottoman Empire, I am at a loss to conjecture." In a private letter to President J. Q. Adams, soon after- wards, (January 5, 18!28,) he says: " Mr. Middleton has doubt- less sent you a copy of the Russian circular, written after the battle of Navarino, in which the views of that court as to the affairs of the East are developed. That paper certainly looks to the probability of his Imperial Majesty being compelled (how- ever reluctantly) to occupy the principalities of Moldavia and Wallachia, if not to advance further on the road to ' Byzantium.' But the evident interest of the other European States to oppose the territorial aggrandizement of Russia, and to support the tottering fabric of the Turkish power, induces a strong belief that some means will yet be found to induce the Porte to listen to the remonstrance of its ' friends.' If the Christian powers had acknowledged the independence of the Greeks three years ago, and labored in good faith to consolidate a real Grecian State to take the place of the Ottoman Empire in the balance of power, they would have adopted a much more sensible course than this their tardy interference, which will probably redound to the advantage of Russia only. But such a course would not have suited the views of Prince Metternich or of Mr. Canning, the latter dreading the creation of a new maritime power, which might rival that of England in the Mediterranean, as much as the former feared the example of successful resistance to oppres- sion and the approximation of the Russian Colossus." INTRODUCTORY REMARKS. IxxXV The circumstances, also, %yhicli were leading to a chan2;-e in the internal constitution of Denmark, in accordance with the promises made at the period of the Congress of Vienna, hut which only began to be redeemed in Mr. Wheaton's time, as well as the commencement of the difficulties in the Duchies, which afterwards menaced such fatal consequences to the integrity of the Danish States, are fully appreciated and explained. At the early date of this letter to the President, he thus adverts to the sentiments of the people on that subject : — " In the Mngdom, the natural desire of constitutional secu- rities, now felt by every civilized people, is checked by the personal good character of the reigning sovereign and the mildness of his administration. In the Duchy of Holstein (which you will recollect forms a part of the Germanic Con- federation.) there was, four or five years ago, a movement towards innovation, or rather towards a restoration of the former order of things in that country ; the prelates and nobles having demanded the convocation of their ancient States. The king, not having complied with their demand, they made appli- cation to the Diet at Frankfort ; but that body advised them to wait patiently for the constitution which his Majesty was pre- paring for them. Nothing has been heard of it since, and the people take the less interest in it because they consider it merely a selfish attempt on the part of the privileged orders to secure their feudal immunities, which are still very considerable. In conversation with a resident of the Duchy,- on this subject, he observed that they might have a constitution of States if they would — ' mais quel besoin des Etats, quand nous avons un si bon roi ] ' " In his correspondence with President Adams, who himself united in a remarkable degree the pursuit of science and the cultivation of letters with his public duties, he entered into ample details of what the Danish government, notwithstand- ing its pecuniary embarrassments, was effecting for the advance- ment of knowledge in that remote corner of the globe. He h Ixxxvi INTRODUCTORY REMARKS. described the steps taking for the cadastre or grand survey of the kingdom, the geometrical part of which, so far as related to Holstein, was under the direction of the celebrated astronomer, Schumacher. During the whole period of his mission to Denmark, the United States were not represented in Austria, Prussia, or any- other part of Germany. As a resident at the court of a sove- reign who, on account of Holstein, was a member of the Ger- manic Confederation, his attention was necessarily drawn to that important portion of Europe. His despatches not only speak of the political concerns of the Confederation and of the action of the Diet, but he gives us the origin of that commercial league, with which his subsequent career was, for so many years, con- nected. Before leaving Denmark, on his visit to the United States, he had received from his Prussian colleague at that court, Count Raczynski, (to whom, as the historian of the Arts in Germany, we shall, in the sequel, have occasion to refer,) a communication, which his government had directed him to deliver to the American Charge d'Affaires, with a view to its transmission to Washington. It expressed a desire for the restoration of diplomatic intercourse between the United States and Prussia, as well as intimated a wish that Mr. Wheaton, whose reputation was already established there, should be sent to Berlin. This appointment was, however, not made till the spring of 1835, when he was commissioned as Charge d'Afikires to Prussia, by President Jackson. A year before Mr. Wheaton's transfer, Mr. Buchanan, subse- quently Secretary of State under President Polk, at the request of President Jackson, expressed to him his views of the pro- posed nomination. The following is an extract from his letter : " During my residence in St. Petersburg I had frequent opportunities of learning the character and standing of Mr. Wheaton at Copenhagen, and it is but justice to say, that they were such as to make a decided impression in favor both INTRODUCTORY REMARKS. Ixxxvii of himself and his country. Baron Nicolay, the Russian Minis- ter at that court, told me there was no member of the diplomatic corps who stood higher in public esteem. His character as an author is, I am inclined to believe, more justly appreciated abroad than at home, and would be the best introduction he could have at Berlin. Besides, he is well acquainted with German literature, and speaks the German language — two great recommendations among a people so proud of their origin as the Germans.'^ There had been no American Minister at Berlin since John Quincy Adams, whose nomination was made in 1797' An appointment was now proper, not only as a matter of reciprocal courtesy, but the increased political importance of Prussia, and more especially the controlling influence which she exercised over the commercial interests of a great part of Germany through the ZoUverein, required that the United States should omit no suitable opportunity of cultivating with her relations of mutual interest. Mr. Wheaton arrived in Berlin, in June, 1835. The Minis- ter of Foreign AS'airs, Mr. Ancillon, at their first interview, requested him to suggest by what means our commercial con- nections with them might be extended. The articles of the Germanic Confederation, as established by the Congress of Vienna, in 1815, contemplated the regulation, by the Diet, of commercial intercourse among the States, as well as the free navigation of the great rivers ; but nothing was ever done to- wards effecting the former object. The custom-house barriers had, however, been broken down between the individual States, by means of Customs' Unions, of which there existed at the time of Mr. Wheaton's arrival two, the ZoUverein, at the head of which Prussia was, and which embraced most of the States of Germany, except the Austrian dominions, the Hanseatic Towns, the duchies of Holstein and Lauenburg, (belonging ' Mr. Buchanan to President Jackson, March 13, 1834. Ixxxviii INTRODUCTORY REMARKS. to the King- of Denmark,) Mecklenburg, Oklenburg, the kingdom of Hanover, and the duchy of Brunswick, which two last formed, in 18'34<, a separate commercial league, called the Stuerverein, with which, soon after, Oldenburg was united. As the principles, on which these associations were established, were a uniform tariff, the duties from which were to be collected by the frontier States, and divided among the different members according to their population, it was with the leagues rather than their individual members that negotia- tions were to be conducted. They were represented, so far as respected diplomatic discussions with foreign nations, by Prussia and Hanover respectively ; and Mr. Ancillon early intimated his desire to the American Minister, that he should not attempt to approach the Zollverein with any overtures for commercial negotiations, except through Prussia, its founder and natural head.* By his original instructions from the Secretary of State, Mr. Forsyth, his attention was specially directed to an establish- ment of commercial relations with Germany, founded on the new order of things, and also to the removal — for which the con- nection of many of the States with Prussia, through the Zoll- verein, would afford facilities — of the obstructions imposed on emigration by the existence of the droit d'aubaine et droit de detraction.^ Soon after Mr. Wheaton's arrival, he availed himself of the suspension of diplomatic business to make, in July and August, a tour through a portion of Germany. Proceeding by the way of Lubeck, Hamburg, and Hanover, to the Prussian provinces of Westphalia and of the Rhine, he collected a good deal of use- ful information respecting the commercial and other resources of those provinces, and of the intermediate States, as well as of Nassau, Hesse-Darmstadt, and Baden. He was furnished by 1 Mr. Wheaton to Secretary of State, 25 November, 1835. 2 Mr. Forsytli to Mr. Wheaton, April 20, 1835. INTRODUCTORY REMARKS. Ixxxix Mr. Ancillon with introductions to the local authorities, who afforded him every facility for the prosecution of his inquiries. On his return to Berlin, Mr. Wheaton suggested to the Ameri- can government separate negotiations with Prussia and her league, and with Hanover and her associated States ; and he was in consequence instructed to inquire whether Prussia and the other German States united with her were disposed to open a negotiation with the United States upon their mutual com- mercial relations, with a view to an arrangement consistent with the great leading principles upon which our intercourse with foreign nations had been uniformly regulated, with such modi- fications and additional stipulations as the peculiar nature of the commercial union might render necessary. Before any serious step was taken in the course of these negotiations, Mr. Wheaton was promoted, by President Van Buren, to the rank of Envoy Extraordinary and Minister Pleni- potentiary. And contrasted as it was with the ordinary prac- tice in such cases, to which we have alluded, and which after- wards governed his recall, it is here proper to refer to the magnanimity of the President in making this appointment, as well as to the obligations which the United States are under to Mr. Wheaton's old friend and associate, Benjamin F. Butler, a member of the Cabinet of Jackson, and always a confidential adviser of Van Buren, for his aid in securing to the country the continued services of our distinguished diplomatist. It was, at the close of the session, immediately preceding the inauguration of President Van Buren, that an appro- priation was made for the outfit and salary of a full minis- ter to Prussia, instead of the salary of a charge d'affaires, thereby rendering a new nomination for Berlin necessary. Mr. Wheaton had been, as we have seen, the pioneer in obtaining, under very peculiar circumstances, indemnity for reclamations from foreign States; and his treaty had been followed by eminent success in other negotiations. With his qualifications as a minister Mr. Van Buren had had the means XC INTRODUCTORY REMARKS. of being- well acquainted, both as Secretary of State and while his colleag-ue abroad, and in London he had had full opportunity to know the advantage which our country derived from his literary character and special attainments in the profes- sion of diplomacy. On the other hand, not only were there, as usual, on the accession of a new President, many individuals, having pretensions from local influence and partizan exertions, who, not supposing a knowledge of public law or of the lan- guage and usage of diplomacy a necessary qualification on the part of those who are entrusted with our international inter- course, claimed all the patronage at the command of the Exe- cutive ; but Mr. Van Buren had been the acknowledged leader in New York of that party which, in the contest of 18j24<, Mr. Wheaton had been so instrumental in defeating. It so hap- pened, however, that the " Elements of International Law" had just been published, and though the work had not then acquired the celebrity which it now commands, it had attracted the atten- tion of the Attorney-General, with whose peculiar duties the subject was directly connected. In the interchange of sentiment, which took place between Mr. Van Buren and Mr. Butler, even before the former had entered on his duties, adverting to the fact that, in addition to his other merits, Mr. Wheaton, alone of all those who, from the commencement of the government of the United States, had been employed in its diplomacy, had made a permanent contribution to the science of international law^ and resting his cladms on his personal qualifications, and on his emi- nent services in the negotiation of the Danish treaty, Mr. But- ler urged the new President to disregard the clamors of ephe- meral politicians, and while rendering justice to an experienced public officer, to do an act which would confer lasting honor on his administration. "All the respectable and intelligent portion of the community," he declared, " all whose good opinions are worth possessing will, at once, sanction your course, and all parties will soon approve of it." In this advice he was earnestly seconded by the venerable chief who was about retiring from INTRODUCTORY REMARKS. XCl the ai'overnment, and wlio had early manifested his own inde- pendence of action, by first retaining Mr. Wheaton at Copen- hagen, and then transferring him to the more important post at Berhn. It is needless to add, that the counsel of his best and most disinterested friends, in which Mr. Van Buren readily concurred, meets no dissent in what may already be deemed the judgment of posterity. Mr. Wheaton received his letters of credence, and his com- mission in his new capacity, in March, 1 837 '■> though owing to the vacancy in the department of Foreign Affairs, intervening between the death of Mr. Ancillon and the appointment of Baron de Werther, and the annual visit of his Majesty to the baths of Toeplitz, where he was accompanied by the new minis- ter, he did not deliver his letter to the king till September. He thought that he could not better employ the interval than by making another journey through the Prussian provinces, with a view to complete his former examination of their commercial resources, especially with respect to the question of the tobacco duties, to which his attention had been particularly directed, and the natural and artificial communications, by which the States of Germany associated in the Commercial Union are connected with the North Sea, and the channels opened for our commerce, in common with that of other nations, through the ports of Bel- gium and Holland, into the interior of the continent. Leaving his Secretary of Legation in charge of the current affairs of the mission, he proceeded through the province of Brandenburg, which he had not before explored, to Cassel, the capital of Elec- toral Hesse ; and he not only visited the States of Western Ger- many, but extended his tour through Belgium, where he had occasion to remark the improvements which had occurred under the new government since he first passed through it, in 1830, as well as to notice the intimate connection between the com- mercial interests of the United States and those of the Rhenish provinces, whose manufactures, in their diminished exports, were experiencing the effects of the monetary crisis, then prevailing in England and America. XCll INTRODUCTORY REMARKS. The same instructions which conveyed to Mr. WTieaton his appointment, as Envoy Extraordinary and Minister Plenipoten- tiary, inclosed the report of a Select Committee of the House of Representatives, on the high duties imposed by foreign go- vernments on tobacco ; one half of the exports of which, from the United States, were consumed in Germany. Congress, also, had evinced the interest which they took in this trade, by mak- ing an appropriation for the compensation of special agents, to be employed for the express purpose of effecting a reduction of the tariff" on this article ; and it was understood that the rank of the Prussian mission was raised, with special reference to this sub- ject. In the following year, (June, 1838,) a similar resolution was passed, requesting the President to instruct our diplomatic agents in Germany, to procure a reduction of the duties on American rice imported into the States of Germany, especially those associated in the Commercial and Customs' Union. Soon after the transmission of his commission, in June, 1837, Mr. Wheaton received a full power, with instructions from Mr. For- syth, though preferring a relaxation of the duties by legislative or internal regulation, to conclude, if necessary, a treaty with the Zollverein, — an object which he ever zealously pursued for the ensuing six years. At this time, however, he was not author- ized to stipulate for a preference in the ports of the United States of the productions of the German States, over similar articles imported from other countries, as an equivalent for the diminution of the duties or charges on tobacco ; but if any such proposition was made, he was to transmit it to his government.^ The earlier instructions of Mr. Forsyth were, it should be mentioned, opposed to according any preference, even for a full equivalent, to the productions of Germany, lest we might thereby be embarrassed with those nations, with which we had treaties of reciprocity ; and he referred to the difficulties which had, in 1 The Secretary of State to Mr. Wheaton, June 1, 1837. INTRODUCTORY REMARKS. XClll consequence of such a provision, grown out of the convention for the purchase of Louisiana. That treaty not only contained a stipulation placing- the vessels of France and Spain, laden with the productions of their respective countries, for a limited period, on the same footing as those of the United States in the ports of Louisiana, but provided that the vessels of France should be forever thereafter treated in those ports on the footing of the most favored nation. It was, Mr. Forsyth said, to get rid of obligations, which might be deemed to contravene the Consti- tution of the United States, which requires all duties to be uni- form throughout the Union, that the preference accorded to French wines w^as inserted in the Treaty of 1831.^ As to the construction to be given to the term, "most favored nation," when used as in the Louisiana Treaty — whether it entitles a power, with which such a treaty exists, on the con- cession of advantages, for a consideration, to another, to enjoy them gratuitously, it may be remarked that the subject was fully, and, as it is believed, unanswerably argued, in 1817, on the American side, by Mr. Adams, in the controversy with respect to the very treaty referred to ; ^ and the same views w^ere always contended for by Mr. Wheaton, in his correspond- ence with the Department of State.^ IMr. Wheaton attended, under the instructions of his govern- ment, the Congress of the ZoUverein at Dresden, in July, 1838. He presented to them a memoir, embodying all the statistical data and economical reasonings, which could tend to induce the introduction of a liberal policy. The importance to the Ger- manic Confederacy of the trade with the United States is fully explained, by a reference to facts as well as to general princi- ples.^ Statistical details do not enter into the plan of this 1 The Secretary of State to Mr. Wheaton, March 14, 1836. 2 Cong. Doc. H. R. 18 Cong. 2d Sess. Doc. 91, p. 8. 3 MS. Despatches. 4 In the memoir, the consumption of North American tobacco, by the States of XCIV INTRODUCTORY REMARKS. notice, but how satisfactorily to those most deeply interested in the results, this branch of Mr. Wheaton's duties was per- formed, may be learned by the strong approbation with which it is alluded to in the report of a committee of the House of Representatives on the tobacco trade, and of which Mr. Jenifer, who was appointed, at the special request of the planters, Minis- ter to Vienna, was chairman. The committee say, that " they cannot omit to notice the very able and argumentative memoir, presented to the Congress of Deputies of the German Commer cial and Customs' Association, assembled at Dresden, in June last, by our zealous and talented minister, Henry Wheaton ; in which he takes an enlarged view of the policy which should be adopted in relation to the products of the Southern States, and submits a project for their consideration, which the committee insert."^ Though Mr. Wheaton was not immediately successful, as regards the duties on tobacco, the consideration of which was adjourned to a Congress to be held the next year, he obtained a report in favor of the reduction of the duty on rice, which, on being referred to the respective governments of the States com- prising the association, was confirmed by them. The only foreign relations considered at the Congress were those of the United States, arising out of Mr. Wheaton's memoir ; and the favor which was accorded to his representations may be ascribed to the personal consideration which he commanded, and to the opportunities which his familiarity with the language of the members, as well as his thorough knowledge of the matters which he discussed, afforded him. By the ministers of state, as ^vell as by their sovereigns, he was everpvhere received as the honored representative of a great and powerful nation. the Zollverein, was then computed at 80,000 hogsheads, or 300,000 centners ; of cotton, at 120,000 centners; and of rice, at 75,000 centners. 2 Cong. Doc. H. R. 25 Cong. 3d Sess. Rep. Com. p. 310. INTRODUCTORY REMARKS. XCV A confidential despatch gives an account of his interview with the King of Saxony, with whom he dined, on the 6th of July, at Pilnitz : — " His Majesty ,i who is extremely well informed on all matters connected with the public administration, turned the conversation to the subject of our negotiations with the com- mercial association. He stated that Saxony had no particular interest in the question, as to the proposed reduction of the duties on American tobacco, either as to revenue or the cultiva- tion of the native plant, whilst he admits that she had a deep interest in the preservation of a vast and increasing market for German manufactures. At the same time, the king did not disguise from me the difficulties we must expect to encounter, in endeavoring to reconcile so many conflicting interests, as are involved in any change of the present tariff. His remarks were conveyed in the kindest and most conciliatory terms towards our country, with whose resources he is perfectly acquainted, and for whose welfare he expressed the warmest interest, and with an earnest desire to cultivate the most amica- ble relations." In the commercial treaty, of 1815, with Great Britain, reci- procity was established, so far only as regarded the trade be- tween the United States and the British possessions in Europe, in the productions of the respective countries ; ^ but in the case of > Frederick Augustus was born in 1797, became king in 1836, and died in 1853. 2 By an Act of Parliament, 12 & 13 Vict. c. 29, (26th June, 1849,) the British government were authorized to accede to the proffer, made by our Acts of Con- gress, to all nations, of reciprocity, without reference to the country from whence the cargo came. President Taylor, in the annual message, December, 1849, says : — "In consequence of the recent alteration of the British navigation acts, British vessels, from British and other foreign ports, will, under existing laws, after the 1st of January next, be admitted to entry in our ports, with cargoes of the growth, manufacture, or production of any part of the world, on the same terms, as to duties, imposts, and charges, on their cargoes, as vessels of the United States with their cargoes, and our vessels will be admitted to the same advan- tages in British ports, entering therein on the same terms as British vessels." Annual E,eg. 1849, p. 349. See Correspondence between Mr. Bancroft and Vis- Xcvi INTRODUCTORY REMARKS. the treaties with the Haiiseatic Republics, negotiated in 18S75 and of the treaty with Prussia, in 18!28, an unhmited right of importing, on equal terms into the respective countries, what- ever might be imported therein in their own vessels, was reci- procally accorded. In the Prussian treaty it was specially de- clared, that the stipulations as to reciprocity shall apply, whether the vessels clear directly from the country to which they respect- ively belong, or from the ports of any other foreign country. This liberality, though it was only in accordance with the prof- fer made to all nations by our reciprocity acts, and of which several powers had availed themselves, had been deemed to ope- rate very disadvantageously to American navigation in the case of the Hanse towns. This was supposed to be especially the case with regard to the importation of tobacco, which was made, to a great extent, through the port of Bremen, for Germany. It was stated that, from there being a great preponderance, in 1828, in favor of American vessels, in 1835 the difference in the tobacco trade alone was was six to one against our mercan- tile marine. This point was brought prominently to view in the report, which accompanied the resolution of the House of Representatives, on the subject of the tobacco trade, in 1837-^ And it induced, in the treaty of commerce which Mr. Wheaton negotiated with Hanover, in 1840, a less extended reciprocity than had been adopted in the previous German treaties. The abolition of the disciiminating duties, instead of applying uni- versally, was confined, on the one side, to the productions of the count Palmerston, Pari. Papers, 1847, vol. li.x. p. 901. The Queen, in her speech on the opening of Parliament, 1854, thus refers to the final change which was effected, during the session, in the policy of the British navigation system : — "I recommend to your consideration a bill which I have ordered to be framed, for opening the coasting trade of the United Kingdom to the ships of all friendly nations, and I look forward with satisfaction to the removal of the last legislative restriction upon the use of foreign shipping for the benefit of my people." Han- sard's Pari. Deb. vol. cxxx. 3d series, p. 3. 1 Supra, p. xciii. INTRODUCTORY REMARKS. XCVll United States and the American Continent and the West Indies, and, on tlie other, to the })roductions of Hanover, of Prussia, and of the States belonging to the Germanic Confederation. i This arrangement was in accordance with a suggestion made in a private letter of Mr. Wheaton to the President, in February, 1838, explaining the operation of the provision. The treaty- was made with Hanover alone, the government of that kingdom having declined to negotiate conjointly with their commercial allies, as at first proposed.^ Mr. Wheaton gives the following view of our commercial relations in the North of Europe, on the conclusion of the treaty of 184"0 : — " The principal seaport of the kingdom of Hanover is Embden, which formerly carried on a considerable foreign commerce, so long as the province of East Friesland belonged to Prussia, and so long as the Prussian flag enjoyed the privi- leges and advantages of neutrality, during the wars of the Ame- rican and French Revolutions. The imports and exports of the kingdom of Hanover are principally made through the ports of the Hanseatic Republics of Bremen and Hamburg, the former of which is enclave within the Hanoverian territory. As the duties of import and export payable in those places are trifling, and as the transit duty across the Hanoverian territory, whether ^ U. S. Stat, at Large, vol. viil. p. 554. 2 The restriction is not contained in the existing treaty with Hanover, con- cluded in 1846, which places vessels of both nations in every respect on the same footing, in regard to importations of foreign merchandise, as to duties on tonnage and cargo. The treaty, also, contains other important provisions ; among them one that no higher duties shall be Imposed at Brunshausen or Stade on vessels of the United States, than on those of Hanover, and a stipulation for the conditional abolition of the Weser tolls. It abolishes import duties on raw cotton, and tran- sit duties on it and other specified articles. This treaty, which suspends that of Mr. Wheaton, was made for twelve years, with the usual provision for its conti- nuance thereafter, till terminated by a yeai-'s notice ; and with a reservation that, in the event of Hanover's raising her duty on tobacco, which she was authorized to do on a notice of a year, (and which she has done,) the United States should have the option, on a notice of six months, either to abrogate the treaty or conti- nue it. U. S. Statutes at Large, vol. ix. p. 866. i XCVm INTRODUCTORY REMARKS. by land, or by the Eems, the Weser, and tlie Elbe, to and from the countries united in the great Prussian Association of Com- merce and Customs, is very moderate, the facilities of foreign commerce with the interior of Germany are proportionally great. The participation of the United States in this com- merce, on terms of reciprocity, will now be secured by treaties with Denmark, Prussia, the Hanseatic Towns, Hanover, and the Netherlands, placing their navigation and commerce on a footing with the national navigation and commerce, in all the ports of the North Sea, from the mouths of the Rhine to Tonningen, and of the Baltic, from Memel to Kiel, excepting those of Olden- burg and Mecklenburg-Schwerin, in which it still rests on the President's proclamation, issued under the Act of 1828." i 1 Mr. Wheaton to the Secretary of State, May 20, 1840. The Act of March 3, 1815, c. 77, (U. S- Statutes at Large, vol. iii. p. 224,) repeals the discriminat- ing duty on tonnage between foreign vessels and vessels of the United States, and between goods imported into the United States in foreign vessels and vessels of the United States, so far as respects the produce or manufacture of the nation to which such foreign ships or vessels may belong, — such repeal to take effect in favor of any foreign nation, whenever the President of the United States shall be satisfied that the discriminating or countervailing duties of such foreign nation, so far as they operate to the disadvantage of the United States, have been repealed. The Act of January 7, 1824, c. 2, (Ibid. vol. iv. p. 2,) suspends the discriminating duty between foreign vessels and vessels of the United States, so far as respects vessels of the Netherlands, Prussia, the Hanseatic Republics, Oldenburg, Norway, Sardinia, and Russia, and also the discriminating duties on the produce or manu- factures of the territories in Europe of any of the said nations, or on such produce and manufactures, as can only be or most usually are first shipped from a port or place in the said territories in Europe, of either of them respectively, the same being Imported in vessels truly and wholly belonging to the subjects or citizens of each of the said nations respectively, the vessels of each nation importing its own produce and manufactures, as aforesaid. This suspension to continue so long as the vessels of the United States and their cargoes, the produce and manufactures of the United States, laden therein, shall be exempt from like discriminating duties in their ports. The President to issue a proclamation of reciprocal exemp- tion, on evidence of any foreign nation abolishing discriminating duties on vessels or goods of the United States. The Act of May 28, 1828, c. Ill, (Ibid. p. 308,) provides, that where no discri- minating duties of tonnage or impost are levied in the ports of any foreign nation upon vessels of the United States, or on the produce or merchandise imported into. INTRODUCTORY REMARKS. XCIX At the extra session of the Congress of the United States, in May, 184*1, a report from the Secretary of State, Mr. Webster, respecting" our commercial relations with the Zollverein, was laid before the two houses with the President's message. The materials from which it was compiled were furnished by the despatches of Mr. Wheaton, as were also those used on the subject of the Sound duties, which was embraced in the same the same from the United States, or any foreign country, the President may issue his proclamation, declaring that the foreign discriminating duties of tonnage or impost, within the United States, shall be suspended and discontinued, so far as respects the vessels of the said foreign nation, and the produce and manufactures imported into the United States in the same from the said foreign nation, or from any other foreign country, the said suspension to take efiect from the time of such notification being given to the President of the United States, and to con- tinue so long as the reciprocal exemption of vessels, belonging to the citizens of the United States, and their cargoes, as aforesaid, shall be continued, and no longer. By the Act of May 31, 1830, c. 219, (Ibid. vol. iv. p. 425,) it is enacted, that from and after 1st of April then next, all acts and parts of acts imposing discriminat- ing duties upon the tonnage of the ships and vessels of any foreign nation, so far as the same relate to the imposition of such duties, shall be repealed. Provided that the President of the United States shall be satisfied that the discriminating or countervailing duties of such foreign nation, so far as they operate to the disad- vantage of the United States, have been abolished. By the Act of July 13, 1832, ch. 207, § 3, (Ibid. vol. iv. p. 579,) -whenever the President is satisfied that the discriminating or countervailing duties of ton- nage levied by any foreign nation on the ships or vessels of the United States, shall have been abolished, he may direct that the tonnage duty on the vessels of such nation shall cease to be levied in the ports of the United States, and cause any duties of tonnage levied on the vessels of such foreign nation, subsequent to the abolition of its discriminating duty of tonnage, to be refunded. Proclamations were issued by the President, previous to any treaty with them, under the Act of 1815, in favor of Bremen, Hamburg, and Lubeck, on 24th July, 1818, 1st August, 1818, and 4th May, 1820, respectively, (U. S. Stat, at Large, vol. iii. p. 792-3) ; in favor of Norway, on 4th August, 1821, (Ibid. p. 795) ; Oldenburg, 22d November, 1821, (Ibid.) Under the Act of 1824, in favor of Hanover, on 1st July, 1828, (Ibid. vol. iv. p. 816); Austria, 11th May, 1829, (Ibid.) Under the Act of 1828, in favor of Austria, (Ibid. p. 814.) Oldenburg, 18th September, 1829, (Ibid. p. 815) ; Mecklenburg-Schwerin, 28th AjdhI, 1835, (Ibid. p. 818); Tuscany, 1st September, 1836, (Ibid. p. 819); Brazils, 4th No- vember, 1847, (Ibid. vol. ix. p. 1001); Chili, 1st November, 1850, (Ibid. p. 1004.) C INTRODUCTORY REMARKS. report, and the information concerning which had been commu- nicated by him from Copenhagen and Berhn. In this docu- ment the suggestion is distinctly made, of entering into com- mercial treaties with the States united in the commercial league, as well with a view to the extension of our trade with them, as of abrogating the taxes in the character of droit d'aubaine and droit de detraction, which existed in many of them.^ In 1842, Mr. Wheaton again attended a meeting of the Con- gress of the Zollverein, which was held at Stutgard, where he was presented, on the 15th of July, to the king, an enlightened sovereign,^ who was duly sensible of the importance of cultivat- ing commercial relations with the United States, and with whom he had a very interesting interview on that subject. On that occasion, he also visited Munich, and had several confe- rences with Baron de Gise, the Minister of Foreign Affairs of his Bavarian majesty, in relation to the commercial interests of Germany, and of its intercourse with the United States. In the discussions at Stutgard, he found, as had been the case on the former occasion, that the Deputies were unwilling to make any changes in the tariff", unless accompanied by corresponding reductions in the United States, on the productions and manu- factures of Germany ; insisting that their tariffs on tobacco were not higher than those of other countries, while cotton was admitted free of duty, and other American imports at a mode- rate rate. Tobacco was not, they said, a monopoly, as in France, and the duties laid on it are not equal to the one twelfth of those imposed in England. They all expected to receive from us some advantages for their manufactures, in exchange for the facilities they accorded to us ; and it had been early objected, that our Treaty of 1831, as regarded French wines in the United States, interfered with the consumption of those of Germany. 1 Webster's Works, vol. vi. p. 407. 2 William I., born in 1781, and •who became king in 1816. INTRODUCTORY REMARKS. CI After the adjournment of the Congress, the embarrassments to making a treaty were increased by the serious augmentation, in the American tariflf of 184^2, of the duties on articles usually imported into the United States from Germany, and for which retaliatory measures had been suggested. Indeed Mr. Wheaton writes, under the date of 16th of November, 184 176, 248, 460, 461, 462. Heffter, das Europaische Volker- recht, § 21. The Treaty of Paris, 1814, art. 6, declares : "Les etats de I'AlIemagne seront ind6pendans et unis par un lien fed^ratif." The Final Act of the Congress of Vienna, 1815, art. 54, declares : — " Le but de cette Confederation est le maintien de la surete ext6rieure et int^rieure de rAllemagne, de I'independance et de I'inviolabilite de ses etats confederes." And the Schluss-Acte, of 1820, declares: — " Art. 1. Der deutsche Bund ist ein vulkerrechtlicher Verein der deutschen souverainen Fiirsten und freien Stiidte, zur Bewahrung der Unabhiingigkeit und Unverletzbarkeit ihrer im Bunde begrifFenen Staaten, und zur Erhaltung der innern und aussern Sicherheit Deutschlands. " Art. 2. Dieser Verein besteht in seinen Innern als eine Gemeinschaft selb- st'andiger, unter sich unabhangiger Staaten, mit weehselfeitigen gleichen Vertrags- Eechten und Vertrags-Obliegenheiten, in seinen aussern Verhaltnissen aber, als eine in politischer Einheit verbundene Gcsammt-Macht." TRANSLATION. Article 1. The Germanic Confederation is an international union of the sov- ereign princes and Free Cities of Germany, formed for the maintenance of the independence and inviolability of the confederated States, as well as for the internal and external security of Germany. Art. 2. In respect to its internal relations, this Confederation forms a body of States independent between themselves, and bound to each other by rights and duties reciprocally stipulated. In respect to its external relations, it forms a col- lective power established on the principle of political union. 68 NATIONS AND SOVEREIGN STATES. [PART I. bound by the local constitution to require the cooperation of the legislative Chambers, except as to the exercise of certain speci- fied rights ; the sovereigns of Germany, as members of the Con- federation, have not only the right of rejecting the petitions of the Chambers, contrary to this principle, but the object of the Confederation makes it their duty to reject such petitions. Art. 2. Since according to the spirit of the said 57th article of the Final Act, and its inductions, as expressed in the 58th article, the Chambers cannot refuse to any German sovereign the neces- sary means of fulfilling his federal obligations, and those imposed by the local constitution ; the cases in which the Chambers endeavor to make their consent to the taxes necessary for these purposes depend upon the assent of the sovereign to their pro- positions upon any other subject, are to be classed among those cases to which are to be applied the 25th and 26th articles of the Final Act, relating to resistance of the subjects against the government. Art. 3. The interior legislation of the States belonging to the Germanic Confederation, cannot prejudice the objects of the Confederation, as expressed in the 2d article of the original act of confederation, and in the 1st article of the Final Act ; nor can this legislation obstruct in any manner the accomplishment of the federal obligations of the State, and especially the pay- ment of the taxes necessary to fulfil them. Art. 4. In order to maintain the rights and dignity of the Con- federation, and of the assembly representing it, against usurpa- tions of every kind, and, at the same time, to facilitate to the States which are members of the Confederation the maintenance of the constitutional relations between the local governments and the legislative Chambers, there shall be appointed by the Diet, in the first instance, for the term of six years, a commission charged with the supervision of the deliberations of the Cham- bers, and with directing their attention to the propositions and resolutions which may be found in opposition to the federal obli- gations, or to the rights of sovereignty, guaranteed by the com- pacts of the Confederation. This commission is to report to the Diet, which, if it finds the matter proper for further considera- tion, will put itself in relation with the local government con- cerned. After the lapse of six years, a new arrangement is to be made for the prolongation of the commission. CHAP. II.] NATIONS AND SOVEREIGN STATES. 69 Art. 5. Since according to the 59th article of the Final Act, in those States where the publication of the deliberations of the Chambers is secured by the constitution, the free expression of opinion, either in the deliberations themselves, or in their publi- cation through the medium of the press, cannot be so extended as to endanger the tranquillity of the State itself, or of the Con- federation in general, all the governments belonging to it mutually bind themselves, as they are already bound by their federal rela- tions, to adopt and maintain such measures as may be necessary to prevent and punish every attack against the Confederation in the local Chambers. Art. 6. Since the Diet is already authorized by the 17th article of the Final Act, for the maintenance of the true meaning of the original act of confederation, to give its provisions such an interpretation as may be consistent with its object, in case doubts should arise in this respect, it is understood that the Con- federation has the exclusive right of interpreting, so as to pro- duce their legal effect, the original act of the Confederation and the Final Act, which right it exercises by its constitutional organ, the Diet.' Further modifications of the federal constitution were Act of tiie introduced by the act af the Diet of the 30th of Octo- isu!^ ber, 1834, in consequence of the diplomatic conferences held at Vienna in the same year, by the representatives of the different States of Germany. By the 1st article of this last-mentioned act, it is provided that, in case of differences arising between the government of any State and the legislative Chambers, either respecting the interpretation of the local constitution, or upon the limits of the cooperation allowed to the Chambers, in carrying into effect certain determinate rights of the sovereign, and especially in case of the refusal of the necessary supplies for the support of government, conformably to the constitution and the federal obli- gations of the State, after every legal and constitutional means of conciliation have been exhausted, the differences shall be de- cided by a federal tribunal of arbitrators, appointed in the follow- ing manner : — ^ Wheaton, Hist. Law of Nations, pp. 460-486. 70 NATIONS AND SOVEREIGN STATES. [PART I. 2. The representatives, each holding one of the seventeen votes in the ordinary assembly of the Diet, shall nominate, once in every three years, within the States represented by them, two persons distinguished by their reputation and length of service in the judicial and administrative service. The vacancies which may occur, during the said term of three years, in the tribunal of arbitrators thus constituted, shall be in like manner supplied as often as they may occur. 3. Whenever the case mentioned in the first article arises, and it becomes necessary to resort to a decision by this tribunal, there shall be chosen from among the thirty-four, six judges arbitrators, of whom three are to be selected by the government, and three by the Chambers. This number may be reduced to two, or increased to eight, by the consent of the parties : and in case of the neglect of either to name judges they may be appointed by the Diet. 4. The arbitrators thus designated shall elect an additional arbiter as an umpire, and in case of an equal division of votes, the umpire shall be appointed by the Diet. 5. The documents respecting the matter in dispute shall be transmitted to the umpire, by whom they shall be referred to two of the judges arbitrators to report upon the same, the one to be selected from among those chosen by the government, the other from among those chosen by the Chambers. 6. The judges arbitrators, including the umpire, shall then meet at a place designated by the parties, or, in case of disagree- ment, by the Diet, and decide by a majority of voices the matter in controversy according to their conscientious conviction. 7. In case they require further elucidations before proceeding to a decision, they shall apply to the Diet, by whom the same shall be furnished. 8. Unless in case of unavoidable delay under the circum- stances stated in the preceding article, the decision shall be pro- nounced within the space of four months at farthest from the nomination of the umpire, and be transmitted to the Diet, in order to be communicated to the government of the State interested. 9. The sentence of the judges arbitrators shall have the effect of an austregal judgment, and shall be carried into execution in the manner prescribed by the ordinances of the Confederation. I CHAP II.] NATIONS AND SOVEREIGN STATES. 71 In the case of disputes more particularly relating to the finan- cial budget, the effect of the arbitration extends to the period of time for which the same may have been voted. 10. The costs and expenses of the arbitration are to be exclu- sively borne by the State interested, and, in case of disputes respecting their payment, they shall be levied by a decree of the Diet. 11. The same tribunal shall decide upon the differences and disputes which may arise, in the free towns of the Confedera- tion, between the Senate and the authorities established by the burghers in virtue of their local constitutions. 12. The different members of the Confederation may resort to the same tribunal of arbitration to determine the controversies arising between them ; and whenever the consent of the States respectively interested is given for that purpose, the Diet shall take the necessary measures to organize the tribunal according to the preceding articles.^ (a) i For further details respecting the Germanic Constitution, see Wheaton's History of the Law of Nations, p. 455, et seq. (a) [In 1848, an attempt was made to establish a new German nationality on the basis of a confederation of all the States, with one general Diet or Parlia- ment, and a Central Executive at Frankfort. A national Assembly, elected by the people of the German States, including Schleswig and Holstein, in proportion to their respective populations and in the manner prescribed by the several local constitutions, met on the 18th of May, of that year, and adopted a law for the creation of a provisional central power, which was confided to the Archduke John of Austria, who was installed as Regent on the 12th of July. The Provisional Central Power was vested with the right of deciding on questions of peace and war, and, with the consent of the Assembly, of making treaties with foreign powers. The Diet, representing the old Federal Constitution of Germany, on his election, communicated to the Archduke the assent of their respective governments. A constitution was, at the same time, proposed, by which the Confederation was to be a Constitutional Monarchy, with a Diet of two Chambers. The " Emperor of Ger- many" was to be hereditary and inviolable, the ministers being responsible for all acts, and the existing German sovereigns to be members, though not exclusively, of the Upper Chamber, of which the other members were to be elected by the sove- reigns, or the local Diets of the States ; — the Lower Chamber to be elected for six years from electoral districts of equal population, one third retiring biennially. A Court of Imperial Judicature was to be established to have cognizance of all dis- putes between German States and princes, of disputes between citizens of different States, and disputes between princes and their State Diets; also of all imperial fiscal matters. Free municipal constitutions to be guaranteed ; a national guard ; 72 NATIONS AND SOVEREIGN STATES. [PART I. The Constitution of the United States of America is of America. § 24. United States of of a very different nature from that of the Germanic Confederation. It is not merely a league of sove- unrestrained freedom of public meetings ; and absolute freedom of religion and the press. Austria refused to take any part in a confederation of this character ; but the Assembly proceeded to the adoption of the Constitution, and, on the 28th of March, 1849, elected the King of Prussia Emperor of Germany. The result, however, of his appeal to the other German States, being, that Austria, Wurtem- burof, Bavaria, and Hanover, at once declared their decided dissent, and the Frankfort Assembly having refused some modifications of the Constitution, on which the king insisted, he gave a distinct and unequivocal refusal, on the ground that the Imperial Supremacy was an unreal dignity, and the Constitution only a means, gradually, and under legal pretences, to set aside authority and introduce a Republic. The Plenipotentiaries of Prussia, Hanover, and Saxony, published the draught of a new Imperial Federal Constitution, preceded by an address which stated that, " because the Frankfort Assembly ceased to exist as a legal body when it completed its plan of a constitution, which could not be accepted by the Govern- ment without alteration ; all the after acts of the Chamber were to be considered as exceeding its powers, and without validity." The constitution thus proposed did not go into operation; but Austria convened at Frankfort, on the 10th of May, 1850, the Diet under the Federal Act of 1815, while Prussia contended that the assumption of a political superiority by Austria, and the summoning of the old Diet, were contrary to the spirit of the Confederation, and the resolution passed by it on the 13th of July, 1848, which abolished the former organization of the Avhole body. Two rival congresses were sitting at the same time, one at Berlin, headed by Prussia, and one at Frankfort, over which Austria presided. The object of the former was to establish a new Confederation, of which Prussia should be the acknowledged leader ; of the latter to preserve to Austria her old preeminence, while taking into consideration a new organization of the Diet. After warlike demonstrations on the part of Austria and Prussia, for which an intervention in the disputes between the Elector of Hesse Cassel and his Diet were the apology, a conference of the different German States was had at the close of the year 1 850, at Dresden, on the invitation of the two principal powers. This, after ineffectual efforts on the part of Austria to bring all the States of her Em- pire into the Germanic Confederation, resulted in the restoration, assented to in May, 1851, by all the German powers, of the old Frankfort Diet, as it had existed since 1815. Annual Reg. 1848, p. 362; id. 1849, p. 347; Id. 1850, pp. 313, 320; id. 1851, p. 27G. Brief as was the duration of the " German Empire," it became involved, under circumstances somewhat complicated, in a war with Denmark, growing out of a question which arose before its inauguration, and which was prolonged beyond its own existence — the succession of the crown connected with the integrity of the Danish States. See for the merits of the controversy, " Mtmoire sur Vllis- toire du Droit de la Succession a la CoJironne de Danemark, par M. Wlieaion, CHAP. II.] NATIONS AND SOVEREIGN STATES. 73 reign States, for their common defence against external and internal violence, but a supreme federal government, or corn- read before the French Institute, Compte Rendu, Mars, 1847. The Duchies of Schleswig and Holstein were under the same sceptre as Denmark, but in the king- dom, on the failure of heirs in the male line, then anticipated, the females of the same line are called to the throne ; while in the Duchies of Schleswig and Hol- stein, and in Lauenburg ceded to Denmark in 1815, as a partial indemnity for Norway, after the extinction of the males of the elder royal line, the males of the next collateral line succeed. This view of the case, however, was not acquiesced in by the reigning monarch, at least as regards Schleswig and Lauenburg ; and though he admitted that there were doubts as to Holstein, he declared that every effort would be made to maintain the integrity of the Danish States. While Hol- stein and Schleswig were supposed to be united by a rule of succession which would continue the union of the Duchies, long established for administrative purposes, they both claimed to be considered a portion of the Germanic Confederation ; but Holstein alone had been represented by Denmark in the Diet under the Federal pact of 1815. It was contended by Denmark, that the Duchy of Schleswig had always, with the exception of a brief interval, during which it enjoyed a doubtful state of independence, been a fief of the crown of Denmark, and that it never had belonged to the old German Empire, while Holstein had been, from time immemo- rial, a fief of Germany. So early as 1846, the Diet of the Germanic Confedera- tion charged itself with this subject, on the application of Holstein, in order to preserve the rights of the Confederation and of the collateral branches to the suc- cesssion. Prussia took the initiative, in 1848, in the recess of the Diet, in sustain- ing Schleswig-Holstein against Denmark, and the Frankfort Assembly approved the conduct of the King of Prussia, and declared that the Confederation was bound to maintain the interests and rights of the Duchy of Holstein, in union with Schles- wig, as being included in the Germanic Confederation. The King of Prussia was requested to represent to the King of Denmark the necessity of evacuating Schles- wig, or should that be of no avail, to order out the troops of the Confederation to conquer it, and the Provisional Government of the Duchies was acknowledged by the Confederation, and placed temporarily under the protection of Prussia. Kus- sia and Sweden protested against the interference of Germany, and an armistice was concluded, but not till actual hostilities had occurred. A temporary adminis- tration was formed for the Duchies, chosen In part by Denmark, and In part by Prussia, acting for the central power of Germany, which transferred, in 1851, Its authority to commissioners of the Germanic Confederation, to be restored after establishing the old relations between Schleswig and Holstein, into the hands of their legitimate sovereign. This was done in February, 1852, and the authority of the King of Denmark again became paramount. The matter of the succession was settled by a treaty, concluded In May, 1852, at the invitation of His Danish Majesty, between Denmark, Great Britain, Austria, France, Russia, Prussia, and Sweden, so as to insure the unity and Integrity of the Danish dominions. The King of Denmark, with the assent of the Hereditary Prince, and of the nearest cog- nates, and in concert with the Emperor of Russia, as head of the elder branch of the House of Holstein- Gottorp, agreed that in default of issue in a direct line 7 74 NATIONS AND SOVEREIGN STATES. [PART L positive State, acting not only upon the sovereign members of the Union, but directly upon all its citizens in their individual of Frederic III., of Denmark, his crown should devolve on Prince Christian of Schleswig-Holstein-Sonderbourg-Gliicksbourg, and on the issue of his marriage with Louisa, born Princess of Hesse. By this arrangement several, both of the agnate and cognate lines were passed over. Hansard's Debates, vol. cxxiv. p. 440. Annuaire, &c., 1851 - 2, App. p. 961. Annual Reg. 1852, p. 441. Contrary to the usage which prevailed with the Diet of the Confederation of 1815, which received foreign ministers, but did not maintain regular missions on its own part, there was an interchange of legations between the United States and the German Empire, the latter of which contemplated a national unity, like our own, with reference to foreign powers. Nor were the functions of these min- isters confined to mere ordinary relations. In the project to create among other federal institutions a German navy, a war-steamer was purchased by the Imperial Government in the United States, the sailing of which was objected to in conse- quence of the existence of the war with Denmark, as a violation of the American neutrality act of 20th of April, 1818. The vessel was only permitted, after a protracted negotiation, to leave an American port, on a bond being executed in compliance with the statute, that it should not be employed to cruise or commit hostilities against any State with which the United States were at peace. An- nuaire des Deux Mondes, 1852-3, p. 485. Cong. Doc. 31st Cong. 1 Sess. H. of R. Ex. Doc. No. 5. A reference to the events which have occurred, affecting the Constitution of Germany, would be incomplete without a notice of an institution, which has, for several years, exercised the most important functions in relation to matters usually regarded among the attributes of sovereignty. One of the objects of the Federal pact of 1815 was the regulation of commerce between the different States. This duty was never, however, undertaken by the Diet, but in 1833 a commercial association between several of the States com- menced, under the name of Zollverein, at the head of which was Prussia, and which, in 1845, numbered upwards of twenty sovereign States as members. Ano- ther association called the Steuerverein, was formed in 1834, between Hanover and Brunswick, and with which Oldenburg soon after united. Through these unions uniform tariffs were established, all internal custom-houses were abolished, and the duties collected by the frontier States, and distributed among the mem- bers of the leagues, according to their respective population. On 4th of April, 1853, a treaty was concluded between all the members of the two associations, (Zollverein and Steuerverein,) uniting them, and extending the existence of the Zollverein to 31st of December, 1865. This arrangement Avas preceded by a Treaty of Commerce between Austria and Prussia, of the 9th of February, 1853, by which, with the exception of certain monopoly articles, (tobacco, salt, &c.,) they agreed to remove every prohibition between the two countries, with respect to the exportation, importation, or the transit of merchandise. All the German States, which, on the 1st of January, 1854, or subsequently, should belong to the Zollverein, were to have the privilege of acceding to the treaty, as well as the Italian States, united, or which should be united, in a customs-union with Austria. Annuaire, &c., 1852-3, p. 494. CHAP. II.] NATIONS AND SOVEREIGN STATES. 75 and corporate capacities. It was established, as the Constitution expressly declares, by " the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to them and their pos- The Zollverein was not confined to the establishment of commercial intercourse between its own members, but it entered into treaties, through Prussia, Wiose government had a full power for that purpose, with foi-eign nations. One of this character, formed on the basis of equivalent and reciprocal reductions of duties, and to effect which had been the principal object of his mission at Berlin, was signed by Mr. Wheaton, on behalf of the United States, on 25th of March, 1844. But, though recommended by the President in two successive Annual Messa"-es and in submitting the treaty to the Senate, the Committee of Foreign llelations of that body reported, that it was " an innovation on the ancient and uniform practice of the government to change (by treaty) duties laid by law ; " that " the Constitution, in express terms, delegates the power to Congress to regulate com- merce and to impose duties, and to no other ; and that the control of trade and the function of taxing belong, without abridgment or participation, to Congress." The Senate having omitted to give their assent to the treaty before their adjourn- ment, the Secretary of State, Mr. Calhoun, in communicating to Mr. Wheaton the result of their proceedings, with a view to the extension of the time for the exchange of ratifications, states, that the objections of the committee were opposed to the uniform practice of the government ; and he refers to numerous treaties, which contain stipulations changing the existing laws regulating commerce and navigation, and duties laid by law. " So well," says he, " is the practice settled, that it is believed it has never before been questioned. The only question, it is believed, that was ever made was, whether an Act of Congress was not necessary, to sanction and carry the stijiulations making the change into effect." The Pre- sident had announced to the Senate that, when it was ratified, he would transmit the treaty and accompanying documents to the House of Representatives, for its consideration and action. Cong. Globe, 1843-4, p. 6. Id. 1844-5, p. 5. Cong. Doc. 28th Cong. 1st Sess. Senate-Executive, confidential. Mr. Calhoun to Mr. Wheaton, 28th June, 1844, MS. It may here be noticed, that the objections made to the Zollverein treaty, founded on the competency of the treaty-making power of the Federal Govern- ment, seems no longer to be deemed tenable, inasmuch as the Reciprocity treaty of June, 1854, in reference to the trade between the United States and the Bri- tish Provinces, though materially varying the existing tariff, was at once ratified, and a law to carry it into effect passed through Congress. U. S. Statutes at Large, 1853-4, p. 587, Though not successful In any plan of Constitution which would make her sov- ereign the nominal, as well as real political, chief of Northern Germany, the effect of the Zollverein has been to make Prussia the representative of the minor States in theli- relations with foreign powers, not only in commercial affairs, but, as a reference to the Extradition Treaty with the United States will show, in other matters.] 76 NATIONS AND SOVEREIGN STATES. [PART I. terity." This constitution, and the laws made in pursuance thereof, and treaties made under the authority of the United States, are declared to be the supreme law of the land ; and that the judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwith- standing. Legislative The legislative power of the Union is vested in a Con- ?inTon.^^^^^ gress, consisting of a Senate, the members of which are chosen by the local legislatures of the several States, and a House of Representatives, elected by the people in each State. This Cono-ress has power to levy taxes and duties, to pay the debts, and provide for the common defence and general welfare of the Union ; to borrow money on the credit of the United States ; to regulate commerce with foreign nations, among the several States, and with the Indian tribes ; to establish a uniform rule of naturaliza- tion, and uniform laws on the subject of bankruptcy throughout the Union ; to coin money, and fix the standard of weights and measures ; to establish post-offices and post-roads ; to secure to authors and inventors the exclusive right to their writings and discoveries ; to punish piracies and felonies on the high seas, and offences against the law of nations ; to declare war, grant letters of marque and reprisal, and regulate captures by sea and land ; to raise and support armies ; to provide and maintain a navy ; to make rules for the government of the land and naval forces ; to exercise exclusive civil and criminal legislation over the district where the seat of the federal government is established, and over all forts, magazines, arsenals, and dock-yards belonging to the Union, and to make all laws necessary and proper to carry into execution all these and the other powers vested in the federal government by the Constitution. Executive To give effect to this mass of sovereign authorities, power. |.j^g executive power is vested in a President of the United States, chosen by electors appointed in each State in such manner as the legislature thereof may direct. The judicial power extends to all cases in law and equity arising under the constitution, laws, and treaties of the Union, and is vested in a Supreme Court, and such inferior tribunals as Congress may establish. The federal judiciary exercises under this grant of power the authority to examine the laws passed by Congress and the several State legislatures, and, in cases proper for judi- cial determination, to decide on the constitutional validity of such CHAP. II.] NATIONS AND SOVEREIGN STATES. 77 laws. The judicial power also extends to all cases affecting am- bassadors, other public ministers, and consuls ; to all cases of admiralty and maritime jurisdiction ; to controversies to which the United States shall be a party ; to controversies between two or more States ; between a State and citizens of another State ; between citizens of different States ; between citizens of the same State claiming lands under grants of different States ; and be- tween a State, or the citizens thereof, and foreign States, citizens, or subjects. The treaty-making power is vested exclusively in Tieaty- the President and Senate ; all treaties negotiated with powerr foreign States being subject to their ratification. No State of the Union can enter into any treaty, alliance, or confederation ; grant letters of marque and reprisal ; coin money ; emit bills of credit ; make any thing but gold and silver coin a tender in the payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts ; grant any title of nobility ; lay any duties on imports or exports, except such as are necessary to execute its local inspection laws, the produce of which must be paid into the national treasury ; and such laws are subject to the revision and control of the Congress. Nor can any State, without the consent of Congress, lay any tonnage duty ; keep troops or ships of war in time of peace ; enter into any agree- ment or compact with another State or with a foreign power ; or engage in war unless actually invaded, or in such imminent danger as does not admit of delay. The Union guarantees to every State a republican form of government, and engages to protect each of them against invasion, and, on application of the legislature, or of the executive, when the legislature cannot be convened, against domestic violence. It is not within the province of this work to deter- . The Ame- ' _ ricau Lmon mine how far the internal sovereignty of the respective is a supreme . . federal States composing the Union is impaired or modified by government, these constitutional provisions. But since all those powers, by which the international relations of these States are maintained with foreign States, in peace and in war, are expressly conferred by the constitution on the federal government, whilst the exer- cise of these powers by the several States is expressly prohibited, it is evident that the external sovereignty of the nation is exclu- sively vested in the Union. The independence of the respective 7* 78 NATIONS AND SOVEREIGN STATES. [PART I. States, in this respect, is merged in the sovereignty of the fede- ral government, which thus becomes what the German public jurists call a Bundesstaat. {a) (a) [Among the powers of the Federal Government of the United States once questioned, but now- deemed to be settled by repeated precedents, univer- sally acquiesced in, is that of acquiring foreign territory, and forming from it ne-w States, This was done by the Treaty of 1803, with France, by which Louisiana was ceded; by the cession, in 1819, by Spain, of the Floridas; and by that of California and New Mexico, by Mexico, in 1848. All these treaties con- tain provisions, by which the inhabitants of the ceded territory were to be incor- porated into the Union of the United States, as soon as might be consistent with the principles of the Federal Constitution, and admitted to the enjoyment of all the privileges, rights, and immunities, of the citizens of the United States. The power of the General Government to acquire new territory was discussed in the Senate, on the occasion of the Louisiana Treaty, and was placed on the ground that the United States, in common with all other nations, possess the power of making acquisitions of territory, by conquest, cession, or purchase. In that case, it was also held, that it was competent for the treaty-making power to bind the United States, as between nations, to the admission of the ceded territory into thd Union, even though the action of Congress, or an amendment of the Consti- tution, might be necessary to effect the object. The Supreme Court of the United States have also said, that the Constitution confers, absolutely, on the government of the Union the powers of making war and of making treaties ; and, consequently, that that government possesses the power of acquiring terri- tory, either by conquest or by treaty. And it was conceded in the argument, that the third section of the fourth article of the Constitution, authorizing the admission of new States into the Union, gives to Congress a power, only limited by their discretion, to admit as many new States as they may think proper, in whatever manner soever the territory comprising those new States may have been acquired. Elliot's Debates, vol. iv. p. 207, Peters's Rep. vol. i. p. 511. — American Insurance Company v. Canter. Story on the Constitution, vol. iii. p. 156-161. The admission of Texas differs from the other cases, not only in being a merger in the American Union of a foreign republic, whose independence had been recognized by Great Britain and France, as well as the United States, but by the manner in which it was effected. The treaty previously negotiated for that purpose not having been ratified by the Senate of the United States, Presi- dent Tyler made a communication, on 10th of June, 1844, to the House of Representatives, in which he offered his cooperation to effect the result, by any other expedient compatible with the Constitution. The two houses of Congress passed a resolution, approved by the President, 1st March, 1845, giving their consent that the territory included in the Republic of Texas might be erected into a State, to be called the State of Texas, with a republican form of govern- ment, to be adopted by the people of the said republic, by deputies, in conven- tion assembled, with the consent of the existing government; in order that the same might be admitted as one of the States of the Union, on the conditions CHAP. II.] NATIONS AND SOVEREIGN STATES. 79 The Swiss Confederation, as remodelled by the fede- §25. Swiss ral pact of 1815, consists of a union between the then tion. twenty-two Cantons of Switzerland ; the object of which is declared to be the preservation of their freedom, independence, and security against foreign attack, and of domestic order and tranquillity. The several Cantons guarantee to each other their respective constitutions and territorial possessions. The Confe- contained in the resolution. The conditions having been accepted by the Exe- cutive Government, the Congress and people of Texas, In convention, and a State Convention, having formed a Constitution, which -n-as laid before Congress, Texas was, on 29th December, 1845, admitted Into the Union, on an equal foot- ing with the original States. Congressional Globe, 1843-4, Part I. p. G, 662. Id. Part n. p. 448. United States Statutes at Large, vol. v. p. 797. Id. vol. Ix. p. 108. There Is an appai-ent departure from the principle, that all negotiations with foreign powers must be with the General Government, and that foreign powers are not to Interfere In the relations between the United States and Individual States, In the provision contained In the fifth article of the Treaty of August 9th, 1842, that certain payments should be made by the government of the United States to the States of Maine and Massachusetts. This stipulation, which might be construed to justify foreign Interference with our federal relations, was deemed by Lord Ashburton to call for a disclaimer, on the part of Great Britain, of the assumption of any responsibility for these engagements, his negotiations having been with the General Government only. Lord Ashburton to Mr. Web- ster. Webster's Works, vol. vi. p. 289. But though the government of the United States is, under the Constitution, alone competent to contract with a foreign power, a treaty may contain provisions requiring, as preliminary to Its going Into operation, the passage of laws, or the performance of other acts by the Individual States ; but such conditions would no more m.ake them parties to the negotiation than the British American Provinces are to the Convention of the 5th of June, 1854, between the United States and Great Britain, to which the subjoined remarks of the American Attorney-General refer : — "In the case of that treaty. It Is stipulated between the high contracting parties that, before It shall take full effect, certain laws shall be enacted by the Provincial Parliaments of Canada, New Brunswick, Nova Scotia, and Prince Edward's Island ; but that stipulation is entered Into not for any object of the United States, but for purposes of the domestic policy of the British Government, in its relation to those provinces. In like manner, the Federal Government, if it had seen cause, might have proposed a correspondent stipulation. In regard to its coast fisheries; for instance, ttat the treaty should take effect as to that matter only, on condition of certain laws being enacted by the Legislative Assemblies of such of the several States of the Union as are specially affected by that part of the treaty, in having their coast fisheries thrown open to the subjects of the L^nlted Kingdom. But if such a stipulation had been proposed, it would have been for considerations appertaining to the relation of the Federal Government to the individual States of the Union, and not on account of any relation of theirs to the United Kingdom." Opinion of Mr. Gushing, Attorney-General, Oct. 3, 1854.] 80 NATIONS AND SOVEREIGN STATES. [PART I. deration has a common army and treasury, sapported by levies of men and contributions of money, in certain fixed proportions, among the different Cantons. In addition to these contribu- tions, the military expenses of the Confederation are defrayed by duties on the importation of foreign merchandise, collected by the frontier Cantons, according to the tariff established by the Diet, and paid into the common treasury. The Diet consists of one deputy from every Canton, each having one vote, and assembles every year, alternately, at Berne, Zurich, and Lucern, v*/^hich are called the directing Cantons, (vorort.) The Diet has the exclusive power of declaring war, and concluding treaties of peace, alliance, and commerce, with foreign States. A majority of three fourths of the votes is essential to the validity of these acts ; for all other purposes, a majority is sufficient. Each Can- ton may conclude separate military capitulations and treaties, relating to economical matters and objects of police, with foreign powers ; provided they do not contravene the federal pact, nor the constitutional rights of the other Cantons. The Diet pro- vides for the internal and external security of the Confederation ; directs the operations, and appoints the commanders of the fede- ral army, and names the ministers deputed to other foreign States. The direction of affairs, when the Diet is not in session, is confided to the directing Canton, (vorort,) which is empow- ered to act during the recess. The character of directing Canton alternates every two years, between Zurich, Berne, and Lucerne. The Diet may delegate to the directing Canton, or vorort, special full powers, under extraordinary circumstances, to be exercised when the Diet is not in session ; adding, when it thinks fit, fede- ral representatives, to assist the vorort in the direction of the affairs of the Confederation. In case of internal or external danger, each Canton has a right to require the aid of the other Cantons ; in which case, notice is to be immediately given to the vorort, in order that the Diet may be assembled, to provide the necessary measures of security.^ tion°ofthe' ^^^^ compact, by which the sovereign Cantons of Swiss Con- Switzerland are thus united, forms a federal body, federation ' • /-, compared which, in somc respects, resembles the Germanic Con- of the Ger- federation, whilst in others it more nearly approximates 1 Martens Nouveau Eecueil, torn. viii. p. 173. CHAP, n.] NATIONS AND SOVEREIGN STATES. 81 to the American Constitution. Each Canton retains manic Cou • . , . , • • J r n 1 .• federation its original soverejgnty unimpaired, lor all domestic pur- and of the poses, even more completely than the German States ; states! but the power of making war, and of concluding treaties of peace, alliance, and commerce, with foreign States, being exclu- sively vested in the federal Diet, all the foreign relations of the country necessarily fall under the cognizance of that body. In this respect, the present Swiss Confederation differs materially from that which existed before the French Revolution of 1789, which was, in effect, a mere treaty of alliance for the common defence against external hostility, but which did not prevent the several Cantons from making separate treaties with each other, and with foreign powers.^ Since the French Revolution of 1830, various changes ., ,. . .' ° Abortive have taken place in the local constitutions of the differ- attempts, ent Cantons, tending to give them a more democratic tociiange' character ; and several attempts have been made to p^c/of^'^'^^ revise the federal pact, so as to give it more of the cha- ^^^^* racter of a supreme federal government, or Bimdesstaat, in respect to the internal relations of the Confederation. Those attempts have all proved abortive ; and Switzerland still remains subject to the federal pact of 1815, except that three of the original Cantons, — Basle, Unterwalden, and Appenzel, — have been dismembered, so as to increase the whole number of Cantons to twenty-five. But as each division of these three original Can- tons is entitled to half a vote only in the Diet, the total number of votes still remains twenty-two, as under the original federal pact.2 (a) 1 Merlin, Repertoire, tit. Ministre Public. 2 Wheaton, Hist. Law of Nations, p. 494-496. (o) [In 1846, a separate armed league of the seven Catholic Cantons, termed Sonderbund, was formed. They had been previously connected by a league, called the League of Sarnen; but their new organization became professedly an armed Confederation. Its members bound themselves to furnish contingents of men and money, and to obey a common military authority — all declared to be exclusively for purposes of common defence. This association being at variance with the sixth article of the federal pact, which says, " No alliances shall be formed by the Cantons among each other, prejudicial either to the general confederacy or the rights of the other Cantons," it was resolved by the Diet to be Illegal, and declared to be dissolved. At the same time, the excitement was Increased by the decree, directing the same Cantons to expel the Jesuits from their territories. 82 NATIONS AND SOVEREIGN STATES. [PART I. These orders not being complied "with, the Diet determined to carry them into effect by force, which was done before the proffer of mediation by the five great powers was received. These events were not however without their influence upon the subsequent occurrences of 1848. On 12th of September of that year a new constitution was voted by the Diet. It commences by acknowledging the sovereignty of the Cantons, but in subordination to the sovereignty of the State. All Swiss citizens are declared equal before the laws. The constitution guaran- tees, likewise, the Cantonal constitutions; reserving the right of interposing in constitutional questions which may arise in the Cantons. Every separate alliance among the Cantons, every Sonderbund,\s prohibited. The right of peace or war, and the power of concluding treaties, political or commercial, belong to the Confederation. If any disturbances arise in the interior of any Canton, the federal government may interpose without awaiting an application to It ; and it is its duty to interpose when these disturbances compromise the safety of Switzer- land. The Confederation has not the right of maintaining a permanent army ; but the contingents of the Cantons are organized under federal laws. The trea- sury of the Confederation pays part of the expenses of military instruction, which is directed and superintended by federal officers. The principle of the organiza- tion of the army is, that every Swiss citizen is held to military service. The Confederation may construct, or grant aid for the construction, of pubHc works. It may suppress the tolls, and transit duties between the Cantons, and collect, at the frontiers of Switzerland, duties of importation, of exportation, and of transit. It is entrusted with the administration of the posts throughout Swit- zerland ; it exercises a supervision over the roads and bridges, fixes the monetary standard, and establishes uniformity of weights and measures ; it secures to all Swiss, of every Christian creed, the right of settling, under certain conditions, in any part of the Swiss territory. Freedom of worship, according to any of the acknowledged Christian creeds, is guaranteed; as well as the liberty of the press, and the right of assembling together. The Confederation claims the right of sending out of the tei'ritory foreigners, whose presence may compromise the internal tranquillity of Switzerland, or its external peace. The supreme author- ity is exercised by a Federal Assembly, divided into two Houses or Councils ; the National Council, and the Council of the States. The National Council con- sists of one deputy elected for every twenty thousand souls. The Council of the States is composed of forty-four deputies named by the Cantons ; two for each. The two Councils choose a Federal Council, the General-in-Chief, and the Chief of the General Staff. The Federal Council is composed of three members, chosen for three years ; and only one member can be chosen from the same Can- ton. The duties of this Federal Council consist in superintending the Interests of the Confederation abroad, and especially Its International relations. In cases of urgency, and during the recess of the Federal Assembly, it is authorized to levy the necessary troops, and dispose of them, subject to the duty of convoking the Councils immediately, if the troops raised exceed two thousand men, or If they remain in service more than three weeks. The Council renders an account of Its proceedings to the Federal Assembly, at every ordinary session. There is a federal tribunal, for the administration of justice in federal matters ; and trial by jury Is provided In criminal cases. Annual Reg. 1847, p. 370. Annuaire des Deux Mondes, 1850, p. 37.] PART SECOND. ABSOLUTE INTERNATIONAL RIGHTS OF STATES. PAET SECOND. ABSOLUTE INTERNATIONAL RIGHTS OF STATES. CHAPTER L RIGHT OF SELF-PRESERVATION AND INDEPENDENCE. The rights, which sovereign States enjoy with regard § i. Rights to one another, may be divided into rights of two sorts : states, mtti primitive^ or absolute rights ; conditional, or hypothetical one^another rights} Every State has certain sovereign rights, to which it is enti- tled as an independent moral being ; in other words, because it is a State. These rights are called the absolute international rights of States, because they are not limited to particular cir- cumstances. The rights to which sovereign States are entitled, under parti- cular circumstances, in their relations with others, may be termed their conditional international rights ; and they cease with the circumstances which gave rise to them. They are consequences of a quality of a sovereign State, but consequences which are not permanent, and which are only produced under particular circumstances. Thus war, for example, confers on belligerent or neutral States certain rights, which cease with the existence of the war. Of the absolute international rights of States, one of § 2. Right the most essential and important, and that which lies servatSnr 1 KlUber, Droit des Gens Moderne de I'Europe, § 36. 8 86 RIGHT OP SELF-PRESERVATION [PART II. at the foundation of all the rest, is the right of self-preservation. It is not only a right with respect to other States, but a duty with respect to its own members, and the most solemn and important which the State owes to them. This right necessarily involves all other incidental rights, which are essential as means to give effect to the principal end. p. , „ Among these is the right of self-defence. This again seif-defenco involves the right to require the military service of all modified by . , , ° , , . "^ , „ the equal its pcoplc, to levy troops and maintain a naval lorce, to othei^states, build fortifications, and to impose and collect taxes for or by treaty, ^^l these purposes. It is evident that the exercise of these absolute sovereign rights can be controlled only by the equal correspondent rights of other States, or by special com- pacts freely entered into with others, to modify the exercise of these rights. In the exercise of these means of defence, no independent State can be restricted by any foreign power. But another nation may, by virtue of its own right of self-preservation, if it sees in these preparations an occasion for alarm, or if it antici- pates any possible danger of aggression, demand explanations ; and good faith, as well as sound policy, requires that these inqui- ries, when they are reasonable and made with good intentions, should be satisfactorily answered. Thus, the absolute right to erect fortifications within the terri- tory of the State has sometimes been modified by treaties, where the erection of such fortifications has been deemed to threaten the safety of other communities, or where such a concession has been extorted in the pride of victory, by a power strong enough to dictate the conditions of peace to its enemy. Thus, by the Treaty of Utrecht, between Great Britain and France, confirmed by that of Aix-la-Chapelle, in 1748, and of Paris, in 1763, the French government engaged to demolish the fortifications of Dunkirk. This stipulation, so humiliating to France, was ef- faced in the treaty of peace concluded between the two coun- tries, in 1788, after the war of the American Revolution. By the treaty signed at Paris, in 1815, between the Allied Powers and France, it was stipulated that the fortifications of Huningen, within the French territory, which had been constantly a subject of uneasiness to the city of Basle, in the Helvetic Confederation, should be demolished, and should never be renewed or replaced CHAP. I.] AND INDEPENDENCE. 87 by other fortifications, at a distance of less than three leagues from the city of Basle.^ The right of every independent State to increase its x 3 j^i^^jj. national dominions, wealth, population, and power, by fj^^n"or^l°"- all innocent and lawful means ; such as the pacific ference. acquisition of new territory, the discovery and settlement of new countries, the extension of its navigation and fisheries, the im- provement of its revenues, arts, agriculture, and commerce, the increase of its military and naval force ; is an incontrovertible right of sovereignty, generally recognized by the usage and opinion of nations. It can be limited in its exercise only by the equal correspondent rights of other States, growing out of the same primeval right of self-preservation. Where the exer- cise of this right, by any of these means, directly affects the security of others, — as where it immediately interferes with the actual exercise of the sovereign rights of other States, — there is no difficulty in assigning its precise limits. But where it merely involves a supposed contingent danger to the safety of others, arising out of the undue aggrandizement of a particular State, or the disturbance of what has been called the balance of power, questions of the greatest difficulty arise, which belong rather to the science of politics than of public law. The occasions on which the right of forcible interference has been exercised, in order to prevent the undue aggrandizement of a particular State, by such innocent and lawful means as those above mentioned, are comparatively few, and cannot be justified in any case, except in that where an excessive augmentation of its military and naval forces may give just ground of alarm to its neighbors. The internal development of the resources of a coun- try, or its acquisition of colonies and dependencies at a distance from Europe, has never been considered a just motive for such interference. It seems to be felt, with respect to the latter, that distant colonies and dependencies generally weaken, and always render more vulnerable the metropolitan State. And with respect to the former, although the wealth and population of a country is the most effectual means by which its power can be augmented, 1 Martens, Eecueil de Trait6s, torn. ii. p. 469. 83 RIGHT OP SELF-PRESERVATION [PART II. . such an augmentation is too gradual to excite alarm. To which it must be added that the injustice and mischief of admitting that nations have a right to use force, for the express purpose of retarding the civilization and diminishing the prosperity of their inoffensive neighbors, are too revolting to allow such a right to to be inserted in the international code. Interferences, therefore, to preserve the balance of power, have been generally confined to prevent a sovereign, already powerful, from incorporating con- quered provinces into his territory, or increasing his dominions by marriage or inheritance, or exercising a dictatorial influence over the councils and conduct of other independent States.^ {a) Senior, Edinb. Rev. No. 156, art. 1, p. 329. (rt) [The fitting out of expeditions against Cuba, in 1851, from the United States, though in violation of their laws, led to an Intervention on the part both of England and France, so far as sending orders to their naval commanders to prevent, by force, the landing of adventurers from any nation on the island of Cuba, with hostile intent. Both powers deemed It Incumbent on them to make known these Instructions to the government of the United States. In reply to an oral communication made, on the 27th September, 1851, by the British Charg6 d' Affaires to the acting Secretary of State, It was stated, that " The President Is of opinion, that so far as relates to this republic and Its citizens, such an interference as would result from the execution of those orders. If admitted to be rightful in themselves, would nevertheless be practically Injurious In Its conse- quences, and do more harm than good. Their execution would be the exercise of a sort of police over the seas in our immediate vicinity, covered as they are with our ships and our citizens ; and It would involve, moreover, to some extent, the exercise of a jurisdiction to determine what expeditions were of the character denounced, and who were the guilty adventurers engaged In them." In a note of 22d October, 1851, to M. de Sartiges, Mr. Crittenden adverts to the fact, that the proposed orders could not be carried Into effect without a visitation, examination, and consequent detention of our vessels on our shores, and in the great channels of our coasting trade, and which must Invest British and French citizens with the jurisdiction of determining in the first instance, at least, what are the expeditions denounced in their orders, and who are the guilty persons engaged in them, an exercise of power and juris- diction that could hardly fail to lead to abuses and collisions perilc/us to the peace that now happily prevails. He adds : " There is another point of view, in which this intervention, on the part of France and England, cannot be viewed with indifference by the President. The geographical position of the Island of Cuba, In the Gulf of Mexico, lying at no great distance from the mouth of the river Mississippi, and in the line of the greatest current of the com- merce of the United States, would become, in the hands of any powerful European nation, an object of just jealousy and apprehension to the people of this country- A due regard to their own safety and interest must, therefore, make it a matter I CHAP. I.] AND INDEPENDENCE. 89 Each member of the great society of nations being entirely independent of every other, and living in what has been called a of importance to them who shall possess and hold dominion over that island. The government of France and those of other European States were loner since officially apprised by this government, that the United States could not see, with- out concern, that island transferred by Spain to any other European State. Pre- sident Fillmore fully concurs in that sentiment, and is apprehensive that the sort of protectorate introduced by the order in question might, in contingencies not difficult to be imagined, lead to results equally objectionable." To this, it was answered, on 27th October, 1851: " M. de Sartiges had endeavored to establish, in a distinct manner, the two following points : — First, that the instructions issued by the government of the (French) Kepublic were spontaneous and isolated ; secondly, that those instructions were exclusive, for an exclusive case, and applicable only to the class, and not to the nationality of any pirate or adventurer that should attempt to land, in arms, on the shores of a friendly power. He had added that the existing laws in regard to the right of search — laws about which the susceptibilities of the French government are as forcibly roused as those of the government of the United States — were neither directly nor indirectly affected by the order to repel violence by force, since the instructions which have been issued to the commanding officer of the French station were only intended to apply to a case of piracy, the article of the maritime code in force concerning pirates." It was further said, " Those general considerations do not prevent [M. de Sartiges] from acknowledging that the inte- rest which a country feels for another is naturally increased by reason of proximity ; and his government, which understands the complicated nature as Avell as the Importance of the relations existing between the United States and Cuba, has seriously considered the declaration formerly made by the government of the United States, and which has been renewed on this occasion, ' that that govern- ment could not see, with indifference, the island of Cuba pass from the hands of Spain Into those of another European State.' The French government is like- wise of opinion that, in case It should comport with the interests of Spain, at some future day, to part with Cuba, the possession of that island, or the protectorship of the same, ought not to fall upon any of the great maritime powers of the world." This correspondence was closed with a note of Mr. Webster, dated November 18, 1851, in which he says: " Inasmuch as M. de Sartiges now avers that the French government had only in view the execution of the provision of its maritime code against pirates, further discussion of the subject would seem to be for the present unnecessary." Cong. Doc. 32 Cong. 1 Sess. Senate, Ex. Doc. 1, p. 74-82. But, on 23d April, 1852, separate notes, though of the same tenor, inclosing copies of a despatch from their respective ministers of foreign affairs, (M. de Turgot and the Earlof Malmesbury,) and of the draft of a tripartite convention were addressed by the Ministers of France and England to the Secretary of State. The only sub- stantive article of the convention was : " The high contracting parties hereby seve- rally and collectively disclaim, both now and for hereafter, all intention to obtain possession of the island of Cuba ; and they respectively bind themselves to dis- countenance all attempt to that effect on the part of any power or individuals 8* 90 RIGHT OP SELF-PRESERVATION [PART II. state of nature in respect to others, acknowledging no common sovereign, arbiter, or judge ; the law which prevails between whatever." The accompanying communications contained disclaimers, by England and France, of any such intention by either of those powers, and referring to the previous course of the United States, it is assumed, that " all three parties appear to be fully agreed to repudiate, each for itself, all thought of appropriating Cuba, and that it would therefore seem as if all that remained to be done were to give practical effect to the views entertained in common by the three powers." This it was proposed to do, either by the above convention or by the interchange of formal notes to the same effect. In acknowledging these notes, on 29th April, 1852, Mr, Webster says, "It has been stated, and often repeated to the government of Spain by this government, under various administrations, not only that the United States have no design upon Cuba themselves, but that, if Spain should refrain from a voluntary cession of the island to any European power, she might rely on the countenance and friendship of the United States to assist her in the de- fence and preservation of that island. At the same time, it has always been declared to Spain that the government of the United States could not be expected to acquiesce in the cession of Cuba to any European power. . . The present Executive of the United States entirely approves of this past policy of the govern- ment, and fully concurs in the general sentiments expressed by M. de Turgot, and understood to be identical with those entertained by the government of Great Britain." He deemed it his duty, at the same time, to remind the ministers, and through them their governments, that " the policy of the government of the United States has uniformly been to avoid, as far as possible, alliances or agree- ments with other States, and to keep itself free from international obligations, except such as affect directly the interests of the United States themselves." He assured each of them that the President would take his communication into con- sideration, and give it his best reflections. The French and English ministers, on 8th of July, 1852, again refer to the proposed convention. In their respective notes, which, like the former papers, only differ in being written by each in his own language, they place the riwht of intervention of their governments, as well on their general commercial interests as on the special interests, which their subjects, and the government of France, on their own account, have in the question as creditors of Spain. " There Is," they say, " at the present time, an evident tendency in the mari- time commerce of the world to avail itself of the shorter passages from one ocean to another offered by the different routes existing or in contemplation across the isthmus of Central America. The island of Cuba, of considerable importance in itself, is so placed, geographically, that the nation which may possess it, if the naval forces of that nation should be considerable, might either protect or obstruct the commercial routes from one ocean to the other. Now, if the maritime powers are, on the one hand, out of respect to the "rights of Spain and from a sense of their international duty, bound to dismiss all intention of obtaining possession of Cuba, so, on the other hand, are they obliged, out of consideration for the interests of their own subjects or citizens, and the protec- CHAP. I.] AND INDEPENDENCE. 91 nations being deficient in those external sanctions by which the laws of civil society are enforced among individuals ; and the tion of the commerce of other nations, who are entitled to the use of the great highways of commerce on equal terms, to proclaim and assure, as far as in them lies, the present and future neutrality of the island of Cuba." They also state, " that British and French subjects, as well as the French government, are, on different accounts, creditors of Spain for large sums of money. The expense of keeping up an armed force in the island of Cuba of 25,000 men is heavy, and obstructs the government of Spain in the efforts which they make to fulfil their pecuniary engagements. By putting an end to the state of apprehension, which is the cause of those armaments, we should increase to Spain the means of meet- ing those engagements." The confining to European governments an exclusion from the future sovereignty of Cuba is thus animadverted on : " The word 'European' in juxtaposition with the word 'power,' might justify, on the part of the British and French governments, some doubt as to the signification of the declaration of the United States ; and it might be thought that the United States, while, by their declaration, they exclude other nations from profiting by the chances of future possible events, have not debarred themselves by that declaration from availing themselves of such events." The convention is, in conclusion, declared to have but two objects in view, " the one a mutual renun- ciation of the future possession of Cuba ; the other an engagement to cause this renunciation to be respected." Mr. Everett, having become Secretary of State, announces, on 1st December, 1852, in answer to the preceding notes, that the President declines the invita- tion of France and England for the United States to become a party to the proposed convention. Pie expressly disclaims, that our objection to Cuba falling into the possession of any other European government than Spain, arises from our being dissatisfied with any natural increase of territory and power, on the part of France or England. " The President does not covet the acquisition of Cuba for the United States ; at the same time, he considers the condition of Cuba as mainly an American question. The proposed convention proceeds on a differ- ent principle. It assumes that the United States have no other or greater inte- rest in the question than France and England ; whereas it is necessary only to cast one's eye on the map to see how remote are the relations of Europe and how intimate those of the United States with this island." After assigning, as one of the reasons for refusing to become a party to the convention, its certain rejection, by the Senate, he expresses a doubt " whether the Constitution of the United States would allow the treaty-making power to impose a permanent disability on the American government, for all coming time, and prevent it from doing what has been so often done In times past. In 1803, the United States purchased Louisiana of France ; and In 1819, they purchased Florida of Spain. It is not within the competence of the treaty-making power. In 1852, effectually to bind the government In all Its branches ; and, for all coming time, not to make a similar purchase of Cuba. . . Among the oldest traditions of the Federal Government Is an aversion to political alliances with European Powers. . . The alliance of 1778 with France, — at the time of Incalculable benefit to the United States, in 92 , RIGHT OF SELF-PRESERVATION [PART II. performance of the duties of international law being compelled by moral sanctions only, by fear on the part of nations of provok- less than twenty years came near Involving us in the wars of the French revolu- tion, and laid the foundation of heavy claims upon Congress, not extinguished to the present day. It is a significant coincidence, that the particular provision of the alliance which occasioned those evils, was that under which France called upon us to aid her In defending her West India possessions against England. " But the President has a graver objection to entering Into the proposed conven- tion. He has no wish to disguise the feeling that the compact, although equal in its terms, would be very unequal In substance. France and England, by entering Into It, would disable themselves from obtaining possession of an island remote from their seats of government, belonging to another European power, whose natural right to possess It must always be as good as their own — a distant Island In another hemisphere, and one which by no ordlnaiy or peaceful course could ever belong to either of them. . . . The United States, on the other hand, would, by the proposed convention, disable themselves from making an acquisition which might take place without any disturbance of existing foreign relations, and In the natural order of things. The Island of Cuba lies at our doors. It commands the approach to the Gulf of Mexico, which washes the shores of five of our States. It bars the entrance of that great river which drains half the North American continent, and with Its trlbutai'Ies forms the largest system of Internal water communication in the world. It keeps watch at the door-way of our Intercourse with California by the Isthmus route. If an island like Cuba, belonging to the Spanish crown, guarded the entrance of the Thames and the Seine, and the United States should propose a convention like this to France and England, those powers would assuredly feel that the disability assumed by ourselves was far less serious than that which we asked them to assume." " Even now the President cannot doubt that both France and England would prefer any change In the condition of Cuba to that which Is most to be apprehended, viz., an Internal convulsion which should renew the horrors and the fate of San Domingo." Mr. Everett thus Intimates a final objection to the convention : " M. de Turgot and Lord Malmesbury put forward, as the reason for entering into such a compact, * the attacks which have lately been made on the island of Cuba by lawless bands of adventurers from the United States, with the avowed design of taking possession of that Island.' The President Is convinced that the conclusion of such a treaty. Instead of putting a stop to these lawless proceedings, would give a new and powerful Impulse to them. It would strike a death blow to the conservative policy hitherto pursued In this coun- try towards Cuba. No administration of this government, however strong In public confidence in other respects, could stand a day under the odium of having stipulated with the great powers of Europe, that in no future time, under no change of circumstances, by no amicable arrangement with Spain, by no act of lawful war, (should that calamity unfortunately occur,) by no consent of the inhabitants of the Island, should they, like the possessions of Spain on the Ameri- can continent, succeed in rendering themselves independent ; in fine, by no over- ruling necessity of self-preservation should the United States ever make the acquisition of Cuba." Cong. Doc. 32 Cong. 2 Sess. Senate, Ex. Doc. No. 13.] 1 CHAP. I.] AND INDEPENDENCE. 93 ing general hostility, and incurring its probable evils in case they should violate this law ; an apprehension of the possible conse- quences of the undue aggrandizement of any one nation upon the independence and the safety of others, has induced the States of modern Europe to observe, with systematic vigilance, every material disturbance in the equilibrium of their respective forces. This preventive policy has been the pretext of the most bloody and destructive wars waged in modern times, some of which have certainly originated in well-founded apprehensions of peril to the independence of weaker States, but the greater part have been founded upon insufficient reasons, disguising the real motives by which princes and cabinets have been influenced. "Wherever the spirit of encroachment has really threatened the general security, it has commonly broken out in such overt acts as not only plainly indicated the ambitious purpose, but also furnished substantive grounds in themselves sufficient to justify a resort to arms by other nations. Such were the ,, ^^^^l of *' , the Kefor grounds of the confederacies created, and the wars matiou. undertaken to check the aggrandizement of Spain and the house of Austria, under Charles V. and his successors ; — an object finally accomplished by the treaty of Westphalia, which so long constituted the written public law of Europe. The long and violent struggle between the religious parties engendered by the Reformation in Germany, spread throughout Europe, and became closely connected with political interests and ambition. The great Catholic and Protestant powers mutually protected the adherents of their own faith in the bosom of rival States. The repeated interference of Austria and Spain in favor of the Catholic faction in France, Germany, and England, and of the Protestant powers to protect their persecuted brethren in Ger- many, France, and the Netherlands, gave a peculiar coloring to the political transactions of the age. This was still more heightened by the conduct of Catholic France under the min- istry of Cardinal Richelieu, in sustaining, by a singular refine- ment of policy, the Protestant princes and people of Germany against the house of Austria, whilst she was persecuting with unrelenting severity her own subjects of the reformed faith. The balance of power adjusted by the peace of Westphalia was once more disturbed by the ambition of Louis XIV., which compelled the Protestant States of Europe to unite with the house of Aus- 94 RIGHT OP SELF-PRESERVATION [PART II. tria against the encroachments of France herself, and induced the allies to patronize the English Revolution of 1688, whilst the French monarch interfered to support the pretensions of the Stuarts. These great transactions furnished numerous examples of interference by the European States in the affairs of each other, where the interest and security of the interfering powers were supposed to be seriously affected by the domestic transac- tions of other nations, which can hardly be referred to any fixed and definite principle of international law, or furnish a general rule fit to be observed in other apparently analogous cases.^ f> 4. Wars The same remarks will apply to the more recent, but of the j^Q^ iggg important events, growing out of the French Revolution. Revolution. They furnish a strong admonition against attempting to reduce to a rule, and to incorporate into the code of nations, a principle so indefinite, and so peculiarly liable to abuse, in its practical application. The successive coalitions formed by the great European monarchies against France sub- sequent to her first revolution of 1789, were avowedly designed to check the progress of her revolutionary principles, and the extension of her military power. Such was the principle of intervention in the internal affairs of France, avowed by the Allied Courts, and by the publicists who sustained their cause. France, on her side, relying on the independence of nations, Alliance contended for non-intervention as a right. The efforts grea\Euro- of these coalitions ultimately resulted in the formation pean pow- ^^ ^^ alliance, intended to be permanent, between the four great powers of Russia, Austria, Prussia, and Great Britain, to which France subsequently acceded, at the Congress of Aix- la-Chapelle, in 1818, constituting a sort of superintending author- ity in these powers over the international affairs of Europe, the precise extent and objects of which were never very accurately defined. As interpreted by those of the contracting powers, who were also the original parties to the compact called the Holy Alliance, this union was intended to form a perpetual system of intervention among the European States, adapted to prevent any such change in the internal forms of their respective governments, as might endanger the existence of the monarchical institutions 1 Wheaton, Hist. Law of Nations, Pt. I. §§ 2, 3, pp. 80-88. CHAP. I.] AND INDEPENDENCE. 95 which had been reestabhshed under the legitimate dynasties of their respective reigning houses. This general right of interfer- ence was sometimes defined so as to be applicable to every case of popular revolution, where the change in the form of govern- ment did not proceed from the voluntary concession of the reign- ing sovereign, or was not confirmed by his sanction, given under such circumstances as to remove all doubt of his having freely consented. At other times, it was extended to every revolutionary movement pronounced by these powers to endanger, in its conse- quences, immediate or remote, the social order of Europe, or the particular safety of neighboring States. The events, which followed the Congress of Aix-la-Chapelle, prove the inefficacy of all the attempts that have been made to establish a general and invariable principle on the subject of intervention. It is, in fact, impossible to lay down an absolute rule on this subject ; and every rule that wants that quality must necessarily be vague, and subject to the abuses to which human passions will give rise, in its practical application. The measures adopted bv Austria, Russia, and Prus- , sia, at the Congress of Troppau and Laybach, in respect giess of to the Neapolitan Revolution of 1820, were founded chapeiie, upon principles adapted to give the great powers of and ofTav- the European continent a perpetual pretext for interfer- ^^^^' ing in the internal concerns of its different States. The British government expressly dissented from these principles, not only upon the ground of their being, if reciprocally acted on, contrary to the fundamental laws of Great Britain, but such as could not safely be admitted as part of a system of international law. In the circular despatch, addressed on this occasion to all its diplo- matic agents, it was stated that, though no government could be more prepared than the British government was to uphold the right of any State or States to interfere, where their own imme- diate security or essential interests are seriously endangered by the internal transactions of another State, it regarded the as- sumption of such a right as only to be justified by the strongest necessity, and to be limited and regulated thereby ; and did not admit that it could receive a general and indiscriminate applica- tion to all revolutionary movements, without reference to their immediate bearing upon some particular State or States, or 96 EIGHT OF SELF-PRESERVATION [PART II. that it could be made, prospectively, the basis of an alliance. The British government regarded its exercise as an exception to general principles of the greatest value and importance, and as one that only properly grows out of the special cir- cumstances of the case ; but it at the same time considered, that exceptions of this description never can, without the utmost danger, be so far reduced to rule, as to be incorporated into the ordinary diplomacy of States, or into the institutes of the Law of Nations.^ § 6. Con- The British government also declined being a party Verona. to the proceedings of the Congress held at Verona, in 1822, which ultimately led to an armed interference by France, under the sanction of Austria, Russia, and Prussia, in the inter- nal affairs of Spain, and the overthrow of the Spanish Constitu- tion of the Cortes. The British government disclaimed for itself, and denied to other powers, the right of requiring any changes in the internal institutions of independent States, with the menace of hostile attack in case of refusal. It did not con- sider the Spanish Revolution as affording a case of that direct and imminent danger to the safety and interests of other States, which might justify a forcible interference. The original alliance between Great Britain and the other principal European powers, was specifically designed for the reconquest and liberation of the European continent from the military dominion of France ; and, having subverted that dominion, it took the state of possession, as established by the peace, under the joint protection of the alliance. It never was, however, intended as an union for the government of the world, or for the superintendence of the internal affairs of other States. No proof had been produced to the British government of any design, on the part of Spain, to invade the territory of France ; of any attempt to introduce dis- affection among her soldiery ; or of any project to undermine her political institutions ; and, so long as the struggles and dis- turbances of Spain should be confined within the circle of her own territory, they could not be admitted by the British govern- 1 Lord Castlereagh's Circular Dispatch, Jan. 19, 1821. Annual Register, vol. Ixii. Part n. p. 737. I CHAP. I.] AND INDEPENDENCE. 97 ment to afford any plea for foreign interference. If the end of the last and the beginning of the present century saw all Europe combined against France, it was not on account of the internal changes which France thought necessary for her own political and civil reformation ; but because she attempted to propa- gate, first, her principles, and afterwards her dominion, by the sword.^ Both Great Britain and the United States, on the ^ 7. -war saipe occasion, protested against the right of the Allied spJnTnd Powers to interfere, by forcible means, in the contest ^*^^" ^™^'"'' ^ J ' can colo- between Spain and her revolted American Colonies, nies. The British government declared its determination to remain strictly neutral, should the war be unhappily prolonged ; but that the junction of any foreign power, in an enterprise of Spain against the colonies, would be viewed by it as constituting an entirely new question, and one upon which it must take such decision as the interests of Great Britain might require. That it could not enter into any stipulation, binding itself either to refuse or delay its recognition of the independence of the colo- nies, nor wait indefinitely for an accommodation between Spain and the colonies ; and that it would consider any foreign inter- ference, by force or by menace, in the dispute between them, as a motive for recognizing the latter without delay .^ The United States government declared that it should con- sider any attempt, on the part of the allied European powers, to extend their peculiar political system to the American continent, as dangerous to the peace and safety of the United States. With the existing colonies or dependencies of any European power they had not interfered, and should not interfere ; but with respect to the governments, whose independence they had recognized, they could not view any interposition for the purpose of oppressing them, or controlling in any other manner 1 Confidential Minute of Lord Castlereagh on the Affairs of Spain, communi- cated to the AlHed Courts in May, 1823. Annual Register, vol. Ixv. ; Piihlic Documents, p. 93. Mr. Secretary Canning's Letter to Sir C. Stuart, 2Sth Jan. 1823, p. 114. Same to the Same, 31st March, 1823, p. 141. ^ Memorandum of Conference between Mr. Secretary Canning and Prince Polignac, 9th October, 1823. Annual llegister, vol. Ixvi. p. 99. Public Documents. d 98 RIGHT OF SELF-PRESERVATION [PART II. their destiny, in any other light than as a manifestation of an unfriendly disposition towards the United States. They had declared their neutrality in the war between Spain and those new governments, at the time of their recognition ; and to this neutrality they should continue to adhere, provided no change should occur, which, in their judgment, should make a corre- spondent change, on the part of the United States, indispensable to their own security. The late events in Spain and Portugal showed that Europe was still unsettled. Of this important fact no stronger proof could be adduced than that the Allied Powers should have thought it proper, on any principle satisfactory to themselves, to have interposed by force in the internal concerns of Spain. To what extent such interpositions might be carried, on the same principle, was a question on which all independent powers, whose governments differed from theirs, were inte- rested, — even those most remote, — and none more so than the United States. The policy of the American government, in regard to Europe, adopted at an early stage of the war which had so long agitated that quarter of the globe, nevertheless remained the same. This policy was, not to interfere in the internal concerns of any of the European powers ; to consider the government, de facto, as the legitimate government for them ; to cultivate friendly rela- tions with it, and to preserve those relations by a frank, firm, and manly policy ; meeting, in all instances, the just claims of every power, — submitting to injuries from none. But, with regard to the American continents, circumstances were widely different. It was impossible that the Allied Powers should extend their political system to any portion of these continents, without endangering the peace and happiness of the United States. It was therefore impossible that the latter should behold such interposition in any form with indifference.^ § 8. British Great Britain had limited herself to protesting against ill the affairs the interference of the French government in the inter- in 1826. ° ' nal affairs of Spain, and had refrained from interposing 1 President Monroe's Message to Congress, 2d December, 1823. Annual Register, vol. Ixv. Public Documents, p. 193. CHAP. I.] AND INDEPENDENCE. 99 by force, to prevent the invasion of the peninsula by France. The constitution of the Cortes was overturned, and Ferdinand VII. restored to absolute power. These events were followed by the death of John VI., King of Portugal, in 1825. The con- stitution of Brazil had provided that its crown should never be united on the same head with that of Portugal ; and Dom Pedro resigned the latter to his infant daughter. Dona Maria, appoint- ing a regency to govern the kingdom during her minority, and, at the same time, granting a constitutional charter to the Euro- pean dominions of the House of Braganza. The Spanish government, restored to the plenitude of its absolute authority, and dreading the example of the peaceable establishment of a constitutional government in a neighboring kingdom, counte- nanced the pretensions of Dom Miguel to the Portuguese crown, and supported the efforts of his partisans to overthrow the regency and the charter. Hostile inroads into the territory of Portugal were concerted in Spain, and executed with the conni- vance of the Spanish authorities, by Portuguese troops, belong- ing to the party of the Pretender, who had deserted into Spain, and were received and succoured by the Spanish authorities on the frontiers. Under these circumstances, the British govern- ment received an application from the regency of Portugal, claiming, in virtue of the ancient treaties of alliance and friend- ship subsisting between the two crowns, the military aid of Great Britain against the hostile aggression of Spain. In acced- ing to that application, and sending a corps of British troops for the defence of Portugal, it was stated by the British minister that the Portuguese Constitution was admitted to have pro- ceeded from a legitimate source, and it was recommended to Englishmen by the ready acceptance which it had met with from all orders of the Portuguese people. But it would not be for the British nation to force it on the people of Portugal, if they were unwilling to receive it ; or if any schism should exist among the Portuguese themselves, as to its fitness and conge- niality to the wants and wishes of the nation. They went to Portugal in the discharge of a sacred obligation, contracted under ancient and modern treaties. When there, nothing would be done by them to enforce the establishment of the constitu- tion ; but they must take care that nothing was done by others to prevent it from being fairly carried into effect. The hostile 100 RIGHT OF SELF-PRESERVATION [PART II. aggression of Spain, in countenancing and aiding the party opposed to the Portuguese Constitution, was in direct violation of repeated solemn assurances of the Spanish cabinet to the British government, engaging to abstain from such interference. The sole object of Great Britain was to obtain the faithful exe- cution of those engagements. The former case of the invasion of Spain by France, having for its object to overturn the Span- ish Constitution, was essentially different in its circumstances. France had given to Great Britain cause of war, by that aggres- sion upon the independence of Spain. The British government might lawfully have interfered, on grounds of political expe- diency ; but they were not bound to interfere, as they were now bound to interfere on behalf of Portugal, by the obligations of treaty. War might have been their free choice, if they had deemed it politic, in the case of Spain ; interference on behalf of Portugal was their duty, unless they were prepared to abandon the principles of national faith and national honor.i The interference of the Christian powers of Europe, ference of in favor of the Greeks, who, after enduring ages of ian powers cruel oppression, had shaken off the Ottoman yoke, infavOTof affords a further illustration of the principles of inter- the Greeks, national law authorizing such an interference, not only where the interests and safety of other powers are immediately affected by the internal transactions of a particular State, but where the general interests of humanity are infringed by the excesses of a barbarous and despotic government. These prin- ciples are fully recognized in the treaty for the pacification of Greece, concluded at London, on the 6th of July, 1827, between France, Great Britain, and Russia. The preamble of this treaty sets forth, that the three contracting parties were " penetrated with the necessity of putting an end to the sanguinary contest, which, by delivering up the Greek provinces and the isles of the Archipelago to all the disorders of anarchy, produces daily fresh impediments to the commerce of the European States, and gives occasion to piracies, which not only expose the subjects of the 1 Mr. Canning's Speech in the House of Commons, lltli December, 1826. Annual Register, vol. Ixviii. p. 192. CHAP. I.] AND INDEPENDENCE. lOl high contracting parties to considerable losses, but, besides, ren- der necessary burdensome measures of protection and repres- sion." It then states that the British and French governments, having received a pressing request from the Greeks to interpose their mediation with the Porte, and being, as well as the Empe- ror of Russia, animated by the desire of stopping the effusion of blood, and of arresting the evils of all kinds which might arise from the continuance of such a state of things, had resolved to unite their efforts, and to regulate the operations thereof by a formal treaty, with the view of reestablishing peace between the contending parties, by means of an arrangement, which was called for as much by humanity as by the interest of the repose of Europe. The treaty then provides, (art. 1,) that the three contracting powers should offer their mediation to the Porte, by a joint declaration of their ambassadors at Constantinople ; and that there should be made, at the same time, to the two con- tending parties, the demand of an immediate armistice, as a preliminary condition indispensable to opening any negotiation. Article 2d provides the terms of the arrangement to be made, as to the civil and political condition of Greece, in consequence of the principles of a previous understanding between Great Britain and Russia. By the 3d article it was agreed, that the details of this arrangement, and the limits of the territory to be included under it, should be settled in a separate negotiation between the high contracting powers and the two contending parties. To this public treaty an additional and secret article was added, stipulating that the high contracting parties would take imme- diate measures for establishing commercial relations with the Greeks, by sending to them and receiving from them consular agents, so long as there should exist among them authorities capable of maintaining such relations. That if, within the term of one month, the Porte did not accept the proposed armistice, or if the Greeks refused to execute it, the high contracting par- ties should declare to that one of the two contending parties that should wish to continue hostilities, or to both, if it should become necessary, that the contracting powers intended to exert all the means, which circumstances might suggest to their pru- dence, to give immediate effect to the armistice, by preventing, as far as might be in their power, all collision between the con- tending parties. The secret article concluded by declaring, that 102 RIGHT OF SELF-PRESERVATION [PART II. if these measures did not suffice to induce the Ottoman Porte to adopt the propositions made by the high contracting powers ; or if, on the other hand, the Greeks should renounce the conditions stipulated in their favor, the contracting parties would neverthe- less continue to prosecute the work of pacification on the basis agreed upon between them ; and, in consequence, they author- ized, from that time forward, their representatives in London to discuss and determine the ulterior measures to which it might become necessary to resort. The Greeks accepted the proffered mediation of the three powers, which the Turks rejected, and instructions were given to the commanders of the allied squadrons to compel the cessation of hostilities. This was effected by the result of the battle of Navarino, with the occupation of the Morea by French troops ; and the independence of the Greek State was ultimately recog- nized by the Ottoman Porte, under the mediation of the con- tracting powers. If, as some writers have supposed, the Turks belong to a family or set of nations which is not bound by the general international law of Christendom, they have still no right to complain of the measures which the Christian powers thought proper to adopt for the protection of their religious brethren, oppressed by the Mohammedan rule. In a ruder age, the nations of Europe, impelled by a generous and enthusiastic feeling of sympathy, inundated the plains of Asia to recover the holy sepulchre from the possession of infidels, and to deliver the Christian pilgrims from the merciless oppressions practised by the Saracens. The Protestant princes and States of Europe, during the sixteenth and seventeenth centuries, did not scruple to confederate and v/age war, in order to secure the freedom of religious worship for the votaries of their faith in the bosom of Catholic communities, to whose subjects it was denied. Still more justifiable was the interference of the Christian powers of Europe to rescue a whole nation, not merely from religious per- secution, but from tlie cruel alternative of being transported from their native land, or exterminated by their merciless oppress- ors. The rights of human nature wantonly outraged by this cruel warfare, prosecuted for six years against a civilized and Christian people, to whose ancestors mankind are so largely indebted for the blessings of arts and of letters, were but tardily and imperfectly vindicated by this measure. " Whatever," as I CHAP. I.] AND INDEPENDENCE. 103 Sir James Mackintosh said, " a nation may lawfully defend for itself, it may defend for another people, if called upon to inter- pose." The interference of the Christian powers, to put an end to this bloody contest might, therefore, have been safely rested upon this ground alone, without appealing to the interests of commerce and of the repose of Europe, which, as well as the interests of humanity, are alluded to in the treaty, as the deter- mining motives of the high contracting parties.^ We have already seen, that the relations which have ^ j^ j^^ prevailed between the Ottoman Empire and the other Jf/^^i^g^^^fa European States have only recently brought the former g. Britain, ^ ,,,.,, 1 Prussia, and within the pale of that public law by which the latter Eussia, in - , i-i ••nr J J the internal are governed, and which was originally lounded on jifTairs of the that community of manners, institutions, and religion, Empke,\ which distinguish the nations of Christendom from those i^"^^- of the Mohammedan world.^ Yet the integrity and independ- ence of that empire have been considered essential to the general balance of power, ever since the crescent ceased to be an object of dread to the western nations of Europe. The above-men- tioned interference of three of the great Christian powers in the affairs of Greece had been complicated, by the separate war between Russia and the Ottoman Empire, which was termi- nated by the Treaty of Adrianople, in 1829, followed by the treaty of alliance between the two empires, of Unkiar-Skelessi, in 1833. The casus fcederis of the latter treaty was brought on by the attempts of Mehemet Ali, Pasha of Egypt, to assert his independence, and of the Porte, which sought to recover its lost provinces. The status quo, which had been established between the Sultan and his vassal by the arrangement of Kutayah, in 1833, under the mediation of France and Great Britain, on which the peace of the Levant depended, and with it the peace 1 Another treaty Tvas concluded at London, between the same three powers, on the 7th of May, 1832, by which the election of Prince Otho of Bavaria, as Iving of Greece, was confirmed, and the sovereignty and independence of the new kingdom guaranteed by the contracting parties, according to the terms of the protocol signed by them on the 3d of February, 1830, and accepted by Greece and the Ottoman Porte. 2 Vide supra, Part I. ch. I. § 10. 104 RIGHT OP SELF-PRESERVATION [PART II. of Europe was supposed to depend, was thus constantly threat- ened by the irreconcilable pretensions of the two great divisions of the Ottoman Empire. The war again broke out between them in 1839, and the Turkish army was overthrown in the decisive battle of Nezib, which was followed by the desertion of the fleet to Mehemet All, and by the death of Sultan Mah- moud II. In this state of things, the western powers of Europe thought they perceived the necessity of interfering to save the Ottoman Empire from the double danger with which it was threatened ; by the aggressions of the Pasha of Egypt on one side, and the exclusive protectorate of Russia on the other. A long and intri- cate negotiation ensued between the five great European powers, from the voluminous documents relating to which the following general principles may be collected, as having received the formal assent of all the parties to the negotiations, however divergent might be their respective views as to the application of those principles. 1. The right of the five great European powers to interfere in this contest was placed upon the ground of its threatening, in its consequences, the general balance of power and the peace of Europe. The only difference of opinion arose as to the means by which the desirable end of preventing all future conflict between the two contending parties could best be accomplished. 2. It was agreed that this interference could only take place on the formal application of the Sultan himself, according to the rule laid down by the Congress of Aix-la-Chapelle, in 1818, that the five great powers would never assume jurisdiction over questions concerning the rights and interests of another power, except at its request, and without inviting such power to take part in the conference. 3. The death of Sultan Mahmoud being imminent, and the dangers of the Ottoman Empire having increased by a compli- cation of disasters, each of the five powers declared its deter- mination to maintain the independence of that empire, under the reigning dynasty ; and as a necessary consequence of this determination, that neither of them should seek to profit by the present state of things to obtain an increase of territory or an exclusive influence. The negotiations finally resulted in the conclusion of the con- CHAP. I.] AND INDEPENDENCE. 105 vention of the 15th July, 1840, between four of the great European powers, Austria, Great Britain, Prussia, and Russia, to which the Ottoman Porte acceded, and in consequence of which Mehemet Ali was compelled to relinquish the possession of all the pro- vinces held by him, except Egypt, the hereditary pachalic of which was confirmed to him, according to the conditions con- tained in the separate article of the convention.^ The interference of the five great European powers ^ n. in represented in the conference of London, in the Belgic [he^fiye°^°^ Revolution of 1830, affords an example of the applica- ^^^^^ ^^™" ' ^ ' * pean powers tion of this ris^ht to preserve the ajeneral peace, and to J>i tiie Bei- , r ^ ' gic revolu- adapt the new order of things to the stipulations of the tionofisso. treaties of Paris and Vienna, by which the kingdom of the Netherlands had been created. We have given, in another work, a full account of the long and intricate negotiations relating to the separation of Belgium from Holland, which assumed alter- nately the character of a pacific mediation and of an armed intervention, according to the varying circumstances of the con- test, and which was finally terminated by a compromise between the two great opposite principles which so long threatened to dis- turb the established order and general peace of Europe. The Belgic Revolution was recognized as* an accomplished fact, whilst its legal consequences were limited within the strictest bounds, by refusing to Belgium the attributes of the rights of con- quest and of postliminy, and by depriving her of a great part of the province of Luxembourg, of the left bank of the Scheldt, and of the right bank of the Meuse. The five great powers, represent- ing Europe, consented to the separation of Belgium from Hol- land, and admitted the former among the independent States of Europe, upon conditions which were accepted by her and have become the bases of her public law. These conditions were sub- sequently incorporated into a definitive treaty, concluded between Belgium and Holland in 1839, by which the independence of the former was finally recognized by the latter.^ 1 Wheaton's Hist, of the Law of Nations, pp. 563-583, [and note b, p. 21.] 2 Ibid. pp. 538-555. 106 RIGHT OF SELF-PRESERVATION [PART II. , 12 In- Every State, as a distinct moral being, independent ^^pendence q[ every other, may freely exercise all its sovereign in respect rights in anv manner not inconsistent with the equal to its inter- . r i r~< » • i nai govern- rights 01 other fetates. Among these is that of estab- lishing, altering, or abolishing its own municipal consti- tution of government. No foreign State can lawfully interfere with the exercise of this right, unless such interference is author- ized by some special compact, or by such a clear case of neces- sity as immediately affects its own independence, freedom, and security. Non-interference is the general rule, to which cases of justifiable interference form exceptions limited by the necessity of each particular case. § 13. Me- ^^^ approved usage of nations authorizes the pro- diationof posal bv onc State of its ffood offices or mediation for foreign i j o ^ States for the Settlement of the intestine dissensions of another the settle- i rr • i i i , t mentof State. When such offer is accepted by the contending dissentions parties, it bccomes a just title for the interference of the Mefof mediating power, (a) mediation Such a title may also m-ow out of positive compact and gua- _ _ _ •' '^ . . ranty. previously existing, such as treaties of mediation and guaranty. Of this nature was the guaranty by France and Sweden of the Germanic Constitution at the peace of West- phalia in 1648, the result of the thirty years' war waged by the princes and States of Germany for the preservation of their civil and religious liberties against the ambition of the House of Austria. The Republic of Geneva was connected by an ancient alliance (a) [The difference between a mediator and an arbitrator consists in this : thatithe arbitrator pronounces a real judgment, whicli is obligatory, and that the mediator can only give his counsel and advice. The mediation, indeed, is often a simple formality to bring the parties together, and which is afterwards con- tinued from respect to the mediator. Garden, Trait6 de la Diplomatic, torn. i. p. 436, note. The references, by treaty, of 1827, of the question respecting the north-east boundary of the United States by the British and American govern- ments, to the King of the Netherlands, was a case of arbitration, though as the award did not profess to foUoAv the submission, but merely recommended a con- ventional line, which it designated, it was not obligatory. Amer. Ann. Reg. 1830-1, p. 146.] CHAP. I.] AND INDEPENDENCE. 107 with the Swiss Cantons of Berne and Zurich, in consequence of which they united with France, in 1738, in offering the joint mediation of the three powers to the contending political parties by which the tranquillity of the republic was disturbed. The result of this mediation was the settlement of a constitution, which giving rise to new disputes in 1768, they were again adjusted by the intervention of the mediating powers. In 1782, the' French government once more united with these Cantons and the court of Sardinia in mediating between the aristocratic and democratic parties ; but it appears to be very questionable how far these transactions, especially the last, can be reconciled with the respect due, on the strict principles of international law, to the just rights and independence of the smallest, not less than to those of the greatest States.^ The present constitution of the Swiss Confederation was also adjusted, in 1813, by the mediation of the great allied powers, and subsequently recognized by them at the Congress of Vienna as the basis of the federative compact of Switzerland. By the same act the united Swiss Cantons guarantee their respective local constitutions of government.^ So also the local constitutions of the different States compos- ing the Germanic Confederation may be guaranteed by the Diet, on the application of the particular State in which the constitu- tion is established ; and this guarantee gives the Diet the right of determining all controversies respecting the interpretation and execution of the constitution thus established and guaranteed.^ And the Constitution of the United States of America gua- rantees to each State of the federal Union a republican form of government, and engages to protect each of them against inva- sion, and, on application of the local authorities, against domestic violence.* 1 Flassan, Histoire de la Diplomatic Fran^aise, torn. v. p. 78, torn. vii. pp. 27, 297. \ 2 Acte Final clu Congres de Vienne, art. 74. 3 Wiener Schluss-Acte, vom 15 Mai, 1820, art. 62. Corpus Juris Germanici, von Mayer, torn. ii. p. 196. 4 Constitution of the United States, art. 3. 108 EIGHT OF SELF-PRESERVATION [part II. . 15. inde- This perfect independence of every sovereign State, pendence of jjj resDCct to its political institutions, extends to the every State . in respect choico of the Supreme magistrate and other rulers, as choice of its Well as to the form of government itself. In hereditary rulers • governments, the succession to the crown being regu- lated by the fundamental laws, all disputes respecting the succes- sion are rightfully settled by the nation itself, independently of the interference or control of foreign powers. So also in elective governments, the choice of the chief or other magistrates ought to be freely made, in the manner prescribed by the constitution of the State, without the intervention of any foreign influence or authority.^ § 16. Ex- The only exceptions to the application of these gene- growhi'ff out ^^^ rules arise out of compact, such as treaties of alli- of compact q^^^qq guarantee, and mediation, to which the State itself or other ' O ' ' just right whose coucems are in question has become a party ; or ofiuterven- - , . , • r i tion. formed by other powers in the exercise of a supposed right of intervention growing out of a necessity involving their own particular security, or some contingent danger affecting the general security of nations. Such, among others, were the wars relating to the Spanish succession, in the beginning of the eighteenth century, and to the Bavarian and Austrian succes- sions, in the latter part of the same century. The history of modern Europe also affords many other examples of the actual interference of foreign powers in the choice of the sovereign or /chief magistrate of those States where the choice was constitu- itionally determined by popular election, or by an elective council, such as in the cases of the head of the Germanic Empire, the King of Poland, and the Roman pontiff; but in these cases no largument can be drawn from the fact to the right. In the parti- cular case, however, of the election of the pope, who is the supreme pontiff of the Roman Catholic Church, as well as a tem- poral sovereign, the Emperor of Austria, and the Kings of France and Spain have, by ancient usage, each a right to exclude one candidate.! 1 Vattel, Droit des Gens, liv. i. ch. 5, §§ 66, 67. 2 Kliiber, Droit des Gens moderne de TEurope, Pt. II. tit. 1, cL 2, § 48. CHAP. I.] AND INDEPENDENCE. 100 The quadruple alliance, concluded in 1834 between . jg q^^^j. France, Great Britain, Spain, and Portuo;al, affords a ^P^®^"i-, ' . . anceof 1834. remarkable example of actual interference in the ques- I'etween 1 . , . . , France, tions relating to the succession to the crown in the two Great Bri- latter kingdoms, growing out of compacts to which they gai,aiid were parties, formed in the exercise of a supposed right of ^p^^'^- interference for the preservation of the peace of the Peninsula as well as the general peace of Europe. Having already stated in another work the historical circumstances which gave rise to the quadruple alliance, as well as its terms and conditions, it will only be necessary here to recapitulate the leading principles, which may be collected from the debate in the British Parliament, in 1835, upon the measures adopted by the British Government to carry into effect the stipulations of the treaty. 1. The legality of the order in council permitting British sub- jects to engage in the military service of the Queen of Spain, by exempting them from the general operation of the act of Parlia- ment of 1819, forbidding them from enlisting in foreign military service, was not called in question by Sir Robert Peel and the other speakers on the part of the opposition. Nor was the obli- gation of the treaty of quadruple alliance, by which the British government was bound to furnish arms and the aid of a naval force to the Queen of Spain, denied by them. Yet it was asserted, that without a declaration of war, it would be with the greatest difficulty that the special obligation of giving naval aid could be fulfilled, without placing the force of such a compact in opposi- tion to the general binding nature of international law. What- ever might be the special obligation imposed on Great Britain by the treaty, it could not warrant her in preventing a neutral State from receiving a supply of arms. She had no right, with- out a positive declaration of war, to stop the ships of a neutral country on the high seas. 2. It was contended that the suspension- of the foreign enlist- ment law was equivalent to a direct military interference in the domestic affairs of another nation. The general rule on which Great Britain had hitherto acted was that of non-interference. The only exceptions admitted to this rule were cases where the necessity was urgent and immediate ; affecting, either on account of vicinage, or some special circumstances,, the safety or vital 10 110 EIGHT OP SELF-PRESERVATION [PART II, interests of the State. To interfere on the vague ground that British interests would be promoted by the intervention ; on the plea that it would be for their advantage to see established a particular form of government in Spain, would be to destroy altogether the general rule of non-intervention, and to place the independence of every weak power at the mercy of its formi- dable neighbors. It was impossible to deny that an act which the British government permitted, authorizing British soldiers and subjects to enlist in the service of a foreign power, and allowing them to be organized in Great Britain, was a recognition of the doctrine of the propriety of assisting by a military force a foreign government against an insurrection of its own subjects. When the Foreign Enlistment Bill was under consideration in the House of Commons, the particular clause which empowered the Idng in council to suspend its operation was objected to on the ground, that if there was no foreign enlistment act, the subjects of Great Britain might volunteer in the service of another coun- try, and there could be no particular ground of complaint against them ; but that if the king in council were permitted to issue an order suspending the law with reference to any belligerent na- tion, the government might be considered as sending a force under its own control. Lord Palmerston, in reply, stated : — 1. That the object of the treaty of quadruple alliance, as expressed in the preamble, was to establish internal peace throughout the Peninsula, including Spain as well as Portugal ; the means by which it was proposed to effect that object was the expulsion of the infants Don Carlos and Dom Miguel from Portugal. When Don Carlos returned to Spain, it was thought necessary to frame additional articles to the treaty in order to meet the new emergency. One of these additional articles engaged His Britannic Majesty to furnish Her Catholic Majesty with such supplies of arms and warlike stores as Her Majesty might require, and further to assist Her Majesty with a naval force. The writers on the law of nations all agreed that any government, thus stipulating to furnish arms to another, must be considered as taking an active part in any contest in which the latter might be engaged ; and the agreement to furnish a naval force, if necessary, was a still stronger demonstration to that effect. If, therefore, the recent order in council was objected to on the cfround that it identified Great Britain with the cause CHAP. I.] AITD INDEPENDENCE. Ill of the existing government of Spain, the answer was, that, by the additional articles of the quadruple treaty, that identification had already been established, and that one of those articles went even beyond the measure which had been impugned. 2. As to what had been alleged as to the danger of establish- ing a precedent for the interference of other countries, he would merely observe ; that in the first place this interference was founded on a treaty arising out of the acknowledged right of succession of a sovereign, decided by the legitimate authorities of the country over which she ruled. In the case of a civil war proceeding either from a disputed succession, or from a prolonged revolt, no writer on international law denied that other countries had a right, if they chose to exercise it, to take part with either of the two belligerent parties. Undoubtedly it was inexpedient to exercise that right except under circumstances of a peculiar nature. That right, however, was general. If one country exer- cised it, another might equally exercise it. One State might support one party, another the other party; and whoever em- barked in either cause must do so with their eyes open to the full extent of the possible consequences of their decision. He con- tended, therefore, that the measure under consideration estab- lished no new principle, and that it created no danger as a prece- dent. Every case must be judged by the considerations of pru- dence which belonged to it. The present case, therefore, must be judged by similar considerations. All that he maintained was, that the recent proceeding did not go beyond the spirit of the engagement into which Great Britain had entered, that it did not establish any new principle, and that the engagement was quite consistent with the law of nations.' 1 Wheaton's Hist. Law of Nations, pp. 523-53S 112 RIGHTS OF CIVIL AND PART II. CHAPTER II. RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. § 1. Ex- Every independent State is entitled to the exclusive power of power of legislation, in respect to the personal rights laHonf"'^" and civil state and condition of its citizens, and in respect to all real and personal property situated within its terri- tory, whether belonging to citizens or aliens. But as it often happens that an individual possesses real property in a State other than that of his domicile, or that contracts are entered into and testaments executed by him in a country different from either, or that he is interested in successions ah intestato, in such third country ; it may happen that he is, at the same time, subject to two or three sovereign powers — to that of his native country or of his domicile, to that of the place where the property in question is situated, and to that of the place where the contracts have been made or the acts executed. The allegiance to the sovereign power of his native country exists from the birth of the individual, and continues till a change of nationality. In the two other cases he is considered subject to the laws, but only in a limited sense. In the foreign countries, where he possesses real property, he is called a non-resident land owner, (snjetforain;) in those in which the contracts are entered into, a temporary resident, [syjet passager). As, in general, each of these different countries is governed by a distinct legislation, conflicts between their laws often arise ; that is to say, it is frequently a question which system of laws is applicable to the case. The collection of rules for determining the conflicts between the civil and criminal laws of different States, is called private international law, Private in- ... J ... . , . , temationai to distinguish it from public international law, which regulates the relations of States.^ 1 Foelix, Droit International Priv6, § 3. CHAP. II.] CRIMINAL LEGISLATION. 113 The first general principle on this subject results im- § 2. Con- mediately from the fact of the independence of nations, inws. Every nation possesses and exercises exclusive sovereignty and jurisdiction throughout the full extent of its territory. It fol- lows, from this principle, that the laws of every State control, of right, all the real and personal property within its territory, as well as the inhabitants of the territory, whether born there or not, and that they affect and regulate all the acts done, or contracts entered into within its limits. Consequently, " every State possesses the power of regulating the conditions on which the real or personal property, within its territory, may be held or transmitted ; and of determining the state and capacity of all persons therein, as well as the validity of the contracts and other acts which arise there, and the rights and obligations which result from them ; and, finally, of pre- scribing the conditions on which suits at law may be commenced and carried on within its territory." ^ The second general principle is, " that no State can, by its laws, directly affect, bind, or regulate property beyond its own territory, or control persons who do not reside within it, whether they be native-born subjects or not This is a consequence of the first general principle ; a different system, which would recognize in each State the power of regulating persons or things beyond its territory, would exclude the equality of rights among different States, and the exclusive sovereignty which belongs to each of them." 2 From the two principles, which have been stated, it follows that all the effect, which foreign laws can have in the terri- tory of a State, depends absolutely on the express or tacit con- sent of that State. A State is not obliged to affow the applica- tion of foreign laws within its territory, but may absolutely refuse to give any effect to them. It may pronounce this pro- hibition with regard to some of them only, and permit others to be operative, in whole or in part. If the legislation of the State is positive either way, the tribunals must necessarily conform to it. In the event only of the law being silent, the courts may judge, in the particular cases, how far to follow the foreign laws, and to apply their provisions. The express consent of a State, ^ Fcelix, Droit International Priv^, § 9. 2 ij. § 10. 10* 1 14 RIGHTS OF CIVIL AND [PART II. to the application of foreign laws within its territory, is given by acts passed by its legislative authority, or by treaties concluded with other States. Its tacit consent is manifested by the deci- sions of its judicial and administrative authorities, as well as by the writings of its publicists. There is no obligation, recognized by legislators, public author- ities, and publicists, to regard foreign laws ; but their application is admitted, only from considerations of utility and the mutual con- venience of States — ex comilate, oh reciprocam idilitatem. The public good and the general interests of nations have caused to be accorded, in every State, an operation more or less extended to foreign laws. Every nation has found its advantage in this course. The subjects of every State have various relations with those of other States ; they are interested in the business transacted and in the property situate abroad. Thence flows the necessity, or at least utility, for every State, in the proper interest of its sub- jects, to accord certain effects to foreign laws, and to acknow- ledge the validity of acts done in foreign countries, in order that its subjects may find in the same countries a reciprocal protec- tion for their interests. There is thus formed a tacit convention among nations for the application of foreign laws, founded upon reciprocal wants. This understanding is not the same every- where. Some States have adopted the principle of complete reci- procity, by treating foreigners in the same manner as their subjects are treated in the country to which they belong ; other States regard certain rights to be so absolutely inherent in the quality of citizens as to exclude foreigners from them ; or they attach such an importance to some of their institutions, that they refuse the application of every foreign law incompatible with the spirit of those institutions. But, in modern times, all States have adopted, as a principle, the application within their territories of foreign laws ; subject, however, to the restrictions which the rights of sovereignty and the interests of their own subjects require. This is the doctrine professed by all the publicists who have written on the subject. "Above all things," says President Bohier, " we must remember that, though the strict rule would authorize us to confine the opera- tion of laws within their own territorial limits, their application has, nevertheless, been extended, from considerations of public utility, and oftentimes even from a kind of necessity. But, when neigh- CHAP. II.] CRIMINAL LEGISLATION. 115 boring nations have permitted this extension, they are not to be deemed to have subjected themselves to a foreign statute ; but to have allowed it, only because they have found in it their own inte- rest by having, in similar cases, the same advantages for their own laws among their neighbors. This effect given to foreign laws is founded on a kind of comity of the law of nations ; by which different peoples have tacitly agreed that they shall apply, when- ever it is required by equity and common utility, provided they do not contravene any prohibitory enactment." ^ Huberus, one of the earliest and best writers on this subject, lays down the following general maxims, as adequate to solve all the intricate questions which may arise respecting it : — 1. The laws of every State have force v^7ithin the limits of that State, and bind all its subjects. 2. All persons within the limits of a State are considered as subjects, whether their residence is permanent or temporary. 3. By the comity of nations, whatever laws are carried into execution within the limits of any State, are considered as hav- ing the same effect everywhere, so far as they do not occasion a prejudice to the rights of other States and their citizens. From these maxims, Huberus deduces the following general corollary, as applicable to the determination of all questions aris- ing out of the conflict of the laws of different States, in respect to private rights of persons and property. All transactions in a court of justice, or out of court, whether testamentary or other conveyances, which are regularly done or executed according to the law of any particular place, are valid, even where a different law prevails, and where, had they been so transacted, they would not have been valid. ^ On the other hand, transactions and instruments which are done or executed con- trary to the laws of a country, as they are void at first, never can be valid ; and this applies not only to those who perma- nently reside in the place where the transaction or instrument is done or executed, but to those who reside there only tempora- rily ; with this exception only, that if another State, or its citi- zens, would be affected by any peculiar inconvenience of an important nature, by giving this effect to acts performed in another country, that State is not bound to give effect to those 1 Bohier, Observations sur la coutume de Boiirgogne, cli. 23, §§ 62, 63, p. -157. 116 RIGHTS OP CIVIL AND [PART II. proceedings, or to consider them as valid within its jurisdic- . tion.^ (a) §3. Lex Thus, real property is considered as not depending sUkJ*^^ altogether upon the will of private individuals, but as having certain qualities impressed upon it by the laws of that country where it is situated, and which qualities remain inde- lible, whatever the laws of another State, or the private disposi- tions of its citizens, may provide to the contrary. That State, where this real property is situated, cannot suffer its own laws in this respect to be changed by these dispositions, without great confusion and prejudice to its own interests. Hence it follows, that the law of a place where real property is situated governs exclusively as to the tenure, the title, and the descent of such property.2 This rule is applied, by the international jurisprudence of the United States and Great Britain, to the forms of conveyance of real property, both as between different parts of the same con- • Huberus, Prjclect. torn. ii. lib. i. tit. 3, de Conflictu Legum. (a) {^Commissions Rojatoires, by -wbicb testimony is obtained for the courts of one country, through the instrumentality of foreign tribunals, are very usual in the different States of Europe. It is only the English and American judges that do not resort to them. In the case of proceedings in the courts of those countries, requiring proof from abroad, a commission to take the testimony is addressed to one or more individuals, in the place where the testimony is to be obtained, authorizing them to examine the witnesses on oath, on interrogatories sent to them. This examination is, however, necessarily voluntary on the part of the witnesses ; as is also the acceptance of the duties of the commission, by the per- sons named in it. Moreover, the magistrates of the place may object to the execution of the commission, as an infringement on the exclusive judicial power which belongs to every State, throughout the whole extent of its territory. Se-e Foelix, Droit International Prive, § 185.] 2 " Fundamentum universe hujus doctrinre diximus esse, et tenemus, subjec- tionem hominum infra leges cujusque territoril, quamdiu illlc agunt, qu£e facit ut actus ab initio validus aut nuUus, alibi quoque valere aut non valere non nequeat. Sed ha3C ratio non convenit rebus immobllibus, quando illas spectantur, non ut dependentes h libera, dispositione cujusque patris-familias, verum quatenus certse notse lege cujusque reipublica3 ubi sitaa sunt, illis impressfe reperiuntur ; hee notje manent indelebiles in ista republica, quidquid aliarum civltatum leges, aut priva- torum dispositiones, secus aut contra statuant ; nee enim sine mao^na confusione prejudicioquc reipublicc ubi sita? sunt res soli, leges de illis lata?, dispositionibus istis mutari possunt." Huberus, liv. i. tit. 3, de Conflictu Leg. § 15. CHAP. II.] CRIMINAL LEGISLATION. Ill federation or empire, and with respect to foreign countries. Hence it is that a deed or will of real property, executed in a foreign country, or in another State of the Union, must be exe- cuted with the formalities required by the laws of that State where the land lies.^ But this application of the rule is peculiar to American and British law. According to the international jurisprudence recog- nized among the different nations of the European continent, a deed or will, executed according to the law of the place where it is made, is valid; not only as to personal, but as to real property, wherever situated ; provided the property is allowed by the lex loci rei sitcB to be alienated by deed or will ; and those cases excepted, where that law prescribes, as to instru- ments for the transfer of real property, particular forms, which can only be observed in the place where it is situated, such as the registry of a deed or the probate of a will.^ The municipal laws of all European countries for- , ^ jy^^^^ merly prohibited aliens from holding real property within d'aubame. the territory of the State. During the prevalence of the feudal system, the acquisition of property in land involved the notion of allegiance to the prince within whose dominions it lay, which might be inconsistent with that which the proprietor owed to his native sovereign. It was also during the same rude ages that the jus albinag-ii or droit d'aubaine was established ; by which all the property of a deceased foreigner (movable and immovable,) was confiscated to the use of the State, to the exclusion of his heirs, whether claiming ab intestato, or under a will of the dece- ^ Wheaton's Rep. vol. iii. p. 212. — Robinson v. Campbell. Cranch's Rep. vol. vii. p. 115. United States v. Crosby. 2 Fcelix, Droit International Prive, § 52. " Hinc Frisius babens agros et demos in provinciu Groningensi, non potest de illis testari, quia lege prohibitum est ibi de bonis immobilibus testari, non valente jure Frisico adficere bona, quaa partes alieni territoril integrantes constituunt. Sed an hoc non obstat ei, quod antea diximus, si factum sit testamentum jure loci validum, id eflectuni habere etiam in bonis alibi sitis, ubi de illis testari licet ? Non obstat ; quia legum diversitas in ilia specie non afficit res soli, neque de illis loquitur, sed ordinat actum testandi ; quo recte celebrate, lex Rcipublicaj non vetat ilium actum valere in immobilibus, quatenus nuUus character illis ipsis a lege loci impressus la?ditur aut imminuitur." Huberus, ubi supra. 118 RIGHTS OF CIVIL AND [ PART II. deiitJ In the progress of civilization, this barbarous and inhos- pitable usage has been, by degrees, almost entirely abolished. This improvement has been accomplished either by municipal regulations, or by international compacts founded upon the basis of reciprocity. Previous to the French Revolution of 1789, the droit (Vmihaine had been either abolished or modified, by treaties between France and other States ; and it was entirely abrogated by a decree of the Constituent Assembly, in 1791, with respect to all nations, without exception and without regard to reciprocity. This gratuitous concession was retracted, and the subject placed on its original footing of reciprocity by the Code-Napoleon, in 1803 ; but this part of the Civil Code was again repealed, by the Ordinance of the 14th July, 1819, admitting foreigners to the right of possessing both real and personal property in France, and of taking by succession ab iniestato, or by will, in the same manner with native subjects.^ The analogous usage of the droit de detraction, or droit de retraite, (jus detractus) by which a tax was levied upon the removal from one State to another of property acquired by suc- cession or testamentary disposition, has also been reciprocally abolished in most civilized countries. The stipulations contained in the treaties of 1778 and 1801, between the United States and France, for the mutual abolition of the droit d^cubaine and the droit de detraction between the two countries, have expired with those treaties ; and the provision in the treaty of 1794, between the United States and Great Britain, by which the citizens and subjects of the two countries, who then held lands within their respective territories, were to continue to hold them according to the nature and tenure of their respective estates and titles therein, was limited to titles existing at the signature of the treaty, and is rapidly becoming obsolete by the 1 Du Cange (Gloss. Med. ^vi, voce AlUnagium et Alhani) derives the term from advence. Other etymologists derive it from alibi nattis. During the Mid- dle Age, the Scots were called Alhani in France, in common with all other aliens ; and as the Gothic term Albanach is even now applied by the Highlanders of Scotland to their race, it may have been transferred by the continental nations to all ibreigners. 2 Rotteck et Welcker, Staats-Lexicon, art. GastrecTit, Band. 6, § 362. Vattel, liv. ii. ch. viii. §§ 112-114. Kluber, Droit des Gens, Ft. II. tit. 1, ch. ii. §§ 32, 33. Von Mayer, Corp. Jur. Confsed. Germanicse, torn. ii. p. 17. Merlin, Repertoire, tit. Aubaine, CHAP. II.] CRIMINAL LEGISLATION. 119 lapse of time.i But by the stipulations contained in a great number of subsisting treaties, between the United States and various powers of Europe and America, it is provided, that " where on the death of any person holding real estate within the territories of the one party, such real estate would, by the laws of the land, descend on a citizen or subject of the other, were he not disqualified by alienage, such citizen or subject shall be allowed a reasonable time to sell the same, and to withdraw the proceeds without molestation, and exempt from all duties of detraction on the part of the government of the respective States." 2 As to personal property, the lex domicilii of its owner , ^ ^^^ prevails over the law of the country where such pro- 'domicilii. 1 Kent's Comm. on Am. Law, vol. ii. pp. 67-69. 5th edit. 2 Treaty of 1828, between the U. S. and Prussia, art. 14. Elliot's Am. Diplom. Code, vol. i. p. 388. [See also, for the same or similar provisions, the Convention of the United States with the Hanseatic Republics, of 1827, art. 7, U. S. Stat, at Large, vol. 8, p. 370; with Austria, of 1829, art. 11, id. p. 400; also the convention with Aus- tria, 1848, art. 11, id. vol. 9, p. 445 ; with Brazil, of 1828, art. 11, id. vol. 8, p. 392 ; with Mexico, of 1831, art. 13, id. vol 8, p. 414 ; with Russia, of 1832, art. 10, id. vol. 8, p. 448 ; with the Two Sicilies, of 1845, art. 6, id. vol. 9, p. 836 ; with Chili, of 1832, art. 9, vol. 8, p. 435 ; with Venezuela, of 1836, art. 2, id. vol. 8, p. 470 ; with Peru-Bolivia, of 1836, art. 8, id. vol. 8, p. 489 ; with Sardinia, of 1838, art. IS, id. vol. 8, p. 520; withHanover, of 1840, (concluded by IMi-.Wheaton,) art. 7,id. vol. 8, p. 55G ; and the Convention of Hanover, of 1846, (concluded by ^Mr. Mann,) art. 10, vol. 9, p. 865. This last convention contains an article, by which its advantages may be extended to other States of the Germanic Confederation, provided they confer similar favors upon the United States to those accorded by the Kingdom of Hanover. Under this provision, Oldenburg acceded, on the 10th of March, 1847, id. vol. ix. p. 868, and Mecklenberg-Schwerin, on 9th December, 1847, id. vol. ix. p. 910. See also treaty with Ecuador of 1839, art. 12, id. vol. 8, p. 538; the conventions with Wurtemberg of 1844, id. vol. 8. p. 588; of Hesse Cassell of 1844, id. vol. 9, p. 818 ; of Saxony of 1845, id. vol. 9, p. 830 ; of Nassau of 1846, id. vol. 9, p. 849 ; of Bavaria of 1845, id. vol. 9, p. 827. The five last conventions were concluded at Berlin, by Mr. Wheaton ; each of them is entitled " A Conven- tion for the Mutual AboUtion of the Droit d'Aubaine and taxes on Emigration," to which subjects they exclusively relate. The treaty with France, of 23d February, 1853, art. 7, vide infra, contains a provision, authorizing Frenchmen in all the States of the Union, whose existing laws permit it, to hold personal and real pro- perty by the same tenure and in the same manner as citizens of the United States, and an engagement of the President to recommend to the other States the pas- sage of laws necessary for that purpose. France accords to American citizens the same privileges within her territory, with the reservation of the ulterior right of establishing reciprocity.] 120 EIGHTS OF CIVIL AND [PART II. perty is situated, so far as respects the rule of inheritance : — Mohilia ossibiis inhcerent, personam sequuntur. Thus the law of the place, where the owner of personal property was domiciled at the time of his decease, governs the succession ah intestato as to his personal effects wherever they may be situated.' Yet it had once been doubted, how far a British subject could, by changing his native domicile for a foreign domicile without the British empire, change the rule of succession to his personal property in Great Britain ; though it was admitted that a change of domicile, within the empire, as from England to Scotland, would have that effect.^ But these doubts have been overruled in a more recent decision, by the Court of Delegates in England establishing the law, that the actual foreign domicile of a British subject is exclusively to govern, in respect to his testamentary disposition of personal property, as it would in the case of a mere foreigner.^ So also the law of a place where any instrument, relating to personal property, is executed, by a party domiciled in that place, governs, as to the external form, the interpretation, and the effect of the instrument : Locus regit actum. Thus a testament of personal property, if executed according to the formalities re- quired by the law of the place where it is made, and where the party making it was domiciled at the time of its execution, is valid in every other country, and is to be interpreted and given effect to according to the lex loci. This principle, laid down by all the text-writers, was recently recognized in England in a case where a native of Scotland, domiciled in India, but who possessed heritable bonds in Scot- land, as well as personal property there, and also in India, having executed a will in India, ineffectual to convey Scottish heritage ; and a question having arisen whether his heir at law (who 1 Huberus, Pra3lect., torn. ii. lib. i. tit. 3, dc Conflict. Leg. §§ 14, 15. Bynker- shoek, Qiitest. Jur. Pub. lib. i. cap. IG. See also an opinion given by Grotius as counsel in 1613, Henry's Foreign Law, App'x, p. 196. Merlin, Repertoire, tit. Loi, § 6, No. 3. Foslix, Droit International Prive, § 37. 2 Per Sir J. Nicholl, in Curling v. Thornton, Addams' Eccles. Rep. vol. ii. p. 17. ^ Stanley v. Bernes, Haggard. Eoclcs. Ivcp. vol. iii. pp. 3D3-465. Moore v. Davell, vol. iv. pp. 346, 354. CHAP. II.] CRIMINAL LEGISLATION. 121 claimed the heritable bonds as heir) was also entitled to a 'share of the movable property as legatee under the will : It was held by Lord Chancellor Brougham, in delivering the judgment of the House of Lords affirming that of the court below, that the con- struction of the will, and the legal consequences of that construc- tion, must be determined by the law of the land where it was made, and where the testator had his domicile, that is to say, by the law of England prevailing in that country ; and this, although the will was made the subject of judicial inquiry in the tribunals of Scotland ; for these courts also are bound to decide according to the law of the place where the will was made.^ A The sovereign power of municipal legislation also r g p^j. extends to the regulation of the personal rights of the sonai status. citizens of the State, and to every thing affecting their civil state and condition. It extends (with certain exceptions) to the supreme police over all persons within the territory, whether citizens or not, and to all criminal offences committed by them within the same.^ Some of these exceptions arise from the positive law of nations, others are the effect of special compact. There are also certain cases where the municipal laws of the State, civil and criminal, operate beyond its territorial jurisdic- tion. These are, I. Laws relating to the state and capacity of persons. Laws re- in general, the laws of the State, applicable to the Se\nd*' civil condition and personal capacity of its citizens, capacity of 1^ r J 1 persons may operate upon them even when resident in a foreign operate ex- ' ^ tra-territori- country. aUy. Such are those universal personal qualities which take effect either from birth, such as citizenship, legitimacy, and illegi- timacy; at a fixed time after birth, as minority and majority ; or at an indeterminate time after birth, as idiocy and lunacy, bank- 1 Trotter v. Trotter, Wilson and Shaw's Rep. vol; ili, pp. 407-414. 2 " Leges cujusque imperii vim habent intra terminos ejusdem reipublicte. omnesque ei subjectos obligant, nee ultra. Pro subjectis imperio habendi sunt omnes, qui intra terminos ejusdem reperiuntur, sive in perpetuum, sivc ad tempus ibi commorentur." (Huberus, torn. ii. liv. i. tit. 3, de Conflict. Leg. § 2.) 11 122 RIGHTS OP CIVIL AND [PART II. ruptcy, marriage, and divorce, ascertained by the judgment of a competent tribunal. The laws of the State affecting all these personal qualities of its subjects travel with them wherever they go, and attach to them in whatever country they are resident.^ This general rule is, however, subject to the following excep- tions : Natural- ^' "^^ ^^^ right of every independent sovereign State ization. to naturalize foreigners and to confer upon them the privileges of their acquired domicile, (a) 1 Pardessus, Droit Commercial, Pt. YI. tit. 7, ch. 2, § 1, Foelix, Droit Inter- national Prive, liv. i. tit. 1, § 31. " Qualitates personales certo loco alicui jure impressas, ubique circumferri et personam comitari, cum hoc effectu, ut ubivis locorum eo jure, quo tales personas alibi gaudent vel subjecti sunt, fruantur et sub- jiciantur." Huberus, torn. ii. 1. i. tifc. 3, de Conflict, Leg. § 12. (n) [Distinct from the implied national character, arising from domicile, and which may exist for commercial purposes without a person ceasing to be bound by his allegiance to the country of his birth or adoption, all the countries of Christendom, with more or less restrictions, accord the rights of naturalization to foreigners. England was the only country where an act of the legislature was necessary in each particular case. There, even in acts of Parliament, the Stat- 1 Geo. 1, c. 4, required the insertion of a clause, excluding the party from being a privy counsellor, sitting in either house of Parliament, or holding any civil or military office ; but since 1844, (7 and 8 Vict. c. 66,) that provision is repealed, and aliens may now be naturalized, by presenting a petition to one of the prin- cipal Secretaries of State ; and it is not necessary to go to Parliament, except for the purpose of obtaining the political privileges still inhibited to naturalized aliens by the general law, but to the granting of which, by a special act, there is no longer any impediment. British Statutes at Large, 7 and 8 Vict. p. 392. With regard to expatriation, however, there is not the same accordance of views in the laws of different countries. The doctrine of the publicists is, that whenever a child attains his majority, according to the law of his domicile of origin, he becomes free to change his nationality, and to choose another domicile ; and even in the case of the subject of a country, England for example, which refuses the liberty of expa- triation, the original tie is preserved only in the interest of the nation to which the individual belonged, and without affecting, with reference to his adopted country, the validity of the naturalization acquired there. Foelix, Droit Interna- tional Prive, § 22. These principles have been recently elucidated in two cases, which commanded the serious consideration of the American government. In one of them it felt bound to recognize the obligations of foreign nationality, voluntarily assumed by one w|io had been a native born citizen, and not to interpose, on his behalf, the claims of American citizenship, to protect him against the consequences of acts committed against the country of his. adoption. In the other, it protected, under CHAP. II.] CRIMINAL LEGISLATION. 123 Even supposing a natural-born subject of one country cannot throw off his primitive allegiance, so as to cease to be responsible the American flag, when arrested In a country (which was not his domicile of origin) by the functionaries of the sovereign that had expatriated him, a foreigner who, by circumstances, had ceased to owe allegiance to any other country, who had obtained a domicile in the United States, and who had done every thing which our laws permitted to acquire the rights of American citizenship. The case of John S. Thrasher Is thus presented in a report prepared in December, 1851, by Mr. Webster, Secretary of State, in answer to a resolution of the House of Representatives : — " There is no doubt that John S. Thrasher Is a citizen of the United States by birth, nor is there any doubt that he has resided In the Island of Cuba for a con- siderable number of years, engaged in business transactions, sometimes as a mer- chant, and sometimes as the conductor of a newspaper press ; although the pre- cise period and duration of such residence are not known. " In the letter from the Governor of Cuba to her Catholic Majesty's Minister in the United States, It is stated that he has been not only a resident In Havana for a considerable time, but domiciled there by regular proceedings, and that he has in solemn form sworn allegiance to the Spanish crown. " There is no evidence in the possession of the government to show what was his purpose with regard to his returning to his native country, at any fixed or definite time. Other members of his family are unde'i'stood to be, like himself, residents In Cuba — his father having gone to that Island some years ago. "It appears that soon after the failure and breaking up of the late expedition of Narclso Lopez, in the invasion of Cuba by him and the troops under his com- mand, Mr. Thrasher was arrested and tried for high treason or conspiracy against the crown of Spain ; condemned to eight years imprisonment to hard labor, and sent to Spain in execution of that sentence. W' The first general question then. Is, as to his right to exemption from Spanish law and Spanish authority, on the ground of his being a native-born citizen of the United States. " The general rule of the public law is, that every person of full age has a right to change his domicile ; and It follows, that when he removes to another place, with the Intention to make that place his permanent residence, or his residence for an Indefinite period, it becomes Instantly his place of domicile ; and this is so, notwithstanding he may entertain a floating Intention of returning to his original residence or citizenship at some future period. " The Supreme Court of the United States has decided, ' that a person who removes to a foreign country, settles himself there, and engages in the trade of the country, furnishes, by these acts, such evidences of an Intention permanently to reside in that country, as to stamp him with Its national character ; ' and this, undoubtedly, is In full accordance with the sentiments of the most eminent writers, as well as with those of other high judicial tribunals on the subject. No government has carried this general presumption farther than that of the United 124 RIGHTS OF CIVIL AND [PART II. for criminal acts against his native country, it has been deter- mined, both in Great Britain and the United States, that he States, since it is well known that hundreds of thousands of persons are now liv- ing in this country who have not been naturalized according to the provisions of law, nor sworn any allegiance to this government, nor been domiciled among us by any regular course of proceedings. What degree of alarm would it not give to this vastly numerous class of men, actually living among us as inhabitants of the United States, to learn that, by removing to this country, they had not trans- ferred their allegiance from the governments of which they were originally subjects, to this government ? And, on the other hand, what would be the condition of this country and its government, if the sovereigns of Europe, from whose domin- ions they have emigrated, were supposed to have still a right to interpose to pro- tect such inhabitants against the penalties which might be justly incurred by them, in consequence of their violation of the laws of the United States ? In questions on this subject, the chief point to be considered is the animus manendi, or intention of continued residence ; and this must be decided by reasonable rules and the general principles of evidence. " If it sufficiently appear, that the intention of removing was to make a perma- nent settlement, or a settlement for an indefinite time, the right of domicile is acquired by a residence even of a few days. " It is undoubtedly true, that an American citizen who goes into a foreign coun- try, although he owes local and temporary allegiance to that country, is yet, if he performs no other act changing his condition, entitled to the protection of his own government ; and if, without the violation of any municipal law, he should be treated unjustly, he would have a right to claim that protection, and the interposition of the American government in his favor would be considered as a justifiable inter- position. But his position is completely changed, when, by his own act he has made himself the subject of a foreign power. And a person found residing in a foreign country is presumed to be there animo manendi, or with the purpose of remaining ; and to relieve himself of the character which this presumption fixes upon him, he must show that his residence was only temporary, and accompanied all the while with a fixed and definite intention of returning. If in that country, he engages in trade and business, he is considered, by the law of nations, as a merchant of that country ; nor Is the presumption rebutted by the residence of his wife and family in the country from which he came. This is the doctrine as laid down by the United States courts. And It has been decided that ' a Spanish merchant who came to the United States, and continued to reside here and carry on trade, after the breaking out of war between Spain and Great Britain, is to be considered an American merchant, although the trade could be lawfully carried on by a Spanish subject only.' But the necessity of any presumption in Mr. Thrasher's case is entirely removed, If, in fact, he actually took out letters of domiciliation, In order to enable him to transact business such as a Spanish sub- ject or a domiciliated foreigner can alone transact, and actually swore allegiance to the Spanish crown " But, Independently of a residence with intention to continue such residence ; CHAP. II.] CRIMINAL LEGISLATION. 125 may become by residence and naturalization in a foreign State entitled to all the commercial privileges of his acquired domicile independently of any domiciliation ; independently of the taking of any oath of allegiance or of renouncing any former allegiance, it is ■well known that, by the public law, an alien, or a stranger born, for so long a time as he continues -within the dominions of a foreign government, owes obedience to the laws of that govern- ment, and may be punished for treason, or other crimes, as a native-born subject might be, unless his case is varied by some treaty stipulations ; but this duty of obedience to the laws, arising from local and temporary allegiance, ceases, of course, the moment he transfers himself back to his original country. " An American citizen, by birth, owing, of course, a native allegiance to the United States, going abroad and obtaining no residence under a foreign govern- ment, and professing to such government no allegiance, and who should yet com- mit acts of hostility or war against this country, would seem to bring himself within the act of Congress which declares, that if any person or persons, owing allegiance to the United States of America, shall levy war against them, or shall adhere to their enemies, giving them aid and comfort within the United States or elsewhere, he or they shall be adjudged guilty of treason. And the reason is plain, since his allegiance in such a case is original and native, and has not been transferred nor lost in any other local allegiance arising from a residence else- where, but continues to be the primitive tie which binds him to his country. " But, as has been already said, every foreigner-born, residing in a country, owes to that country allegiance, and obedience to its laws so long as he remains in it, as a duty imposed upon him by the mere fact of his residence and the tem- porary protection which he enjoys, and Is as much bound to obey its laws as native subjects or citizens. This is the universal understanding in all civilized States, and nowhere a more established doctrine than in this country. " Our citizens who resort to countries where the trial by jury is not known, and who may there be charged with crime, frequently imagine, when the laws of those countries are administered in the forms customary therein, that they are deprived of rights to which they are entitled, and therefore may expect the interference of their own government. But it must be remembered, in all such cases, that they have of their own free will elected a residence out of their native land,, and pre- ferred to live elsewhere and under another government, and in a country in which different laws prevail. " They have chosen to settle themselves in a country where jury trials are not known, where representative government does not exist, where the privilege of the writ of habeas corpus is unheard of, and where judicial proceedings in cnmi- nal cases are brief and summary. Having made this election, they must neces- sarily abide its consequences. No man can carry the tegis of his national Ameri- can liberty into a foreign country, and expect to hold it up for his exemption from the dominion and authority of the laws and the sovereign power of that country, unless he be authorized so to do by the virtue of treaty stipulations. " The definition of crimes — the denouncement of penalties for their commis- sion, and the forms of proceeding by which guilt is to be ascertained, are high pre- 11* 126 RIGHTS OF CIVIL AND [PART II. and citizenship. Thus, by the treaty of 1794, between the United States and Great Britain, the trade to the countries rogatives of sovereignty, and one nation cannot dictate them to another without being liable to the same dictation herself. " The friends of Mr. Thrasher interpose in his behalf the seventh article of the treaty of 1795, which declares that in all cases of offences committed by any citizen or subject of the one party within the jurisdiction of the other, the same shall be prosecuted by order and authority of law only, and according to the regular course of proceeding in such cases. They shall also be allowed to employ such advocates as they may judge proper before the tribunal of the other party, who shall have free access to be present at the proceedings in such causes, and at the taking of all examinations and evidence which may be exhibited in the said trials. " As the public law, however, does in no case impart to foreigners residing in any country privileges which are denied to its own citizens or subjects, except, perhaps, that of leaving the 'country, it may be thought doubtful, whether by the article of the treaty referred to, the parties could have contemplated any more than to place citizens of the United States, within Spanish jurisdiction, on an equality with Spanish subjects, and Spanish subjects in the United States on an equality with our own citizens in criminal proceedings. .... " But however all this may be, the general question still returns, whether this right, secured by treaty, whatever It Is, be not justly limited to such persons as are, at the time, In all respects, American citizens, having never voluntarily changed their domicile, or taken upon themselves a new allegiance. " In this view of the case. It might therefore be asked whether, if Mr. Thrasher had been a native-born subject of her Catholic Majesty, his trial and its result would have been different from what they actually were. " If, indeed, Mr. Thrasher, in his arrest and trial, did not enjoy the benefits which native-born Spanish subjects enjoy in like cases, but was more harshly treated or more severely punished, for the reason that he was a native-born citizen of the United States, It would be a clear case of the violation of treaty obligations, and would demand the Interposition of the government. There exists in this Department no proof of any such extraordinary treatment of Mr. Thrasher." In the instructions to the American Minister at Madrid, the release of Mr. Thrasher is claimed not as a right, but is asked as a favor, in common with that of the Invaders of Cuba, who, taken in open hostility to the authority of Spain, without the sanction of any organized government, were clearly amenable to her laws, without being entitled to any suggestion In their behalf, except such as hu- manity might dictate. Cong. Doc. 32 Cong. 1 Sess. H. Rep. Ex. Doc. No. 10. Martm Koszta's case Is thus presented In Mr. Secretary Marcy's note of 26th of September, 1853, In answer to Mr. Hulsemann's of 29th of August, 1853, de- manding the consent of the President to Koszta's surrender to the Consul-General of Austria, at Smyrna, and the disavowal of the acts of the American agents, with satisfaction for their alleged outrage, as he terms it. CHAP. II.] CRIMINAL LEGISLATION. 127 beyond the Cape of Good Hope, within the limits of the East India Company's charter, was opened to American citizens, " Martin Koszta, by birth a Hungarian, and of course an Austrian subject at that time, took an open and active part in the political movement of 1848-49, designed to detach Hungary from the dominion of the Emperor of Austria. At the close of that disastrous revolutionary movement, Koszta, with many others engaged in the same cause, fled from the Austrian dominions, and took refuge in Turkey. The extradition of these fugitives, Koszta among them, was demanded and pressed with great vigor by Austria, but firmly resisted by the Turkish government. They were, however, confined at Kutahia, but at length released, with the understand- ing or by the express agreement of Austria, that they should leave Turkey and go into foreign parts. Most of them, it is believed, before they obtained their release, indicated the United States as the country of their exile. It is alleged that Koszta left Turkey in company with Kossuth — this is believed to be a mis- take ; and that he engaged never to return — this is regarded as doubtful. To this sentence of banishment — for such is the true character of their expulsion from Turkey — Austria gave her consent ; in truth it was the result of her efibrts to procure their extradition, and was accepted by her as a substitute for it. She had agents or commissioners at Kutahia to attend to their embarkation, and to her the legal consequences of this act are the same as if it had been done directly by herself, and not by the agency of the Ottoman Porte. Koszta came to the United States and selected this country for his future home. " On the 31st of July, 1852, he made a declaration, under oath, before a proper tribunal, of his intention to become a citizen of the United States, and renounce all allegiance to any other state or sovereign. " After remaining here one year and eleven months, he returned, on account, as is alleged, of private business of a temporary character, to Turkey, in an American vessel, claimed the rights of a naturalized American citizen, and offered to place himself under the protection of the United States Consul at Smyrna. The con- sul at first hesitated to recognize and receive him as such ; but afterwards, and some time before his seizure, he, and the American Charge d' Affaires ad interim at Constantinople, did extend protection to him, and furnished him with a tez- kereh — a kind of passport or letter of safe-conduct, usually given by foreign consuls in Turkey to persons to whom they extend protection, as by Turkish laws they have a right to do. It is important to observe that there is no exception taken to his conduct after his return to Turkey, and that Austria has not alleged that he was there for any political object, or for any other purpose than the trans- action of private business. While waiting, as is alleged, for an opportunity to return to the United States, he was seized by a band of lawless men — freely, perhaps harshly, characterized in the despatches as " ruffians," " Greek hire- lings," "robbers" — who had not, nor did they pretend to have, any color of authority emanating from Turkey or Austria, treated with violence and cruelty, and thrown into the sea. Immediately thereafter he was taken up by a boat's crew, lying in wait for him, belonging to the Austrian brig-of-war, the Huszar, forced on board that vessel, and there confined in irons. It is now avowed, as it 128 RIGHTS OF CIVIL AND [PART II. whilst it still continued prohibited to British subjects : it was held by the Court of King's Bench that a natural-born British was then suspected, that these desperadoes were Instigated to this outrage by the Austrian Consul-General at Smyrna ; but it is not pretended that he acted under the civil authority of Turkey, but, on the contrary, it is admitted that, on applica- tion to the Turkish Governor at Smyrna, that magistrate refused to grant the Austrian Consul any authority to arrest Koszta. " The Consul of the United States at Smyrna, as soon as he heard of the seizure of Koszta, and the Charge d' Affaires of the United States ad interim at Constanti- nople, afterwards, interceded with the Turkish authorities, with the Austrian Con- sul-General at Smyrna, and with the commander of the Austrian brig-of-war for his release, on the ground of his American nationality. To support this claim, Koszta's original certificate of having made, under oath, in a court in New York, a declara- tion of intention to become an American citizen, was produced at Smyrna, and an imperfect copy of it placed in the hands of the imperial Austrian Inter- nuncio, at Constantinople. The application to these officers at Smyrna for his liberation, as well as that of Mr. Brown, our Charg6 d' Affaires, to Baron deBruck, the Austrian Minister at Constantinople, was fruitless, and it became notorious at Smyrna that there was a settled design on the part of the Austrian officials to convey him clandestinely to Trieste — a city within the dominion of the Emperor of Austria. Opportunely, the United States sloop-of-war the St. Louis, under the command of Captain Ingraham, arrived in the harbor of Smyrna before this design was executed. The commander of the St. Louis, from the representation of the case made to him, felt It to be his duty, as it unquestionably was, to inquire into the validity of Koszta's claim to American protection. He proceeded with deliberation and prudence, and discovered what he considered just grounds for Inquiring into Koszta's claim to be discharged on account of his American nation- ality. During the pendency of this Inquiry, he received notice of the design to take Koszta clandestinely, befote the question at Issue was settled. Into the dominions of the Emperor of Austria. As there was other evidence of bad faith besides the discovery of a design of evading the inquiry. Captain Ingraham demanded his release, and intimated that he should resort to force if the demand was not complied with by a certain hour. Fortunately, however, no force was used. An arrangement was made by which the prisoner was delivered to the custody of the French consul-general, to be kept by him until the United States and Austria should agree as to the manner of disposing of him." The principles supposed to apply to allegiance and expatriation are thus stated : " There is great diversity and much confusion of opinion as to the nature and obligations of allegiance. By some it Is held to be an Indestructible political tie, and though resulting from the mere accident of birth, yet for ever binding the subject to the sovereign ; by others it is considered a political connection in the nature of a civil contract, dissoluble by mutual consent, but not so at the option of either party. The sounder and more prevalent doctrine, however, is, that the citizen or subject, having faithfully performed the past and present duties result- I CHAP. II.] CRIMINAL LEGISLATION. 129 subject might become a citizen of the United States, and be entitled to all the advantages of trade conceded between his ino- from his relation to the sovereign power, may at any time release himself from the obligation of allegiance, freely quit the land of his birth or adoption, seek through all countries a home, and select anywhere that which ofiers him the fairest prospect of happiness for himself and his posterity. When the sovereign power, wheresoever it may be placed, does not answer the ends for which it is bestowed, when it is not exerted for the general welfare of the people, or has become oppressive to individuals, this right to withdraw rests on as firm a basis, and is similar in principle to the right which legitimates resistance to tyranny. " The conflicting laws on the subject of allegiance are of a municipal character, and have no controlling operation beyond the territorial limits of the countries enacting them. All uncertainty as well as confusion on this subject is avoided by giving due consideration to the fact, that the parties to the question now under consideration are two independent nations, and that neither has the right to appeal to its own municipal laws for the rules to settle the matter in dispute, which occurred within the jurisdiction of a third independent power. " Neither Austrian decrees nor American laws can be properly invoked for aid or direction in this case, but international law furnishes the rules for a correct decision, and by the light from this source shed upon the transaction at Smyrna are its true features to be discerned. " Koszta being beyond the jurisdiction of Austria, her laws were entirely inoperative in his case, unless the Sultan of Turkey has consented to give them vigor within his dominions by treaty stipulations. The law of nations has rules of its own on the subject of allegiance, and disregards, generally, all restrictions imposed upon it by municipal codes. " This is rendered most evident by the proceedings of independent States in relation to extradition. No State can demand from any other, as a matter of right, the surrender of a native-born or naturalized citizen or subject, an emi- grant, or even a fugitive from justice, unless the demand is authorized by express treaty stipulation. International law allows no such claim, though comity may sometimes yield what right withholds. To surrender political offenders (and in this class Austria places Kozsta) is not a duty ; but, on the contrary, compliance with such a demand would be considered a dishonorable subserviency to a foreign power, and an act meriting the repi'obation of mankind. " The Austrian Internuncio at Constantinople, in a conference with Mi-. Marsh, the American Minister Resident, spoke of such a right as derived from ' ancient capitulations by treaty and usage.' It is not shown or alleged that new treaty stipulations, since 1849, have been entered into by Turkey and Austria. The * ancient capitulations' were relied on to support the demand in that year for the surrender of the Hungarian refugees ; they were scrutinized, and no such authority as is now claimed was found in them. " But if Austria really has such authority by treaties as she now claims, it con- fessedly extends only to 'Austrian subjects.' It could not, therefore, be applied to Koszta unless he was such a subject at the time he was seized. If the question 130 RIGHTS OP CIVIL AND [PART II. native country and that foreign country ; and that the circum- stance of his returning to his native country for a mere temporary purpose would not deprive him of those advantages.^ of his nationality is to be settled by international law, the only code which furnishes the rules by which this question is to be determined, there is no good^ reason for adjudging him to have been, when seized at Smyrna, an Austrian sub- ject. But settle this question, as Austria would have it settled, by an appeal to her own civil code, the result would be the same. " By the consent and procurement of the Emperor of Austria, Koszta had been sent into perpetual banishment. The Emperor was a party to the expulsion of the Hungarian refugees from Turkey. The sovereign by such an act deprives his subjects to whom it is applied of all their rights under his government. He places them where he cannot, if he would, afford them protection. By such an act he releases the subjects thus banished from the bond of allegiance. Any other result would make the political connection between the subject and the sovereign a state of unmitigated vassalage, in which all the duties and no rights would be on one side, and all the rights and no duties would be on the other. Koszta must be regarded as having been banished by Austria ; for he was one of the Hungarian refugees whom she procured to be expelled from Turkey In 1851. They were released from confinement at Kutahia, on condition of submitting to perpetual banishment, and she had two persons present at their departure ' who claimed and obtained there an active share In the arrangements.' Koszta could never thereafter be rightfully demanded as an Austrian subject. " The proposition that Koszta at Smyrna was not an 'Austrian subject' can be sustained on another ground. By a decree of the Emperor of Austria of the 24th of March, 1832, Austrian subjects leaving the dominions of the Emperor without permission of the magistrate and a release of Austrian citizenship, and with an intention never to return, become ' unlawful emigrant!?' and lose all their civil and political rights at home." Ency. Amer., Tit. Emigration, 2 Kent's Com, 50, 51. " Koszta had left Austria without permission, and with the obvious and avowed intention never to return ; he was, therefore, within the strict meaning of the impe- rial decree, ' an unlawful emigrant.' He had incurred and paid the penalty of that offence by the loss of all his civil and political rights. If he had property. It had escheated, and he was reduced to a state worse than absolute alienage ; for aliens have, by right, the benefit of the civil laws for protection, in whatever country they may be. Stripped by this imperial decree of civil and political rights, Koszta had, in Austria, no redress for personal wrongs, and abroad he had no claim to protection from the government that would still hold him as a subject. He was, in regard to Austria, an outlaw. What right can a sovereign have to the allegi- ance of a person reduced by him to such a miserable condition ? It seems to have been the very object of the Austrian decree to dissolve the previous political 1 Term Rep. vol. vili. p. 31. Bos. & Pull. Rep. vol. i. p. 43, Wilson v. Mar- ryatt. CHAP. II.] CRIMINAL LEGISLATION. 131 2. The sovereign right of every independent State soverei ereign, his in the following cases : ambassador, 1. The person of a foreign sovereign, going into the fleet, within territory of another State, is, by the general usage and of!anoUier'^ comity of nations, exempt from the ordinary local juris- ^^*®" diction. Representing the power, dignity, and all the sovereign 1 Kent's Commentaries, vol. ii. p. 459, 5tla ed. Fcelix, Droit International Priv6, § 76. (a) [The rule of the Supreme Court of the United States always has been that the laws of a foreign country, designed only for the direction of its own affairs, are not to be noticed by other countries, unless proved as facts ; and that the sanction of an oath is required for their establishment, unless they can be verified by some other authority, that the law respected not less than the oath of an individuah The Court decided that the Code Civil, which is contained in one of the volumes of the " Bulletin des Lois, h. Paris, rimprimerie royale," with the indorse- ment, " Le Garde des Sceaux de France, a la Cour Supreme des Etats Unis," which was sent to the Supreme Court in the course of our national exchanges of laws with France, which Congress had acknowledged, and to reciprocate which they had made an appropriation, was authenticated in such a way as that it might be received by the Court, for the purpose of proving what the law of France was in the case under consideration. Howard's Reports, vol. xiv. p. 429. Ennis et al. V. Smith et al. By the 69th article, § 9, of the French Code of Civil Procedure, in case of pro- ceedings against foreigners, a copy of the writ (exploit) is required to be sent to the department of Foreign Affairs. This is done in order that it may reach the party interested ; and the rule is, for the department to send it to the proper French Diplomatic Agent, to be delivered to the Ministry of Foreign Affairs of the government to which he is accredited. Foelix, Droit International Prive, § 150.] I 144 RIGHTS OF CIVIL AND [PART II. attributes of his own nation, and going into the territory of another State, under the permission which (in time of peace) is implied from the absence of any prohibition, he is not amenable to the civil or criminal jurisdiction of the country where he tem- porarily resides.^ 2. The person of an ambassador, or other public minister, whilst within the territory of the State to which he is delegated, is also exempt from the local jurisdiction. His residence is con- sidered as a continued residence in his own country, and he retains his national character, unmixed with that of the country where he locally resides.^ 3. A foreign army or fleet, marching through, sailing over, or stationed in the territory of another State, with whom the foreign sovereign to whom they belong is in amity, are also, in like manner, exempt from the civil and criminal jurisdiction of the place.3 (a) If there be no express prohibition, the ports of a friendly State are considered as open to the public armed and commissioned ships belonging to another nation, with whom that State is at peace. Such ships are exempt from the jurisdiction of the local tribunals and authorities, whether they enter the ports under the license implied from the absence of any prohibition, or under an express permission stipulated by treaty. But the private vessels • Bynkershoek, de Foro Legat. cap. ili. cap. ix. 2 Vide infra, Pt. III. oh. 1. . 3 " Exceptis tanien ducibus et generallbus, alicujus exercitiis, vel classis mari- timae, vel ductoribus etiam alicujus navis militaris, nam isti in suos milites, gen- tem, et naves, libere jurisdictionem sive voluntarlam sive contentlosam, sive civi- lem, sive crimlnalem, quod occupant tanquam in suo proprlo, exercere possunt," etc. Casaregis, Disc. 136, 174. («) [It is a sufficient answer to a suit brought against a foreign functionary, for seizing a vessel as such functionary, that it -was done by virtue of the powers vested in him by his government. Opinions of Attorneys-General, June, 1794, vol. i. p. 46, Collot's case. And, in a subsequent case, the Attorney-General gave It as his opinion, that " it is as well settled in the United States as in Great Britain, that a person acting under a commission from the sovereign of a foreign nation is not amenable for what he does, in pursuance of his commission, to any judiciary tribunal in the United States." Id. December, 1797, vol. i. p. 81. The case, which arose in 1840, growing out of the arrest, by the State authori- ties of New York, of an Englishman charged with arson and murder, in connec- tion with the capture and destruction, in the preceding year, within the juris- CHAP. II.] CRIMINAL LEGISLATION. 145 of one State, entering the ports of another, are not exempt from the local jurisdiction, unless by express compact, and to the extent provided by such compact. The above principles, respecting the exemption of Decision vessels belonging to a foreign nation from the local "^^ ^'^ p.^- iurisdiction, were asserted by the Supreme Court of the of the Unit- ed States, in United States, in the celebrated case of The Exchange, the case of a vessel which had originally belonged to an American can ship, citizen, but had been seized and confiscated at St. Se- isi^ at St. bastien, in Spain, and converted into a public armed ^y OTdei"of vessel by the Emperor Napoleon, in 1810, and was Napoleon. reclaimed by the original owner, on her arrival in the port of Philadelphia. In delivering the judgment of the Court in this case, Mr. Chief Justice Marshall stated that the jurisdiction of courts of justice was a branch of that possessed by the nation as an inde- pendent sovereign power. The jurisdiction of the nation, within its own territory, is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restric- tion upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restric- tion, and an investment of that sovereignty, to the same extent, in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation, within its own territories, must be traced up to the con- sent of the nation itself. They could flow from no other legiti- mate source. diction of that State, of a steamboat employed by the Canadian insurgents, led to a diplomatic discussion of this subject, as ■well as to the examination, by Mr. AVheaton, of the questions involved, in the principal legal journal of France. The local authorities refused to discharge the accused without trial ; but the fail- ure to convict him, by the verdict of the jury, put a practical termination to the controversy. And to prevent the recurrence of transactions of this nature, by ■which the action of one of the States might jeojiard the foreign relations of the Federal Government, the Act of 29th August, 1842, ■was passed, for bringing such cases under the cognizance of the United States' judges, at the inception of the proceedings. Webster's AVorks, vol. ii. pp. 119, 120. Id. vol. v. pp. 116, 120 125, 133. Id. vol. vi. pp. 254, 266. Rev. Etr. & Fr. tome ix. p. 81 — De la juridiction qui s'est pi6sent6e devant les Cours des Etats Unis, dans raffaire de McLeod. U. S, Statutes at Large, vol. v. p. 539.] 13 146 RIGHTS OF CIVIL AND [PART II. This consent might 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, possess- ing equal rights and equal independence, whose mutual benefit is promoted by intercourse with each other, and by an inter- change of those good offices which humanity dictates and its wants require, all sovereigns have consented to a relaxation in practice, under certain peculiar circumstances, of that absolute and complete jurisdiction, within their respective territories, which sovereignty confers. This consent might, in some instances, be tested by common usage, and by common opinion growing out of that usage. A nation would justly be considered as violating its faith, although that faith might not be expressly plighted, which should sud- denly, and without previous notice, exercise its territorial juris- diction in a manner not consonant to the usages and received obligations of the civilized world. This perfect equality and absolute independence of soverei gns and this common interest impelling them to mutual intercourse, has given rise to a class of cases, in which every sovereign is understood to waive the exercise of a part of that complete exclu- sive territorial jurisdiction, which has been stated to be the attri- bute of every nation. Exemption J, Que of these was the exemption of the person of of the person ^ . . ofthefo- the sovereign from arrest or detention within a foreign reign sove- reign from territory. jurisdiction. If he enters that territory with the knowledge and license of its sovereign, that license, although containing no express stipulation exempting his person from arrest, was univer- sally understood to imply such stipulation. Why had the whole civilized world concurred in this construc- tion ? The answer could not be mistaken. A foreign sovereign was not understood as intending to subject himself to a jurisdic- tion incompatible with his dignity and the dignity of his nation, and it was to avoid this subjection that the license had been obtained. The character of the person to whom it was given and the object for which it was granted, equally required that it should be construed to impart full security to the person who had obtained it. This security, however, need not be expressed • it was implied from the circumstances of the case. I CHAP. II.] CRIMINAL LEGISLATION. 147 Should one sovereign enter the territory of another, without the consent of that other, expressed or implied, it would present a question which did not appear to be perfectly settled, a deci- sion of which was not necessary to any conclusion to which the court might come in the case under consideration. If he did not thereby expose himself to the territorial jurisdiction of the sove- reign 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 had placed in their hands. 2. A second case, standing on the same principles Exemption with the first, was the immunity which all civilized niin°istef^ nations allow to foreign ministers. f™"^ t'le ° local juns- Whatever might be the principle on which this im- diction. munity might be established, whether we consider the minister 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 minister is deputed. This fiction of extra-territoriality could not be erected and sup- ported against the will of the sovereign of the territory. He is supposed to assent to it. This consent is not expressed. It was true that in some coun- tries, and in the United States among others, a special law is enacted for the case. But the law obviously proceeds on the idea of prescribing the punishment of an act previously unlawful, not of granting to a foreign minister a privilege which he would not otherwise possess. The assent of the local sovereign to the very important and extensive exemptions from territorial juris- diction which are admitted to attach to foreign ministers, is implied from the consideration, that, without such exemptions, every sovereign would hazard his own dignity by employing a public minister abroad. His minister would owe temporary and local allegiance to a foreign prince, and 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 per- son whom he has selected for that purpose, cannot intend to sub- ject his minister in any degree to that power; and, therefore, a consent to receive him implies a consent that he shall possess 148 RIGHTS OF CIVIL AND [PART IX. those privileges which his principal intended he should retain, privileges which are essential to the dignity of his sovereign, and to the duties he is bound to perform. In what cases a public minister, by infracting the laws of the country in which he resides, may subject himself to ather punish- ment than will be inflicted by his own sovereign, was 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 privileges 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 im- munities granted on those conditions ; or, according to the true meaning of the original consent, has ceased to be entitled to them. Exemption ^' ^ third casc, in which a sovereign is understood from the ^o ccdc a portion of his territorial jurisdiction, was local juris- ' ■* diction of where he allows the troops of a foreign prince to pass foreign u u- j troops pass- through his dominions. the te'rri-^ In such case, without any express declaration waiv- tory- ing jurisdiction over the army to which this right of passage has been granted, the sovereign who should attempt to exercise it would certainly be considered as violating his faith. By exercising it the purpose for which the free passage was granted would be defeated, and a portion 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 sovereign whose power and whose safety might greatly depend on retain- ing the exclusive command and disposition of this force. The grant of a free passage, therefore, implies a waiver of all juris- diction over the troops during their passage, and permits the foreign general to use that discipline and to inflict those punish- ments which the government of his army may require. But if, without such express permission, an army should be led through the territories of a foreign prince, might the territorial jurisdiction be rightfully exercised over the individuals compos- ing that 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 con- CHAP. II.] CRIMINAL LEGISLATION. 149 sent, instead of being expressed by a particular license, be ex- pressed by a general declaration that foreign troops may pass through a specified tract of country, a distinction between such general permission 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 manner, conferred by such general permission. It was obvious that the passage of an army through a foreign territory would probably be, at all times, inconvenient and injurious, and would often be imminently dangerous to the sovereign through whose dominions it passed. Such a pas- sage would break down some of the most decisive distinctions be- tween 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 those 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 sovereign, without his special permission, may justly be considered as com- mitting an act of hostility; and, even if not opposed by force, acquires no privilege by its irregular and improper conduct. It might, however, well be questioned whether any other than the sovereign of the State is capable of deciding that such military commander is acting without a license. But the rule which is applicable to armies did not Exemption appear to be equally applicable to ships of war entering siiipsTnvar the ports of a friendly power. The injury inseparable *^"|.f""f .*^^® from the march of an army through an inhabited coun- nation, r • 1 1 1 • under an try, and the dangers often, indeed generally, attendmg express or it, do not ensue from admitting a ship of war, without niission.^^'^' special license into a friendly port. A difierent rule, therefore, with respect to this species of military force, had been generally adopted. If, for reasons of State, the ports of a nation generally, or any particular ports be closed against vessels of war generally, or against the vessels of any particular nation, notice is usually given of such determination. 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 13* 150 RIGHTS OF CIVIL AND [PART II. enter such ports, and to remain in them while allowed to remain, under the protection of the government of the place. The treaties between civilized nations, in almost every instance, contain a stipulation to this effect in favor of vessels driven in by stress of ^weather or other urgent necessity. In such cases the sovereign is bound by compact to authorize foreign vessels to enter his ports, and this is a license which he is not at liberty to retract. If there be no treaty applicable to the case, and the sovereign, from motives deemed adequate by himself, permits his ports to remain open to the public ships of foreign friendly powers, the conclusion seems irresistible that they enter by his assent. And if they enter by his assent necessarily implied, no just reason is perceived for distinguishing their case from that of vessels which enter by express assent. The whole reasoning, upon which such exemption had been implied in the case of a sovereign or his minister, applies with full force to the exemption of ships of war in the case in question. " It is impossible to conceive," said Vattel, " that a prince who sends an ambassador, or any other minister, can have any inten- tion of subjecting him to the authority of a foreign power; and this consideration furnishes an additional argument, which com- pletely establishes the independence of a public minister. If it cannot be reasonably presumed that his sovereign means to sub- ject him to the authority of the prince to whom he is sent, the latter, in receiving the minister, consents to admit him on the footing of independence ; and thus there exists between the two princes a tacit convention, which gives a new force to the natural obligation." ' Equally impossible was it to conceive, that a prince who stipu- lates 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 could not be pre- sumed, the sovereign of the port must be considered as having conceded the privilege to the extent in which it must have been understood to be asked, h 1 Yattel, Droit des Gens, liv. 4, ch. 7, § 92. r CHAP. II.] CRIMINAL LEGISLATION". 151 According to the judgment of the Supreme Court of . . . the United States, where, without treaty, the ports of a between nation are open to the public and private ships of a pHvate^ves- friendly power, whose, subjects have also liberty, with- *'^^*' out special license, to enter the country for business or amuse- ment, a clear distinction was to be drawn between the rights accorded to private individuals, or private trading vessels, and those accorded to public armed ships which constitute a part of the military force of the nation. When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately 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 sub- ject the laws to continual infraction, and the government to degradation, if such individuals did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the countr3^ Nor can the foreign sovereign have any motive for wishing such exemption. His subjects, then, passing into fo- reign 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 motive for requir- ing it. The implied license, therefore, under which they enter, can never be construed to grant such exemption. But the situation of a public armed ship was, in all respects, different. 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 preventing those objects from being defeated by the interference of a foreign State. Such interference cannot take place without seriously affecting his power and his dignity. The implied license, 'therefore, under which such vessel enters a friendly port, may reasonably be con- strued, and it seemed to the court ought to be construed, as con- taining an exemption from the jurisdiction of the sovereign, within whose territory 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 had not yet asserted their jurisdiction over 152 RIGHTS OF CIVIL AND [PART II. the public armed ships of a foreign sovereign, entering a port open for their reception. Bynkershoek, a public jurist of great reputation, had indeed maintained that the property of a foreign sovereign was not dis- tinguishable, by any legal exemption, from the property of an ordinary individual; and had quoted several cases in which courts of justice had exercised jurisdiction over cases in which a foreign sovereign was made a party defendant.^ Without indicating any opinion on this question, it might safely be affirmed, that there is a manifest distinction between the private property of a person who happens to be a prince and that military force which supports the sovereign power, and maintains the dignity and 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 juris- diction ; he may be considered as, so far, laying down the prince and assuming the character of a private individual ; but he can- not be presumed to do this 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 was that of the Spanish ships of war, seized in 1668, in Flushing, for a debt due from the King of Spain. In that case the States-General interposed ; and there is reason to believe, from the manner in which the transaction is stated, that either by the interference of government, or by the decision of the tribunal, the vessels were released.^ (a) 1 Bynkershoek, de Foro Legat. cap. iv. 2 " Anno 1668, privati quidam Regis Hispanic! creditores tres ejus regni naves bellicas, quse portum Flissingensem subiverant, arresto detinuerunt, ut inde ipsis satisfieret, Rege Hispanico ad certum diem per epistolam in jus vocato ad judi- ces Flissingenses, sed ad legati Hispanici expostulationes Ordines Generales, 12 Dec. 1668, decreverunt, Zelandise Ordines curare vellent, naves illte continuo demitterentur liberse, admoneretur tamen per literas Hispaniaj Regina, ipsa curare vellet, ut illis creditoribus, in causa justissima, satisfieret, ne repressalias, quas imploraverunt, largiri tenerentur." Bynkershoek, cap. iv. (a) [Several cases are cited by M. Foelix, as decided by the French tribunals, from ■which the conclusion is deduced, that no proceeding can be carried on against property of any kind belonging to a foreign sovereign : — " Aucune pour- suite ne pent etre exercee centre le3 biens de toute espece appartenant ii un gou i CHAP. II.] CRIMINAL LEGISLATIOIT. 153 This case of the Spanish vessels was believed to be the only case furnished by 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 government, in a nation which appears to have asserted the power of proceeding 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 the laws of the United States between public and pri- ;, vate ships, would appear to proceed from the same opinion. Without doubt, the sovereign of the place is capable of de- stroying this implication. He may claim and exercise jurisdic- tion, either by employing force, or by subjecting such vessels to the ordinary tribunals. But until such power be exerted in a manner not to be misunderstood, the sovereign cannot be consi- dered 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 ordi- nary jurisdiction of the judicial tribunals, which give an indivi- dual, whose property has been wrested from him, a right to claim that property in the courts of the country in which it is found, ought not, in the opinion of the Supreme Court, to be so con- strued as to give them jurisdiction in a case in which the sove- reign power had implicitly consented to waive its jurisdiction. The court came to the conclusion, that the vessel in question being a public armed ship, in the service of a foreign sovereign with whom the United States were 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 necessa- rily within it and demeaning herself in a friendly manner, she should be exempt from the jurisdiction of the country .^ vernement Stranger. II a 6t6 jug6 qu' une personne ne peut former en France une saisie-arret sur les foods d'un gouvernement Stranger, et que les tribunaux sont incompetents pour statuer sur la validity de cette saisie-arret." Foelix, Droit International Prive, § 164.] 1 Cranch's Rep. vol. vii. pp. 135-147. The Schooner Exchange v. McFadden and others. 154 RIGHTS OF CIVIL AND [PART II. Law of The maritime jurisprudence of France, in respect to to^threx- foreign private vessels entering the French ports for the ^rivate°ve^ purposes of trade, appears to be inconsistent with the seisfrom principles established in the above judgment of the jurisdiction. Supreme Court of the United States ; or, to speak more correctly, the legislation of France waives, in favor of such vessels, the exercise of the local jurisdiction to a greater extent than appears to be imperatively required by the general princi- ples of international law. As it depends on the option of a nation to annex any conditions it thinks fit to the admission of foreign vessels, public or private, into its ports, so it may extend, to any degree it may think fit, the immunities to which such vessels, entering under an implied license, are entitled by the general law and usage of nations. The law of France, in respect to offences and torts committed on board foreign merchant vessels in French ports, establishes a twofold distinction between : 1. Acts of mere interior discipline of the vessel, or' even crimes and offences committed by a person forming part of its officers and crew, against another person belonging to the same, where the peace of the port is not thereby disturbed. 2. Crimes and offences committed on board the vessel against persons not forming part of its officers and crew, or by any other than a person belonging to the same, or those committed by the officers and crew upon each other, if the peace of the port is thereby disturbed. In respect to acts of the first class, the French tribunals decline taking jurisdiction. The French law declares that the rights of the power, to which the vessel belongs, should be re- spected, and that the local authority should not interfere, unless its aid is demanded. These acts, therefore, remain under the police and jurisdiction of the State to which the vessel belongs. In respect to those of the second class, the local jurisdiction is asserted by those tribunals. It is based on the principle, that the protection accorded to foreign merchantmen in the French ports cannot divest the territorial jurisdiction, so far as the inte- rests of the State are affected ; that a vessel admitted into a port of the State is of right subjected to the police regulations of the place ; and that its crew are amenable to the tribunals of the country for offences committed on board of it against per- CHAP. II.] CRIMINAL LEGISLATION. 155 sons not belonging to the ship, as well as in actions for civil contracts entered into with them ; that the territorial jurisdiction for this class of cases is undeniable. It is on these principles that the French authorities and tribu- nals act, with regard to merchant ships lying within their waters. The grounds upon which the jurisdiction is declined in one class of cases, and asserted in the other, are stated in a decision of the Council of State, pronounced in 1806. This decision arose from a conflict of jurisdiction between the local authorities of France and the American consuls in the French ports, in the two follow- ing cases : The first case was that of the American merchant vessel, The Newton, in the port of Antwerp ; where the American consul and the local authorities both claimed exclusive jurisdiction over an assault committed by one of the seamen belonging to the crew against another, in the vessel's boat. The second was that of another American vessel. The Sally, in the port of Marseilles, where exclusive jurisdiction was claimed both by the local tribu- nals and by the American consul, as to a severe wound inflicted by the mate on one of the seamen, in the alleged exercise of dis- cipline over the crew. The Council of State pronounced against the jurisdiction of the local tribunals and authorities in both cases, and assigned the following reasons for its decision : " Considering that a neutral vessel cannot be indefinitely regarded as a neutral place, and that the protection granted to such vessels in the French ports cannot oust the territorial juris- diction, so far as respects the public interests of the State ; that, consequently, a neutral vessel admitted into the ports of the State is rightfully subject to the laws of the police of that place where she is received ; that her officers and crew are also amena- ble to the tribunals of the country for offences and torts ^ com- mitted by them, even on board the vessel, against other persons than those belonging to the same, as well as for civil contracts made with them ; but that, in respect to offences and torts com- mitted on board the vessel, by one of the officers and crew against another, the rights of the neutral power ought to be ' The term used in the original is dilits, which includes every wrong done to the prejudice of individuals, whether they be dilits publics or dtlits privis. 156 RIGHTS OF CIVIL AND [PART II. respected, as exclusively concerning the internal discipline of the vessel, in which the local authorities ought not to interfere, unless their protection is demanded, or the peace and tranquillity of the port is disturbed ; the Council of State is of opinion that this distinction, indicated in the report of the Grand Judge, Minister of Justice, and conformable to usage, is the only rule proper to be adopted, in respect to this matter ; and applying this doctrine to the two specific cases in which the consuls of the United States have claimed jurisdiction ; considering that one of these cases was that of an assault committed in the boat of the American ship Newton, by one of the crew upon another, and the other case was that of a severe wound inflicted by the mate of the American ship Sally upon one of the seamen, for having made use of the boat without leave ; is of opinion that the jurisdiction claimed by the American consuls ought to be allowed, and the French tribunals prohibited from taking cogni- zance of these cases." ^ (a) Exemption Whatever may be the nature and extent of the ex- private ve°- emption of the public or private vessels of one State 1 Ortolan, Regies Internationales de la Mer, tome i. pp. 293-298. Appendlce, Annexe II. p. 441. (a) [See Rev. Etr. & Fr. N. S. t. ii. p. 206, for a review of Ortolan's work, by Mr. Wheaton, in which this subject is discussed. The Convention of February 23, 1853, Art. 8, between France and the United States, vide infra, adopts, as to acts of interior discipline, the principle of the French law, and submits all such matters to the consuls, to the exclusion of the local authorities. As to whether the local authorities, in a foreign port, have a right to interfere with the condition of persons or things, on board of a merchant vessel, as esta- blished by the laws of the country to which it belongs, and especially whether they can do so when such vessel has been brought into the port by unlawful force, see the correspondence between Mr. Webster and Lord Ashburton, in the case of The Creole. Webster's Works, vol. vi. p. 303, and the note of the Attorney-General, Mr. Legare, to Lord Ashburton, July 20, 1842. Opinions of Attorneys-General, vol. iv. p. 98. Also an article on the same case by Mr. Wheaton. Rev. Etr. et Fran§. torn. ix. p. 345. No adjustment having been made, during the negotiations of 1842, of the cases arising out of the liberation of American slaves, in the Bahama and Bermuda islands, by their respective authorities, from vessels forced in to escape shipwreck, or actually shipwrecked, they have been brought before the joint commission, now sitting in London, under the Convention of February 8, 1853, (United States Treaties, 1853-4, p. 110,) for the settlement of all claims of the subjects of Great Britain on the government of the United States, and of the citizens of the United CHAP. II.] CRIMINAL LEGISLATION. 1-57 from the local jurisdiction in the ports of another, it is seisfrom evident that this exemption, whether express or implied, jurisdiction can never be construed to justify acts of hostility com- extend to mitted by such vessel, her officers, and crew, in viola- •J^'J/^^J^'y ^^'^^^ tion of the law of nations, against the security of the si-^" against " , *^ the securitv State in whose ports she is received, or to exclude the of the state. local tribunals and authorities from resorting to such measures of self-defence as the security of the State may require. This just and salutary principle was asserted by the French Court of Cassation, in 1832, in the case of the private Sardinian steam-vessel, The Carlo Alberto which, after having landed on the southern coast of France the Duchess of Berry and several of her adherents, with the view of exciting civil war in that country, put into a French port in distress. The judgment of the Court, pronounced upon the conclusions of M. Dupin aine, Procureur-General, reversed the decision of the inferior tribunal, releasing the prisoners taken on board the vessel, upon the fol- lowing grounds : 1. That the principle of the law of nations, according to which a foreign vessel, allied or neutral, is considered as forming part of the territory of the nation to which it belongs, and conse- quently is entitled to the privilege of the same inviolability with the territory itself, ceases to protect a vessel which commits acts of hostility in the French territory, inconsistent with its character of ally, or neutral ; as if, fcr example, such vessel be chartered to serve as an instrument of conspiracy against the safety of the State, and after having landed some of the persons concerned in these acts, still continues to hover near the coast, with the rest of the conspirators on board, and at last puts into port under pre- text of distress. 2. That supposing such allegation of distress be founded in fact, it could not serve as a plea to exclude the jurisdiction of the local tribunals, taking cognizance of a charge of high treason States on that of Great Britain, presented to either government for its interposi- tion -with the other, since the treaty of Ghent, of 24th of December, 1814. The American and English commissioners not being able to agree on these claims, they have been referred, according to the provisions of the treaty, to the umpire, whose decision is final. Letter of the Commissioner of the United States, Mr. Upham, September 27, 1854.] 14 158 RIGHTS OF CIVIL AND [PART II. against the persons found on board, after the vessel was com- pelled to put into port by stress of weather.^ The ex- ^^ ^^^^ ^^ ^^^ been determined by the Supreme Court emption of q[ ^|;,g United States, that the exemption of foreign pub- public ships _ _ ^ ' ' or from the jjc ships, coming into the waters of a neutral State, from local juris- ,,,..,.. , , ,. diction does the local jurisdiction, does not extend to their prize ships, to their ° or goods captured by armaments fitted out in its ports, taken'ln^'^* in violation of its neutrality, and of the laws enacted to violation of enforce that neutrality. the neutral- _ _ •' ityofthe Such was their judgment in the case of the Spanish country into ,. ^ .. rr\ • • ^ i r i-ii which they ship Santissima irimdad, Irom which the cargo had ° ' been taken out, on the high- seas, by armed vessels com- missioned by the United Provinces of the Rio de la Plata, and fitted out in the ports of the United States in violation of their neutrality. The tacit permission, in virtue of which the ships of war of a friendly power are exempt from the jurisdiction of the country, cannot be so interpreted as to authorize them to violate the rights of sovereignty of the State, by committing acts of hostility against other nations, with an armament supplied in the ports, where they seek an asylum. In conformity with this prin- ciple, the court ordered restitution of the goods claimed by the Spanish owners, as wrongfully taken from them.^ § 10. Juris- 4. Both the public and private vessels of every nation, the'st^t'c °" ^^^ ^^S^ seas, and out of the territorial limits of any overitspub- other State, are subject to the jurisdiction of the State lie and pri- ' ■* *• vate vessels to which they belong. seas. " Vattel says that the domain of a nation extends to all its just possessions; and by its possessions we are not to understand its territory only, but all the rights (droits) it enjoys. And he also considers the vessels of a nation on the high seas as portions of its territory. Grotius holds that sovereignty may be acquired over a portion of the sea, raiione perso- narum., ut si classis qui maritimus est exercitus, aliquo in loco 1 Sircy, Recueil general de Jurisprudence, tome xxxii. Partie I. p. 578. M. Dupin aine has published his learned and eloquent pleading in this memorable case, in his Collection des Riquisitoires, tome i. p. 44 7. 2 Wheaton's Rep. vol. vii. p. 352. The Santissima Trinidad. CHAP. IL] criminal LEGISLATION. ' 159 maris se habeat. But, as one of his commentators, Rutherforth has observed, though there can be no doubt about the jurisdic- tion of a nation over the persons which compose its fleets when they are out at sea, it does not follow that the nation has juris- diction over any portion of the ocean itself. It is not a perma- nent property which it acquires, but a mere temporary right of occupancy in a place which is common to all mankind, to be suc- cessively used by all as they have occasion.^ This jurisdiction which the nation has over its public and private vessels on the high seas, is exclusive only so far as respects offences against its own municipal laws. Piracy and other offences against the law of nations, being crimes not against any particular State, but against all mankind, may be punished in the competent tribunal of any country where the offender may be found, or into which he may be carried, although committed on board a foreign vessel on the high seas.^ Though these offences may be tried in the competent court of any nation having, by lawful means, the custody of the offenders, yet the right of visitation and search does not exist in time of peace. This right cannot be employed for the purpose of exe- cuting upon foreign vessels and persons on the high seas the pro- hibition of a traffic, which is neither piratical nor contrary to the law of nations, (such, for example, as the slave trade,) unless the visitation and search be expressly permitted by international compact.^ Every State has an incontestable right to the service of all its members in the national defence, but it can give effect to this right only by lawful means. Its right to reclaim the military service of its citizens can be exercised only within its own territory, or in some place not subject to the jurisdiction of any other na- tion. The ocean is such a place, and any State may unquestion- ably there exercise, on board its own vessels, its right of compelling the military or naval services of its subjects. But whether it may » Vattel, liv. i. ch. 19, § 216, liv. ii. ch. 7, ^ 80. Grotius, de Jur. Bel. ac. Pac. lib. ii. cap. iii. § 13. Rutherfortli's Inst. vol. ii. b. 2, ch. 9, §§ 8, 19. 2 Sir L. Jenkin's Works, vol. i. p. 714. 3 Dodson's Adm. Rep. vol. ii. p. 238. The Louis. Wheaton's Rep. vol. x. pp. 122, 123. The Antelope. Wheat. Rep. vol. xi. pp. 39, 40, The Marianna Flora, et vide infra, § 15. 160 RIGHTS OF CIVIL AND [PART II. exercise the same right in respect to the vessels of otlier nations, is a question of more difficulty. In respect to public commissioned vessels belonging to the State, their entire immunity from every species and purpose of search is generally conceded. As to private vessels belonging to the subjects of a foreign nation, the right to search them on the high seas, for deserters and other persons liable to military and naval service, has been uniformly asserted by Great Britain, and as constantly denied by the United States. This litigation between the two nations, who by the identity of their origin and language are the most deeply interested in the question, formed one of the principal objects of the late war between them. It is to be hoped that the sources of this controversy may be dried up by the substitution of a registry of seamen, and a system of voluntary enlistment with limited service, for the odious practice of impressment which has hitherto prevailed in the British navy, and which can never be extended, even to the private ships of a foreign nation, without provoking hostilities on the part of any maritime State capable of resisting such a pretension.^ The subject was incidentally passed in review, though not directly treated of, in the negotiations which terminated in the treaty of Washington, 1842, between the United States and Great Britain. In a letter addressed by the American nego- tiator to the British plenipotentiary on the 8th August, 1842, it was stated that no cause had produced, to so great an extent, and for so long a period, disturbing and irritating influences on the political relations of the United States and England, as the impressment of seamen by the British cruisers from American merchant vessels. From the commencement of the French revolution to the breaking out of the war between the two countries in 1812, hardly a year elapsed without loud complaint and earnest remonstrance. A deep feeling of opposition to the right claimed, and to the practice exercised under it, and not unfrequently exercised without the least regard to what justice and human- ity would have dictated, even if the right itself had been ad- 1 Edinburgh Review, vol. xi. art. 1. Mr. Canning's Letter to Mr. Monroe, September 23, 1807. American State Papers, vol. vi. p. 103. CHAP. IL] CEIMINAL LEGISLATION. 161 mitted, took possession of the public mind of America, and this feeling, it was well known, cooperated with other causes to pro- duce the state of hostilities which ensued. At different periods, both before and since the war, negotia- tions had taken place between the two governments, with the hope of finding some means of quieting these complaints. Sometimes the effectual abolition of the practice had been requested and treated of; at other times, its temporary suspen- sion ; and, at other times, again, the limitation of its exercise and some security against its enormous abuses. A common destiny had attended these efforts : they had all failed. The question stood at that moment where it stood fifty years ago. The nearest approach to a settlement was a conven- tion, proposed in 1803, and which had come to the point of sig- nature, when it was broken off in consequence of the British government insisting that the " Narrow Seas" should be expressly excepted out of the sphere over which the contemplated stipula- tions against impressment should extend. The American min- ister, Mr. King, regarded this exception as quite inadmissible, and chose rather to abandon the negotiation than to acquiesce in the doctrine which it proposed to establish. England asserted the right of impressing British subjects. She asserted this as a legal exercise of the prerogative of the crown ; which prerogative was alleged to be founded on the English law of the perpetual and indissoluble allegiance of the subject, and his obligation, under all circumstances, and for his whole life, to rende? military service to the crown whenever required. This statement, made in the words of eminent British jurists, showed at once that the English claim was far broader than the basis on which it was raised. The law relied on was English law; the obligations insisted on were obligations between the crown of England and its subjects. This law and these obliga- tions, it was admitted, might be such as England chose they should be. But then they must be confined to the parties. Im- pressment of seamen, out of and beyond the English territory, and from on board the ships of other nations, was an interference with the rights of other nations ; it went, therefore, further than English prerogative could legally extend ; and was nothing but an attempt to enforce the peculiar law of England beyond the dominions and jurisdiction of the crown. The claim asserted an 14 • 162 RIGHTS OF CIVIL AND [PART II. extra-territorial authority for the law of British prerogative, and assumed to exercise this extra-territorial authority, to the mani- fest injury of the citizens and subjects of other States, on board their own vessels, on the high seas. Every merchant vessel on those seas was rightfully considered as part of the territory of the country to which it belonged. The entry, therefore, into such vessel, by a belligerent power, was an act of force, and was, primd facie, a wrong, a trespass which could be justified only when done for some purpose allowed to form a sufficient justification by the law of nations. But a British cruiser enters an American vessel in order to take there- from supposed British subjects ; offering no justification therefor under the law of nations, but claiming the right under the law of England respecting the king's prerogative. This could not be de- fended. English soil, English territory, English jurisdiction, was the appropriate sphere for the operation of English law. The ocean was the sphere of the law of nations ; and any merchant vessel on the high seas was, by that law, under the protection of the laws of her own nation, and might claim immunity, unless in cases in which that law allows her to be entered or visited. If this notion of perpetual allegiance, and the consequent power of the prerogative, were the law of the world ; if it formed part of the conventional code of nations, and was usually practised, like the right of visiting neutral ships, for the purpose of discovering and seizing enemy's property ; then im- pressment might be defended as a common right, and there would be no remedy for the evil until the international code should be altered. But this was by no means the case. There was no such principle incorporated into the code of nations. The doctrine stood only as English law, not as international law ; and English law could not be of force beyond English dominion. Whatever duties or relations that law creates be- tween the sovereign and his subjects, could only be enforced within the realm, or within the proper possessions or territory of the sovereign. There might be quite as just a prerogative right to the property of subjects as to their personal services, in an exigency of the State ; but no government thought of controll- ing, by its own laws, the property of its subjects situated abroad; much less did any government think of enteting the territory of another power, for the purpose of seizing such property and CHAP. II.] CRIMINAL LEGISLATION. 163 appropriating it to its own use. As laws, the prerogatives of the crown of England have no obligation on persons or property domiciled or situated abroad. " When, therefore," says an authority not unknown or unre- garded on either side of the Atlantic, " we speak of the right of a State to bind its own native subjects everywhere, we speak only of its own claim and exercise of sovereignty over them, when they return within its own territorial jurisdiction, and not of its right to compel or require obedience to such laws on the part of other nations, within their own territorial sovereignty. On the contrary, every nation has an exclusive right to regulate persons and things within its own territory, according to its sove- reign will and public polity." But impressment was subject to objections of a much wider range. If it could be justified in its application to those who are declared to be its only objects, it still remained true that, in its exercise, it touched the political rights of other governments, and endangered the security of their own native subjects and citizens. The sovereignty of the State was concerned in main- taining its exclusive jurisdiction and possession over its merchant ships on the seas, except so far as the law of nations justifies intrusion upon that possession for special purposes; and all expe- rience had shown that no member of a crew, wherever born, was safe against impressment when a ship was visited. In the calm and quiet which had succeeded the late war, a condition so favorable for dispassionate consideration, England herself had evidently seen the harshness of impressment, even when exercised on seamen in her own merchant service ; and she had adopted measures, calculated if not to renounce the power or to abolish the practice, yet, at least, to supersede its necessity, by other means of manning the royal navy, more com- patible with justice and the rights of individuals, and far more conformable to the principles and sentiments of the age. Under these circumstances, the government of the United States had used the occasion of the British minister's pacific mission to review the whole subject, and to bring it to his notice and to that of his government. It had reflected on the past, pon- dered the condition of the present, and endeavored to anticipate, so far as it might be in its power, the probable future ; and the 164 RIGHTS OF CIVIL AND [PART II. American negotiator communicated to the British minister the following, as the result of those deliberations. The American government, then, was prepared to say that the practice of impressing seamen from American vessels could not hereafter be allowed to take place. That practice was founded on principles which it did not recognize, and was invariably attended by consequences so unjust, so injurious, and of such formidable magnitude, as could not be submitted to. In the early disputes between the two governments, on this so long contested topic, the distinguished person to whose hands w^ere first intrusted the seals of the Department of State declared, that " the simplest rule will be, that the vessel being American shall be evidence that the seamen on board are such." Fifty years' experience, the utter failure of many negotiations, and a careful reconsideration of the whole subject when the pas- sions were laid, and no present interest or emergency existed to bias the judgment, had convinced the American government that this was not only the simplest and best, but the only rule, which could be adopted and observed, consistently with the rights and honor of the United States, and the security of their citizens. That rule announced, therefore, w^hat would hereafter be the principle maintained by their government. In every regu- larly documented American merchant vessel, the crew who navi- gated it would find their protection in the flag which was over them.i (a) 1 Wheaton's Hist. Law of Nations, pp. 737-746. Mr. Webster's Letter to Lord Ashburton, August 8, 1842. (o) [In the negotiations of 1823, the American Minister was authorized, if Great Britain would agree to abolish impressment, to stipulate to exclude all natural-born subjects of the belligerent party not naturalized before the com- mencement of a war, from the public and private naval service of the neutral, and even to extend the exclusion to all those naturalized after the exchange of the ratifications of the treaty. Mr. Adams, Secretary of State, to Mr. Rush, July 28, 1823. Cong. Doc. 18 Cong. 2 Sess., Senate, Confidential, p. 54. Similar instructions had been given to the Commissioners at Ghent, and, with the express view of meeting the case, the 12th section of the Act of 3d March, 1813, (U. S. Stat, at Large, vol. ii. p. 811,) "for the regulation of seamen on board the public and private vessels of the United States," had provided that no person subsequently arriving in the United States should be admitted to CHAP. II.] CRIMINAL LEGISLATION. 165 IV. The municipal laws and institutions of any 411. Con- State may operate beyond its own territory, and within diction" the territory of another State, by special compact between the two States. Such are the treaties by which the consuls and other commer- cial agents of one nation are authorized to exercise, over their own countrymen, a jurisdiction within the territory of the State become a citizen who should not, for the continued term of Jive years next preceding his admission, have resided in the United States, without being, at any time during the said Jive years, out of the territory of the United Stales. Look- ing to the habits of life of seamen, this provision was deemed entirely equi- valent to the total prohibition of their naturalization, and was intended to meet the suggestions made during the negotiations of 1806, between Lord Holland and Lord Aukland and Mr. Monroe and Mr. Pinkney — when it was proposed that it should be made penal for British commanders to impress American citizens from on board of American vessels on the high seas, and for officers of the United States to grant certificates of citizenship to British subjects. American State Papers, vol. vi. p. 323. This arrangement was again brought forward, at the time of the proposed armistice, at the commencement of the war, by Mr. Russell, in a conference with Lord Castlereagh, when the entire exclusion of all subsequently naturalized citizens was offered by us, as a consideration for the discontinuance of the practice of impressment. Id. vol. ix. p. 147. Impressment was also one of the numerous subjects confided to Mr. Gallatin, in 1826. In consequence, however, of what had previously occurred, that eminent diplomatist, though authorized to receive and discuss, was not permitted to make any new proposals ; and he found that, " though Mr. Canning (who was then Premier) was, as Lord Castlereagh had been, ahead of public opinion or national pride, he did not feel himself quite strong enough to encounter those sentiments, and to give new arms to his adversaries ; and notwithstanding his conviction that an agreement, such as he might expect, was extremely desirable, he was not pre- pared, at that time, to make the proposal." Mr. Gallatin to Mr. Clay, Secretary of State, 28th July, 1827. After the departure of Mr. Gallatin, an intimation was given, by Loi-d Dudley, of the disposition of the Ministry, of which the Duke of Wellington had then become the head, to enter into an arrangement on the basis, on which it was understood that the United States were willing to treat. This suggestion of the British Secretary for Foreign Affairs was duly communi- cated to the government, at Washington, though without resulting in any new negotiation. Mr. Lawrence, Charge d' Affaires, to Mr. Clay, April 5, 1828. MS. Despatches. But, though not brought again to the notice of the British govern- ment, the provision of the Act of 1813, which was equivalent to a jiractical pro- hibition to naturalize foreign seamen, remained on our statute-book as a means to conciliate the pretensions of England with the immunity of our flag, till the 26th of June, 1848, when the condition of continuous residence was stricken out of the law. U. S. Stat, at Large, vol. ix. p. 240.] 166 RIGHTS OF CIVIL AND [PART II. where they reside. The nature and extent of this peculiar juris- diction depend upon the stipulations of the treaties between the two States. Among Christian nations it is generally confined to the decision of controversies in civil cases, arising between the merchants, seamen, and other subjects of the State, in foreign countries ; to the registering of wills, contracts, and other instru- ments executed in presence of the consul ; and to the adminis- tration of the estates of their fellow-subjects, deceased within the territorial limits of the consulate. The resident consuls of the Christian powers in Turkey, the Barbary States, and other Mohammedan countries, exercise both civil and criminal juris- diction over their countrymen, to the exclusion of the local magistrates and tribunals. This jurisdiction is ordinarily sub- ject, in civil cases, to an appeal to the superior tribunals of their own country. The criminal jurisdiction is usually limited to the infliction of pecuniary penalties ; and, in offences of a higher grade, the functions of the consul are similar to those of a police magistrate, or jvge cP instruction. He collects the documentary and other proofs, and sends them, together with the prisoner, home to his own country for trial. ^ By the treaty of peace, amity, and commerce, concluded at Wang Hiya, 1844, between the United States and the Chinese Empire, it is stipulated, art. 21, that " citizens of the United States, who may commit any crime in China, shall be subject to be tried and punished only by the consul, or other public func- tionary of the United States thereto authorized, according to the laws of the United States." Art 25. " All questions in regard to rights, whether of property or of person, arising between citizens of the United States in China shall be subject to the jurisdic- tion, and regulated by the authorities, of their own government. And all controversies occurring in China, between citizens of the United States and the subjects of any other government, shall be 1 De Steele, Essai sur les Consuls, sect. vli. §§ 30-40. Pardessus, Droit Com- mercial, Pt. VI. tit. 6, ch. 2, § 2, ch. 4, §§1, 2, 3. Miltitz, Manuel des Consuls, tome ii. Partie 2, pp. 102-135, 70-78, 162-201, 695-779, 853-866. The various treaties between the United States and foreign powers, by which the functions and privileges of consuls are reciprocally regulated, will be found accurately enu- merated and fully analyzed in the above treatise of Baron de Miltitz, tome ii. Part n. pp. 1498-1598. I CHAP. II.] CRIMINAL LEGISLATION. 167 regulated by the treaties existing between the United States and such governments respectively, without interference on the part of China." (a) (a) [In the treaties between the United States and Great Britain, there is no other provision respecting consuls than that contained in the 4th article of the Commercial Convention of 1815, which merely stipulates that it shall be free to each party to appoint consuls, to reside, for the protection of trade, in the domi- nions of the other ; but requires that, before any one acts, he shall be approved and admitted by the government to which he is sent. In case of illegal or improper conduct, the consul is to be punished according to law, if the laws will reach the case, or be sent back ; the offended government assigning to the other the reasons for the same. U. S. Statutes at Large, vol. viii. p. 230. For consuls to engage in commerce, is at variance with the policy of some of the European governments, particularly France and England ; which, in general, accord to their commercial agents fixed salaries, in addition to fees, — the only mode in which, except in special cases, American consuls are compensated. There is, moreover, a provision in several of the treaties which stipulate for consuls tlie_ privileges accorded to those of the most favored nation, that if they shall exercise commerce, they shall be subjected to the same laws and usages to which private individuals are subject in the same place, in respect to their business. • As the Convention of 23d February, 1853, with France, is peculiar, not only for the provision which it makes as to aliens holding real property in the States of the Union, and in extending the consular jurisdiction over the merchant vessels of the respective countries, according to the principles of the French law, but in other particulars, it is here inserted. Article I. The consuls-general, consuls, and vice-consuls, or consular agents of the United States and France shall be reciprocally received and recognized, on the presentation of their commissions, in the form established in their respect- ive counti'ies. The necessary exequatur, for the exercise of their functions, shall be furnished to them without charge ; and, on the exhibition of this exequatur, they shall be admitted at once, and without dIfHeulty, by the territorial authori- ties, federal or state, judicial or executive, of the ports, cities, and places of their residence and district, to the enjoyment of the prerogatives reciprocally granted. The government that furnishes the exequatur reserves the right to withdraw it, on a statement of the reasons for which it has thought proper to do so. Art. II. The consuls-general, consuls, vice-consuls, or consular agents of the United States and France shall enjoy, In the two countries, the privileges usually accorded to their offices ; such as personal immunity, except in the case of crime ; exemption from military bllletlngs, from service in the militia, or the national guard, and other duties of the same nature ; and from all direct and personal taxation, whether federal, state, or municipal. If, however, the said consuls-general, consuls, vice-consuls, or consular agents are citizens of the coun- try in which they i*eslde ; if they are, or become owners of property there, or engage in commerce, they shall be subject to the same taxes and imposts, and, 168 RIGHTS OF CIVIL AND [PART II. § 12. In- Every sovereign State is independent of every other, of thest'ate ^'^ ^^^ exercise of its judicial power. as to its This general position must, of course, be qualified by power. the exceptions to its application, arising out of express with the reservation of the treatment granted to commercial agents, to the same jurisdiction as other citizens of the country, who are owners of property, or mer- chants. Thej^ may place, on the outer door of their offices, or of their dwelling-houses, the arms of their nation, with an inscription in these words : " Consul of the United States," or " Consul of France ; " and they shall be allowed to hoist the flag of their country thereon. They shall never be compelled to appear as witnesses before the courts. When any declaration for judicial purposes, or deposition, is to be received from them, in the administration of justice, they shall be invited, in writing, to appear in court, and, if unable to do so, their testimony shall be requested In writing, or be taken orally at their dwellings. Consular pupils shall enjoy the same personal privileges and immunities as consuls-general, consuls, vice-consuls, or consular agents. In case of death, indisposition, or absence of the latter, the chancellors, secre- taries, and consular pupils attached to their offices, shall be entitled to discharge, ad interim, the duties of their respective posts ; and shall enjoy, whilst thus acting, the prerogatives granted to the incumbents. Art. III. The consular offices and dwellings shall be inviolable. The local authorities shall not invade them under any pretext. In no case shall they exa- mine or seize the papers there deposited. In no case shall those offices or dwell- ings be used as places of asylum. Art. IV. The consuls-general, consuls, vice-consuls, or consular agents of both countries shall have the right to complain to the authorities of the respective governments, whether federal or local, judicial or executive, throughout the extent of their consular district, of any infraction of the treaties or conventions existing between the United States and France, or for the purpose of protecting Informally the rights and Interests of their countrymen, especially In cases of absence. Should there be no diplomatic agent of their nation, they shall be authorized, in case of need, to have recourse to the general or federal govern- ment of the country In which they exercise their functions. Art. V. The respective consuls-general and consuls shall be free to establish, in such parts of their districts as they may see fit, vice-consuls, or consular agents, who may be taken Indiscriminately from among Americans of the United States, Frenchmen, or citizens of other countries. These agents, whose nomina- tion, it is understood, shall be submitted to the approval of the respective govern- ments, shall be ^irovlded with a certificate given to them by the consul by whom they are named, and under whose orders they are to act. Art. VI. The consuls-general, consuls, vice-consuls, or consular agents shall have the right of taking, at their offices or bureaus, at the domicile of the par- CHAP. II.] CKIMINAL LEGISLATION. 169 compact, such as conventions with foreign States, and acts of confederation, by which the State may be united in a league with ties concerned, or on board ship, the declarations of captains, crews, passengers, merchants, or citizens of their country, and of executing there all requisite papers. The respective consuls-general, consuls, vice-consuls, or consular agents shall have the right, also, to receive at their offices or bureaus, conformable to the laws and regulations of their country, all acts of agreement executed between the citizens of their own country and the citizens or inhabitants of the country In •which they reside, and even all such acts between the latter, provided that these acts relate to property situated, or to business to be transacted, in the territory of the nation to which the consul or the agent, before whom they are executed, may belong. Copies of such papers, duly authenticated by the consuls-general, consuls, vice- consuls, or consular agents, and sealed with the official seal of their consulate or consular agency, shall be admitted in courts of justice throughout the United States and France, in like manner as the originals. Art. VII. In all the States of the Union, whose existing laws permit it, so long and to the same extent as the said laws shall remain in force, Frenchmen shall enjoy the right of possessing personal and real property, by the same title and In the same manner as the citizens of the United States. They shall be free to dispose of It as they may please, either gratuitously or for value received, by donation, testament, or otherwise, just as those citizens themselves ; and in no case shall they be subjected to taxes on transfer. Inheritance, or any others different from those paid by the latter, or to taxes which shall not be ecjually imposed. As to the States of the Union by whose existing laws aliens are not permitted to hold real estate, the President engages to recommend to them the passage of such laws as may be necessary, for the purpose of conferring this right. In like manner, but with the reservation of the ulterior right of establishing reciprocity in regard to possession and inheritance, the government of France accords to the citizens of the United States the same rights within its territory, in respect to real and personal property, and to inheritance, as are enjoyed there by its own citizens. Art. VIII. The respective consuls-general, consuls, vice-consuls, or consular agents shall have exclusive charge of the Internal order of the merchant vessels of their nation, and shall alone take cognizance of differences which may arise, either at sea or in port, between the captain, officers, and crew, without excep- tion, particularly in reference to the adjustment of wages and the execution of contracts. The local authorities shall not, on any pretext. Interfere in these differences ; 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 vrriting to the local authority, and supported by an olHcial extract from the register of the ship or list of the crew, and shall be held, during 15 170 RIGHTS OF CIVIL AND [PART II. other States, for some common purpose. By the stipulations of these compacts, it may part with certain portions of its judicial the -whole time of their stay in the port, at 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. Akt. IX. The respective consuls-general, consuls, vice-consuls, or consular atrents, may arrest the officers, sailors, and all other persons making part of the crews of ships of war, or merchant vessels of their nation, who may be guilty or be accused of having deserted said ships and vessels, for the purpose of sending them on board, or back to their country. To that end, the consuls of France in the United States shall apply to the magistrates designated in the Act of Con- gress of May 4, 1826 ; that is to say, indiscriminately to any of the federal, state, or municipal authorities ; and the consuls of the United States in France shall apply to any of the competent authorities, and make a request in writing for the deserters, supporting it by an exhibition of the registers of the vessel and list of the crew, or by other official documents, to show that the men whom they claim belonged to said crew. Upon such request alone, thus supported, and without the exaction of any oath from the consuls, the deserters, not being citizens of the country where the demand is made, either at the time of their shipping or of their arrival in the port, shall be given up to them. All aid and protection shall be furnished them, for the pursuit, seizure, and arrest of the deserters, who shall even be put and kept in the prisons of the country, at the request and at the expense of the consuls, until these agents may find an opportunity of sending them away. If, however, such ojjportunitj- should not present itself within the space of three months, counting from the day of the arrest, the deserters shall be set at liberty, and shall not again be arrested for the same cause. Art. X. The respective consuls-general, consuls, vice-consuls, or consular ao^ents, shall receive the declarations, protests, and reports of all captains of ves- sels of their nation, in reference to injuries experienced at sea ; they shall exa- amine and take note of the stowage ; and when there are no stipulations to the contrary between the owners, freighters, or insurers, they shall be charged with the repairs. If any inhabitants of the country in which the consuls reside, or citizens of a third nation, are interested in the matter, and the parties cannot a^ree, the competent local authority shall decide. Art. XI. All proceedings relative to the salvage of American vessels wrecked upon the coasts of France, and of French vessels wrecked upon the coasts of the United States, shall be respectively directed by the consuls-general, consuls, and vice-consuls of the United States in France, and by the consuls-general, consuls, and vice-consuls of France in the United States, and, until their arrival, by the' respective consular agents, wherever an agency exists. In the places and ports where an agency does not exist, the local authorities, until the arrival of the con- sul In whose district the wreck may have occurred, and who shall be immediately informed of the occurrence, shall take all necessary measures for the protection of persons and the preservation of property. CHAP. IL] criminal LEGISLATION. 171 power, or may modify its exercise with a view to the attainment of the object of the treaty or act of union. The local authorities shall not otherwise interfere than for the maintenance of order, the protection of the interests of the salvors, if they do not belong to the crews that have been wrecked, and to carry into effect the arrangements made for the entry and exportation of the merchandise saved. It is understood that such merchandise shall not be subjected to any custom- house duty, if it is to be reexported, and, if it be entered for consumption, a diminution of such duty shall be allowed, in conformity with the regulations of the respective countries. Art. XII. The respective consuls-general, consuls, vice-consuls, or consular agents, as well as their consular pupils, chancellors, and secretaries, shall enjoy in the two countries all the other privileges, exemptions, and Immunities, which may at any future time be granted to the agents of the same rank of the most favored nation. Art. XIII. The present convention shall remain in force for the space of ten years from the day of the exchange of the ratifications, which shall be made in conformity with the respective constitutions of the two countries, and exchanged at Washington within the period of six months, or sooner. If possible. In case neither party gives notice, twelve months before the expiration of the said period of ten years, of its intention not to renew the convention, it shall remain In force a year longer, and so on from year to year, until the expiration of a year from the day on which one of the parties shall give such notice. Treaties of the United States, 1854, p. 114. Besides the provision In the treaty with France, the United States have treaties with Belgium, Brazil, the Ilanseatic Towns, Central America, Chili, Eucador, Greece, Hanover, Mexico, Peru-Bolivia, Portugal, Prussia, Russia, Sardinia, Spain, Sweden, Venezuela, and Austria, reciprocally authorizing the arrest, in their respective ports, of any sailors who have deserted from the public or private vessels of the other of the contracting parties, and stipulating for the aid of the local authorities for their apprehension. See U. S. Statutes at Large, vols. vIII. and Ix. To give effect to the provision on this subject in the Treaty of 1822, with France, the Act of May 4, 1826, referred to In the recent treaty, was passed, (U. S. Statutes at Large, vol. iv. p. 160). A further act was also passed, March 21, 1829, which applies to all cases of foreign governments having treaties with the United States, stipulating for the restoration of seamen. This law makes It the duty of all courts having jurisdiction to issue warrants for the examination of the persons charged ; and If, on examination, the facts stated are found to be true, such person, not being a citizen of the United States, shall be delivered to the consul, to be sent back to the dominions of his government. Id. p. 360. Our treaty with China, art. 29th, provides for the apprehension and delivery to the consuls, by the local authorities, of all mutineers or deserters from on board of vessels of the United States in China. Id. vol. viii. p. 598. In the Treaty of 1828, with Prussia, art. 10, (U. S. Statutes at Large, vol. viii. p. 382,) there Is a provision, that the consuls, vice-consuls, and conmiercial 172 RIGHTS OF CIVIL AND [PART II. Subject to these exceptions, the judicial power of every State is coextensive with its legislative power. At the same time, it agents, shall have a right, as such, to sit as judges and arbitrators, in such differences as may arise between the captains and crews of the vessels belonging to the nation whose interests are committed to their charge, without the interfer- ence of the local authorities ; unless the conduct of the crews or of the captain should disturb the order or tranquillity of the country, or the consuls should require their assistance. An Act of Congress, passed 8th of August, 1846, for carrying into effect the provisions of this and similar treaties, gives authority to the Circuit and District Courts of the United States, and the commissioners appointed by them, to issue the necessary process to enforce the award, arbitra- tion, or decree of the consul. U. S. Statutes at Large, vol. ix. p. 79. A provi- sion similar to that in the treaty with Prussia is to be found in the 12th art. of the Treaty of 1837, with Greece ; 8th art. of the Treaty of 1832, with Russia; In the 9th art. of the Treaty of 1846, with Hanover; and in the 1st art. of the Treaty of 3d of April, 1852, between the United States and the Hanseatic Towns. See U. S. Stat. vols. vlil. and Ix. before cited, and Treaties of the U. S. 1854, p. 95. The consuls of the Christian States of Europe have, throughout the Levant, for centuries, exercised jurisdiction over their countrymen, as well as over others under their protection, and controlled, to a greater or less degree, the relations of the Franks with the people of the country. The 20th and 21st articles of the Treaty of 1787, with Morocco, provide, that If any of the citizens of the United States, or any persons under their protection, should have disputes with each other, the consul should decide between the parties ; and whenever the consul should require any aid or assistance from the government to enforce his decision, it should be Immediately granted to him. The consul was also to assist at any trial against a citizen of the United States for killing or wounding a Moor, or against a Moor for killing or wounding an American citizen. U. S. Statutes at Lar^e, vol. vlil. p. 103. In the treaties which existed with the former Regency of Algiers, while the consul was to settle any disputes between citizens of the United States, those between subjects of the Regency and the United States were to be decided by the Dey in person ; and between citizens of the United States and other powers having consuls at Algiers, by the respective consuls of the parties. U. S. Statutes, vol. vIII. p. 135. Id. p. 227. Id. p. 247. The treaty with Tunis, of 1797, contains the same provision as the treaty with Morocco ; and It also provides for the presence of the consul, in case of any commercial dispute between Americans and the subjects of the Dey. Id. p. 160. By the Treaty of 1830, with the Ottoman Porte, it Is provided that the consuls and vice-consuls of the United States shall be furnished with berats or Jirmans ; that In disputes and litigations between the subjects of the Porte and citizens of the United States, the parties shall not be heard nor judgment pronounced unless the American Dragoman Is present ; and all cases exceeding 500 piastres are to be submitted to the Sublime Porte. Even Americans who have committed offences are not to be arrested or put in prison by the local authorities ; but they are to CHAP. II.] CRIMINAL LEGISLATION. 173 does not embrace those cases in which the municipal institutions of another nation operate within the territory. Such are the be tried by the minister or consul, and punished according to the oifence, — fol- lowing, in this respect, the usage observed towards other Franks. U. S. Statutes at Large, vol. viii. p. 409. An act was passed August 11, 1848, to carry into effect the provisions of the treaties with China and the Ottoman Porte, by vesting judicial powers in the commissioner and consuls in China and the minister and consuls in Turkey. The laws of the United States are extended over the citizens of the United States in China, and where they are deficient, the common law ; and if neither the common law nor statutes of the United States furnish suitable remedies, the commissioner shall, by decrees and regulations which shall have the force of Jaw, supply the deficiencies, such regulations and decrees to be transmitted to the President, to be laid before Congress. The decision of the consul, who, in cases of intricacy, or in criminal cases of importance, is to be aided in his judgment by one or more citizens of the United States, is subject, in civil cases, beyond a certain amount, to an appeal to the commissioner. The only capital cases are murder, and insurrection or rebellion against the Chinese government, and in all other cases the punishment is fine and imprisonment, with an appeal to the commissioner ; and no person can be convicted of a crime punish- able with death, unless the consul and his associates all concur in opinion, and the commissioner approves of the conviction. The commissioner and the consuls may call on the Chinese authorities to support them in the exercise of the powers confided to them. The provisions of the act, so far as they relate to crimes com- mitted by citizens of the United States, are extended to Turkey, in conformity with the Treaty of 1830. U. S. Statutes at Large, vol. ix. p. 276. The powers and privileges understood to belong to the consuls of Christian powers in the Levant are thus stated : — Les consuls dans le Levant et dans la Barbaric ont eutiere liberty de religion, et ont la permission de tenir des chapelles chez eux et d'admettre leurs compa- triotes a I'exercice de leur culte. Leurs maisons sont des asiles inviolables. On ne pent ni les arreter, ni les juger, mais s'ils abusaient de leur position, ilsseraient renvoy^s h leurs gouvernements. Us ne sont point tenus de comparfiitre person- nellemeut par-devant les tribunaux, ou il suffit qu'ils envoient leurs drogmans. lis peuvent librement sortir du pays quand ils veulent. On leur accorde gra- tuitement une garde de janissaires ou d'autres soldats. Aucune taxe, aucun impot, n'est paye par eux, par leurs employes, ou par leurs domestiques. lis n'ont pas de droits de douane h acquitter pour les effets h, leur usage. Eien ne pent leur ctre confisqu6 ou retenu. lis prennent connaissance des biens de leurs compatriotes d6ced6s sans heritiers sur les lieux. En cas de naufrage, ils presi- dent a toutes les operations de sauvetage et recueillent les objets sauves. Us sont juges naturels de leurs nationaux, sans que les autorites territoriales y inter- viennent, except^ dans le cas de la requisition du consul liii-mcme. En cas de diff6rend, ou bien lorsqu'un crime a 6t6 commis par un individu de leur nation sur un sujet du pays, l'autorit6 locale h laquelle en apparticnt la connaissance, ne 15* 174 RIGHTS OF CIVIL AND [PART II. cases of a foreign sovereign, or his public minister, fleet, or army, coming within the territorial limits of another State, which, as already observed, are, in general, exempt from the operation of the local laws.^ § 13. Ex- I- The judicial power of every independent State, jud'iciaf'^^ then, extends, with the qualifications mentioned, — power over i^ ^q the punishment of all offences against the criminal *^ "-" offences. municipal laws of the State, by whomsoever committed, within the territory.^ 2. To the punishment of all such offences, by whomsoever committed, on board its public and private vessels on the high seas, and on board its public vessels in foreign ports.^ 3. To the punishment of all such offences by its subjects, wheresoever committed. 4. To the punishment of piracy, and other offences against the law of nations, by whomsoever and wheresoever committed.* It is evident that a State cannot punish an offence against its peut, dans la regie, ni proc^der, ni prononcer jugement, sans la participation du consul et la cooperation de son interprete, present k la procedure, pour d6fendre les interets de I'individu de sa nation. lis peuvent recevoir sous leur protection tons les batiments ou les individus etrangers qui la leur demanderont. Si uq individu qui est sous leur protection doit ctre arrete, ils peuvent, en s'en rendant cautions, le reclamer, &c. Mensch, Manuel Pratique du Consul, p. 4. See, also, for the jurisdiction of consuls in the Levant, China, and Muscat, Moreuil, Manuel des Agents Consulaires, pp. 127, 377. This subject was further elucidated during the controversy in reference to Koszta. Vide supra, p. 136, note. The treaty of the United States -with the Sultan of Muscat, 1833, article 9, authorizes the appointment of consuls In the ports of the Sultan where the prin- cipal commerce is carried on, and which consuls shall be the exclusive judges of all disputes or suits wherein American citizens shall be engaged with each other. U. S. Statutes at Large, vol. viii. p. 459. The treaty with Siam, 1833, article 10, stipulates for the privilege of appointing American consuls, provided it Is accorded to any other power except the Portuguese. Id. p. 455. The Treaty of 31st March, 1854, with Japan, contains the following provision : — Article 11. There shall be appointed by the government of the United States consuls or agents, to reside In SImoda, at any time after the expiration of eighteen months from the date of the signing of this treaty, provided that either of the two governments deem such arrangement necessary. Washington Union. 1 Vide supra, § 9, p. 144. 2 Ibid. § 6, p. 121. 3 Ibid. §§ 9, 10, pp. 145, 159. 4 Vide infra, § 15. CHAP. II.] CRIMINAL LEGISLATION. 175 municipal laws, committed within the territory of another State, unless by its own citizens ; nor can it arrest the persons or pro- perty of the supposed offender within that territory ; but it may arrest its own citizens in a place which is not within the jurisdic- tion of any other nation, as the high seas, and punish them for offences committed within such a place, or within the territory of a foreign State. By the Common Law of England, which has been adopted, in this respect, in the United States, criminal offences are consi- dered as altogether local, and are justiciable only by the courts of that country where the offence is committed. But this prin- ciple is peculiar to the jurisprudence of Great Britain and the United States ; and even in these two countries it has been fre- quently disregarded by the positive legislation of each, in the enactment of statutes, under which offences committed by a sub- ject or citizen, within the territorial limits of a foreign State, have been made punishable in the courts of that country to which the party owes allegiance, and whose laws he is bound to obey. There is some contrariety in the opinions of different public jurists on this question ; but the preponderance of their authority is greatly in favor of the jurisdiction of the courts of the offender's country, in such a case, wherever such jurisdiction is expressly con- ferred upon those courts, by the local laws of that country. This doctrine is also fully confirmed by the international usage and constant legislation of the different States of the European continent, by which crimes in general, or certain specified offences against the municipal code, committed by a citizen or subject in a foreign country, are made punishable in the courts of his own.^ Laws of trade and navigation cannot affect foreign. Laws of ers, beyond the territorial limits of the State, but they navigation. are binding upon its citizens, wherever they may be. Thus, offences against the laws of a State, prohibiting or regulating any particular traffic, may be punished by its tribunals, when committed by its citizens, in whatever place ; but if committed by foreigners, such ofiences can only be thus punished when committed within the territory of the State, or on board of its 1 Foelix, Droit International Prive, §§ 510-532. See American Jurist, vol. xxii. p. 381-386. 176 RIGHTS OP CIVIL AND [PART II. vessels, in some place not within the jurisdiction of any other State. Extradi- The public jurists are divided upon the question, how minais. " far a sovereign State is obliged to deliver up persons, whether its own subjects or foreigners, charged with or convicted of crimes committed in another country, upon the demand of a foreign State, or of its officers of justice. Some of these writers maintain the doctrine, that, according to the law and usage of nations, every sovereign State is obliged to refuse an asylum to individuals accused of crimes affecting the general peace and security of society, and whose extradition is demanded by the government of that country within whose jurisdiction the crime has been committed. Such is the opinion of Grotius, Heinec- cius, Burlamaqui, Vattel, Rutherforth, Schmelzing, and Kent.^ According to Puffendorf, Voet, Martens, Kliiber, Leyser, Kluit, Saalfeld, Schmaltz, Mittermeyer, and HefTter, on the other hand, the extradition of fugitives from justice is a matter of imperfect obligation only ; and though it may be habitually practised by certain States, as the result of mutual comity and convenience, requires to be confirmed and regulated by special compact, in order to give it the force of an international law.^ And the last- mentioned learned writer considers the very fact of the existence of so many special treaties respecting this matter as conclusive evidence that there is no such general usage among nations, con- stituting a perfect obligation, and having the force of law pro- perly so called. Even under systems of confederated States, such as the Germanic Confederation and the North American Union, this obligation is limited to the cases and conditions men- tioned in the federal compacts.^ 1 Grotius, de Jur. Bel. ac Pac. lib. ii. cap. xi. §§ 3-5. Heineccius, Prselect. in Grot. j. t. Burlamaqui, tome ii. Part 3V. ch. 3, §§ 23-29, Vattel, liv. ii. ch. 6, §§ 76, 77. Kutherforth, Inst, of Nat. Law, vol. ii. ch. 9, p. 12. Schmelzing, Sys- tematischer Grundriss des praktischen Europaischen Volkerrechts, § 161. Kent's Comm. vol. i. pp. 36, 37, 5th ed. 2 Puffendorf, Elementa, lib. viii. cap. 3. §§ 23, 24. Voet, de Stat. § 11, cap. 1, No. 6. Martens, Droit des Gens, liv. iii. ch. 3, § 101. Kliiber, Droit des Gens, Part. II. tit. 1, ch. 2, § 66. Leyser, Meditationes ad Pandect. Med. 10. Kluit, de Deditione Profugorum, § 1, p. 7. Saalfeld, Ilandbuch des positiven Volkerrechts, § 40. Schmaltz, Europaisches Volkerrccht, p. 160. Mittermeyer, das deutsche Strafverfahren, Theil i. § 59, pp. 314-319. 3 Mittermeyer, Ibid. I CHAP. II.] CRIMINAL LEGISLATION. 177 The negative doctrine, that, independent of special compact, no State is bound to deliver up fugitives from justice upon the demand of a foreign State, was maintained at an early period by the United States government, and is confirmed by a consi- derable preponderance of judicial authority in the American courts of justice, both State and Federal.^ The Constitution of the United States provides, (art. 4, s. 2,) that " a person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime." By the 10th article of the treaty concluded at Washington on the 9th August, 1842, between the United States and Great Britain, it was " agreed that the United States and her Britannic Majesty shall, upon mutual requisitions by them, or their min- isters, officers, or authorities, respectively made, deliver up to justice all persons, who, being charged with the crime of murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged paper, committed with"n the jurisdiction of either, shall 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 the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the crime or offence had been there com- mitted ; and the respective judges and other magistrates of the two governments shall have power, jurisdiction, and authority, upon complaint made under oath, to issue a wa,rrant for the ap- prehension 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 1 See Mr. Jefferson's Letter to M. Genet, Sept. 12, 1793. The decision of Mr. Chancellor Kent, in re Washburn, Johnson's Ch. Rep. vol. Iv. p. 166, is counter- balanced in that of Chief Justice Tilghman, in Respublica i". Deacon, Sergeant & Rawle's Rep. vol. x. p. 1 25 ; by that of Mr. Chief Justice Parker, in Respublica V. Green, Massachusetts Rep. vol. xvii. pp. 515-548 ; and by the judgment of the Supreme Court of the United States, in Holmes v. Jennison, Peters's Rej). vol. xiv. p. 540. 178 RIGHTS OF CIVIL AND [PART IT. considered ; and if, on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examin- ing judge or magistrate to certify the same to the proper exe- cutive authority, that a warrant may issue for the surrender of such fugitives. The expense of such apprehension and delivery shall be borne and defrayed by the party who makes the requisi- tion and receives the fugitive." By the convention concluded at Washington on the 9th November, 1843, between the United States and France, it was agreed : " Art. 1. That the high contracting parties shall, on requisi- tions made in their name, through the medium of their respective diplomatic agents, deliver up to justice persons who, being accused of the crimes enumerated in the next following article, committed within the jurisdiction of the requiring party, shall seek an asylum or shall be found within the territories of the other : Provided, That this shall be done only when the fact of the commission of the crime shall be so established, as that the laws of the country, in which the fugitive or the person so accused shall be found, would justify his or her apprehension and commitment for trial, if the crime had been there com- mitted. " Art. 2. Persons shall be so delivered up who shall be charged, according to the provisions of this convention, with any of the following crimes, to wit : murder, (comprehending the crimes designated in the French penal code by the terms assassination, parricide, infanticide, and poisoning,) or with an attempt to commit murder, or with rape, or with forgery, or with arson, or with embezzlement by public officers, when the same is punishable with infamous punishment. " Art. 3. On the part of the French government the sur- render shall be made only by authority of the Keeper of the Seals, Minister of Justice ; and on the part of the Government of the United States, the surrender shall be made only by the authority of the Executive thereof. " Art. 4. The expenses of any detention and delivery, effected in virtue of the preceding provisions, shall be borne and defrayed by the government in whose name the requisition shall have been made. "Art. 5. The provisions of the present convention shall not \ CHAP. II.] CRIMINAL LEGISLATION. 179 be applied in any manner to the crimes enumerated in the second article, committed anterior to the date thereof, nor to any crime or offence of a purely political character." The following additional article to the above convention was concluded between the contracting parties at Washington on the 24th February, 1845, and subsequently ratified. " The crime of robbery, defining the same to be the felonious and forcible taking from the person of another, of goods or money, to any value, by violence or putting him in fear ; and the crime of burglary, defining the same to be, breaking and entering by night into a mansion-house of another, with intent to commit felony ; and the corresponding crimes included under the French law in the words vol qualijie c?'ime, not being embraced in the second article of the convention of extradition concluded between the United States and France on the 9th of November, 1843, it is agreed by the present article, between the high con- tracting parties, that persons charged with those crimes shall be respectively delivered up, in conformity with the first article of the said convention ; and the present article, when ratified by the parties, shall constitute a part of the said convention, and shall have the same force as if it had been originally inserted in the same." In the negotiation of treaties, stipulating for the extradition of persons accused or convicted of specified crimes, certain rules are generally followed, and especially by constitutional governments. The principle of these rules are, that a State should never author- ize the extradition of its own citizens or subjects, or of persons accused or convicted of political or purely local crimes, or of slight offences, but should confine the provision to such acts as are, by common accord, regarded as grave crimes.^ (a) 1 Ortolan, Ragles Internationales de la Mer, t. i. p. 340. (a) [The treaty of extradition between Great Britain and France, of Febru- ary 18, 1843, applies to murder, defining it as in the treaty of the latter with the United States, — to an attempt to commit murder, forgery, and fraudu- lent bankruptcy. Annual Register, 1843, p. 4 70. Fraudulent hankruplcij ex- cepted from the treaties of extradition, made by the United States, is included generally among the crimes provided for in the conventions between European powers. As to political refugees, England has never permitted them to be embraced in such treaties, nor is their expulsion, at the demand of their own governments, within the poUcy of her alien acts. Lord Palmerston declared, that " any such demand would be met with a firm and decided refusal. It is," 180 RIGHTS OF CIVIL AND [PART II. The delivering up by one State of deserters from the military or naval service of another also depends entirely upon mutual comity, or upon special compact between different nations.' [a) said he, " obvious that it must be so, because no such measure could be taken by the government of this country, without fresh powers by act of Parliament, and no government could apply for such a power with any chance of success, inas- much as no alien bill, I believe, either in former periods or in the course of this century, has been passed, ever giving to the government the power of expelling foreigners, except with reference to considerations connected with the internal safety of this country. The British government has never undertaken to pro- vide for the internal safety of other countries. It Is sufficient for them to have the power to provide for the internal safety of their own." Hansard's Parlia- mentary Debates, vol. 124, p. 805. Treaties of extradition do not apply to political offences ; but in 1849 a demand was made by Russia and Austria on Turkey for the delivery up of the Poles and Hungarians, who had escaped into the Sultan's dominions, and on his refusal Russia and Austria suspended all diplomatic intercourse with the Porte, but ultimately the two emperors receded from their demands. Annual Reg. 1849. p. 342. The grounds of these pretensions are referred to, and the treaty of Kutschouc-Kaynardgi of 1774, with Russia, and of Belgrade, between the Porte and Austria, examined, in the discussions connected with the affair of Martin Koszta. See Cong. Doc. H. of R. 33d Cong. 1 Sess. Ex. Doc. 91, p. 34, 45.] 1 Bynkershoek Quajst. Jur. Pub. lib. I. cap. 22. Note to Duponceau's Transl. p. 174. (a) [Since the publication of this treatise, the treaty of 20th December, 1849, has been concluded between the United States and the King of the Hawaiian islands, the 14th article of which contains the same provisions as the treaty with England, 1842, In relation to the extradition of criminals, (U. S Stat, at Large, vol. ix. p. 981.) A treaty of this kind was also made in 1852, at Washington, between the United States and Prussia, acting In her own behalf, and in behalf of several of the German States, viz., Saxony, Electoral Hesse, Ducal Hesse, Saxe-Weimar-Eisenach, Saxe-Melningen,. Saxe-Altenburg, Saxe-Coburg-Gotha, Brunswick, Anhalt-Dessau, Anhalt-Bernburg, Nassau, Schwarzburg-Sonder- shausen, Schwarzburg-Rudolstadt, Waldeck, Reuss, elder and junior branch, LIppe, Hesse-Homburg, and the free city of Frankfort. Differing from the extra- dition treaties which the United States had made with England and France, it provides that none of the contracting parties shall be bound to deliver up its own citizens or subjects under the stipulations of this convention. For this pro- vision it recites as a reason, " that whereas the laws and constitution of Prussia and of the other German States, parties to this convention, forbid them to surrender their own citizens to a foreign jurisdiction, the government of the United States, with a view of making the convention strictly reciprocal, shall be held equally free from any obligation to surrender citizens of the United States." When a person accused of any of the offences enumerated in the treaty, shall have com- mitted a new crime in the territory, where he has sought an asylum, he shall not be CHAP. II.] CRIMINAL LEGISLATION. 181 A criminal sentence pronounced under the municipal ^ 14. Ex- law in one State can have no direct legal effect in an- ^r^^^'^'^o* o "■•' rial opera- other. If it is a sentence of conviction, it cannot be^'''""^'^ ... p ^ criminal executed without the limits of the State in which it is sentence. delivered till he has been tried and punished or acquitted. There is, also, a pro- vision that the stipulations of the convention shall be applied to any other State of the Germanic Confederation, which may thereafter declare its accession thereto. The crimes enumerated in the convention, and on account of which fugitives are to be delivered up on mutual requisitions, by their govei-nments, or their ministers, officers, or authorities, respectively made, are murder, assault with intent to com- mit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged papers, or the fabrication or circulation of counterfeit money, whether coin or paper money, or the embezzlement of public moneys, committed within the juris- diction of either party. Treaties of the United States, 1854, p. 98. An act of Congress for giving effect to these treaty stipulations with foreign governments was approved on the 1 2th of August, 1848. It vests the judges of the Supreme Court of the United States, the district judges, and the commis- sioners appointed for the purpose by any of the United States courts, and also the judges of the several State courts, upon complaint made on oath or affirmation, with power to arrest persons charged with offences falling within the provisions of any of the treaty stipulations ; and if, on hearing the testimony, it be deemed sufficient to sustain the charge under the provisions of the treaty, it shall be the duty of the judge or commissioner to certify the same to the Secretary of State with all the testimony taken before him, that a warrant may issue on the requisition of the proper authorities of the foreign government, and the judge or commissioner shall issue his warrant for the commitment of the person charged to a proper jail till the surrender is made. The Secretary of State is authorized, under his hand and seal of office, to order such offenders to be delivered to such persons as the foreign government may authorize to receive them. U. S. Stat, at Large. vol. ix. p. 302. In a case under the British treaty the question came before the Supreme Court of the United States, whether a judge or commissioner could proceed without the previous authorization of his own government, and whether the agents of a foreign government have a right to call on our judicial officers to act, in advance of authority from the President. There was a diversity of views on this point among the members of the court, though a majority were, on other grounds, against entertaining an appeal from the decision of the commissioner, or gi'anting an original writ of habeas corpus. By the judges, who sustained the action of the commissioner, independently of any initiatory proceeding on the part of the Executive, it was maintained : " That an executive order of surrender to a foreign government is purely a national act, is not open to controversy ; nor can it be doubted that the exe- cutive act must be performed through the Secretary of State by order of our Chief Magistrate, representing this nation. But it does not follow that Con- gress is excluded from vesting authority in judicial magistrates to arrest and commit, preparatory to a surrender. 16 182 RIGHTS OF CIVIL AND [PART II. pronounced, upon the person or property of the offender; and if he is convicted of an infamous crime, attended with civil dis- " The treaty witli Great Britain is equally binding on us as the act of Con- gress, and it likewise confers jurisdiction and authority on the judges and magis- trates of the respective governments, to issue warrants for the apprehension of fugitives, and for hearing and considering the evidence produced against them ; and also provides, that Ae committing magistrate shall certify as to the sufficiency of the evidence, to the executive authority, so that a warrant of surrender may issue. Conofress was scrupulously careful, neither to limit or extend the treaty stipulations. According to the terms of the statute no doubt is entertained that the judicial magistrates of the United States, designated by the act, are required to issue warrants and cause arrests to be made, at the instance of the foreign government, on proof of criminality, as in ordinary cases when crimes are committed within our own jurisdiction, and are punishable by the laws of the United States." On the other hand, it was said : " No demand was made upon this government, by the government of Great Britain claiming the surrender. This government was passed by, and the requi- sition made by the consul, directly upon the magistrate, on the ground, as con- tended for, namely, that the consent or authority of the Executive is unnecessary to warrant the institution of the proceedings ; and, in support of their propriety and regularity, the position is broadly taken, and without which the proceedings cannot be upheld, that according to the true interpretation of the treaty, any officer of Great Britain, however inferior, properly represents the sovereign of that country, who may choose to prosecute the alleged fugitive in making the requisition, and is entitled to the obedience of the judicial tribunals for that pur- pose and if sufficient evidence is produced before them to arrest and commit, that a surrender may be made ; and that in this respect, such officer is put on the footin"- of any of the prosecuting officers of this government, who are authorized to institute criminal proceedings for a violation of its laws ; that the country is open to him, throughout the limits of the Union, and the judicial tribunals bound to obedience on his requisition and proofs, to make the arrest and commit- ment. This is the argument. Now, upon recurring to the terms of the treaty, it will be seen, that no such stipulations were entered into, or intended to be entered Into, by either government, or any authority conferred to justify such a proceeding. The two nations agree that upon ' mutual requisition by them, or their officers or authorities respectively made,' — that is on a requisition made by the one government, or by its ministers or officers properly authorized upon the Qtjjgr — the government, upon whom the demand is thus made, shall deliver up to justice all persons charged with the crimes, as provided in the treaty, who shall have sought an asylum within her territories. In other words, on a demand, made by the authority of Great Britain upon this government, it shall deliver up the fuf^itive; and so in respect to a demand by the authority of this government upon her. This is the exact stipulation entered into when plainly interpreted. It is a compact between the two nations in respect to a matter of national concern — II CHAP. II.] CRIMINAL LEGISLATION. 183 qualifications in his own country, such a sentence can have no legal effect in another independent State.^ But a valid sentence, whether of conviction or acquittal, pro- the punisliment of criminal offenders against their laws — and where the guilty party could be tried and punished only within the jurisdiction whose laws have been violated. The duty or obligation entered into, is the duty or obligation of the respective nations, and each is bound to see that it is fulfilled, and each is responsible to the other in case of a violation. When the casus foederis occurs, the requisition or demand must be made by the one nation upon the other. And under our system of government, a demand upon the nation must be made upon the President, who has charge of all its foreign relations, and with whom only foreign governments are authorized or even permitted to hold any communi- cation of a national concern. He alone is authorized by the Constitution to negotiate with foreign governments, and enter into treaty obligations binding on the nation ; and, in respect to all questions arising out of these obligations, or relating to our foreign relations, in which other governments are interested, application must be made to him. A requisition or demand, therefore, upon this government must, under any treaty stipulation, be made upon the Executive, and cannot be made through any other department, or in any other way." Howard's Reports, vol. xiv. p. 103. In Re Kane. The general result of this case is, that under the British treaty the proceeding may either commence with a mandate from the President or by a warrant direct from the officer authorized to enforce it. Foreign governments may apply to ours, in the first instance. That course, under the decision of the Supreme Court, is the safest, though it may not be a necessary one ; but in either event the subse- quent proceedings are under the direction of the examining magistrate, and can- not be controlled by the President. See opinion of Attorney-General, (Mr. Gushing,) August 31, 1853. Washington Union. It had been previously decided that the Supreme Court had no jurisdiction to issue a habeas corpus for the pur- pose of reversing a decision under the treaty of 1843, with France. Howard's Rep. vol. V. p. 1 76. In the Matter of Metzger. In England the requisition must always be made through the Executive government, and in treaties of this descrip- tion the preliminary action of the legislature is there necessary. At the time of the signature of the treaty of 1842, the British Minister stated that the rendition treaty could have no effect in the British dominions in Europe till Parliament acted on it. In Canada it could have an immediate effect. Lord Ashburton to Mr. Webster, August 9, 1842. An act of Parliament, 6 & 7 Vict. c. 76, passed July, 1843, empowers one of the principal Secretaries of State, or the Secretary for Ireland, to issue his warrant, signifying that a requisition had been made, in pursuance of this treaty, and requiring all justices, &c., to aid in apprehending the person charged with the crime, and the same functionaries are the officers to order the delivery of the party to the persons authorized to receive them.] 1 Martens, Precis, &c., llv. iii. ch. 3, § 86. Kliiber, Droit des Gens moderne de I'Europe, pt. ii. tit. 1, ch. 2, §§ 64, 65. Foelix, Droit International Prive, § 565. 184 RIGHTS OF CIVIL AND [PART II. nounced in one State, may have certain indirect and collateral effects in other States. If pronounced under the municipal law in the State where the supposed crime was committed, or to which the supposed offender owed allegiance, the sentence, either of conviction or acquittal, would, of course, be an effectual bar {exceptio rei judicatce) to a prosecution in any other State. If pronounced in any other foreign State than that where the offence is alleged to have been committed, or to which the party owed allegiance, the sentence would be a nullity, and of no avail to protect him against a prosecution in any other State having jurisdiction of the offence. §15. Piracy The judicial power of every State extends to the lawoV^^ punishment of certain offences against the law of na- nations. tions, among which is piracy. Piracy is defined by the text writers to be the offence of depre- dating on the seas, without being authorized by any sovereign State, or with commissions from different sovereigns at war with each other.i The officers and crew of an armed vessel, commissioned against one nation, and depredating upon another, are not liable to be treated as pirates in thus exceeding their authority. The State by whom the commission is granted, being responsible to other nations for what is done by its commissioned cruisers, has the exclusive jurisdiction to try and punish all offences committed under color of its authority .^ The offence of depredating under commissions from different sovereigns, at war with each other, is clearly piratical, since the authority conferred by one is repugnant to the other; but it has been doubted how far it may be lawful to cruise under commis- sions from different sovereigns allied against a common enemy. The better opinion, however, seems to be, that although it might not amount to the crime of piracy, still it would be irregular and illegal, because the two co-belligerents may have adopted dif- 1 See authorities cited in Note to the case of United States v. Smith, Wheaton's Kep. vol. V. 157. 2 Bynkershoek, Qusest. Jur. Pub. lib. i. cap. 1 7. Rutherforth's Ins. vol. ii. p. 595. I CHAP. II.] CRIMINAL LEGISLATION. 185 ferent rules of conduct respecting neutrals, or may be separately- bound by engagements unknown to the party.' Pirates being the common enemies of all mankind, and all nations having an equal interest in their apprehension and punishment, they may be lawfully captured on the high seas by the armed vessels of any particular State, and brought within its territorial jurisdiction, for trial in its tribunals.^ This proposition, however, must be confined to piracy Distinc- as defined by the law of nations, and cannot be ex- tween^pi- tended to offences which are made piracy by municipal [^w of n?^ legislation. Piracy, under the law of nations, may be tipns, and o •' ' _ _ . piracy un- tried and punished in the courts of justice' of any nation, dcr the mu- by whomsoever and wheresoever committed ; but piracy tutes. created by municipal statute can only be tried by that State within whose territorial jurisdiction, and on board of whose ves- sels, the offence thus created was committed. There are certain acts which are considered piracy by the internal laws of a State, to which the law of nations does not attach the same signification. It is not by force of the international law that those who commit these acts are tried and punished, but in. con- sequence of special laws which assimilate them to pirates, and which can only be applied by the State which has enacted them, and then with reference to its own subjects, and in places within its own jurisdiction. The crimes of murder and robbery, com- mitted by foreigners on board of a foreign vessel, on the high seas, are not justiciable in the tribunals of another country than that to which the vessel belongs ; but if committed on board of a vessel not at the time belonging, in fact as well as right, to any foreign power or its subjects, but in possession of a crew acting in defiance of all law, and acknowledging obedience to no flag whatsoever, these crimes may be punished as piracy under 1 Bynkershoek, Qu^est. Jur. Pub. lib. i. cap. 17, p. 130, Duponceau's Transl. Valln Commentaire surl'Ord. de la Marine, torn. ii. p. 236. " The law," says Sir L. Jenkins, " distinguishes between a pirate who is a highwayman, and sets up for robbing, cither having no commission at all or else hath two or three, and a lawful man-of-war that exceeds his commission." Works, vol. ii. p. 714. 2 " Every man, by the usage of our European nations, is justiciable in the place where the crime is committed ; so are pirates, being reputed out of the protection of all laws and privileges, and to be tried in what ports soever they may be taken." Sir L. Jenkins's Works, ib. 16* 186 EIGHTS OF CIVIL AND [PART II. the law of nations, in the courts of any nation having custody of the offenders.^ Slave The African slave trade, though prohibited by the ther*proM-' municipal laws of most nations, and declared to be bitedbythe piracy by the statutes of Great Britain and the United law of na- r J j tions. States, and, since the Treaty of 1841, with Great Bri- tain, by Austria, Prussia, and Russia, is not such by the general international law, and its interdiction cannot be enforced by the exercise of the ordinary right of visitation and search. That right does not exist, in time of peace, independently of special compact.^ The African slaVe trade, once considered not only a lawful but desirable branch of commerce, a participation in which was made the object of wars, negotiations, and treaties between different European States, is now denounced as an odious crime, by the almost universal consent of nations. This branch of commerce was, in the first instance, successively prohibited by the municipal laws of Denmark, the United States, and Great Britain, to their own subjects. Its final abolition was stipulated by the treaties of Paris, Kiel, and Ghent, in 1814, confirmed by the declaration of the Congress of Vienna, of the 8th of Febru- ary, 1815, and reiterated by the additional article annexed to the treaty of peace concluded at Paris, on the 20th November, 1815. The accession of Spain and Portugal to the principle of the abo- lition was finally obtained, by the treaties between Great Britain and those powers, of the 23d September, 1817, and the 22d Jan- uary, 1815. And by a convention concluded with Brazil, in 1826, it was made piratical for the subjects of that country to be en- gaged in the trade after the year 1830. By the treaties of the 30th November, 1831, and 22d May, 1833, between France and Great Britain, to which nearly all the maritime powers of Europe have subsequently acceded, the mutual right of search was conceded, within certain geograph- ical limits, as a means of suppressing the slave trade. The pro- 1 Wheaton's Rep. vol. v. pp. 144, 184. United States v. Klintock ; United States V. Pirates. 2 Dodson's Adm. Rep. vol. ii, p. 210. Le Louis. Wheaton's Rep. vol. x. p. 66. La Jeune Eugenie. [The Treaty of 1817, with Spain, was the first one in which the reciprocal right of search was granted.] CHAP. II.] CRIMINAL LEGISLATION. 187 visions of these treaties were extended to a wider range by the Quintuple Treaty, concluded on the 26th December, 1841, be- tween the five great European powers, and subsequently ratified between them, except by France, which power still remained only bound by her treaties of 1831 and 1833 with Great Britain. By the treaty concluded at Washington, the 9th August, 1842, between the United States and Great Britain, referring to the 10th article of the Treaty of Ghent, by which it had been agreed that both the contracting parties should use their best endeavors to promote the entire abolition of the traffic in slaves, it was pro- vided, article 8, that " the parties mutually stipulate that each shall prepare, equip, and maintain in service, on the coast of Africa, a sufficient and adequate squadron, or naval force of vessels, of suitable numbers and descriptions, to carry in all not less than eighty guns, to enforce, separately and respectively, the laws, rights, and obligations of each of the two countries, for the suppression of the slave trade, the said squadrons to be inde- pendent of each other, but the two governments stipulating, nevertheless, to give such orders to the officers commanding their respective forces, as shall enable them most effectually to act in j concert and cooperation, upon mutual consultation, as exigencies may arise, for the attainment of the true object of this article ; copies of all such orders to be communicated by each govern- ment to the other, respectively." By the Treaty of the 29th May, 1845, between France and Great Britain, new stipulations were entered into between the two powers, by which a joint cooperation of their naval forces on the coast of Africa, for the suppression of the slave trade, was substituted for the mutual right of search, provided by the previous treaties of 1831 and 1833. (a) (a) [Ortolan distinguishes the right of ships of war to ascertain the nation- ality of a merchantman, droit d'enqiiele du pavilion, from the right of visitation or search, droit de visite ou de recherche. Signals, exchange of words, sulEce with respect to the nationaUtj' of the flag, except on suspicion of piracy, when all fur- ther proceedings must be taken at the risk of the man-of-war. He unites with the American publicist, Mr. AVheaton, in declaring that the right of visitation or search does not exist except In time of war, and he then confines the right to ascertaining the natlonahty of the ship and whether there be any contraband arti- cles on board. The right of visit or search being accorded by special conventions, between different States, does not make it a part of the Law of Nations. The 188 EIGHTS OF CIVIL AND [PART II. Decisions This general concert of nations to extinguish the of British ^ ° . . , . • XI ^ .1 1 and Ameii- traffic has givcn rise to the opinion, that though once of justrce! tolerated, and even protected and encouraged, by the laws of every maritime country, it ought henceforth to be consi- dered as interdicted by the international code of Europe and Conventions of 1831 and 1833, made by France with England, for the suppres- sion of the slave trade, as well as the Quintuple Treaty of 1841, are all in dero- gation of natural right. Every nation has a right to exercise an exclusive police, at sea, over its own vessels. Diplomatie de la Mer, p. 242. Hautefeuille says that la visile is not a right, but the exercise of the belligerent claim of injuring the enemy, which cannot exist in time of peace except as a vio- lation of the independence of nations. In war, it only exists to ascertain whether the vessel belongs to an enemy; or, if not an enemy's vessel, whether it has contra- band on board destined for an enemy's port. Those nations which regard enemy's property on board of neutral vessels as liable to confiscation, a pretension which he denies, extend it to the verification of the cargo. Several treaties among Euro- pean nations, for the suppression of the slave trade, have admitted the reciprocal right of visitation in time of peace ; and some of them have extended it to the right of search, which no formal treaty had acknowledged, even in time of war. The right of visit, he defines to be the power granted to a foreign ship of war, to stop a vessel and to go on board of her, and verify, by her papers, if she belongs really to the nation whose flag she bears. This right, Hautefeuille conceives still to be conceded by the Treaty of 29th May, 1845, between France and England, concluded to replace those of 1831 and 1833 and especially the Quintuple Treaty of 1841, which France refused to ratify. The construction objected to has, it is believed, been obviated by the instructions given to the British com- manders, not to capture, visit, or detain French vessels. Droits des Nations Neutres, t. iii. p. 431. Public Documents. See, further, on the subject of a right of visitation and search, in time of peace, " An Inquiry into the validity of the British Claim to a Right of Visitation and Search, of American Vessels suspected' to be engaged in the African Slave Trade," by Mr. Wheaton : London, 1842 ; and " Examen de la Question aujourd'hui pendante entre le Gouvernement deS Etats Unis et celui de la Grande Bre- tagne, coucernant le Droit de Visite," (ascribed to Hon. Lewis Cass, then Minis- ter to France,) Paris, 1842. These Essays, with the Letter of General Cass to M. Guizot, dated 13th February, 1842, and which was in the nature of a protest against the Quintuple Treaty of 20th December, 1841, are understood to have had no little influence in preventing the ratification of that treaty by the govern- ment of France. The provisions respecting the slave trade in the Treaty of Washington, of 1842, were intended to waive the questions, as to which a serious controversy had existed between the United States and Great Britain, in conse- quence of the latter claiming a right of detaining vessels, suspected to be engaf^ed in the slave trade, for the purpose of ascertaining their nationality. See, with reference to that treaty and the discussions to which it gave rise, Webster's Works, vol. V. p. 142 ; vol. vi. p. 329.] I CHAP. II.] CRIMINAL LEGISLATION. 189 America. This opinion first received judicial countenance from the judgment of the Lords of Appeal in Prize Causes, pro- nounced in the case of an American vessel, The Amadie, in 1807, the trade having been previously abolished by the munici- pal laws of the United States and of Great Britain. The judg- ment of the Court was delivered by Sir William Grant, in the following terms : " This ship must be considered as being employed, at the time of capture, in carrying slaves from the coast of Africa to a Spanish colony. We think that this was evidently the original plan and purpose of the voyage, notwithstanding the pretence set up to veil the true intention. The claimant, however, who is an American, complains of the capture, and demands from us the restitution of property, of which, he alleges, that he has been unjustly dispossessed. In all the former cases of this kind which have come before this Court, the slave trade was liable to consi- derations very different from those which belong to it now. It had, at that time, been prohibited (so far as respected carrying slaves to the colonies of foreign nations) by America, but by our own laws it was still allowed. It appeared to us, therefore, diffi- cult to consider the prohibitory law of America in any other light than as one of those municipal regulations of a foreign State of which this Court could not take any cognizance. But by the alteration which has since taken place, the question stands on different grounds, and is open to the application of very different principles. The slave trade has since been totally abolished by this country, and our legislature has pronounced it to be con- trary to the principles of justice and humanity. Whatever we might think, as individuals, before, we could not, sitting as judges in a British court of justice, regard the trade in that light while our own laws permitted it. But we can now assert that this trade cannot, abstractedly speaking, have a legitimate existence. " When I say abstractedly speakings I mean that this country has no right to control any foreign legislature that may think fit to dissent from this doctrine, and to permit to its own subjects the prosecution of this trade ; but we have now a right to affirm that primd facie the trade is illegal, and thus to throw on claim- ants the burden of proof, that, in respect of them, by the author- ity of their own laws, it is otherwise. As the case now stands, 190 RIGHTS OF CIVIL AND [PART II. we think we are entitled to say that a claimant can have no right, upon principles of universal law, to claim the restitution in a Prize Court of human beings carried as slaves. He must show some right that has been violated by the capture, some property of which he has been dispossessed, to which he ought to be restored. In this case, the laws of the claimant's country allow of no property such as he claims. There can, therefore, be no right to restitution. The consequence is, that the judgment must be affirmed." ^ In the case of The Fortuna, determined in 1811, in the High Court of Admiralty, Lord Stowell, in delivering the judgment of the Court, stated that an American ship, quasi American, was entitled, upon proof, to immediate restitution ; but she might forfeit, as other neutral ships might, that title, by various acts of misconduct, by violations of belligerent rights most clearly and universally recognized. But though the Prize Court looked primarily to violations of belligerent rights as grounds of confis- cation in vessels not actually belonging to the enemy, it had extended itself a good deal beyond considerations of that descrip- tion only. It had been established by recent decisions of the Supreme Court, that the Court of Prize, though properly a court purely of the law of nations, has a right to notice the municipal law of this country in the case of a British vessel which, in the course of a prize-proceeding, appears to have been trading in vio- lation of that law, and to reject a claim for her on that account. That principle had been incorporated into the prize-law of this country within the last twenty years, and seemed now fully incorporated. A late decision in the case of The Amadie seemed to have gone the length of establishing a principle, that any trade contrary to the general law of nations, although not tend- ing to, or accompanied wdth, any infraction of the law of that country whose tribunals were called upon to consider it, might subject the vessels employed in that trade to confiscation. The Amadie was an American ship, employed in carrying on the slave trade ; a trade which this country, since its own abandon- ment of it, had deemed repugnant to the law of nations, to justice, and humanity ; though without presuming so to consider and 1 Acton's Admiralty Reports, vol. p. 240. CHAP. II.] CRIMINAL LEGISLATION. 191 treat it where it occurs in the practice of the subjects of a State which continued to tolerate and protect it by its own municipal regulations ; but it put upon the parties the burden of showing that it was so tolerated and protected, and in failure of produc- ing such proof, proceeded to condemnation, as it did in the case of that vessel. "How far that judgment has been universally- concurred in and approved," continued Lord Stowell, " is not for me to inquire. If there he those who disapprove of it, I certainly am not at liberty to include myself in that number, because the deci- sions of that court bind authoritatively the conscience of this ; its decisions must be conformed to, and its principles practically adopted. The principle laid down in that case appears to be, that the slave trade, carried on by a vessel belonging to a subject of the United States, is a trade which, being unprotected by the domestic regulations of their legislature and government, subjects the vessel engaged in it to a sentence of condemnation. If the ship should therefore turn out to be an American, actually so employed — it matters not, in my opinion, in what stage of the employment, whether in the inception, or the prosecution, or the consummation of it- — the case of The Amadie will bind the con- science of this court to the effect of compelling it to pronounce a sentence of confiscation." ^ In a subsequent case, that of The Diana, Lord Stowell limited the application of the doctrine invented by Sir W. Grant, to the special circumstances which distinguished the case of The Amadie. The Diana was a Swedish vessel, captured by a British cruiser on the coast of Africa whilst actually engaged in carrying slaves to the Swedish West India possessions. The vessel and cargo were restored to the Swedish owner, on the ground that Sweden had not then prohibited the trade by law or convention, and still continued to tolerate it in practice. It was stated by Lord Stowell, in delivering the judgment of the High Court of Admi- ralty in this case, that England had abolished the trade as unjust and criminal; but she claimed no right of enforcing that prohibi- tion against the subjects of those States which had not adopted the same opinion ; and England did not mean to set herself up as the legislator and custos morum for the whole world, or pre- 1 Dodson'3 Admiralty Reports, vol. i. p. 81. 192 RIGHTS OP CIVIL AND [PART II. sume to interfere with the commercial regulations of other States. The principle of the case of The Amadie was, that where the municipal law of the country to which the parties belonged had prohibited the trade, British tribunals would hold it to be illegal upon general principles of justice and humanity ; but they would respect the property of persons engaged in it under the sanction of the laws of their own country.^ The above three cases arose during the continuance of the war, and whilst the laws and treaties prohibiting the slave-trade were incidentally executed through the exercise of the belligerent right of visitation and search. In the case of The Diana, Lord Stowell had sought to distin- guish the circumstances of that case from those of The Amadie, so as to raise a distinction between the case of the subjects of a coun- try which had already prohibited the slave-trade, from that of those whose governments still continued to tolerate it. At last ca^e the case of the French vessel called The Louis, captured after the general peace, by a British cruiser, and condemned in the inferior Court of Admiralty. Lord Stowell reversed the sentence in 1817, discarding altogether the authority of The Amadie as a precedent, both upon general reasoning, which went to shake that case to its very foundations, and upon the special ground, that even admit- ting that the trade had been actually prohibited by the municipal laws of France, (which was doubtful,) the right of visitation and search (being an exclusively belligerent right) could not consist- ently with the law of nations be exercised, in time of peace, to enforce that prohibition by the British courts upon the property of French subjects. In delivering the judgment of the High Court of Admiralty in this case, Lord Stowell held that the slave-trade, though unjust and condemned by the statute law of England was not piracy, nor was it a crime by the universal law of nations. A court of justice, in the administration of law, must look to the legal standard of morality — a standard which, upon a question of this nature, must be found in the law of nations as fixed, and evidenced by general, ancient, and admitted practice, by treaties, and by the general tenor of the laws, ordi- nances, and formal transactions of civilized States ; and looking ' Dodson's Admiralty Reports, vol. i. p. 95. I CHAP. II.] CRIMINAL LEGISLATION. 193 to these authorities, he found a difficulty in maintaining that the transaction was legally criminal. To make it piracy or a crime by the universal law of nations, it must have been so considered and treated in practice by all civilized States, or made so by virtue of a general convention. The slave-trade, on the contrary, had been carried on by all nations, including Great Britain, until a very recent period, and was still carried on by Spain and Portugal, and not yet entirely prohibited by France. It was not, therefore, a criminal act by the consuetudinary law of nations ; and every nation, independ- ently of special compact, retained a legal right to carry it on. No nation could exercise the right of visitation and search upon the common and unappropriated parts of the ocean, except upon the belligerent claim. No one nation had a right to force its way to the liberation of Africa by trampling on the independence of other States ; or to procure an eminent good by means that are unlawful ; or to press forward to a great principle by breaking through other great principles that stand in the way. The right of visitation and search on the high seas did not exist in time of peace. If it belonged to one nation it equally belonged to all, and would lead to gigantic mischief and universal war. Other nations had refused to accede to the British proposal of a recipro- cal right of search in the African seas, and it would require an express convention to give the right of search in time of peace.^ The leading principles of this judgment were confirmed in 1820 by the Court of King's Bench, in the case of Madrazo v. Willes, in which the point of the illegality of the slave-trade, under the general law of nations, came incidentally in question. The court held that the British statutes against the slave-trade were applicable to British subjects only. The British Parliament could not prevent the subjects of other States from carrying on the trade out of the limits of the British dominions. If a ship be acting contrary to the general law of nations, she is thereby subject to condemnation ; but it was impossible to say that the slave-trade is contrary to the law of nations. It was, until lately, carried on by all the nations of Europe ; and a practice so sanc- tioned could only be rendered illegal on the principles of inter- 1 Dodson's Admiralty Reports, vol. ii. p. 210. 17 194 RIGHTS OF CIVIL AND [PART II. national law, by the consent of all the powers. Many States had so consented, but others had not; and the adjudged cases had gone no farther than to establish the rule, that ships belong- ing to countries that had prohibited the trade were liable to cap- ture and condemnation, if found engaged in it.^ A similar course of reasoning was adopted by the Supreme Court of the United States in the case of Spanish and Portu- guese vessels captured by American cruisers, whilst the trade was still tolerated by the laws of Spain and Portugal. It was stated by Mr. Chief Justice Marshall, in delivering the judgment of the Court, that it could hardly be denied that the slave-trade was contrary to the law of nature. That every man had a natu- ral right to the fruits of his own labor, was generally admitted; and that no other person could rightfully deprive him of those fruits, and appropriate them against his will, seemed to be the necessary result of this admission. But, from the earliest times, war had existed, and war conferred rights in which all had acqui- esced. Among the most enlightened nations of antiquity, one of these rights was, that the victor might enslave the vanquished. That which was the usage of all nations could not be pronounced repugnant to the law of nations, which was certainly to be tried by the test of general usage. That which had received the assent of all must be the law of all. Slavery, then, had its origin in force; but as the world had agreed that it was a legitimate result of force, the state of things which was thus produced by general consent could not be pro- nounced unlawful. Throughout Christendom this harsh rule had been exploded, and war was no longer considered as giving a right to enslave captives. But this triumph had not been universal. The parties to the modern law of nations do not propagate their principles by force ; and Africa had not yet adopted them. Throughout the whole extent of that immense continent, so far as we knovv its history, it is still the law of nations that prisoners are slaves. The question then was, could those who had renounced this law be permitted to participate in its effects by purchasing the human beings who are its victims ? 1 Barnwell's and Alderson's Reports, vol. iii. p. 353. I CHAP. II.] CRIMINAL LEGISLATION. 195 Whatever might be the answer of a moralist to this question, a jurist must search for its legal solution in those principles which are sanctioned by the usages, the national acts, and the general assent, of that portion of the world, of which he considers himself a part, and to whose law the appeal is made. If we resort to this standard as the test of international law, the question must be considered as decided in favor of the legality of the trade. Both Europe and America embarked in it ; and for nearly two cen- turies, it was carried on without opposition, and without censure. A jurist could not say that a practice thus supported was illegal, and that those engaged in it might be punished, either personally or by deprivation of property. In this commerce, thus sanctioned by universal assent, every nation had an equal right to engage. No principle of general law was more universally acknowledged, than the perfect equality of nations. Russia and Geneva have equal rights. It results from this equality, that no one can rightfully impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone. A right, then, which was vested in all by the consent of all, could be devested only by consent; and this trade, in which all had participated, must remain lawful to those who could not be induced to relinquish it. As no nation could pre- scribe a rule for others, no one could make a law of nations ; and this traffic remained lawful to those whose governments had not forbidden it. If it was consistent with the law of nations, it could not in itself be piracy. It could be made so only by statute ; and the obliga- tion of the statute could not transcend the legislative power of the State which might enact it. If the trade was neither repugnant to the law of nations, nor piratical, it was almost superfluous to say in that court that the right of bringing in for adjudication, in time of peace, even where the vessel belonged to a nation which had prohibited the trade, could not exist. The courts of justice of no country exe- cuted the penal laws of another; and the course of policy of the American government on the subject of visitation and search, would decide any case against the captors in which that right had been exercised by an American cruiser, on the vessel of a foreign nation, not violating the municipal laws of the United States. It followed that a foreign vessel engaged in the African 196 RIGHTS OF CIVIL AND [PART II. slave-trade, captured on the high seas in time of peace, by an American cruiser, and brought in for adjudication, would be restored to the original owners.' II. The judicial power of every State extends to all ^ 16. Ex- J 1.1 tent of the civil proceedings, in rem, relatmg to real or personal pro- iudicial , . , , . , , , . , power as to perty withm the territory. witWnYhe This follows, in respect to real property, as a neces- temtory. ^^^y consequence of the rule relating to the application of the lex loci rei sitce. As every thing relating to the tenure, title, and transfer of real property [immohilia) is regulated by the local law, so also the proceedings in courts of justice relating to that species of property, such as the rules of evidence and of pre- scription, the forms of action and pleadings, must necessarily be governed by the same law.^ , 17 Dis. A similar rule applies to all civil proceedings in rem, tinction be- respecting personal property [mobilia) within the terri- niie of deci- tory, which must also be regulated by the local law, rule of pro- with this qualification, that foreign laws may furnish affectfng^ the rule of decision in cases where they apply, whilst cases mrewi. |]^g forms of process, and rules of evidence and prescrip- tion are still governed by the lex fori. Thus the lex domicilii forms the law in respect to a testament of personal property or succession ah intestato, if the will is made, or the party on whom the succession devolves resides, in a foreign country ; whilst at the same time the lex fori of the State in whose tribunals the suit is pending determines the forms of process and the rules of evidence and prescription. Succession Though the distribution of the personal effects of an topersonal^ intestate is to be made according to the law of the place intestato. where the deceased was domiciled, it does not therefore follow that the distribution is in all cases to be made by the tri- bunals of that place to the exclusion of those of the country where the property is situate. Whether the tribunal of the State where the property lies is to decree distribution, or to remit the property abroad, is a matter of judicial discretion to be exercised 1 Wheaton's Rep. vol. x. p. 66. The Antelope. 2 Vide supr^, § 3, p. 116. CHAP. II.] CRIMINAL LEGISLATION. 197 according to the circumstances. It is the duty of every govern- ment to protect its own citizens in the recovery of their debts and other just claims ; and in the case of a solvent estate it would be an unreasonable and useless comity to send the funds abroad, and the resident creditor after them. But if the estate be insol- vent, it ought not to be sequestered for the exclusive benefit of the subjects of the State where it lies. In all civilized countries, foreigners in such a case, are entitled to prove their debts and share in the distribution.^ Though the forms, in which a testament of personal Foreign property, made in a foreign country, is to be executed, carried iuto are regulated by the local law, such a testament cannot Another be carried into effect in the State where the property country. lies, until, in the language of the law of England, probate has been obtained in the proper tribunal of such State, or, in the language of the civilians, it has been homologated, or registered, in such tribunal.^ So, also, a foreign executor, constituted such by the will of the testator, cannot exercise his authority in another State without taking out letters of administration in the proper local court. Nor can the administrator of a succession ab intestato, appointed ex officio under the laws of a foreign State, interfere with the per- sonal property in another State belonging to the succession, with- out having his authority confirmed by the local tribunal. The judgment or sentence of a foreign tribunal of . ,„ ^ .... . . 'i IS. Con- competent jurisdiction proceeding in rem, such as the ciusiveness sentences of Prize Courts under the law of nations, or sentences Admiralty and Exchequer, or other revenue courts, "* ''^"*' under the municipal law, are conclusive as to the proprietary interest in, and title to, the thing in question, wherever the same comes incidentally in controversy in another State. Whatever doubts may exist as to the conclusiveness of foreign sentences in respect of facts collaterally involved in the judg- ment, the peace of the civilized world, and the general security ' Kent's Comment, on American Law, 5th ed. vol. ii. pp. 431, 432, and the cases there cited. 2 Wheaton's Rep. vol. xii. p. 1G9, Armstrong v. Lear. Code Civil, liv. iii. tit 2, art. 1000. 17* 198 RIGHTS OF CIVIL AND [PART II. and convenience of commerce, obviously require that full and complete effect should be given to such sentences, wherever the title to the specific property, which has been once determined in a competent tribunal, is again drawn in question in any other court or country. Transfer How far a bankruptcy declared under ^the laws of one under^fo-*^^ country will affect the real and personal property of ruT TO-^' *^^ bankrupt situate in another State, is a question of ceedings. which the usage of nations, and the opinions of civi- lians, furnish no satisfactory solution. Even as between coordi- nate States, belonging to the same common empire, it has been doubted how far the assignment under the bankrupt laws of one country will operate a transfer of property in another. In re- spect to real property, which generally has some indelible cha- racteristics impressed upon it by the local law, these difficulties are enhanced in those cases where the lex loci rei sites requires some formal act to be done by the bankrupt, or his attorney, spe- cially constituted, in the place where the property lies, in order to consummate the transfer. In those countries where the theory of the English bankrupt system, that the assignment transfers all the property of the bankrupt, wherever situate, is admitted in practice, the local tribunals would probably be ancillary to the execution of the assignment by compelling the bankrupt, or his attorney, to execute such formal acts as are required by the local laws to complete the conveyance.^ The practice of the English Court of Chancery, in assuming jurisdiction incidentally of questions affecting the title to lands in the British colonies, in the exercise of its jurisdiction inpersonam, where the party resides in England, and thus compelfing him, indirectly, to give effect to its decrees as to real property situate out of its local jurisdiction, seems very questionable on principle, unless where it is restrained to the case of a party who has fraudulently obtained an undue advantage over other creditors by judicial proceedings instituted without personal notice to the defendant. But whatever effect may, in general, be attributed to the assignment in bankruptcy as to property situate in another State, 1 See Lord Eldon's Observations in Selkrig v. Davies, Rose's Cases in Bank- ruptcy, vol. ii. p. 311. Vesey's Rep. vol. ix. p. 77, Banfield v. Solomon. CHAP. II.] CRIMINAL LEGISLATION. 199 it is evident that it cannot operate where one creditor has fairly- obtained, by legal diligence, a specific lien and right of pre- ference, under the laws of the country where the property is situate.' (a) ' Kent's Comment, on American Law, vol. ii. pp. 404-408, 5th ed. (a) [" In this country there is some diversity of opinion among the State courts, whether a bankrupt law, in regard to personal property, has an extra- territorial operation. That It has such operation is a doctrine which seems to be well settled in England by numerous decisions, " It is held in England, that an assignment of personal property under the bankrupt law of a foreign country passes all such property and debts owing in England ; that an attachment of such property by an English creditor, with or without notice, after such an assignment, is invalid. And the doctrine is there established, that an assignment under the English bankrupt law transfers the per- sonal effects of the bankrupt In foreign countries. But an attachment by a foreign creditor, not subject to British laws, under the local laws of a foreign country, is held valid. The principle on which this doctrine rests Is, that the per- sonal estate is held as situate In that country where the bankrupt has his domicile. " A statutable conveyance of property cannot strictly operate beyond the local jurisdiction. Any effect which may be given to it beyond this does not depend upon international law, but the principle of comity ; and national comity does not require any government to give effect to such assignment, when it shall impair the remedies or lessen the securities of its own citizens. And this is the prevailing doctrine in this country. A proceeding in rem against the property of a foreign bankrupt, under our local laws, may be maintained by creditors, notwithstanding the foreign assignment. " But It is an admitted principle In all countries where the common law pre- vails, whatever views may be entertained with regard to personal property, that real estate can be conveyed only under the territorial law. " This doctrine has been uniformly recognized by the courts of the United States, and by the courts of the respective States. The form of conveyance adopted by each State for the transfer of real property must be observed. This is a regulation which belongs to the local sovereignty. " As, under the Constitution, Congress exercised an exclusive jurisdiction over the subject of bankruptcy ; the same rule of procedure extended throughout the Union. But the act of Congress could have no extraterritorial effect. Texas was an independent republic at the time of the decree In bankruptcy, and conse- quently no claim under it, even as regai'ds personal property in that repubUc, could be made, except on the ground of comity. And on our own principles this could not be done, to the Injury of local creditors. " It Is believed that no sovereignty has at any time assumed the power, by legis- lation or otherwise, to regulate the distribution or conveyance of real estate In a foreign government. There is no pretence that this government, through the agency of a bankrupt law, could subject the real property In Texas, or In any other foreign government, to the payment of debts. This can only be done by the laws of the sovereignty where such property may be situated." Howard's Rep. vol. xi. p. 44, Oakley v. Bennett.] 200 RIGHTS OF CIVIL AND [PART II. § 19. Ex- III. The judicial power of every State may be ex- judLki^ ^ tended to all controversies respecting personal rights forrro-ners^'^ and Contracts, or injuries to the person or property, when residing the party resides within the territory, wherever the within the . . . territory. causc of actiou may have originated. This general principle is entirely independent of the rule of decision which is to govern the tribunal. The rule of decision may be the law of the country where the judge is sitting, or it may be the law of a foreign State in cases where it applies ; but that does not affect the question of jurisdiction, which depends, or may be made to depend, exclusively upon the residence of the party. Depends The operation of the general rule of international cipaire^™' ^^^'' ^^ ^° ^^^^^ jurisdiction, extending to all persons latious. -who owe cvcu a temporary allegiance to the State, may be limited by the positive institutions of any particular country. It is the duty, as well as the right, of every nation to administer justice to its own citizens ; but there is no uniform and constant practice of nations, as to taking cognizance of con- troversies between foreigners. It may be assumed or declined, at the discretion of each State, guided by such motives as may influence its juridical policy. All real and possessory actions may be brought, and indeed must be brought, in the place where Law of ^he property lies ; but the law of England, and of other and'AiBe- countries where the English common law forms the rica. basis of the local jurisprudence, considers all personal actions, whether arising ex delicto or ex co?itraclu, as transitory; and permits them to be brought in the domestic forum, whoever may be the parties, and wherever the cause of action may ori- ginate. This rule is supported by a legal fiction, which supposes the injury to have been inflicted, or the contract to have been made, within the local jurisdiction. In the countries which have modelled their municipal jurisprudence upon the Roman civil law, the maxim of that code, actor sequitur forum rei, is generally followed, and personal actions must therefore be brought in the tribunals of the place where the defendant has acquired a fixed domicile. French law. gy the law of France, foreigners who have esta- blished their domicile in the country by special license [autorisa- Hon) of the king, are entitled to all civil rights, and, among CHAP. II.] CRIMINAL LEGISLATION. 201 others, to that of suing in the local tribunals as French subjects. Under other circumstances, these tribunals have jurisdiction where foreigners are parties in the following cases only : — 1. Where the contract is made in France, or elsewhere, be- tween foreigners and French subjects. 2. In commercial matters, on all contracts made in France, with whomsoever made, where the parties have elected a domi- cile, in which they are liable to be sued, either by the express terms of the contract, or by necessary implication resulting from its nature. 3. Where foreigners voluntarily submit their controversies to the decision of the French tribunals, by waiving a plea to the jurisdiction. In all other cases, where foreigners not domiciled in France by special license of the king are concerned, the French tri- bunals decline jurisdiction, even when the contract is made in France.^ A late excellent writer on private international law considers this jurisprudence, which deprives a foreigner, not domiciled in France, of the faculty of bringing a suit in the French tribunals against another foreigner, as inconsistent with the European law of nations. The Roman law had recognized the principle, that all contracts the most usual among men arise from the law of nations, ex jure gentium ; in other words, these contracts are valid, whether made between foreigners, or between foreigners and citizens, or between citizens of the same State. This prin- ciple has been incorporated into the modern law of nations, which recognizes the right of foreigners to contract within the territorial limits of another State. This right necessarily draws after it the authority of the local tribunals to enforce the con- tracts thus made, whether the suit is brought by foreigners or by citizen S.2 The practice which prevails in some countries, of proceeding against absent parties, who are not only foreigners, but have not 1 Code Civil, art. 13, 14, 15. Code de Commerce, art. 631. Discussions sur le Code Civil, torn. i. p. 48. Pothier, Procedure Civile, partie i. ch. 1, p. 2. Va- lin, sur I'Ord. de la Marine, tom. i. pp. 113, 253, 254. Pardessus, Droit Com- mercial, Pt. VI. tit. 7, ch. 1, § 1. 2 Fcelix, Droit International Priv6, §§ 122, 123. 202 RIGHTS OF CIVIL AND [PART II. acquired a domicile within the territory, by means of some for- mal public notice, like that of the viis et modis of the Roman civil law, without actual personal notice of the suit, cannot be reconciled with the principles of international justice. So far, indeed, as it merely affects the specific property of the absent debtor within the territory, attaching it for the benefit of a parti- cular creditor, who is thus permitted to gain a preference by superior diligence, or for the general benefit of all the cre- ditors who come in within a certain fixed period, and claim the benefit of a ratable distribution, such a practice may be tole- rated ; and in the administration of international bankrupt law it is frequently allowed to give a preference to the attaching cre- ditor, against the law of what is termed the locus concursus credi- torum, which is the place of the debtor's domicile. r 20 Dis- Where the tribunal has jurisdiction, the rule of deci- tinction be- gion is the law applicable to the case, whether it be the tween the _ _ * ' .ruieofdeci- municipal or a foreign code; but the rule of proceed- sion and . . ni-ii ii /••cii i rule of pro- iHg IS generally determined by the lex fori oi the place cases"of '" where the suit is pending, (a) But it is not always easy contract. ^^ distinguish the rule of decision from the rule of pro- ceeding. It may, however, be stated in general, that whatever belongs to the obligation of the contract is regulated by the lex domicilii, or the lex loci contractus, and whatever belongs to the remedy for enforcing the contract is regulated by the lex fori. If the tribunal is called upon to apply to the case fhe law of the country where it sits, as between persons domiciled in that country, no difficulty can possibly arise. As the obligation of the contract and the remedy to enforce it are both derived from the municipal law, the rule of decision and the rule of proceed- ing must be sought in the same code. In other cases, it is neces- sary to distinguish with accuracy between the obligation and the remedy. The obligation of the contract, then, may be said to consist of the following parts : — 1. The personal capacity of the parties to contract. (a) [Including the statutes of limitations, which are those of the country where the suit is brought, and not those of the lex loci contractus. Howard's Rep. vol. ix. p. 407, Townsend v. Jamison.] fl CHAP. 11.] CRIMINAL LEGISLATION. 203 2. The will of the parties expressed, as to the terms and con- ditions of the contract. 3. The external form of the contract. The personal capacity of parties to contract depends upon those personal qualities which are annexed to their civil condi- tion, by the municipal law of their own State, and which travel with them wherever they go, and attach to them in whatever foreign country they are temporarily resident. Such are the pri- vileges and disabilities conferred by the lex domicilii in respect to majority and minority, marriage and divorce, sanity or lunacy, and which determine the capacity or incapacity of parties to contract, independently of the law of the place where the con- tract is made, or that of the place where it is sought to be enforced. It is only those universal personal qualities, which the laws of all civilized nations concur in considering as essentially affecting the capacity to contract, which are exclusively regulated by the lex domicilii, and not those particular prohibitions or disabilities, which are arbitrary in their nature and founded upon local policy ; such as the prohibition, in some countries, of noblemen and ecclesiastics from engaging in trade and forming commercial contracts. The qualities of a major or minor, of a married or single woman, &c., are universal personal qualities, which, with all the incidents belonging to them, are ascertained by the lex domicilii, but which are also everywhere recognized as forming essential ingredients in the capacity to contract.^ How far bankruptcy ought to be considered as a pri- B^nk- vilege or disability of this nature, and thus be restricted ruptcy. in its operation to the territory of that State under whose bank- rupt code the proceedings take place, is, as already stated, a question of difficulty, in respect to which no constant and uni- form usage prevails among nations. Supposing the bankrupt code of any country to form a part of the obligation of every contract made in that country with its citizens, and that every such contract is subject to the implied condition, that the debtor may be discharged from his obligation in the manner prescribed by the bankrupt laws, it would seem, on principle, that a certifi- 1 Pardessus, Droit Commercial, Ft. VI. tit. 7 ch. 2, § 1. 204 RIGHTS OF CIVIL AND [PART II. cate of discharge ought to be effectual in the tribunals of any other State where the creditor may bring his suit. If, on the other hand, the bankrupt code merely forms a part of the remedy for a breach of the contract, it belongs to the lex fori, which cannot operate extraterritorially within the jurisdiction of any other State having the exclusive right of regulating the proceed- ings in its own courts of justice ; still less can it have such an operation where it is a mere partial modification of the remedy, such as an exemption from arrest, and imprisonment of the debtor's person on a cessio bonorum. Such an exemption being strictl)'- local in its nature, and to be administered, in all its details, by the tribunals of the State creating it, cannot form a law for those of any foreign State. But if the exemption from arrest and imprisonment, instead of being merely contingent upon the failure of the debtor to perform his obligation through insolvency, enters into and forms an essential ingredient in the original contract itself, by the law of the country where it is made, it cannot be enforced in any other State by the prohibited means. Thus by the law of France, and other countries where the conii'ainte par corps is limited to commercial debts, an ordi- nary debt contracted in that country by its subjects cannot be enforced by means of personal arrest in any other State, although the lex fori may authorize imprisonment for every description of debts.i The obligation of the contract consists of the will of the par- ties, expressed as to its terms and conditions. The interpretation of these depends, of course, upon the lex loci contractus, as do also the nature and extent of those implied conditions which are annexed to the contract by the local law or usage. Thus the rate of interest, unless fixed by the parties, is allowed by the law as damages for the detention of the debt, and the proceedings to recover these damages may strictly be considered as a part of the remedy. The rate of interest is, however, regulated by the law of the place where the contract is made, unless, indeed, it appears that the parties had in view the law of some other country. In that case, the lawful rate of inte- 1 Bosanquet & Puller's Rep. vol. i. p. 131. Melan v. The Duke of Fitz- James. CHAP. II.] CRIMINAL LEGISLATION. 205 rest of the place of payment, or to which the loan has reference, by security being taken upon property there situate, will control the lex loci contractus?- The external form of the contract constitutes an essential part of its obligation. This must be regulated by the law of the place of contract, which determines whether it must be in writing, or under seal, or executed with certain formalities before a notary, or other public officer, and how attested. A want of compliance with these requisites renders the contract void ab initio, and being void by the law of the place, it cannot be carried into effect in any other State. But a mere fiscal regulation does not operate extraterritorially ; and therefore the want of a stamp, required by the local law to be impressed on an instrument, cannot be objected where it is sought to be enforced in the tribunals of another country. There is an essential difference between the form of the con- tract and the extrinsic evidence by which the contract is to be proved. Thus the lex loci contractus may require certain con- tracts to be in writing, and attested in a particular manner, and a want of compliance with these forms will render them entirely void. But if these forms are actually complied with, the ex- trinsic evidence, by which the existence and terms of the con- tract are to be proved in a foreign tribunal, is regulated by the lex fori. The most eminent public jurists concur in asserting ^21. Con- the principle, that a final judgment, rendered in a per- of forei"a^^ sonal action, in the courts of competent jurisdiction of •i^^^g'"^"*^ ' ^ •> m personal one State, ought to have the conclusive effect of a res actions. adjudicata in every other State, wherever it is pleaded in bar of another action for the same cause.^ But no sovereign is bound, unless by special compact, to exe- cute within his dominions a judgment rendered by the tribunals of another State ; and if execution be sought by suit upon the 1 Kent's Comm. on American Law, vol. ii. p. 459, fifth edit. Foelix, Droit International Priv^, § 85. 2 Vattel, liv. ii. ch. vii. §§ 84, 85. Martens, Droit des Gens, §§ 93, 94, 95. Klu- ber, Droit des Gens, § 59. Deutsche Bundes Recht, § 366. 18 206 RIGHTS OF CIVIL AND [PART II. judgment, or otherwise, the tribunal in which the suit is brought, or from which execution is sought, is, on principle, at liberty to examine into the merits of such judgment, and to give effect to it or not, as may be found just and equitable.^ The general comity, utility, and convenience of nations have, however, esta- blished a usage among most civilized States, by which the final judgments of foreign courts of competent jurisdiction are reci- procally carried into execution, under certain regulations and restrictions, which differ in different countries.^ Law of -^y *^^ ^^^^ °^ England, the judgment of a foreign England. tribunal, of competent jurisdiction, is conclusive where the same matter comes incidentally in controversy between the same parties ; and full effect is given to the exceptio rei judicatce, where it is pleaded in bar of a new suit for the same cause of action. A foreign judgment is prima facie evidence, where the party claiming the benefit of it applies to the English courts to enforce it, and it lies on the defendant to impeach the justice of it, or to show that it was irregularly obtained. If this is not shown, it is received as evidence of a debt, for which a new judgment is rendered in the English court, and execution awarded. But if it appears by the record of the proceedings, on which the original judgment was founded, that it was unjustly or fraudulently obtained, without actual personal notice to the party affected by it ; or if it is clearly and unequivocally shown? by extrinsic evidence, that the judgment has manifestly pro- ceeded upon false premises or inadequate reasons, or upon a palpable mistake of local or foreign law ; it will not be enforced by the English tribunals.^ American ^^^^ samc jurisprudence prevails in the United States law. of America, in respect to judgments and decrees ren- dered by the tribunals of a State foreign to the Union. As be- tween the different States of the Union itself, a judgment obtained in one State has the same credit and effect in all the other States, which it has by the laws of that State where it was i Kent's Comm. vol. ii. p. 119, 5tli edit. 2 Foelix, §§ 292-311. 3 Knapp's Rep. in the Privy Council, vol. i. p. 274: Frankland v. McGusty. Barnewall & Adolphus's Rep. vol. ii. p. 757: Novelli v. Rossi; vol. iii. p. 951: Becquet v. M'Carthy. II CHAP. II.] CRIMINAL LEGISLATION. 207 obtained; that is, it has the conclusive effect of a domestic judgment.^ The law of France i^strains the operation of foreign L^wof judgments within narrower limits. Judgments obtained France. in a foreign country against French subjects are not conclusive, either where the same matter comes again incidentally in con- troversy, or where a direct suit is brought to enforce the judg- ment in the French tribunals. And this want of comity is even carried so far, that, where a French subject commences a suit in a foreign tribunal, and judgment is rendered against him, the exception of lis firdla is not admitted as a bar to a new action by the same party, in the tribunals of his own country. If the judgment in question has been obtained against a foreigner, sub- ject to the jurisdiction of the tribunal where it was pronounced, it is conclusive in bar of a new action in the French tribunals, between the same parties. But the party who seeks to enforce it must bring a new suit upon it, in which the judgment is prima facie evidence only; the defendant being permitted to contest the merits, and to show not only that it was irregularly obtained, but that it is unjust and illegal.- The execution of foreign judgments in personam is recipro- cally allowed, by the law and usage of the different States of the Germanic Confederation, and of the European continent in gene- ral, except Spain, Portugal, Russia, Sweden, Norway, France, and the countries whose legislation is based on the French civil code.2 A decree of divorce obtained in a foreign country, by j-orei(,„ a fraudulent evasion of the laws of the State to which divorces. the parties belong, would seem, on principle, to be clearly void in the country of their domicile, where the marriage took place, though valid under the laws of the country where the divorce was obtained. Such are divorces obtained by parties going into ^ Cranch's Rep. vol. vii. pp. 481-484: Mills v. Duryee. Wheaton's Rep. vol. iii. p. 234 : Hampton v. M'Counel. 2 Code Civil, art. 2123, 2128. Code de Procedure Civil, art. 546. Pardessus, Droit Commercial, Pt. VI. tit. 7, ch. 2, § 2, No. 1488. Merlin, Repertoire, torn, vi. tit. Jufjement. Questions de Droit, torn. iii. tit. Jugement. TouUier, Droit Civil Fran^ais, torn. x. Nos. 76-86. 3 Fcelix, Droit International Priv6, §§ 293-311. 208 RIGHTS OF CIVIL AISfD [PART II. another country for the sole purpose of obtaining a dissolution of the nuptial contract, for causes not allowed by the laws of their own country, or where those laws do not permit a divorce a vinculo for any cause whatever. This subject has been thrown into almost inextricable confusion, by the contrariety of decisions between the tribunals of England and Scotland ; the courts of the former refusing to recognize divorces a vinculo pronounced by the Scottish tribunals, between English subjects who had not acquired a bond fide permanent domicile in Scotland ; whilst the Scottish courts persist in granting such divorces in cases where, by the law of England, Ireland, and the colonies connected with the United Kingdom, the authority of parliament alone is com- petent to dissolve the marriage, so as to enable either party, during the lifetime of the other, again to contract lawful wed- lock.i In the most recent English decision on this subject, the House of Lords, sitting as a Court of Appeals in a case coming from Scotland, and considering itself bound to administer the law of Scotland, determined that the Scottish courts had, by the law of that country, a rightful jurisdiction to decree a divorce between parties actually domiciled in Scotland, notwithstanding the mar- riage was contracted in England. But the Court did not decide what effect such a divorce would have, if brought directly in question in an English court of justice.^ (a) In the United States, the rule appears to be conclusively set- tled that the lex loci of the State, in which the parties are bond fide domiciled, gives jurisdiction to the local courts to decree a divorce, for any cause recognized as sufficient by the local law, without resjard to the law of that State where the marriage was 1 Dow's Parliament. Cases, vol. i. p. 117: Tovey v. Lindsay, p. 124. Lolly's case. See Fergusson's Reports of Decisions in the Consistorial Courts of Scot- land, passim.' 2 Warrender v. Warrender, Bligh. Rep. vol. ix. p. 89. S. C. Clark & Finnell. Rep. vol. ii. p. 488. (a) [The status of parties, domiciled subjects of and married in America, is not so affected by a sentence pronounced at and founded on a rule of law pecu- liar to Rome, the persons being then resident at Rome and coming subsequently to England, that an English forum would, by reason of such sentence, refuse to entertain questions arising out of the married state of such persons. English Law and Equity Reports, vol. ii. p. 570. Connelly v. Connelly.] CHAP. II.] CRIMINAL LEGISLATION. 209 originally contracted.^ This, of course, excludes such divorces as are obtained in fraudulent evasion of the laws of one State,' by parties removing into another for the sole purpose of procur- ing a divorce.^ 1 Dorsey f. Dorsey, Chandler's Law Reporter, vol. i. p. 287. 2 Kent's Comm, vol. ii. p. 107, 5th edit. 18' 210 RIGHTS OF CIVIL AND CRIMINAL LEGISLATION. [PART II. CHAPTER III. RIGHTS OF EQUALITY. § 1. Natu- The natural equality of sovereign States may be of s^tates^ ^ modified by positive compact, or by consent implied compact ^'^ from constant usage, so as to entitle one State to supe- or usage, riority over another in respect to certain external objects, such as rank, titles, and other ceremonial distinctions. §2. Royal Thus the international law of Europe has attributed honors. -^o Certain States what are called royal honors^ which are actually enjoyed by every empire or kingdom in Europe, by the Pope, the grand duchies in Germany, and the Germanic and Swiss Confederations. They were also formerly conceded to the German empire, and to some of the great republics, such as the United Netherlands and Venice. These roijal honors entitle the States by which they are pos- sessed to precedence over all others who do not enjoy the same rank, with the exclusive right of sending to other States public ministers of the first rank, as ambassadors, together with certain other distinctive titles and ceremonies.^ i 3. Pre- Among the princes who enjoy this rank, the Catholic cedence powers concede the precedency to the Pope, or sove- among ^ _ _ ' •' ' ' princes and reign pontiff; but Russia and the Protestant States of States en- .,,. -r>-i c-n i joying royal Europc cousidcr him as Bishop ol Kome only, and a sovereign prince in Italy, and such of them as enjoy royal honors refuse him the precedence. 1 Vattel, Droit des Gens, torn. i. liv. LI. cli. 3, § 38. Martens, Precis du Droit des Gens Moderne de I'Europe, liv. ill. ch. 2, § 129. Ivliiber, Droit des Gens Moderne, pt. il. tit. 1, ch. 3, §§ 91, 92. Heffter, Eurcipalsche Volkerrecht, § 28. il CHAP. III.] RIGHTS OF EQUALITY. 211 The Emperor of Germany, under the former constitution of the empire, was entitled to precedence over all other temporal princes, as the supposed successor of Charlemagne and of the Caesars in the empire of the West ; but since the dissolution of the late Germanic constitution, and the abdication of the titles and prerogatives of its head by the Emperor of Austria, the pre- cedence of this sovereign over other princes of the same rank may be considered questionable.^ The various contests between crowned heads for precedence are matter of curious historical research as illustrative of Euro- pean manners at different periods ; but the practical importance of these discussions has been greatly diminished by the progress of civilization, which no longer permits the serious interests of mankind to be sacrificed to such vain pretensions. The text-writers commonly assigned to what were ^^^ ^^^^ called the great republics, who were entitled to royal Kepubhcs. honors, a rank inferior to crowned heads of that class ; and the United Netherlands, Venice, and Switzerland, certainly did formerly yield the precedence to emperors and reigning kings, though they contested it with the electors and other inferior princes entitled to royal honors. But disputes of this sort have commonly been de- termined by the relative power of the contending parties, rather than by any general rule derived from the form of government. Cromwell knew how to make the dignity and equality of the English Commonwealth respected by the crowned heads of Europe ; and in the different treaties between the French Re- public and other powers, it was expressly stipulated that the same ceremonial as to rank and etiquette should be observed between them and France which had subsisted before the revolution.^ Those monarchical sovereigns who are not crowned heads, but who enjoy royal honors, concede the precedence on all occasions to emperors and kings. 1 Martens, § 152. Kluber, § 95. 2 Treaty of Campo Formio, art. 23, aud of Luneville, art. 17, -with Austria. Treaties of Basle with Prussia and Spain. Schoell, Histoire des Traites de Paix, torn. i. p. 610. Edit. Bruxelles. 212 RIGHTS OF EQUALITY. [PART II. Monarchical sovereigns who do not enjoy royal honors yield the precedence to those princes who are entitled to these honors. Semi-sovereign or dependent States rank below sovereign States.i Semi-sovereign States, and those under the protection or Suze- rainetS of another sovereign State, necessarily rank below that State on which they are dependent. But where third parties are concerned, their relative rank must be determined by other con- siderations ; and they may even take precedence of States com- pletely sovereign, as was the case with the electors under the former constitution of the Germanic empire, in respect to other princes not entitled to royal honors.^ These different })oints respecting the relative rank of sovereigns and States have never been determined by any positive regula- tion or international compact : they rest on usage and general acquiescence. An abortive attempt was made at the Congress of Vienna to classify the different States of Europe, with a view to determine their relative rank. At the sitting of the 10th December, 1814, the plenipotentiaries of the eight powers who signed the treaty of peace at Paris, named a committee to which this subject was referred. At the sitting of the 9th February, 1815, the report of the committee, which proposed to establish three classes of powers, relatively to the rank of their respective ministers, was discussed by the Congress ; but doubts having arisen respecting this classification, and especially as to the rank assigned to the great republics, the question was indefinitely postponed, and a regulation established determining merely the relative rank of the diplomatic agents of crowned heads.^ , ,, Where the rank between different States is equal or ^ 4. Usage ... of the alter- undetermined, different expedients have been resorted to for the purpose of avoiding a contest, and at the same time reserving the respective rights and pretensions of the parties. Among these is what is called the usage of the alternate by which the rank and places of different powers are changed from time to 1 Kluber, § 98. 2 Heffter, Das Europiiische Volkerreclit, § 28, No. III. 3 Kluber, Acten des "Weiner Congresses, torn. viii. pp. 98, 102, 108, 116. CHAP. III.] EIGHTS OF EQUALITY. 213 time, either in a certain regular order, or one determined by lot. Thus, in drawing up public treaties and conventions, it is the usage of certain powers to alternate, both in the preamble and the signatures, so that each power occupies, in the copy intended to be delivered to it, the first place. The regulation of the Con- gress of Vienna, above referred to, provides that in acts and treaties between those powers which admit the alteniat, the order to be observed by the different ministers shall be determined by lot.i Another expedient which has frequently been adopted to avoid controversies respecting the order of signatures to treaties and other public acts, is that of signing in the order assigned by the French alphabet to the respective Powers represented by their ministers.^ The primitive equality of nations authorizes each r ■ , • , § 5. Lan nation to make use of its own language in treating guage used with others, and this right is still, in a certain degree, ticiuter™*^ preserved in the practice of some States. But general '^o"^"^^- convenience early suggested the use of the Latin language in the diplomatic intercourse between the different nations of Europe. Towards the end of the fifteenth century, the preponderance of Spain contributed to the general diffusion of the Castilian tongue as the ordinary medium of political correspondence. This, again, has been superseded by the language of France, which, since the age of Louis XIV., has become the almost universal diplo- matic idiom of the civilized world. Those States which still retain the use of their national language in treaties and diplo- matic correspondence, usually annex to the papers transmitted by them a translation in the language of the opposite party, wherever it is understood that this comity will be reciprocated. Such is the usage of the Germanic Confederation, of Spain, and the Italian courts. Those States which have a common lan- guage generally use it in their transactions with each other. Such is the case between the Germanic Confederation and its different members, and between the respective members them- ^ Annexe, xvii. h I'Acte du Congres de Vienne, art 7, 2 Kliiber, Uebersicht der diplomatischen Verhandlungen des Wiener Con- gresses, § 164. 214 RIGHTS OF EQUALITY. [PART. II. selves ; between the different States of Italy ; and between Great Britain and the United States of America. § 6. Titles All sovereign princes or States may assume what- princesTud" ^^^*' titles of dignity they think fit, and may exact from States. their own subjects these marks of honor. But their recognition by other States is not a matter of strict right, espe- cially in the case of new titles of higher dignity, assumed by sovereigns. Thus the royal title of King of Prussia, which was assumed by Frederick I. in 1701, was first acknowledged by the Emperor of Germany, and subsequently by the other princes and States of Europe. It was not acknowledged by the Pope until the reign of Frederick William II. in 1786, and by the Tue- tonic knights until 1792, this once famous military order still retaining the shadow of its antiquated claims to the Duchy of Prussia until that period.^ So also the title of Emperor of all the Russias, which was taken by the Czar, Peter the Great, in 1701, was successively acknowledged by Prussia, the United Netherlands, and Sweden in 1723, by Denmark in 1732, by Turkey in 1739, by the emperor and the empire in 1745-6, by France in 1745, by Spain in 1750, and by the Republic of Poland in 1764. In the recognition of this title by France, a reservation of the right of precedence claimed by that crown was insisted on, and a stipulation entered into by Russia in the form of a Reversale, that this change of title should make no altera- tion in the ceremonies observed between tVie two courts. On the accession of the Empress Catharine II. in 1762, she refused to renew this stipulation in that form, but declared that the im- perial title should make no change in the ceremonial observed between the two courts. This declaration was answered by the court of Versailles in a counter declaration, renewing the recogni- tion of that title, upon the express condition, that, if any altera- tion should be made by the court of St. Petersburg in the rules previously observed by the two courts as to rank and precedence, the French crown would resume its ancient style, and cease to give the title of Imperial to that of Russia.^ 1 Ward's History of the Law of Nations, vol. ii. pp. 245-248. Kliiber, Droit des Gens Moderne de I'Europe, pt. ii. tit. 1, ch. 2, § 107, note c. 2 Flassan, Histoire de la Diplomatie Fran^aise, torn. vi. liv. iii. pp. 328-364. I CHAP. III.] RIGHTS OF EQUALITY. 215 The title of Emperor, from the historical associations with which it is connected, was formerly considered the most eminent and honorable among all sovereign titles; but it was never regarded by other crowned heads as conferring, except in the single case of the Emperor of Germany, any prerogative or pre- cedence over those princes. The usas:e of nations has established certain mari- „ . . . , § <"• Man- time ceremonials to be observed, either on the ocean, time cere- or those parts of the sea over which a sort of supre- macy is claimed by a particular State. Among these is the salute by striking the flag or the sails, or by firing a certain number of guns on approaching a fleet or a ship of war, or entering a fortified port or harbor. Every sovereign State has the exclusive right, in virtue of its independence and equality, to regulate the maritime ceremonial to be observed by its own vessels towards each other, or towards those of another nation, on the high seas, or within its own ter- ritorial jurisdiction. It has a similar right to regulate the cere- monial to be observed w^ithin its own exclusive jurisdiction by the vessels of all nations, as well with respect to each other, as towards its own fortresses and ships of war, and the reciprocal honors to be rendered by the latter to foreign ships. These regulations are established either by its own municipal ordi- nances, or by reciprocal treaties with other maritime powers.^ Where the dominion claimed by the State is contested by foreign nations, as in the case of Great Britain in the Narrow Seas, the maritime honors to be rendered by its flag are also the subject of contention. The disputes on this subject have not unfrequently formed the motives or pretexts for war between the powers asserting these pretensions, and those by whom they were resisted. The maritime honors required by Denmark, in conse- quence of the supremacy claimed by that power over the Sound and Belts, at the entrance of the Baltic Sea, have been regulated and modified by different treaties with other States, and espe- 1 Bynkershoek, de Dominio Maris, cap. 2, 4. Martens, Precis du Droit des Gens Moderne de I'Europe, liv. iv, ch. 4, § 159. Kliiber, Droit des Gens Moderne de I'Europe, pt. ii. tit. 1, ch. 3, §§ 117-122. 216 RIGHTS OF EQUALITY. [PART II. cially by the convention of the loth of January, 1829, between Russia and Denmark, suppressing most of the formalities re- quired by former treaties. This convention is to continue in force until a general regulation shall be established among all the maritime powers of Europe, according to the protocol of the Congress of Aix la Chapelle, signed on the 9th November, 1818, by the terms of which it was agreed, by the ministers of the five great powers, Austria, France, Great Britain, Prussia, and Russia, that the existing regulations observed by them should be referred to the ministerial conferences at London, and that the other maritime powers should be invited to communicate their views of the subject in order to form some such general regulation.^ 1 J. H. W. Schlegel, Staats Eecht des Konlgreichs Danemark, 1 Theil, p. 412. Martens, Nouveau Recueil, torn. viii. p. 73. Ortolan, Diplomatie de la Mer, t. i. liv. 2, chap. 15. CHAP. IT.] EIGHTS OF PROPERTY. 217 CHAPTER IV. RIGHTS OF PROPERTY. The exclusive right of every independent State to its ^ i. ^a- territory and other property, is founded upon the title p\?i"tJiP''°" originally acquired by occupancy, conquest, or cession, ^igiits. and subsequently confirmed by the presumption arising from the lapse of time, or by treaties and other compacts with foreign States, (a) This exclusive right includes the public property or ^ 2. Pub- domain of the State, and those things belonging to j^^^j^^^ ^^^ private individuals, or bodies corporate, within its terri- P^rty- torial limits. The right of the State to its public property or do- § 3. Emi- main is absolute, and excludes that of its own subjects, mdu. as well as other nations. The national proprietary right, in respect to those things belonging to private individuals, or bodies corporate, within its territorial limits, is absolute, so far as it excludes that of other nations ; but, in respect to the members of the State, it is paramount only, and forms what is called the eminent domain ; ^ that is, the right, in case of necessity or for the public safety, of disposing of all the property of every kind within the limits of the State. (a) [See, on the subject of the inviolabUIty of national territory, the corre- spondence between Mr. Webster and Lord Ashburton, in the case of the Caro- line, destroyed at Schlosser, in December, 1837. Webster's Works, vol. vi. p. 292.] 1 Vattel, Droit des Gens, liv. i. ch. 20, §§ 235, 244. Rutherforth's Inst, of Natural Law, vol. ii. ch. 9, § 6. das Ileffter, Europaische Volkerrecht, §§ 64, 69, 70. 19 218 RIGHTS OF PROPERTY. [PART II. , 4 Pre- The writers on natural law have questioned how far scription. that peculiar species of presumption, arising from the lapse of time, which is called prescription^ is justly applicable, as between nation and nation ; but the constant and approved practice of nations shows that, by whatever name it be called, the uninterrupted possession of territory, or other property, for a certain length of time, by one State, excludes the claim of every other; in the same manner as, by the law of nature and the municipal code of every civilized nation, a similar possession by an individual excludes the claim of every other person to the article of property in question. This rule is founded upon the supposition, confirmed by constant experience, that every person will naturally seek to enjoy that which belongs to him ; and the inference fairly to be drawn from his silence and neglect, of the original defect of his title, or his intention to relinquish it.i {a) § 5. Con- The title of almost all the nations of Europe to the discovery territory now possessed by them, in that quarter of the by°compact world, was Originally derived from conquest, which has and the been subsequently confirmed by long possession and time. international compacts, to which all the European States have successively become parties. Their claim to the possessions held by them in the New World, discovered by Co- lumbus and other adventurers, and to the territories which they i Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 4. Puffendorf, Jus Naturas et Gen- tium, lib. iv. cap. 12. Vattel, Droit des Gens, tome i. liv. ii. ch. 11. Rutberforth's Inst, of Natural Law, vol. i. cb. 8 ; vol. ii. cb. 9, §§ 3,'6. " Sic qui rem suam ab alio teneri scit, nee quicquam contradicit multo tempore, is nisi causa alia manifeste appareat, non videtur id alio fecisse animo, quiim quod rem illam in suaram rerum numero esse nollet." Grotius in loc cit. (a) [This same principle was recognized as tbe rule, in tbe suit of Rbode Island against Massacbusetts, in reference to tbe northern boundary of the former State, decided in 1846. The Court said: — "No human transactions are unaf- fected by time. Its influence is seen over all things subject to change. And this is peculiarly the case in regard to matters which rest in -memory, and which, con- sequently, fade with the lapse of time, and fall with the lives of individuals. For the security of rights, whether of States or individuals, long possession under a claim of title is protected. And there is no controversy in which this great prin- ciple may be invoked with greater justice and propriety than in a case of disputed boundary." Howard's Rep. vol. iv. p. 639, Rhode Island v. Massachusetts.] CHAP. IV.] RIGHTS OF PROPETRY. 219 have acquired on the continents and islands of Africa and Asia, was originally derived from discovery, or conquest and coloniza- tion, and has since been confirmed in the same manner, by posi- tive compact. Independently of these sources of title, the gene- ral consent of mankind has established the principle, that long and uninterrupted possession by one nation excludes the claim of every other. Whether this general consent be considered as an implied contract, or as positive law, all nations are equally bound by it ; since all are parties to it, since none can safely dis- regard it without impugning its own title to its possessions, and since it is founded upon mutual utility, and tends to promote the general welfare of mankind. The Spaniards and Portuguese took the lead among the nations of Europe, in the splendid maritime discoveries in the East and the West, during the fifteenth and sixteenth centuries. According to the European ideas of that age, the heathen nations of the other quarters of the globe were the lawful spoil and prey of their civilized conquerors, and as between the Christ- ian powers themselves, the Sovereign Pontiff was the supreme arbiter of conflicting claims. Hence the famous bull, issued by Pope Alexander VI., in 1493, by which he granted to the united crowns of Castile and Arragon all lands discovered, and to be discovered, beyond a line drawn from pole to pole, one hundred leagues west from the Azores, or Western Islands, under which Spain has since claimed to exclude all other European nations from the possession and use, not only of the lands but of the seas in the New World w^est of that line. Independent of this papal grant, the right of prior discovery was the foundation upon which the different European nations, by whom conquests and settlements were successively made on the American continent, rested their respective claims to appropriate its territory to the exclusive use of each nation. Even Spain did not found her pretension solely on the papal grant. Portugal asserted a title derived from discovery and conquest to a portion of South Ame- rica ; taking' care to keep to the eastward of the line traced by the Pope, by which the globe seemed to be divided between these two great monarchies. On the other hand, Great Britain, France, and Holland, disregarded the pretended authority of the papal see, and pushed their discoveries, conquests, and settle- ments, both in the East and West Indies; until conflicting with 220 RIGHTS OP PROPERTY. [pART II. the paramount claims of Spain and Portugal, they produced bloody and destructive wars between the different maritime powers of Europe. But there was one thing in which they all agreed, that of almost entirely disregarding the right of the native inhabitants of these regions. Thus the bull of Pope Alexander VI. reserved from the grant to Spain all lands, which had been previously occupied by any other Christian nation ; and the patent granted by Henry VII. of England to John Cabot and his sons, authorized them "to seek out and discover all islands, regions, and provinces whatsoever, that may belong to heathens and infidels;" and "to subdue, occupy, and possess these territories, as his vassals and lieutenants." In the same manner, the grant from Queen Elizabeth to Sir Humphrey Gil- bert empowers him to " discover such remote heathen and bar- barous lands, countries, and territories, not actually possessed by any Christian prince or people, and to hold, occupy, and enjoy the same, with all their commodities, jurisdictions, and royal- ties." It thus became a maxim of policy and of law, that the right of the native Indians was subordinate to that of the first Christian discoverer, whose paramount claim excluded that of every other civilized nation, and gradually extinguished that of the natives. In the various wars, treaties, and negotiations, to which the conflicting pretensions of the different States of Christendom to territory on the American continents have given rise, the primitive title of the Indians has been entirely over- looked, or left to be disposed of by the States within whose limits they happened to fall, by the stipulations of the treaties between the different European powers. Their title has thus been almost entirely extinguished by force of arms, or by volun- tary compact, as the progress of cultivation gradually compelled the savage tenant of the forest to yield to the superior power and skill of his civilized invader.^ Dispute In the dispute which took place in 1790, between Great Great Britain and Spain, relative to Nootka Sound, the and'spaiu letter claimed all the north-western coast of America as relating to' far „orth as Prince William's Sound, in latitude 61° Nootlva ' 5 Soiand. upon the ground of prior discovery and long possession, ^ Wheaton's Rep. vol. viii. pp. 571-605 : Johnson v. M'Intosh. CHAP. IV.] RIGHTS OF PROPERTY. 221 confirmed by the eighth article of the Treaty of Utrecht, refer- ring to the state of possession in the time of his Catholic Ma- jesty Charles II. This claim was contested by the British government, upon the principle that the earth is the common inheritance of mankind, of which each individual and each nation has a right to appropriate a share, by occupation and cultivation. This dispute was terminated by a convention between the two powers, stipulating that their respective subjects should not be disturbed in their navigation and fisheries in the Pacific Ocean or the South Seas, or in landing on the coasts of those seas, not already occupied, for the purpose of carrying on their commerce with the natives of the country, or of making settlements there, y subject to the following provisions : — 1. That the British navigation and fishery should not be made the pretext for illicit trade with the Spanish settlements, and that British subjects should not navigate or fish within the space of ten marine leagues from any part of the coasts already occupied by Spain. 2. That in all parts of the north-western coasts of North Ame- rica, or of the islands adjacent, situated to the north of the parts of the said coast already occupied by Spain, wherever the sub- jects of either of the two powers should have made settlements since the month of April, 1789, or should thereafter make any, the subjects of the other should have free access, and should carry on their trade without any disturbance or molestation. 3. That, with respect to the eastern and western coasts of South America, and the adjacent islands, no settlement should be formed thereafter, by the respective subjects, in such parts of those coasts as are situated to the south of those parts of the same coasts, and of the adjacent islands already occupied by Spain ; provided that the respective subjects should retain the liberty of landing on the coasts and islands so situated, for the purposes of their fishery, and of erecting huts and other tempo- rary buildings, for those purposes only.^ By an ukase of the Emperor Alexander of Russia, of Contro- the 4-16th September, 1821, an exclusive territorial right Ku^the 1 Annual Register for 1790, (State Papers,) pp. 285-305 ; 1791, pp. 208, 214, 222-227. Greenhow, History of Oregon and California, p. 466 : Proofs and Elustrations, K. No. 1. 19* 222 RIGHTS OF PROPERTY. [PART II. United Oil the north-west coast of America was asserted as Russia, belonging to the Russian Empire, from Behring's Straits the^north? *° ^^^ ^^^^ degree of north latitude, and in the Aleutian western Islands, on the east coast of Siberia, and the Kurile coast of ' _ America. Islands, from the same straits to the South Cape in the island of Ooroop, in 45*^ 51' north latitude. The navigation and fishery of all other nations were prohibited in the islands, ports, and gulfs, within the above limits ; and every foreign vessel was forbidden to touch at any of the Russian establishments above enumerated, or even to approach them, within a less distance than 100 Italian miles, under penalty of confiscation of the cargo. The proprietary rights of Russia to the extent of the north-west coast of America, specified in this decree, were rested upon the three bases said to be required by the general law of nations and immemorial usage ; that is : upon the title of first discovery ; upon the title of first occupation ; and, in the last place, upon that which results from a peaceable and uncontested pos- session of more than half a century. It was added, that the extent of sea, of which the Russian possessions on the continents of Asia and America form the limits, comprehended all the conditions which were ordinarily attached to shut seas {viers fermees) ; and the Russian government might consequently deem itself authorized to exercise upon this sea the right of sove- reignty, and especially that of entirely interdicting the entrance of foreigners. But it preferred only asserting its essential rights, by measures adapted to prevent contraband trade within the char- tered limits of the American Russian Company. All these grounds were contested, in point of fact as well as right, by the American government. The Secretary of State, Mr. John Q. Adams, in his reply to the communication of the Rus- sian Minister at Washington, stated, that from the period of the existence of the United States as an independent nation, their vessels had freely navigated these seas, and the right to navigate them was a part of that independence ; as was also the right of their citizens to trade, even in arms and munitions of war, with the aboriginal natives of the north-west coast of America, who were not under the territorial jurisdiction of other nations. He totally denied the Russian claim to any part of America south of the 55th degree of north latitude, on the ground that this parallel was declared, in the charter of the Russian American I CHAP. IV.J RIGHTS OF PROPERTY. 223 Company, to be the southern limit of the discoveries made by the Russians in 1799 ; since which period they had made no dis- coveries or establishments south of that line, on the coast claimed by them. With regard to the suggestion, that the Russian government might justly exercise sovereignty over the northern Pacific Ocean, as mare clausum, because it claimed territories both on the Asiatic and American coasts of that ocean, Mr. Adams merely observed, that the distance between those coasts on the parallel of 51 degrees, was not less than four thousand miles ; and he concluded by expressing the persuasion of the American government, that the citizens of the United States would remain unmolested in the prosecution of their lawful com- merce, and that no effect would be given to a prohibition, mani- festly incompatible with their rights.^ The negotiations on this subject were finally termi- couven- nated by a convention between the two governments, between the signed at Petersburg, on the 5-17th April, 1824, con- g'Jef and taining the following stipulations : — Russia. " Art. 1. It is agreed that, in any part of the great ocean, com- monly called the Pacific Ocean or South Sea, the respective citi- zens or subjects of the high contracting powers shall be neither disturbed nor restrained, either in navigation or in fishing, or in the pov/er of resorting to the coasts, upon points which may not already have been occupied, for the purpose of trading with the natives, saving always the restrictions and conditions determined by the following articles : " Art. 2. With the view of preventing the rights of navigation and of fishing, exercised upon the great ocean by the citizens and subjects of the high contracting powers, from becoming the pretext for an illicit trade, it is agreed that the citizens of the United States shall not resort to any point where there is a Rus- sian establishment, wdthout the permission of the governor or commander ; and that, reciprocally, the subjects of Russia shall not resort, without permission, to any establishment of the United States upon the north-west coast. "Art. o. It is moreover agreed, that hereafter, there shall not be ' Annual Register, vol. Ixiv. pp. 576-584. Correspondence between Mr. Secre- tary Adams and Mr. Poletica. 224 RIGHTS OF PROPERTY. [PART II. formed by the citizens of the United States, or under the author- ity of the said States, any establishment upon the north-west coast of America, nor in any of the islands adjacent, to the north of fifty-four degrees and forty minutes of north latitude ; and that, in the same manner, there shall be none formed by Russian subjects, or under the authority of Russia, south of the same parallel. "Art. 4. It is, nevertheless, understood, that, during a term of ten years, counting from the signature of the present Conven- tion, the ships of both powers, or which belong to their citizens or subjects, respectively, may reciprocally frequent, without any hinderance whatever, the interior seas, gulfs, harbors, and creeks, upon the coast mentioned in the preceding article, for the pur- pose of fishing and trading with the natives of the country." ConvQn- Great Britain had also formally protested against between^^ the claims and principles set forth in the Russian ukase Great Bri- ^f X821, immediately on its promulgation, and subse- Russia. quently at the Congress of Verona. The controversy, as between the British and Russian governments, was finally closed by a convention signed at Petersburg, February 16-28, 1825, which also established a permanent boundary between the territories respectively claimed by them on the continent and islands of North-western America. This treaty contained the following stipulations : — "Art. 1. It is agreed that the respective subjects of the high contracting parties shall not be troubled or molested in any part of the ocean commonly called the Pacific Ocean, either in navi- gating the same, in fishing therein, or in landing at such part of the coast as shall not have been already occupied, in order to trade with the natives, under the restrictions and conditions specified in the following articles : — "Art. 2. In order to prevent the right of navigating and fishing, exercised upon the ocean by the subjects of the high contracting parties, from becoming the pretext for an illicit commerce, it is agreed that the subjects of his Britannic Majesty shall not land at any place where there may be a Russian establishment, with- out the permission of the governor or commandant ; and, on the other hand, that Russian subjects shall not land, without permis- sion, at any British establishment on the north-west coast." By the 3d and 4th articles it was agreed that " the line of I CHAP. IV.] RIGHTS OF PROPERTY. 225 demarcation between the possessions of the high contracting parties upon the coast of the continent and the islands of Ame- rica to the north-west," should be drawn from the southernmost point of Prince of Wales's island, in latitude 54: degrees 40 minutes eastward, to the great inlet in the continent called Portland Channel, and along the middle of that inlet to the 56th degree of latitude, whence it should follow the summit of the mountains bordering the coast, within ten leagues north- westward, to Mount St. Elias, and thence north, in the course of the 141st meridian west from Greenwich, to the frozen ocean, " which line shall form the limit between the Russian and the British possessions in the continent of America to the north- west." "Art. 5. It is, moreover, agreed that no establishment shall be formed by either of the two parties within the limits assigned by the two preceding articles to the possessions of the other. Con- sequently, British subjects shall not form any establishment, either upon the coast, or upon the border of the continent com- prised within the limits of the Russian possessions, as designated in the two preceding articles ; and, in like manner, no establish- ment shall be formed by Russian subjects beyond the said limits. "Art. 6. It is understood that the subjects of his Britannic Majesty, from whatever quarter they may arrive, whether from the ocean or from the interior of the continent, shall forever enjoy the right of navigating freely, and without any hinderance whatever, all the rivers and streams which in their course towards the Pacific Ocean may cross the line of demarcation upon the line of coast described in article 3 of the present convention. "Art. 7. It is also understood, that, for the space of ten years from the signature of the present Convention, the vessels of the two powers, or those belonging to their respective subjects, shall mutually be at liberty to frequent, without any hinderance what- ever, all the inland seas, gulfs, havens, and creeks on the coast, mentioned in article 3, for the purpose of fishing and trading with the natives. "Art. 8. The port of Sitka,- or Novo Archangelsk, shall be open to the commerce and vessels of British subjects for the space of ten years, from the date of the exchange of the ratifica- tions of the present convention. In the event of an extension of 226 RIGHTS OF PROPERTY. [PART II. this term being granted to any other power, the like extension shall be granted also to Great Britain. "Art. 9. The above-mentioned liberty of commerce shall not apply to the trade in spirituous liquors, in fire-arms, or other arms, gunpowder or other warlike stores ; the high contracting parties reciprocally engaging not to permit the above-mentioned articles to be sold or delivered, in any manner whatever, to the natives of the country. The 10th and 11th articles contain regulations respecting Bri- tish or Russian vessels, navigating the Pacific Ocean, and putting into the ports of the respective parties in distress ; and for the settlement of all cases of complaint arising under the treaty.^ (a) Expiration In the mean time, the period of ten years, established ventionof* by the 4th article of the Convention between the United tweei^the States and Russia, during which the vessels of both na- United tious might frequent the bays, creeks, harbors, and other Russiti. interior waters on the north-western coast of America, had expired. The Russian government had chosen to consider that article as the only limitation of its right to exclude Ameri- can vessels from all parts of the division of the coast, on which the United States stipulated to form no establishments; disre- garding entirely the 1st article of the Convention, by which all unoccupied places on the north-western coast were declared free and open to the citizens or subjects of both parties — American vessels were consequently prohibited by the Russian authorities from trading on the unoccupied parts of that coast, north of the parallel of 54th degree 40 minutes. The American government protested against this prohibition, and at the same time, proposed to the Russian government to renew the stipulations of the Con- vention of 1824, for an indefinite period of time.^ In the letter of instructions from the Secretary of State, Mr. Forsyth, to the American Minister at Petersburg, it was stated, that if the 4th article was to be considered as merely applicable ' Greenhow, History of Oregon and California, p. 469 : Proofs and Illustra- tions, I. No. 5. (a) [In the treaty of commerce, of June 11, 1843, between Great Britain and Russia, it is provided that the convention of February, 1825, shall govern as to the trade on the north-west coast of America. Parliamentary Papers, 1843.] 2 Greenhow, pp. 343-361. I CHAP. lY.] RIGHTS OF PROPERTY. 227 to parts of the coast unoccupied, then it merely provided for the temporary enjoyment of a privilege which existed in perpetuity, under the law of nations, and which had been expressly declared so to exist by a previous article of the Convention. Containing, therefore, no provision not embraced in the preceding article, it would be useles and of no effect. But the rule in regard to the construction of an instrument, of whatever kind, was, that it should be so construed, if possible, as that every part may stand. If the article were construed to include points of the coast already occupied, it then took effect, thus far, as a temporary exception to a perpetual prohibition, and the only consequence of the expiration of the term to which it was limited, would be the immediate and continued operation of the prohibition. It was still more reasonable to understand it, however, as intended to grant permission to enter interior bays, &c., at the mouths of which there might be establishments, or the shores of which might be, in part, but not wholly, occupied by such esta- blishments, thus providing for a case which would otherwise admit of doubt, as without the 4th article it would be question- able whether the bays, &c., described in it belonged to the first or second article. In no sense could it be understood as implying an acknow- ledgment, on the part of the United States, of the right of Russia to the possession of the coast above the latitude of 54 degrees 40 minutes north. It must be taken in connection with the other articles of the Convention, which had, in fact, no reference what- ever to the question of the right of possession of the unoccupied part of the coast. In a spirit of compromise, and to prevent future collisions or difficulties, it was agreed that no new esta- blishments should be formed by the respective parties to the north or south of a certain parallel of latitude, after the conclu- sion of the agreement ; but the question of the right of posses- sion beyond the existing establishments, as it subsisted pre- viously to, or at the time of the conclusion of the convention, was left untouched. The United States, in agreeing not to form new establishments to the north of latitude 54 degrees 40 minutes north, made no acknowledgment of the right of Russia to the territory above that line. If such an admission had been madej Russia, by the same construction of the article, must have acknowledged the right of the United States to the territory 228 RIGHTS OF PROPERTY. [PART 11. south of the designated line. But that Russia did not so under- stand the article, was conclusively proved by her having entered into a similar agreement in a subsequent treaty (1825) with Great Britain ; and having, in fact, acknowledged in that instru- ment the right of the same territory by Great Britain. The United States could only be considered as acknowledging the right of Russia to acquire, by actual occupation, a just claim to unoccupied lands above the latitude 54 degrees 40 minutes north ; and even this was mere matter of inference, as the Con- vention of 1824 contains nothing more than a negation of the right of the United States to occupy new points within that limit. Admitting that this inference was just, and was in contempla- tion of the parties to the Convention, it would not follow that the United States ever intended to abandon the just right acknow- ledged by the first article to belong to them under the law of nations, i. e. to frequent any part of the unoccupied coasts of North America, for the purpose of fishing or trading with the natives. All that the Convention admitted was an inference of the right of Russia to acquire possession by settlement north of 54 degrees 40 minutes north. Until that actual pos- session was taken, the first article of the Convention acknow- ledged the right of the United States to fish and trade as prior to its negotiation. This was not only the just construction, but it was the one both parties were interested in putting upon the instrument, as the benefits were equal and mutual, and the ob- ject of the Convention, to avoid converting the exercise of the common right into a dispute about exclusive privilege, was secured by it. These arguments were not controverted by the Russian cabi- net, which, however, declined the proposition for a renewal of the engagements contained in the 4th article, and the matter still rests on the same footing.^ The claim of the United States to the territory be- Claim of . . "^ the United twccu the Rocky Mountains and the Pacific Ocean, the Oregon and between the 42d degree and 54th degrees and territory, ^q minutcs of uorth latitude, is rested by them upon the following grounds : — 1 Mr. Forsyth's letter to Mr. Dallas, Nov; 3, 1837, Congress. Documents, Sess. 1838-9. Vol. i. p. 36. Greenhow, pp. 361-363 J CHAP. IV.] RIGHTS OF PROPERTY. 229 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 Captains Lewis and Clarke, in 1805-6 ; 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," &.C., " shall be restored without delay." This restitution was made, without any reservation or exception whatsoever, communicated at the time to the Ameri- can government. 3. The acquisition by the United States of all the titles of Spain, which 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 certain points on the Red River and the Arkansas, and running along the parallel of 42 degrees north of the South Sea ; his Catholic Majesty ceding to the United States " all his rights, claims, and pretensions, to any territories east and north of the said line; and" renouncing "for himself, his heirs and suc- cessors, all claim to the said territories forever." The boundary thus agreed on with Spain was confirmed by the treaty of 1828, between the United States and Mexico, which had, in the mean time, become independent of Spain. 4. Upon the ground of coniiguiti/, 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 factories on the shores of Hudson's Bay have been con- sidered by Great Britain as giving an exclusive right of occu- pancy as far as the Rocky Mountains ; if the infant settlements on the more southern Atlantic shores justified a claim thence to 20 230 RIGHTS OF PROPERTY. [PART II. the South Seas, and which was actually enforced to the Mis- sissippi ; that of the millions of American citizens already within reach of those seas, cannot consistently be rejected. It will not be denied that the extent of contiguous country to which an actual settlement gives a prior right, must depend, in a consider- able degree, on the magnitude and population of that settlement, and on the jfacility 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 by Lieutenant Meares of the British navy ; and that the explo- ration of the interior borders of the Columbia by Lewis and Clarke could not be considered as confirming the claim of the United States, because, 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. 2. That the restitution of Astoria, in 1818, was accompanied by express reservations of the claim of Great Britain to that terri- tory, upon which the American settlement must be considered an encroachment. 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 those 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 CHAP. IV.] RIGHTS OF PROPERTY. 231 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. During the negotiation of 1827, the British plenipotentiaries, Messrs. Huskisson and Addington, presented the pretensions of their government in respect to the territory in question in a state- ment, of which the following is a summary. " Great Britain claims no exclusive sovereignty over any por- tion of the territory on the Pacific, between the 42d and the 49th parallels of latitude. Her present claim, not in respect to any part, but to the whole, is limited to a right of joint occupancy, in common with other States, leaving the right of exclusive domi- nion in abeyance ; and her pretensions tend to the mere mainte- nance of her own rights, in resistance to the exclusive character of the pretensions of the United States. " The rights of Great Britain are recorded and defined in the Convention of 1790. They embrace the right to navigate the waters of those countries, to settle in and over any part of them, and to trade with the inhabitants and occupiers of the same. These rights have been peaceably exercised ever since the date of that Convention ; that is, for a period of nearly forty years. Under that Convention, valuable British interests have grown up in those countries. It is admitted that the United States possess the same rights, although they have been exercised by them only in a single instance, and have not, since the year 1813, been exercised at all ; but beyond those rights they possess none. " In the interior of the territory in question, the subjects of Great Britain have had, for many years, numerous settlements and trading-posts ; several of these posts are on the tributary waters of the Columbia ; several upon the Columbia itself ; some to the northward, and others to the southward of that river. And they navigate the Columbia as the sole channel for the conveyance of their produce to the British stations nearest to the sea, and for its shipment thence to Great Britain ; it is also by the Columbia and its tributary streams that these posts and settlements receive their annual supplies from Great Britain. 232 RIGHTS OF PROPERTY. [PART II. " To the interests and establishments which British industry and enterprise have created, Great Britain owes protection ; that protection will be given, both as regards settlement, and freedom of trade and navigation, with every attention not to infringe the coordinate rights of the United States ; it being the desire of the British government, so long as the joint occupancy continues, to regulate its own obligations by the same rules which govern the obligations of every other occupying party." ^ By the 3d article of the Convention between the United States and Great Britain, in 1818, it was " agreed, that any country that may be claimed by either party, on the north-west coast of Ame- rica, westward of the Stony Mountains, shall, together with its harbors, bays, and creeks, and the navigation of all rivers within the same, be free and open, for the term of ten years from the date of the signature of the present Convention, to the vessels, citizens, and subjects of the two powers ; it being well under- stood that this agreement is not to be construed to the prejudice of any claim which either of the two high contracting parties may have to any part of the said country, nor shall it be taken to affect the claims of any other power or State to any part of the said country ; the only object of the high contracting parties, in that respect, being to prevent disputes and differences amongst themselves." In 1827, another Convention was concluded between the two parties, by which it was agreed : — " Art. 1. All the provisions of the third article of the Conven- tion concluded between the United States of America aiKi his Majesty the King of the United Kingdom of Great Britain and Ireland, on the 20th of October, 1818, shall be, and they are, hereby, further indefinitely extended and continued in force, in the same manner as if all the provisions of the said article were herein specifically recited. " Art. 2. It shall be competent, however, to either of the con- tracting parties, in case either should think fit at any time after the 20th of October, 1828, on giving due notice of twelve months to the other contracting party, to annul and abrogate this Con- 1 Congress Documents, 20tli Cong, and 1st Sess. No. 199. Greenhow, Proofs and Illustrations, H. CHAP. IV.] RIGHTS OF PROPERTY. 233 vention ; and it shall, in such case, be accordingly entirely annulled and abrogated, after the expiration of the said term of notice. " Art. 3. Nothing contained in this Convention, or in the third article of the convention of the 20th of October, 1818, hereby con- tinued in force, shall be construed to impair, or in any manner affect, the claims which either of the contracting parties may have to any part of the country ^westward of the Stony or Rocky Mountains."^ The notification provided for by the convention having been given by the American government, new discussions took place between the two governments, which were terminated by a treaty concluded at Washington, in 1846. By the first article of that treaty it was stipulated, that from the point on the 49th parallel of north latitude, where the boundary laid down in existing treaties and conventions between the United States and Great Britain ter- minates, the line of boundary shall be continued westward along the said 49th parallel of north latitude to the middle of the chan- nel which separates the continent from Vancouver's Island, and thence southerly through the middle of the said channel, and of Fucas Straits, to the Pacific Ocean ; provided, however, that the navigation of the whole of the said channel and straits, south of the 49th parallel of north latitude, remain free and open to both par- ties. The second article stipulated for the free navigation of the Columbia River by the Hudson's Bay Company, and the British subjects trading with them, from the 49th degree of north lati- tude to the ocean. The third article provided that the possessory rights of the Hudson's Bay Company, and of all other British sub- jects, to the territory south of the parallel of the 49th degree of north latitude, should be respected, (a) The maritime territory of every State extends to the ^ e. Mari- ports, harbors, bays, mouths of rivers, and adjacent parts riariuri"''^" of the sea inclosed by headlands, belonging to the same diction. State. The general usage of nations superadds to this extent of territorial jurisdiction a distance of a marine league, or as far as a cannon-shot will reach from the shore, along all the coasts of the State. Within these limits, its rights of property and ^ Elliot's American Diplomatic Code, vol. i. pp. 282, 330. (a) [United States Statutes at Large, vol. ix. pp. 109, 869.] 20* 234 RIGHTS OF PROPERTY. [PART II. territorial jurisdiction are absolute, and exclude those of every other nation.^ (a) §7. Ex- The term " coasts" includes the natural appendages term*coa^flrs," or ^^ partus maris" always confining his view to the effect of the neighboring land in giving a jurisdiction and property of this sort.^ He had previously taken the lead in maintaining the com- mon right of mankind to the free navigation, commerce, and fisheries of the Atlantic and Pacific Oceans, against the exclusive claims of Spain and Portugal, founded on the right of pre- vious discovery, confirmed by possession and the papal grants. The treatise De Mare Libero was published in 1609. The claim of sovereignty asserted by the kings of England over the British seas was supported by Albericus Gentilis in his Advocatio His- panica in 1613. In 1635, Selden published his Mare Clausum, in which the general principles maintained by Grotius are called in question, and the claim of England more fully vindicated than by Gentilis. The first book of Selden's celebrated treatise is devoted to the proposition that the sea may be made property, which he attempts to show, not by reasoning, but by collecting a multitude of quotations from ancient authors, in the style of Grotius, but with much less selection. He nowhere grapples with the arguments by which such a vague and extensive do- " minion is shown to be repugnant to the law of nations. And in the second part, which indeed is the main object of his work, he has recourse only to proofs of usage and of positive compact, in order to show that Great Britain is entitled to the sovereignty of what are called the Narrow Seas. Father Paul Sarpi, the celebrated historian of the Council of Trent, also wrote a vindica- tion of the claim of the Republic of Venice to the sovereignty of the Adriatic.^ Bynkershoek examined the general question, in the earliest of his published works, with the vigor and acumen 1 De Jur. Bel. ac Pac. lib. ii. cap. 3, §§ 8-13. 2 Paolo Sarpi, Del Dominio del IMare Adriatico e sui Keggioni per il Jus Belli della Serenissima Rep. di Venezia, Venet. 1676, 120' CHAP. IV.] RIGnTS OF PROPERTY. 247 which distinguish all his writings. He admits that certain por- tions of the sea may be susceptible of exclusive dominion, though he denies the claim of the English crown to the British seas on the ground of the want of uninterrupted possession. He asserts that there was no instance, at the time when he wrote, in which the sea was subject to any particular sovereign, where the sur- rounding territory did not also belong to him.' Puffendorf lays it down, that in a narrow sea the dominion belongs to the sove- reigns of the surrounding land, and is distributed, where there are several such sovereigns, according to the rules applicable to neighboring proprietors on a lake or river, supposing no compact has been made, "as is pretended," he says, "by Great Britain;" but he expresses himself with a sort of indignation at the idea that the main ocean can ever be appropriated.^ The authority of Vattel would be full and explicit to the same purpose, were it not weakened by the concession, that though the exclusive right of navigation or fishery in the sea cannot be claimed by one nation on the ground of immemorial use, nor lost to others by non-user, on the principle of prescription, yet it may be thus established where the non-user assumes the nature of a consent or tacit agreement, and thus becomes a title in favor of one nation against another.^ On reviewing this celebrated controversy it may be affirmed, 1 De Dominio Maris, Opera Minora, Dissert. Y., first published in 1 702. " Nihil addo, quam sententiae nostra3 hanc conjectionem : Oceanus, quh patet, totus imperio subjici non potest; pars potest, possunt et maria mediterranea, quotquot sunt, omnia. Nullum tamen mare mediterraneum, neque ulla pars Oceani ditione alicujus Principis tenetur, nisi qu5, in continentis sit imperio. Pronunciamus Mare liberum, quod non possidetur vel universum possideri nequit, clausum, quod post justam occupationem navi una pluribusve olim pos- sessum fuit, et, si est in fatis, possidebitur posthac, nullum equidem nunc atrnosci- mus subditum, cum non sufficiat id affectasse, quin vcl aliquando occupasse et possedisse, nisi etiamnum duret possessio, qua; gentium hodie est nullibi ; ita libertatem et imperium, c[use baud facile miscentur, una sede locamus." lb. cap. vii. ad finem. 2 De Jure Naturae et Gentium, lib. iv. cap. 5, § 7. 3 Droit des Gens, liv. i. ch. 23, §§ 279-286. As to the maritime police which may be exercised by any particular nation, on the high seas, for the punishment of offences committed on board its own vessels or the suppression of piracy and the African slave trade, vide supra, Pt. ii. ch. ii. §§ 10, 15, pp. 158, 184. 248 RIGHTS OF PROPERTY. [PART II. that if those public jurists who have asserted the exclusive right of property in any particular nation over portions of the sea, have failed in assigning sufficient grounds for such a claim, so also the arguments alleged by their opponents for the contrary opinion must often appear vague, futile, and inconclusive. There are only two decisive reasons applicable to the question. The first is physical and material, which alone would be sufficient ; but when coupled with the second reason, which is purely moral, will be found conclusive of the whole controversy. I. Those things which are originally the common property of all mankind, can only become the exclusive property of a particu- lar individual or society of men, by means of possession. In order to establish the claim of a particular nation to a right of property in the sea, that nation must obtain and keep possession of it, which is impossible. II. In the second place, the sea is an element which belongs equally to all men like the air. No nation, then, has the right to appropriate it, even though it might be physically possible to do so. It is thus demonstrated, that the sea cannot become the exclu- sive property of any nation. And, consequently, the use of the sea, for these purposes, remains open and common to all man- kind.i We have already seen that, by the generally approved usage of nations, which forms the basis of international law, the mari- time territory of every State extends : 1st. To the ports, harbors, bays, mouths of rivers, and adja- cent parts of the sea inclosed by headlands, belonging to the same State. 2dly. To the distance of a marine league, or as far as a cannon-shot will reach from the shore, along all the coasts of the State. 3dly. To the straits and sounds, bounded on both sides of the territory of the same State, so narrow as to be commanded by cannon-shot from both shores, and communicating from one sea to another.2 The reasons which forbid the assertion of an exclusive pro- 1 Ortolan, Regies Internationales et Diplomatie de la Mer, torn. i. pp. 120-126. 2 Vide supra, §§ 6-9. CHAP. IV.] RIGHTS OF PROPERTY. 249 prietary right to the sea in general, will be found inapplicable to the particular portions of that element included in the above designations. 1. Thus, in respect to those portions of the sea which form the ports, harbors, bays, and mouths of rivers of any State where the tide ebbs and flows, its exclusive right of property, as well as sovereignty, in these waters, may well be maintained, consist- ently with both the reasons above mentioned, as applicable to the sea in general. The State possessing the adjacent territory, by which these waters are partially surrounded and inclosed, has that physical power of constantly acting upon them, and, at the same time, of excluding, at its pleasure, the action of any other State or person, which, as we have already seen, constitutes pos- session. These waters cannot be considered as having been intended by the Creator for the common use of all mankind, any more than the adjacent land, which has already been appro- priated by a particular people. Neither the material nor the moral obstacle, to the exercise of the exclusive rights of property and dominion, exists in this case. Consequently, the State, within whose territorial limits these waters are included, has the right of excluding every other nation from their use. The exercise of this right may be modified by compact, express or implied ; but its existence is founded upon the mutual independence of nations, which entitles every State to judge for itself as to the manner in which the right is to be exercised, subject to the equal reciprocal rights of all other States to establish similar regula- tions, in respect to their own waters.^ 2. It may, perhaps, be thought that these considerations do not apply, with the same force, to those portions of the sea which wash the coasts of any particular State, within the dis- tance of a marine league, or as far as a cannon-shot will reach from the shore. The physical power of exercising an exclusive property and jurisdiction, and of excluding the action of other nations within these limits, exists to a certain degree ; but the moral power may, perhaps, seem to extend no further than to exclude the action of other nations to the injury of the State by which this right is claimed. It is upon this ground that is founded the acknowledged immunity of a neutral State from 1 Vide supra, Ft. IT. ch. 2, § 9, p. 144. 250 RIGHTS OF PROPERTY. [PART II. the exercise of acts of hostility, by one belligerent power against another, within those limits. This claim has, however, been sometimes extended to exclude other nations from the inno- cent use of the waters washing the shores of a particular State, in peace and in war ; as, for example, for the purpose of partici- pating in the fishery, which is generally appropriated to the sub- jects of the State within that distance of the coasts. This exclusive claim is sanctioned both by usage and convention, and must be considered as forming a part of the positive law of nation s.i 3. As to straits and sounds, bounded on both sides by the ter- ritory of the same State, so narrow as to be commanded by cannon-shot from both shores, and communicating from one sea to another, we have already seen that the territorial sovereignty may be limited, by the right of other nations to navigate the seas thus connected. The physical power which the State, bor- dering on both sides the sound or strait, has of appropriating its waters, and of excluding other nations from their use, is here encountered by the moral obstacle arising from the right of other nations to communicate with each other. If the Straits of Gibraltar, for example, were bovinded on both sides by the pos- sessions of the same nation, and if they were sufficiently narrow to be commanded by cannon-shot from both shores, this passage would not be the less freely open to all nations ; since the navi- gation, both of the Atlantic Ocean and the Mediterranean Sea, is free to all. Thus it has already been stated that the naviga- tion of the Dardanelles and the Bosphorus, by which the Medi- terranean and Black Seas are connected together, is free to all nations, subject to those regulations which are indispensably necessary for the security of the Ottoman Empire. In the nego- tiations which preceded the signature of the treaty of intervention, of the 15th of July, 1840, it was proposed, on the part of Russia, that an article should be inserted in the treaty, recognizing the permanent rule of the Ottoman Empire ; that, whilst that empire is at peace, the Straits, both of the Bosphorus and the Darda- 1 Martens, Precis du Droit des Gens Modeme de I'Europe, § 153, " Mais si, loin de s'en emparer, il a une fois reconnu le droit commun des autres peuplesj d'y venir pecher, il ne peut plus les en exclure ; il a laisse cette peche dans saj communion primitive, au moins k I'egard de ceux qui sent en possession d'en pro- fiter." Vattel, Droit des Gens, liv. i. c. 23, § 287. CHAP. I v.] EIGHTS OF PROPERTY. 251 nelles, are considered as shut against the ships of war of all nations. To this proposition it was replied, on the part of the British government, that its opinion respecting the navigation of these Straits by the ships of war of foreign nations rested upon a general and fundamental principle of international law. Every State is considered as having territorial jurisdiction over the sea which washes its shores, as far as three miles from low-water mark ; and, consequently, any strait which is bounded on both sides by the territory of the same sovereign, and which is not more than six miles wide, lies within the territorial jurisdiction of that sovereign. But the Bosphorus and Dardanelles are bounded on both sides by the territory of the Sultan, and are in most parts less than six miles wide ; consequently his territorial jurisdiction extends over both those Straits, and he has a right to i?xclude all foreign ships of war from those Straits, if he should think proper so to do. By the Treaty of 1809, Great Britain acknowledged this right on the part of the Sultan, and promised to acquiesce in the enforcement of it ; and it was but just that Russia should take the same engagement. The British government was of opinion, that the exclusion of all foreign ships of war from the two Straits would be more conducive to the maintenance of peace, than an understanding that the Strait in question should be a general thoroughfare, open, at all times, to ships of war of all countries ; but whilst it was willing to acknowledge by treaty, as a general principle and as a standing rule, that the two Straits should be closed for all ships of war, it was of opinion, that if, for a particular emergency, one of those Straits should be open for one party, the other ought, at the same time, to be open for other parties, in order that there should be the same parity between the condition of the two Straits, when open and shut; and, therefore, the British government would expect that, in that part of the proposed Convention which should allot to each power its appropriate share of the measures of execution, it should be stipulated, that if it should become necessary for a Russian force to enter the Bosphorus, a British force should, at the same time, enter the Dardanelles. It was accordingly declared, in the 4th article of the Conven- tion, that the cooperation destined to place the Straits of the Dardanelles and the Bosphorus and the Ottoman capital under the temporary safeguard of the contracting parties, against all 252 RIGHTS OF PROPERTY. [pART II. aggression of Mehemet Ali, should be considered only as a mea- sure of exception, adopted at the express request of the Sultan, and solely for his defence, in the single case above mentioned ; but it was agreed that such measure should not derogate, in any degree, from the ancient rule of the Ottoman Empire, in virtue of which it had, at all times, been prohibited for ships of war of foreign powers to enter those Straits. And the Sultan, on the one hand, declared that, excepting the contingency above men- tioned, it was his firm resolution to maintain, in future, this prin- ciple invariably established as the ancient rule of his Empire, and, so long as the Porte should be at peace, to admit no foreign ship of war into these Straits; on the other hand, the four powers engaged to respect this determination, and to conform to the above-mentioned principle. This rule, and the engagement to respect it, as we liuve already seen, were subsequently incorporated into the Treaty of the 13th July, 1841, between the five great European powers and the Ottoman Porte ; and as the right of the private merchant vessels of all nations, in amity v\dth the Porte, to navigate the interior waters of the Empire, which connect the Mediterranean and Black Seas, was recognized by the Treaty of Adrianople, in 1829, between Russia and the Porte ; the two principles — the one excluding foreign ships of war, and the other admitting foreign merchant vessels to navigate those waters — may be considered as permanently incorporated into the public law of Europe.! § 11. Eiv- The territory of the State includes the lakes, seas, ingpartof and rivers, entirely inclosed within its limits. The onhel'tate' 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. Where a navigable river forms the boundary of conterminous States, the middle of the channel, or Thalwegs is generally taken as the line of separation between the two States, the presumption of law being that the right of navigation is common to both ; but this presumption may be destroyed by actual proof of prior occupancy and long Wheaton, Hist. Law of Nations, pp. 577-583. CHAP. IV.] RIGHTS OF PROPERTY. 253 undisturbed possession, giving to one of the riparian proprietors the exclusive title to the entire riverJ Things of which the use is inexhaustible, such as , .„ i>- , . the sea and running water, cannot be so appropriated ^^ innocent ,r • 1 passage on as to exclude others from using these elements m any rivers fiow- , . , 1 . . , . ing through manner which does not occasion a loss or inconven- diherent ience to the proprietor. This is what is called an inno- *^*^^' cent use. Thus we have seen that the jurisdiction possessed by one nation over sounds, straits, and other arms of the sea, lead- ing through its own territory to that of another, or to other seas common to all nations, does not exclude others from the right of innocent 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 imperfect rig-ht, 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.^ It seems that this right draws after it the incidental • I X r • 11 u^i 1 • , , § 13. Inci- right oi using ail the means which are necessary to the dental right secure enjoyment of the principal right itself. Thus the banks of the Roman law, which considered navigable rivers as public ^^'*''^^- or common property, declared that the right to the use of the shores was incident to that of the water ; and that the right to navigate a river involved the right to moor vessels to its banks, •to lade and unlade cargoes, &c. The public jurists apply this ' Vattel, Droits des Gens, liv. i. ch. 22, § 266. Martens, Precis du Droit des Gens Moderne de TEurope, liv. ii. ch. 1, § 39. HeflFter, das Europiiische Volker- recht, §§ 66-77. 2 Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 2, §§ 12-14 ; cap. 3, §§ 7-12. Vattel, Droit des Gens, liv. ii. ch. 9, §§ 126-130; ch. 10, §§ 132-134. Puffendorf, de Jur. Naturae et Gentium, lib. iii. cap. 3, §§ 3-6. 22 254 RIGHTS OF PROPERTY. [PART 11. principle of the Roman civil law to the same case between na- tions, and infer the right to use the adjacent land for these pur- poses, as means necessary to the attainment of the end for which the free navigation of the water is permitted.^ § 14. These The incidental right, like the principal right itself, is fef/h"thei'r' i^perfect in its nature, and the mutual convenience of nature. both parties nrmst be consulted in its exercise. § 15. Modi- Those who are interested in the enjoyment of these fhese°rioiits i^'g^ts mayrcnounce them entirely, or consent to modify by compact, fhem in such manner as mutual convenience and policy may dictate. A remarkable instance of such a renunciation is found in the treaty of Westphalia, 1648, confirmed by subse- quent treaties, by which the navigation of the river Scheldt was closed to the Belgic provinces, in favor of the Dutch. The forci- ble opening of this navigation by the French on the occupation of Belgium by the arms of the French Republic, in 1792, in vio- lation of these treaties, was one of the principal ostensible causes of the war between France on one side, and Great 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 placed on the same footing of freedom with that of the Rhine and other great European rivers. And by the treaty of 1831, for the separation of Holland from Belgium, the free navigation of the Scheldt was, in like manner, secured, subject to certain duties, to be collected by the Dutch government.^ § 16. Trea- By the treaty of Vienna, in 1815, the commercial Vieimare- navigation of rivers, which separate different States, or ^^eat Euro-'^ flow through their respective territories, was declared to pean rivers, be entirely free in their whole course, from the point where each river becomes navigable to its mouth ; provided that the regulations relating to the police of the navigation should be 1 Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 2, § 15. Puffendorf, de Jur. Naturae et Gentium, lib. iii. cap. 3, § 8. Vattel, Droit des Gens, liv. ii. cli. 9, § 129. 2 Wheaton, Hist. Law of Nations, pp. 282-284, 552. CHAP. IV.] RIGHTS OF PROPERTY. 255 observed, which regulations were to be uniform, and as favorable as possible 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 Neckar, the Mayn, the Moselle, the Meuse, and the Scheldt, which are declared in like manner to be free from the point where each of these rivers becomes navi- gable to its mouth. Similar regulations respecting the free navigation of the Elbe were established among the powers inte- rested in the commerce of that river, by an act signed at Dresden the 12th December, 1821. 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 May, 1815, between Austria and Russia, and of the same date between Russia and Prussia, to which last Austria subse- quently 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 P0.2 The interpretation of the above stipulations respectins: ^ !"• ^I^yi- ^ ^ '^ ^ 10 jrationof the the free navigation of the Rhine, gave rise to a contro- Rhine. versy between the kingdom of the Netherlands and the other States interested in the commerce of that river. The Dutch government claimed the exclusive right of regulating and impos- ing duties upon the trade, within its own territory, at the places where the different branches into which the Rhine divides itself fall into the sea. The expression in the treaties of Paris and Vienna "jusqu' a lamei',^' to the sea, was said to be different in its import from the term " dans la mer" into the sea : and, besides, it was added, if the upper States insist so strictly upon the terms of the treaties, they must be contented with the course of the proper Rhine itself. The mass of w^aters brought down by 1 Wheaton's Hist. Law of Nations, pp. 498-501. 2 Mayer, Corpus Juris Germanici, tom.ii. pp. 224-239, 298. Acte Final, art. 14, 118, 96. 256 RIGHTS OF PROPERTY. [PART II. that river, dividing itself a short distance above Nimiguen, is carried to the sea through three principal channels, the Waal, the Leek, and the Yssel ; the first descending by Gorcum, where it changes its name for that of the Meuse ; the second approach- ing the sea at Rotterdam ; and the third, taking a northerly course by Zutphen and Deventer, empties itself into Zuyderzee. None of these channels, however, is called the Rhine ; that name is preserved to a small stream which leaves the Leek at Wyck, takes its course by the learned retreats of Utrecht and Leyden, gradually dispersing and losing its waters among the sandy downs at Kulwyck. The proper Rhine being thus useless for the purposes of navigation, the Leek was substituted for it by common consent of the powers interested in the question ; and the government of the Netherlands afterwards consented that the Waal, as being better adapted to the purposes of navigation, should be substituted for the Leek. But it was insisted by that government that the Waal terminates at Gorcum, to which the tide ascends, and where, consequently, the Rhine terminates ; all that remains of that branch of the river from Gorcum to Hel- voetsluys and the mouth of the Meuse is an arm of the sea, inclosed within the territory of the kingdom, and consequently subject to any regulations which its government may think fit to establish. On the other side, it was contended by the powers interested in the navigation of the river, that the stipulations in the treaty of Paris, in 1814, by which the sovereignty of the House of Orange over Holland was revived, with an accession of territory, and the navigation of the Rhine was, at the same time, declared to be free " from the point where it becomes navigable to the sea," were inseparably connected in the intentions of the allied powers who were parties to the treaty. The intentions thus dis- closed were afterwards carried into effect by the Congress of Vienna, which determined the union of Belgium to Holland, and confirmed the freedom of the navigation of the Rhine, as a condition annexed to this augmentation of territory which had been accepted by the government of the Netherlands. The right to the free navigation of the river, it was said, draws after it, by! necessary implication, the innocent use of the different waters] which unite it with the sea; and the expression " to the sea"2| was, in this respect, equivalent to the term " into the sea," since CHAP. IV.] RIGHTS OF PROPERTY. 257 the pretension of the Netherlands to levy unlimited duties upon its principal passage into the sea would render wholly useless to other States the privilege of navigating the river within the Dutch territory.^ After a long and tedious negotiation, this question was finally settled by the convention concluded at Mayence, the 31st of March, 1831, between all the riparian States of the Rhine, by which the navigation of the river was declared free from the point where it becomes navigable into the sea, [bis in die See,) including its two principal outlets or mouths in the kingdom of the Netherlands, the Leek and the Waal, passing by Rotterdam and Briel through the first-named watercourse, and by Dordrecht and Helvoetsluys through the latter, with the use of the artificial communication by the canal of Voorne with Helvoetsluys. By the terms of this treaty the government of the Netherlands stipu- lates, in case the passages by the main sea by Briel or Helvoets- luys should at any time become innavigable, through natural or artificial causes, to indicate other watercourses for the naviga- tion and commerce of the riparian States, equal in convenience to those which may be open to the navigation and commerce of its own subjects. The convention also provides minute regula- tions of police and fixed toll-duties on vessels and merchandise passing through the Netherlands territory to or from the sea, and also by the different ports of the upper riparian States on the Rhine.2 By the treaty of peace concluded at Paris in 1763, § i^- ^^^J^- ^ '' y ' gationofthe between France, Spain, and Great Britain, the province Mississippi. 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 possessions in North America, was ascer- tained by a line drawn through the middle of the river Missis- sippi 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 Mississippi was at the same time secured to the subjects of Great Britain from its source to 1 Annual Register for 1826, vol. Ixviii. p. 259-363. 2 Martens, Nouveau Eecueil, torn. Ls. p. 252. 22* 258 RIGHTS OP PROPERTY. [PART II. the sea, and the passages in and out of its mouth, without being stopped, or visited, or subjected to the payment of any duty whatsoever. The province of Louisiana was soon afterwards ceded by France to Spain ; and by the treaty of Paris, 1783, Florida was retroceded to Spain by Great Britain. The inde- pendence of the United States was acknowledged, and the right of navigating 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 navi- gation 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 the river from its source to the sea was insisted on by the United States, under the treaties of 1763 and 1783, as well as by 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 Mississippi, 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 Louisiana and Florida by the United States having included within their territory the whole river from its source to the Gulf of Mexico, and the stipulation in the treaty of 1783, securing to British subjects a right to participate in its navigation, not hav- ing 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 the navigation of the river Mississippi, was rested by the Ame- rican 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 their inhabitants. This natural right was found to be uni- versally acknowledged and protected in all tracts of country, united under the same political society, by laying the navigable rivers open to all their inhabitants. When these rivers enter the limits of another society, if the right of the upper inhabitants to I CHAP. IV.] RIGHTS OF PROPERTY. 259 descend the stream was in any case obstructed, it was an act of force by a stronger society against a weaker, condemned by the judgment of mankind. The, then, recent case of the attempt of the Emperor Joseph II. to open the navigation of the Scheldt from Antwerp to the sea, was considered as a striking proof of the general union of sentiment on this point, as it was believed that Amsterdam had scarcely an advocate out of Holland, and even there her pretensions were advocated on the ground of treaties, and not of natural right. This sentiment of right in favor of the upper inhabitants, must become stronger in the pro- portion which their extent of country bears to the lower. The United States held 600,000 square miles of inhabitable territory on the Mississippi and its branches, and this river, with its branches, afforded many thousands of miles of navigable waters penetrat- ing this territory in all its parts. The inhabitable territory of Spain below their boundary and bordering on the river, which alone could pretend any fear of being incommoded by their use of the river, was not the thousandth part of that extent. This vast portion of the territory of the United States had no other outlet for its productions, and these productions were of the bulkiest kind. And, in truth, their passage down the river might not only be innocent, as to the Spanish subjects on the river, but would not fail to enrich them far beyond their actual condition. The real interests, then, of the inhabitants, upper and lower, con- curred in fact with their respective rights. 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, where it passes between Florida and Louisiana, were the exclusive right of Spain, still an innocent passage along it was a natural right in those inhabiting its borders above. It would, indeed, be what those writers call an imperfect right, because the modification of its exercise depends, in a considerable degree, on the conveniency of the nation through which they were to pass. But it was still a rights as real as any other right however well \ defined : and were it to be refused, or to be so shackled by regu- lations not necessary for the peace or safety of the inhabitants, 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 this navigation was the counterpart to that of those possessing the shores below, and 260 RIGHTS OF PROPERTY. [PART II. founded in the same natural relations with the soil and water. And the line at which their respective rights met was to be advanced or withdrawn, so as to equalize the inconveniences resulting to each party from the exercise of the right by the other. This estimate was to be fairly made with a mutual dis- position to make equal sacrifices, and the numbers on each side ought to have their due weight in the estimate. Spain held so very small a tract of habitable land on either side below our boundary, that it might in fact be considered as a strait in the sea ; for though it was eighty leagues from our southern bound- ary to the mouth of the river, yet it was only here and there in spots and slips that the land rises above the level of the water in times of inundation. There were then, and ever must be, so few inhabitants on her part of the river, that the freest use of its navigation might be admitted to us without their annoyance.^ It was essential to the interests of both parties that the naviga- tion of the river should be free to both, on the footing on which it was defined by the treaty of Paris, viz., through its whole breadth. The channel of the Mississippi was remarkably winding, crossing and recrossing perpetually from one side to the other of the general bed of the river. Within the elbows thus made by the channel there was generally an eddy setting upwards, and it was by taking advantage of these eddies, and constantly crossing from one to another of them, that boats were enabled to ascend the river. Without this right the navigation of the whole river would be impracticable both to the Americans and Spaniards. It was a principle that the right to a thing gives a right to the means without which it could not be used, that 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, &c. This principle was founded in natural reason, was evidenced by the common sense of mankind, and declared by the writers before quoted. The Roman law, which, like other municipal laws, placed the navigation of their rivers on the footing of nature, as to their 1 The authorities referred to on this head were the following : Grotius, de Jur. Bel. ac Pac. hb. il. cap. 2, §§ 11-13 ; c. 3, §§ 7-12. Puffendorf, lib. ill. cap. 3, §§ 3-6. Wolflf's Inst. §§ 310-312. Vattel, liv. i. 292 ; liv. ii. §§ 123-139. CHAP. IV.] RIGHTS OF PROPERTY. 261 own citizens, by declaring them public, declared also that the right to the use of the shores was incident to that of the water.^ The laws of every country probably did the same. This must have been so understood between France and Great Britain at the treaty of Paris, where a right was ceded to. British subjects to navigate the whole river, and expressly that part between the Island of New Orleans and the western bank, without stipulat- ing a word about the use of the shores, though both of them belonged then to France, and were to belong immediately to Spain. Had not the use of the shores been considered as inci- dent to that of the water, it would have been expressly stipu- lated, since its necessity was too obvious to have escaped either party. Accordingly all British subjects used the shores habitu- ally for the purposes necessary to the navigation of the river ; and when a Spanish governor undertook at one time to forbid this, and even cut loose the vessels fastened to the shores, a British vessel went immediately, moored itself opposite the town of New Orleans, and set out guards with orders to fire on such as might attempt to disturb her moorings. The governor ac- quiesced, the right was constantly exercised afterwards, and no interruption ever offered. This incidental right extends even beyond the shores, when circumstances render it necessary to the exercise of the principal right ; as in the case of a vessel damaged, which, as the mere shore could not be a safe deposit for her cargo till she could be repaired, may remove into safe ground off the river. The Roman law was here quoted, too, because it gave a good idea both of the extent and the limitations of this right.^ The relative position of the United States and Great r ^g j^Tavi- Britainin respect to the naviaration of the great northern ptionofthe ^ ° ° St. Law- lakes and the river St. Lawrence, appears to be similar rence. to that of the United States and Spain, previously to the ces- sion of Louisiana and Florida, in respect to the Mississippi ; the United States being in possession of the southern shores of the ^ Inst. lib. n. t. 1, §§ 1-5. , 2 Mr. Jefferson's Instructions to United States ministers in Spain, March 18, 1792. Waite's State Papers, vol. x. pp. 135-140. 262 RIGHTS OF PROPERTY. [PART II. lakes and the river St. Lawrence to the point where theirnorthern 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 th'e latitude 45*-* north to its mouth. The claim of the people of the United States, of a right to navigate the St. Lawrence to and from the sea, was, in 1826, the subject of discussion between the American and British govern- ments. On the part of the United States government, this right is rested on the same grounds of natural right and obvious neces- sity which had formerly been urged in respect to the river Missis- sippi. The dispute between different European powers respect- ing 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 entirely 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 the treaty of Westphalia, that the lower Scheldt, with the canals of Sas and Swin, and other 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 differ- ent, and the principles on which its free navigation was main- tained 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 Rhine, the Neckar, the JMayn, 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 indication of the present judg- ment of Europe upon the general question. The importance of the present claim might be estimated by the fact, that the inha- bitants of at least eight States of the American Union, besides the Territory of Michigan, had an immediate interest in it, besides the prospective interests of other parts connected with this river and the inland seas through which it communicates with the CHAP. IV.] RIGHTS OF PROPERTY. 263 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. Jefferson in the negotiation with Spain respecting the navi- gation 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 property of all the British subjects inhabiting this continent, having been ac- quired from France by the united exertions of the mother coun- try 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, 1763, when the mouth and lower shores of that river were held by another power. The claim, whilst necessary to the United 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 con- sidered as involving the question whether a perfect right to the free navigation of the river St. Lawrence 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 para- mount 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 enjoyed by means of any highway, whether of land or water, generally accessible to the inhabitants of the earth. The right of passage, then, must hold good for other purposes, 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 apply the same principle by reciprocity, in favor of British subjects, to the navigation of the Mississippi and the Hudson, access to which from Canada 1 American Paper on the navigation of the St. Lawrence. Congress Docu- ments, Session 1827-1828, No. 43, p. 34. 264 RIGHTS OF PROPERTY. [PART II. might be obtained by a few miles of land-carriage, or by the arti- ficial 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 principle so ex- tensive and dangerous, by restricting the right of transit to pur- poses of innocent utility, 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 mutual consent, founded on considerations of mutual interest growing out of the relative situation of the different States concerned in this navigation. The same ob- servation would apply to the various conventional regulations which had been, at different periods, applied to the navigation of the river Mississippi. As to any supposed right derived from the simultaneous acquisition 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 partition of the Bri- tish 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 con- necting navigable seas, as it ought properly to be, there would be less controversy. The principle on which the right to navi- gate 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 that of passing the straits. The United States and Great Britain have between them the exclusive right of navigating the lakes. The St. Lawrence connects them with the ocean. The right to navigate both (the lakes and the ocean) includes that of passing from one to the other through the natu- ral link. Was it then reasonable or just that one of the two co-proprietors of the lakes should altogether exclude his associate ^ British Paper on tlie Navigation of the St. Lawrence. Session, 1827-1828, No. 43, p. 41. CHAP. IV.] RIGHTS OF PROPERTY. 265 from the use of a common bounty of nature, necessary to the full enjoyment of them ? The distinction between the right of passage, claimed by one nation through the territories of another, on land, and that on navigable water, though not always clearly marked 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 territory is traversed. But in the case of a passage on water no such injury is sustained. The American government did not mean to con- tend for any principle, the benefit of which, in analogous cir- cumstances, it would deny to Great Britain. If, therefore, in the further progress of discovery, a connection should be deve- loped between the river Mississippi 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 con- tended for in respect to the St. Lawrence. But the case of rivers, which rise and debouch altogether within the limits of the same nation, ought 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 regulation of other commercial intercourse with foreign States, and was to be exclusively determined by the local sovereign. 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 de- prived by the arbitrary caprice of the lower State. Nor was the fact of subjecting the use of this right to treaty regulations, as was proposed at Vienna to be done in respect to the naviga- tion of the European rivers, sufficient to prove that the origin of the right was conventional, and not natural. It often hap- pened to be highly convenient, if not sometimes indispensable, to avoid controversies by prescribing certain rules for the enjoy- ment of a natural right. The law of nature, though sufficiently intelligible in its great outlines and general purposes, docs not always reach every minute detail which is called for by the com- plicated wants and varieties of modern navigation and com- 23 266 RIGHTS OP PROPERTY. [PART II. merce. Hence the right of navigating the ocean itself, in many instances, principally incident to a state of war, is subjected, by innunrierable treaties, to various regulations. These regulations — the transactions of Vienna, and other analogous stipulations — should be regarded only as the spontaneous homage of man to the paramount Lawgiver of the universe, by delivering his great worivs from the artificial shackles and selfish contrivances to which they have been arbitrarily and unjustly subjected.^ (a) 1 Mr. Secretary Clay's Letter to Mr. Gallatin, June 19, 1826. Session 1827- 1828, No. 43, p. 18. (a) [The American and British papers on the navisration of the St. Lawrence, first cited in the text, were annexed to the 18th and 24th protocols of the con- ferences of Mr. Rush and Messrs. Huskisson and Stratford Canning, in 182.3-4, and were printed confidentially, for the use of the members of the Senate, in January, 1825. I8th Cong. 2d Sess. They were not, however, published till after the termination of the subsequent negotiations of Mr. Gallatin, in 1826-7, when they were again printed, with the argument of the United States, in reply, contained in the instructions of Mr. Clay, also quoted by Mr. Wheaton. The following is from a despatch of Mr. Gallatin to the Secretary of State, reporting the results of his mission : — " The British plenipotentiaries will not entertain any proposition respecting the navigation of the St. Lawrence, founded on the ri"ht claimed by the United States to navigate that river to the sea. Although it may prove hereafter expedient to make a temporary agreement, without refer- ence to the right, (which I am not authorized to do,) I am satisfied that, for the present at least, and whilst the intercourse with the British West Indies remains interdicted, it is best to leave that by land or inland navigation with the North American British Provinces to be regulated by the laws of each country respect- ively. The British government will not, Avhilst the present state of things conti- nues, throw any impediment in the way of that intercourse, if the United States will permit it to continue." Mr. Gallatin to Mr. Clay, 21st September, 1827. MS. Despatches. The navigation of the continuous waters of the United States and Canada is provided for in the following articles of the treaty of June 5, 1854. The third' article, whose operation may be affected at the will of the American government, by a suspension of this privilege, as stipulated for in the fourth article, on the part of Great Britain, provides for a reciprocal trade, fi'ee of duty, between the United States and the British colonies, in the articles of their respective growth and produce, as enumerated in the schedule thereto annexed. Art. 4. It is agreed that the citizens and inhabitants of the United States shall have the right to navigate the river St. Lawrence and the canals in Canada, used as the means of communicating between the great Lakes and the Atlantic Ocean, with their vessels, boats, and crafts, as fully and freely as the subjects of her Bri- tannic Majesty, subject only to the same tolls and other assessments as now are or may hereafter be exacted of her Majesty's said subjects ; it being understood. CHAP. IV.J RIGHTS OF PROPERTY. 267 however, that the British government retains the right of suspending this privi- lege on giving due notice thereof to the government of the United States. It is further agreed, that if at any time the British government should exercise the said reserved right, the government of the United States shall have the right of suspending, if it think fit, the operation of Article 3, of the present treaty, in so far as the province of Canada is affected thereby, for so long as the suspension of the free navigation of the river St. Lawrence or the canals may continue. It is further agreed that British subjects sliall have the right freely to navigate Lake Michigan with their vessels, boats, and crafts, so long as the privilege of navigating the river St. Lawrence, secured to Americans by the above clause of the present article, shall continue ; and the government of the United States further engages to urge upon the State governments to secure to the subjects of her Bri- tannic Majesty the use of the several State canals on terms of equality with the inhabitants of the United States. And it is further agreed, that no export duty, or other duty, shall be levied on lumber, or timber of any kind cut on that portion of the American territory in the State of Maine, watered by the river St. John and its tributaries, and floated down that river to the sea, when the same is shipped to the United States from the province of New Brunswick. Art. 5. The present treaty shall take effect as soon as the laws required to carry it into operation shall have been passed by the Imperial Parliament of Great Britain, and by the Provincial Parliaments of those of the British North American Colonies which are affected by this treaty on the one hand, and by the Congress of the United States on the other. Such assent having been given, the treaty shall remain in force for ten years from the date at which it may come into operation ; — and further, until the expiration of twelve months after either of the high contracting parties shall give notice to the other of its wish to terminate the same ; each of the high contracting parties being at liberty to give such notice to the other, at the end of the said term of ten years, or at any time afterwards. It is clearly understood, however, that this stipulation is not intended to affect the reservation made by article 4 of the present treaty, with regard to the right of temporarily suspending the operations of articles 3 and 4 thereof. Art. 6. And it is hereby further agreed, that the provisions and stipulations of the foregoing articles shall extend to the Island of Newfoundland, so far as they are applicable to that colony. But if the Imperial Parliament, the Pro- vincial Parliament of Newfoundland, or the Congress of the United States, shail not embrace in their laws, enacted for carrying this treaty into effect, the Colony of Newfoundland, then this article shall be of no effect ; but the omission to make provision by law to give it effect, by either of the legislative bodies aforesaid, shall not impair the remaining articles of this treaty. Treaties have been negotiated by the United States, with Paraguay and the Argentine Confederation, with regard to the navigable rivers within those coun- tries, though we have no claim founded on the ownership of the adjacent territory ; and similar negotiations are pending with Brazil for the navigation of the Amazon. Separate treaties were signed, 10th July, 1853, by the Argentine Republic with the United States, France, and England, for the free navigation of the Purana and Uruguay, Avith a provision that Brazil, Paraguay, L'ruguay, and Bolivia, might become parties to them. Annuaire, &c., 1853-4, App. 943. I 268 RIGHTS OF PROPERTY. [PART II. President Pierce's message, at the opening of the 1st Session of the 33(1 Con- gress contains the following reference to the navigation of the great rivers of South America : " Considering the vast regions of this continent, and the number of States which would be made accessible by the free navigation of the river Amazon, particular attention has been given to this subject. Brazil, through whose territories it passes into the ocean, has hitherto persisted in a policy so restrictive, in regard to the use of this river, as to obstruct, and nearly exclude, foreign commercial inter- course with the States which lie upon its tributaries and upper branches. Our minister to that country is instructed to obtain a relaxation of that policy, and to use his efforts to induce the Brazilian government to open to common use, under proper safeguards, this great natural highway for international trade. Several of the South American States are deeply interested in this attempt to secure the free navigation of the Amazon ; and it is reasonable to expect their cooperation in the measure. As the advantages of free commercial intercourse among nations are better understood, more liberal views are generally entertained as to the common rights of all to the free use of those means which nature has provided for international communication. To those more liberal and enlightened views, it is hoped that Brazil will conform her policy, and remove all unnecessary restrictions upon the free use of a river, which traverses so many States and so large a part of the continent. I am happy to inform you that the Republic of Paraguay and the Argentine Confederation have yielded to the liberal policy still resisted by Brazil, in regard to the navigable rivers within their respective territories. Treaties embracing this subject, among others, have been negotiated with these governments, which will be submitted to the- Senate at the present session." Cong. Doc. Senate, 33d Cong. 1 Sess., Ex. Doc, No. 1, p. 7. A treaty was concluded on 23d October, 1851, between Brazil and Peru, to rci^ulate the navigation of the Amazon, the first ai-ticle of which provides : — "Art. lei". La republique du Perou et sa Majeste I'Empereur du Br^sil, d^sirant promouvoir respectivement la navigation du fleuve des Amazones et des affluens par des batimens h vapeur qui, en assurant I'exportation des immenses produits de ces vastes regions, contribuent a augmenter le nombre de leurs habitans et a civiliser les tribus sauvages, conviennent que les marchandises, produits, et em- barcations qui passeront du Bresil au P6rou, et r^ciproquement, par la fronti^re et les fleuves de I'un et I'autre etat, seront exempts de tons droits autres que ceux auxquels sont assujettis les produits nationaux avec lesquels ils seront places sur un pied de complete egalit6. Annuaire des Deux Mondes, 1852-3. Appendice, p. 934. By the treaty between the United States and Peru, concluded on 26th July, 1851, there are reciprocal stipulations that neither party will grant to other nations any favors, privileges, or immunities that shall not be immediately extended to citizens of the other contracting party, gratuitously, if the concession was gratuitous, or for an equivalent, if the concession was conditional — that the duties on account of tonnage, &c., and other local charges, in the ports of the respective countries, shall be the same for vessels of both parties. There was also a stipulation that citizens of the United States, establishing a line of steam vessels, between the different ports of entry within the Peruvian territories, should have all the privileges and favors enjoyed by any other association or company what- ever, and the article concludes with the following provision : " It is furthermore CHAP. IV.] RIGHTS OF PROPERTY. 269 understood between the two higli contracting parties that the steam vessels of either shall not be subject in the ports of the other party to any duties of ton- nage, harbor, or other similar duties whatsoever than those that are or may be paid by any other association or company." Arts. 2, 4, 10 — Minot's Treaties of the United States, 1851-2, pp. 28, 29, 32. That the privileges obtained by Peru accrued to the benefit of the United States and of other nations, having similar treaties with her, was the construction first put on the treaty of 2od October, 1851, by the government of that country. By a decree of 15th of April, 1853, in reference to the opening of the Amazon, it is provided. Art. 1, that in conformity with the treaty between Peru and Brazil of 23d October, 1851, and during the time it is in force, the navigation of the Amazon, as far as the port of Nauta, at the mouth of the Ucayali, is open to the navigation, traffic, and commerce of the vessels and subjects of Brazil. Art. 2. Subjects and citizens of other nations, who have treaties with Peru on the same terms as the most favored nation, are entitled to the same privileges as the Bra- zilians. Peruvian Decree of 15th April, 1853. The Peruvian government having subsequently, on the representation of Brazil, taken a difi"erent view of its obligations, the Envoy of the United States thus meets the argument, by which it is attempted to withdraw the concessions as to the Amazon, in the treaty with Brazil, from the operation of previous reci- procity treaties. " His Excellency states, that the United States cannot claim to be put upon the same footing as Brazil in the Peruvian rivers, because the steam com- pany which is now navigating the Amazon has been established with the funds of the two nations, and is a private affair of their own ; that the navigation of that river belongs in common to the riparian [Riberenas^ nations, whence it is inferred that Peru, as one of them, cannot concede rights which she alone does not possess ; that the fluvial navigation belonging to the riparian nations is an international servitude, emanating from dominion in their respective territories, and from their relative position upon the navigable waters ; and, finally, that this servitude being active and passive at the same time, since the parties inte- rested enjoy it because they suffer it, cannot be alienated to a third party by the exclusive will of one participant. " The Amazon is formed by the confluent streams that flow through the terri- tory of six sovereign nations, five of which are the owners of navigable tributary rivers, whose total course is comprehended within their own territories, until they empty into the central channel owned by Brazil. As each of these five nations contribute with their waters to form the central channel, this latter becomes a public inland highway for each to enter and depart from her dominions. Over the central channel or the Amazon, which flows almost entirely through the territory of Brazil, none of the nations hold exclusive jurisdiction, because neither is the owner of all the waters which form It. " From the fact of the channel of the Amazon being a public International high- way, it is not inferred that its head waters and confluents should also be so, when each flows entirely through the territory of one of the riparian States. Bolivia, for example, owns the whole course of the Marmore and of the Beni, until their junction with the Iteues, which together form the Madeira, and Peru owns the Ucayali and the Huallaga. The position of both States has always given them a 23 * 270 RIGHTS OF PROPERTY. [PART II. right to the innocent use of the lower Amazon, because they have had original and exclusive jurisdiction over the upper ■waters, and can follow them down to the ocean. " The joint ownership in the central channel of the Amazon commences at the point where the confluent streams of one of the riparian nations cross its frontier and flow through the territory of another State. But it cannot be hence inferred that Brazil, as the proprietor of the mouths of the Amazon, has always had the right of transit through the upper waters not within her territory (Agenas,) or what is more extraordinary, that she should have had original dominion and jurisdiction over those waters, when, in reality, the dominion she exercises com- mences from the places where the foreign rivers enter her territory. To assert the contrary would be to fall into an inversion of unacceptable terms. If, therefore, joint ownership exists among the riparian nations, it begins for Brazil at the frontier of the empire, and not before. This is virtually acknowledged by Pei'u and Brazil by the terms of the second article of their treaty, wherein it is said that the navigation ' of the Amazon from its mouth to the bank in Peru, must belong to the respective riparian States.' " With respect to the parity which his Excellency desires to establish between the servitudes described by the civil law, when treating of the right of way ('via' — 'iter') through foreign landed property, and the international right of transit by a common river, the undersigned thinks it superfluous to demonstrate the impossibility of such a parity. It is sufficient for him to indicate that if both cases were identical, none of the riparian States could conclude treaties with a foreign power, opening their rivers to foreign navigation and commerce, without the permission and concert of the other riparian States ; so that it would find itself really deprived of one of the attributes inherent to every sovereign nation. " It being clear, therefore, that Brazilian vessels could not legally navigate the Peruvian rivers prior to the treaty of the 23d October, 1851, the admission of the Brazilian company's steamers into the Peruvian waters of the Amazon has been a concession or favor granted to Brazil, in which the United States must immediately participate, according to the terms of the treaty of the 26th July, 1851." Mr. Clay to the Minister of State in the Department of Foreign Rela- tions. Lima, February 4, 1854. Congress. Documents. By a law of the 26th November, 1853, Ecuador declared free, with an entire exemption from all charges or duties on vessels and cargoes, the navigation of the internal rivers of the republic, including their portion of the Amazon. An- nuaire, &c., 1853-4, p. 824.] PAllT THIEL. INTERNATIONAL RIGHTS OF STATES IN THEIR PACIFIC RELATIONS. PART THIRD. INTERNATIONAL RIGHTS OF STATES IN THEIR PACIFIC RELATIONS. CHAPTER I RIGHTS OF LEGATION. There is no circumstance which marks more dis- r, t'=o„» § 1. Lsaga tinctly the progress of modern civilization, than the °f penna- institution of permanent diplomatic missions between matic mis- different States. The rights of ambassadors were known, and, in some degree, respected by the classic nations of antiquity. During the middle ages they were less distinctly re- cognized, and it was not until the seventeenth century that they were firmly established. The institution of resident permanent legations at all the European courts took place subsequently to the peace of Westphalia, and was rendered expedient by the increasing interest of the different States in each other's affairs, growing out of more extensive commercial and political relations, and more refined speculations respecting the balance of power, giving them the right of mutual inspection as to all transactions by which that balance might be affected. Hence the rights of legation have become definitely ascertained and incorporated into the international code. Every independent State has a right to send public ^ 2. Right ministers to, and receive ministers from, any other sove- obHsatlon"'^ reign State with which it desires to maintain the rela- to receive, . '^ public min- tions of peace and amity. No State, strictly speaking, isteis. 274 RIGHTS OF PROPERTY. [PART HI. is obliged, by the positive law of nations, to send or receive public ministers, although the usage and comity of nations seem to have established a sort of reciprocal duty in this respect. It is evident, however, that this cannot be more than an imperfect obligation, and must be modified by the nature and importance of the relations to be maintained between different States by means of diplomatic intercourse.^ , 3 Rights How far the rights of legation belong to dependent of legation, or semi-sovereio;n States, must depend upon the nature to what . . . ft States be- of their peculiar relation to the superior State under ° ' whose protection they are placed. Thus, by the treaty concluded at Kainardgi, in 1774, between Russia and the Porte, the provinces of Moldavia and Wallachia, placed under the pro- tection of the former power, have the right of sending charges d'affaires of the Greek communion to represent them at the court of Constantinople.^ (a) So also of confederated States ; their right of sending public ministers to each other, or to foreign States, depends upon the peculiar nature and constitution of the union by which they are 1 Yattel, Droit des Gens, liv. Iv.ch. 5, §§ 55-65. Kutherforth's Institutes, vol. ii. b. ii. ch. 9, ^ 20. Martens, Precis du Droit des Gens Moderne de TEurope, liv. vii. ch. 1, §§ 187-190. '■^ Vattel, liv. iv. ch. 5, § GO. Kliiber, Droit des Gens Moderne de I'Europe, St. 2, tit. 2, ch. 3, § 175. Merlin, Repertoire, tit. Ministre publlque, sect. ii. § 1. No. 3, 4. («) [Lcs charges d'affaires de Moldavie et de Valachie prcs de la Porte Otto- mane, dont parte le traite de Kainardgy, ne sont pas proprement des agens diplomatiques, ni ne resident avec le corps diplomatique accredit^ aupres de la Porte. Des long temps les Pachas et Gouverneurs des Provinces Ottomanes etoient dans I'habitude d'entretenir aupres de I'Administration Centrale, c'est a dire, aupres de la Porte, des agens appelles Kayson Kehagasi, (litteralement agens aupres de la Porte) : servant d'interm6diaires entre cette administration et leur commettans. Comme les Hospodars de la Moldavie et de la Yalachie, a r^poque de la paix de Kainardgy, trahissoient regulierement le Sultan dans toute crise politique un peu serieuse, et qu'alors la Porte s'en prenoit volon- tiers aux Kayson Kehagasi des Hospodars, d'ordinaire les confidens de ceux-ci lesquels se r^tiroient au besoin en pays Stranger, la stipulation en question du traite de Kainardgy n'eut proprement .pour I'objet que de conserver, en pareil cas, la vie sauve au Phanariote chargtS des fonctions de Kayson Kehagasi. Kup- fer's Remarks on the " Elements of International Law." Wheaton's MS. Papers.] CHAP. I.] RIGHTS OF LEGATION. 275 bound together. Under the constitution of the former German Empire, and that of the present Germanic Confederation, this right is preserved to all the princes and States composing the federal union. Such was also the former Constitution of the United Pro- vinces of the Low Countries, an^l such is now that of the Swiss Confederation. By the Constitution of the United States of Ame- rica every State is expressly forbidden from entering, without the consent of Congress, into any treaty, alliance, or confedera- tion, with any other State of the Union, or with a foreign State, or from entering, without the same consent, into any agreement or compact with another State, or with a foreign power. The original power of sending and receiving public ministers is essen- tially modified, if it be not entirely taken away, by this pro- hibition.' The question, to what department of the government ^ 4. How belongs the right of sending and receiving public minis- chifwar'^or ters, also depends upon the municipal constitution of ^,''"^°*'^ ^°'' , . the sove- the State. In monarchies, whether absolute or consti- reignty. tutional, this prerogative usually resides in the sovereign. In republics, it is vested either in the chief magistrate, or in a senate or council, conjointly with, or exclusive of such magistrate. In the case of a revolution, civil war, or other contest for the sovereignty, although, strictly speaking, the nation has the exclusive right of determining in whom the legitimate authority of the country resides, yet foreign States must of necessity judge for themselves whether they will recognize the government de facto, by sending to, and receiving ambassadors from it ; or whether they will con- L tinue their accustomed diplomatic relations with the prince whom « they choose to regard as the legitimate sovereign, or suspend altogether these relations with the nation in question. So, also, where an empire is severed by the revolt of a province or colony declaring and maintaining its independence, foreign States are governed by expediency in determining whether they will com- mence diplomatic intercourse with the new State, or wait for its recognition by the metropolitan country.^ 1 Heffter, das Europiiische Volkerreeht, § 200. Merlin, Reportoiro, tit. Minislre puhlique, sect. ii. § 1, No. 5. 2 Vide suprh, Pt. I. ch. 2, §§ 7-10, pp. 31-34. Merlin, Repertoire, tit. MinUtre publique, sect. ii. § 6. 276 RIGHTS OF LEGATION. [PART III. For the purpose of avoiding the difficulties which might arise from a formal and positive decision of these questions, diplo- matic agents are frequently substituted, who are clothed with the powers, and enjoy the immunities of ministers, though they are not invested with the represeniative character, nor entitled to diplomatic honors, (a) ^ 5. Con- -^^ "^ State is under a /^f^r/ed obligation to receive ditionai re- ministers from another, it may annex such conditions to ception 01 ' •' foreign their reception as it thinks fit ; but when once received, ministers. • n ■ . i i i . i they are, in all other respects, entitled to the privileges annexed by the law of nations to their public character. Thus some governments have established it as a rule not to receive one of their own native subjects as a minister from a foreign power ; and a government may receive one of its own subjects, under the expressed condition that he shall continue amenable to the local laws and jurisdiction. So, also, one court may absolutely refuse to receive a particular individual as minister from another court, alleging the motives on which such refusal is grounded.^ (a) [In the case of the last change in the Constitution of France, by the eleva- tion of the Emperor Napoleon III. the following instructions were sent, by the Secretary of State to the jNIiuister at Paris. " From President "Washington's time down to the present it has been a prin- ciple, always acknowledged by the United States, that every nation possesses a right to govern itself according to its own will, to change its institutions at discre- tion, and to transact its business through whatever agents it may think proper to employ. This cardinal point in our own policy has been strongly illustrated by recognizing the many forms of political power, which have been successively adopted by France in the series of revolutions, with which that country has been visited. Throughout all these changes the government of the United States has governed itself in strict conformity to the original principles adopted by Wash- ington, and made known to our diplomatic agents abroad, and to the nations of the world by Mr. Jeffei'son's letter to Gouverneur Morris, of the 12th of March, 1793 : and if the French people have now, substantially, made another change, we have no choice but to acknowledge that also, and as the diplomatic representative of your country in France, you will act as your predecessors have acted and con- form to what appears to be settled national authority." Mr. Webster to Mr. Elves, Cong. Doc. 1851-2. Vol. 4, Doc. 19.] 1 Bynkershoek, de Foro Competent. Legatorum, cap. 11, § 10. Martens, Manuel Diplomatique, ch. 1, § 6. Merlin, Repertoire, tit. Mmistre publique, sect. iii. § 5. CHAP. I.] RIGHTS OF LEGATION. 277 The primitive law of nations makes no other distinc- , ^ q]^^^i_ tion between the different classes of public ministers, fixation of ' public mm- than that which arises from the nature of their func- inters. tions ; but the modern usage of Europe having introduced into the voluntary law of nations certain distinctions in this respect, which, for want of exact definition, became the perpetual source of controversies, uniform rules were at last adopted by the Con- gress of Vienna, and that of Aix-la-Chapelle, which put an end to those disputes. By the rules thus established, public ministers are divided into the four following classes : 1. Ambassadors, and papal legates or nuncios. 2. Envoys, ministers, or others accredited to sovereigns (aupres des souverains.) 3. Ministers resident accredited to sovereigns. 4. Charges d'affaires accredited to the minister of foreign affairs.^ ' The recez of the Congress of Vienna of the 19th of March, 1815, pi'ovides : "Art. 1. Les employes diplomatlques sont partages en trois classes : " Celle (les ambassadeurs, legats ou nonces ; " Celle des envoyes, ministres, ou autres accr^dites aupres des souverains ; " Celle des charges d'affaires accredites aupres des ministres charges des affaires (^trangeres. "Art. 2. Les ambassadeurs, legats ou nonces, ont seuls le caractere repre- sentatif. "Art. 3. Les .employes diplomatiques en mission extraordinaire, n'ont, u ce titre, aucune superiorit6 de rang. "Art. 4. Les employes diplomatiques prendront rang, entre eux, dans chaque classe, d'apres la date de la notification officielle de leur arrivee. " Le present reglement n'apportera aucune innovation relativement aux repre- sentans du Pape. "Art. 5. II sera determine dans chaque etat un mode uniforme pour la recep- tion des employes diplomatiques de chaque classe. "Art. 6. Les liens de parent^ ou d'alliance de famille entre les cours, ne don- nent aucun rang a leurs employes diplomatiques. " II en est de meme des alliances politiques. "Art. 7. Dans les actes ou traltes entre plusieurs puissances, qui admettent I'alternat, le sort d^cidera, entre les ministres, de I'ordre qui devra etre suivi dans les signatures." The protocol of the Congress of Aix-la-ChapcUe of the 21st November, 1818, declares : " Pour 6viter les discussions d^sagreables qui pourraient avoir lieu a. I'avenir sur un point d'etiquette diplomatique, que I'annexe du recez de Vienne, par 24 278 RIGHTS OF LEGATION. [PABT III. Ambassadors and other public ministers of the first class are exclusively entitled to what is called the representative character, being considered as peculiarly representing the sovereign or State by whom they are delegated, and entitled to the same honors to which their constituent would be entitled, were he personally present. This must, however, be taken in a general sense, as indicating the sort of honors to which they are entitled; but the exact ceremonial to be observed towards this class of ministers depends upon usage, which has fluctuated at different periods of European history. There is a slight shade of difference between ambassadors ordinary and extraordinary ; the former designation being exclusively applied to those sent on permanent missions, the latter to those employed on a particular or extraordinary occasion, though it is sometimes extended to those residing at a foreign court for an indeterminate period.^ The right of sending ambassadors is exclusively confined to crowned heads, the great republics, and other States entitled to royal honors.^ All other public ministers are destitute of that particular cha- racter which is supposed to be derived from representing gene- rally the person and dignity of the sovereign. They represent him only in respect to the particular business committed to their charge at the court to which they are accredited.-^ Ministers of the second class are envoys, envoys extraordinary, ministers plenipotentiary, envoys extraordinary and ministers plenipotentiary, and internuncios of the pope.^ So far as the relative rank of diplomatic agents may be deter- mined by the nature of their respective functions, there is no essential difference between public ministers of the first class and those of the second. Both are accredited by the sovereign, or lequel les questions de rang ont 6te regimes, ne parait pas avoir prevu, il est arrete entre les cinq cours, que les ministres r^sidens, accredit^s aupres d'elles formeront, par rapport a leur rang, une classe intermfedlaire entre les ministres du second ordre et les charges d'affaires." 1 Vattel, Droit des Gens, liv. iv. ch. 6, §§ 70-79. Martens, Precis du Droit dcs Gens Moderne de I'Europe, liv. vii. ch. 9, § 192. Martens, Manuel Diploma- tique, ch. 1, § 9. 2 Martens, Pre'cis, &c., liv. vii. ch. 2, § 198. Vide ante, Pt.II. ch. 3, § 2, p. 210. 3 Martens, Manuel Diplomatique, ch. 1, § 10. 4 Ibid. CHAP. I.] KIGHTS OF LEGATION. 279 supreme executive power of the State, to a foreign sovereign. The distinction between ambassadors and envoys was originally grounded upon the supposition, that the former are authorized to negotiate directly with the sovereign himself; whilst the latter, although accredited to him, are only authorized to treat with the minister of foreign affairs or other person empowered by the sovereign. The authority to treat directly with the sovereign was supposed to involve a higher degree of confidence, and to entitle the person, on whom it was conferred, to the honors due to the highest rank of public ministers. This distinction, so far as it is founded upon any essential difference between the func- tions of the two classes of diplomatic agents, is more apparent than real. The usage of all times, and especially the more recent times, authorizes public ministers of every class to confer, on all suitable occasions, with the sovereign at whose court they are accredited, on the political relations between the two States. But even at those periods when the etiquette of European courts confined this privilege to ambassadors, such verbal confer- ences with the sovereign were never considered as binding official acts. Negotiations were then, as now, conducted and concluded with the minister of foreign affairs, and it is through him that the determinations of the sovereign are made known to foreign minis- ters of every class. If this observation be applicable as between States, according to w^hose constitutions of government negotia- tions may, under certain circumstances, be conducted directly between their respective sovereigns, it is still more applicable to representative governments, whether constitutional monarchies or republics. In the former, the sovereign acts, or is supposed to act, only through his responsible ministers, and can only bind the State and pledge the national faith through their agency. In the latter, the supreme executive magistrate cannot be sup- posed to have any relations with a foreign sovereign, such as would require or authorize direct negotiations between them respecting the mutual interests of the two States.' In the third class are included ministers, ministers resident, residents, and ministers charges d'affaires, accredited to sove- reigns.2 ' Pinheiro-Ferreira, Notes to Martens, Precis du Droit des Gens, torn. ii. Notes 12, 14. 2 Martens, Precis, &c., liv. vii. ch. ii. § 194. 280 EIGHTS OF LEGATION. [PART III. Charg(3S d'affaires, accredited to the ministers of foreign affairs of the court at which they reside, are either charges d'affaires ad hoc, who are originally sent and accredited by their governments, or charges d'affaires per interim, substituted in the place of the minister of their respective nations during his absence.^ (a) According to the rule prescribed by the Congress of Vienna, and which has since been generally adopted, public ministers take rank between themselves, in each class, according to the date of the official notification of their arrival at the court to which they are accredited.^ The same decision of the Congress of Vienna has also abo- lished all distinctions of rank between public ministers, arising from consanguinity and family or political relations between their different courts.^ A State which has a right to send public ministers of different classes, may determine for itself what rank it chooses to confer upon its diplomatic agents ; but usage generally requires that those who maintain permanent missions near the government of each other should send and receive ministers of equal rank. One minister may represent his sovereign at different courts, and a State may send several ministers to the same court. A minis- ter or ministers may also have full powers to treat with foreign States, as at a Congress of different nations, without being accre- dited to any particular court.* (b) 1 Martens, Manuel Diplomatique, ch. 1, § 11. (a) [On occasion of an appeal made by Mr. Hiilsemann, charg6 d'affaires of Austria, to the President, in reference to some proceedings of the Secretary of State, Mr. Webster thus wrote, under date of June 8, 1852, to the American charg6 d'affaires, at Vienna : — " The Chevalier Hiilsemann should know that a charg6 d'affaires, whether regularly commissioned or acting as such without commission, can hold official intercourse only with the Department of State. He had no right even to converse with the President on matters of business, and may consider it a liberal courtesy that he is presented to him at all. Although usually we are not rigid in these matters, yet a marked disregard of ordinary forms implies disrespect to the government itself." Congressional Documents.] 2 Recez du Congres de Vienne du 19 Mars, 1815, art. 4. 3 Ibid. art. 6. 4 Martens, Precis, &c., liv. vii. ch. 2, §§ 109 - 204. (Z;) [Eu ^gard a I'etat de la part duquel un ministre public est envoys, celui-ci reunit dans sa personne deux quaUtes diffcrentes. II est fonctionnaire public de cet etat, et il est son mandataire par rapport a sa mission diplomatique. Rela- tivement aux 6tats autres que ceux pres lesquels il est accredite, un ministre \ CHAP. I.] RIGHTS OF LEGATION. 281 Consuls, and other commercial agents, not being accredited to the sovereign or minister of foreign affairs, are not, in general, considered as public ministers ; but the consuls maintained by the Christian Powers of Europe and America near the Barbary States are accredited and treated as public ministers.^ Every diplomatic agent, in order to be received in § 7. Let- that character, and to enjoy the privileges and honors dence. attached to his rank, must be furnished with a letter of credence. In the case of an ambassador, envoy, or minister, of either of the three first classes, this letter of credence is addressed by the sovereign, or other chief magistrate of his own State, to the sovereign or State to whom the minister is delegated. In the case of a charge d'affaires, it is addressed by the secretary, or minister of state charged with the department of foreign affairs, to the minister of foreign affairs of the other government. It may be in the form of a cabinet letter, but is more generally in that of a letter of council. If the latter, it is signed by the sove- reign or chief magistrate, and sealed with the great seal of State. The minister is furnished with an authenticated copy, to be deli- vered to the minister of foreign affairs, on asking an audience for the purpose of delivering the original to -the sovereign, or other chief magistrate of the State, to whom he is sent. The letter of credence states the general object of his mission, and requests that full faith and credit may be given to what he shall say on the part of his court.^ public n'est cousid6re que sous les rapports geii6raux d'un citoyen, (Wicquefort, liv. i. sec. 15.) II est neanmoins d'usage d'accorder, par complaisance, certaines immunit6s a un ministre public 6tranger a son passage par le paj's. II n'est point deroge a la qualite ni aux prerogatives d'un ministre public, charge de negotia- tions avec des puissances etrangeres, lorsqu'il est revetu du titre de commissaire ou de commission, de depute ou de deputation, comme cela a quelquefois eu lieu dans les negotiations, sur les llmites de I'^tat, &c. Ce n'est point encore proprement un ministre public que celui qu' un gouvernement envoie k celui d'un auti-e 6tat pour des affaires publiques, mais sans le revetir d'un titre d'envoye diploma- tique, quoique d'ailleurs le fait de sa mission ne soit point cacb6. Ivliiber, Droit des Gens Moderne de I'Europe, ^^ 170, 171, 172.] 1 Bynkershoek, de Foro Competent. Legat. cap. 10, §§ 4-6. Martens, Manuel Diplomatique, cb. 1, § 13. Vattel, liv. ii. cb. 2, § 34. Wicquefort, de I'Ambas- sadeur, liv. i. § 1, p. 63. 2 Martens, Precis, &c., liv. vll. cb. 3, § 202. Wicquefort, de I'Ambassadeur, liv. i. § 15. 24 * 282 RIGHTS OF LEGATION. [PART III. , 8 Full ^^^^ ^"^^ power, authorizing the minister to negotiate, power. rnay be inserted in the letter of credence, but it is more usually drawn up in the form of letters-patent. In general, ministers sent to a Congress are not provided with a letter of credence, but only with a full power, of which they reciprocally exchange copies with each other, or deposit them in the hands of the mediating power or presiding minister.^ , 9 i„. The instructions of the minister are for his own direc- structions. tion Only, and not to be communicated to the govern- ment to which he is accredited, unless he is ordered by his own government to communicate them in extenso, or partially ; or unless, in the exercise of his discretion, he deems it expedient to make such a communication.^ § 10. Pass- -^ public minister, proceeding to his destined post in P°^'- time of peace, requires no other protection than a pass- port from his own government. In time of war, he must be pro- vided with a safe conduct or passport, from the government of the State with which his own country is in hostility, to enable him to travel securely through its territories.^ ^ 11. Du- It is the duty of every public minister, on arriving at pubHc ^ ^'^^ destined post, to notify his arrival to the minister of aJrivilfo^'it'^ foreign affairs. If the foreign minister is of the first his post. class, this notification is usually communicated by a secretary of embassy or legation, or other person attached to the mission, who hands to the minister of foreign affairs a copy of the letter of credence, at the same time requesting an audience of the sovereign for his principal. Ministers of the second and third classes generally notify their arrival by letter to the minister of foreign affairs, requesting him to take the orders of the sove- reign, as to the delivery of their letters of credence. Charges d'affaires, who are not accredited to the sovereign, notify their arrival in the same manner, at the same time requesting an 1 Wicquefort, liv. i. § IG. Martens, Precis, &c., liv. vii. ch. 3, § 204. Manuel Diplomatique, ch. ii. § 17. 2 Manuel Diplomatique, ch. 2, § 16. 3 Vattel, liv. iv. ch. 7, § 85. ]\Ianuel Diplomatique, ch. 2, § 19. Flassan, His- toire de la Diplomatic Frangaise, torn. v. p. 246. CHAP. I.] RIGHTS OP LEGATION. 283 audience of the minister of foreign affairs for the purpose of deli- vering their letters of credence. Ambassadors, and other ministers of the first class, § 12. Au- are entitled to a xmblic audience of the sovereign ; but Se"sOTe- this ceremony is not necessary to enable them to enter |j^ji|"\°4^s- on their functions, and, together with the ceremony of trate. the solemn entry., which was formerly practised with respect to this class of ministers, is now usually dispensed with, and they are received in a private audience, in the same manner as other ministers. At this audience the letter of credence is delivered, and the minister pronounces a complimentary discourse, to which the sovereign replies. In republican States, the foreign minister is received in a similar manner, by the chief executive magistrate or council, charged with the foreign affairs of the nation.^ The usage of civilized nations has established a cer- ,H3- Di- o plomatic tain etiquette, to be observed by the members of the etiquette. diplomatic corps, resident at the same court, towards each other, and towards the members of the government to which they are accredited. The duties which comity requires to be observed, in this respect, belong rather to the code of manners than of laws, and can hardly be made the subject of positive sanction ; but there are certain established rules in respect to them, the non- observance of which may be attended with inconvenience in the performance of more serious and important duties. Such are the visits of etiquette, which the diplomatic ceremonial of Europe requires to be rendered and reciprocated, between public minis- ters resident at the same court.^ From the moment a public minister enters the terri- §14. Pri- tory of the State to which he is sent, during the time ^'p^fbfjc* of his residence, and until he leaves the country, he is minister- entitled to an entire exemption from the local jurisdiction, both civil and criminal. Representing the rights, interests, and dig- nity of the sovereign or State by whom he is delegated, his person is sacred and inviolable. To give a more lively idea of this complete exemption from the local jurisdiction, the fiction 1 Martens, Manuel Diplomatique, ch. 4, §§ 33-36. 2 Manuel Diplomatique, cb. 4, § 37. 284 RIGHTS OF LEGATION. [PART III. of extraterritoriality has been invented, by which the minister, though actually in a foreign country, is supposed still to remain within the territory of his own sovereign. He continues still subject to the laws of his own country, which govern his per- sonal status and rights of property, whether derived from con- tract, inheritance, or testament. His children born abroad are considered as natives. This exemption from the local laws and jurisdiction is founded upon mutual utility, growing out of the necessity that public ministers should be entirely independent of the local authority, in order to fulfil the duties of their mission. The act of sending the minister on the one hand, and of receiv- ing him on the other, amounts to a tacit compact between the two States that he shall be subject only to the authority of his own nation.^ The passports or safe conduct, granted by his own government in time of peace, or by the government to which he is sent in time of war, are sufficient evidence of his public character for this purpose.2 § 15. Ex- This immunity extends, not only to the person of the the general minister, but to his family and suite, secretaries of lega- exeniption ^^^^ ^"^ othcr secretaries, his servants, movable effects, from the a^^j ti^g housc in which he resides.^ local juris- diction. The minister's person is, in general, entirely exempt both from the civil and criminal jurisdiction of the country where he resides. To this general exemption there may be the follow- ing exceptions : 1. This exemption from the jurisdiction of the local tribunals and authorities does not apply to the contentious jurisdiction, 1 Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 18, § 1-6. Eutherforth's Inst. vol. n. b. ii. cb. 9, § 20. Wicquefort, de I'Ambassadeur, liv. i. § 27. Bynkersboek, de Jure Competent. Legat. cap. 5, 8. Vattel, Droit des Gens, liv. iv. cb. 7, §§ 81- 125. Martens, Precis, &c., liv. vii. cb. 5, §§ 214-218, Kliiber, Droit des Gens Moderne de I'Europe, Pt. II. tit. 2, § 203. FoelLx, Droit International Prive, § 184. Wbeaton, Hist. Law of Nations, pp. 237-243. 2 Vattel, liv. iv. cb. 7, § 83. 3 Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 18, §§ 8, 9. Bynkersboek, de Foro Competent Legat. cap. 13, § 5, cap. 15, 20. Vattel, liv. iv. cb. 8, § 113 ; cb. 9, §§ 117-123. Martens, Precis, &c., liv. vii. cb. 5, §§ 215-227 ; cb. 9, §§ 234-237. Foelix, §§ 184-186. CHAP. 1.] RIGHTS OF LEGATIOIf. 285 which may be conferred on those tribunals by the minister volun- tarily making himself a party to a suit at law.^ 2. If he is a citizen or subject of the country to which he is sent, and that country has not renounced its authority over him, he remains still subject to its jurisdiction. But it may be ques- tionable whether his reception as a minister from another power, without any express reservation as to his previous allegiance, ought not to be considered as a renunciation of this claim, since such reception implies a lacit convention between the two States that he shall be entirely exempt from the local jurisdiction.^ 3. If he is at the same time in the service of the power who receives him as a minister, as sometimes happens among the German courts, he continues still subject to the local jurisdic- tion. ^ (a) 4. In case of offences committed by public ministers, affecting the existence and safety of the State where they reside, if the danger is urgent, their persons and papers may be seized, and they may be sent out of the country. In all other cases, it appears to be the established usage of nations to request their recall by their own sovereign, which, if unreasonably refused by him, would unquestionably authorize the offended State to send away the offender. There may be other cases which might, under circumstances of sufficient aggravation, warrant the State thus offended in proceeding against an ambassador as a public enemy, or in inflicting punishment upon his person, if justice should be refused by his own sovereign. But the circumstances which would authorize such a proceeding are hardly capable of precise definition, nor can any general rule be collected from the examples to be found in the history of nations, where public ministers have thrown off their public character, and plotted against the safety of the State to which they were accredited. These anomalous exceptions to the general rule resolve them- 1 Bynkershoek, caj). IG, §§ 13-15. Yattel, llv. iv. ch. 8, § 111. Martens, Precis, &c., llv. vii. ch. 5, § 21G. Merlin, Repertoire, art. Ministre Puhlique, sect. V. §4, No. 10. 2 Bynkershoek, cap. 11. Vattel, llv. ch. 8, § 112. 3 Martens, Manuel Diplomatique, ch. 3, § 23. (a) [The German Diet refuse to receive any citizen of Frankfort as minister of a confederated State, except from the city itself. Kliiber, § 186.] 286 RIGHTS OF LEGATION. [PART III. selves into the paramount right of self-preservation and neces- sity. Grotius distinguishes here between what may be done in the way of self-defence and what may be done in the way of punishment. Though the law of nations will not allow an ambassador's life to be taken away as a punishment for a crime after it has been committed, yet this law does not oblige the State to suffer him to use violence without endeavoring to re- sist it.i § ic. Per- '^'^^ ^^^® ^^^^ family, servants and suite, of the minis- sonai ex- ^gj. participate in the inviolability attached to his public emption ' r r j r extending character. The secretaries of embassy and legation are to his . . . ./ o family, especially entitled, as official persons, to the privileges servant", ' of the diplomatic corps, in respect to their exemption from the local jurisdiction.^ The municipal laws of some, and the usages of most nations, require an official list of the domestic servants of foreign minis- ters to be communicated to the secretary or minister of foreign affairs, in order to entitle them to the benefit of this exemp- tion. ^ {a) It follows from the principle of the extraterritoriality of the minister, his family, and other persons attached to the legation, or belonging to his suite, and their exemption from the local laws and jurisdiction of the country where they reside, that the ' Grolius, de Jur. Bel. ac Pac. lib. ii. cap. 18, § 4. Rutlierfortb's Inst. vol. ii. b. ii. ch. 9, § 20. Bynkershoek, de Foro Competent. Legat. cap. 17, 18, 19. Vattel, llv. iv. ch. 7, §§ 94-102. Martens, Precis, &c., liv. vii. ch. 5, § 218. Ward's Hist, of the Law of Nations, vol. ii. ch. 17, pp. 291-334. Wheaton's Hist. Law of Nations, pp. 250-254. 2 Grotius, lib. ii. cap. 18, § 8. Bynkershoek, cap. 15, 20. Vattel, liv. iv. ch. 9, § 120-123. Martens, Precis, &c., liv. vii. ch. 5, § 219 ; ch. 9, §§ 234-237. Foelix, § 184. 3 Blackstone's Commentaries, vol. i. ch. 7. LL. of the United States, vol. i. ch. 9, § 26. (a) [The French code makes no provision for the case of the violation of the rights of ambassadors. One was reported declaring that they were not amenable to the tribunals of France, either for civil or criminal matters ; but it was stricken out by the Council of State, at the suggestion of Portalis, that whatever regarded ambassadors belonged to the law of nations, and that it had no place in a munici- pal code. Fcelix,^ 167. See also the same work, ^ 168, and the following sec- tions, for the provisions of other counti-ies as to the rights of ambassadors.] CHAP. I.] RIGHTS OF LEGATION. 287 civil and criminal jurisdiction over these persons rests with the minister, to be exercised according to the laws and usages of his own country. In respect to civil jurisdiction, both contentious and voluntary, this rule is, with some exceptions, followed in the practice of nations. But in respect to criminal offences commit- ted by his domestics, although in strictness the minister has a right to try and punish them, the modern usage merely author- izes him to arffest and send them for trial to their own country. He may, also, in the exercise of his discretion, discharge them from his service, or deliver them up for trial under the laws of the State where he resides ; as he may renounce any other privi- lege to which he is entitled by the public law.^ The personal effects or movables belonging to the ^ 17. Ex- minister, within the territory of the State where he thJ'i-^^'inis- resides, are entirely exempt from the local jurisdiction ; ^"j^^* ^°^^^ so, also, of his dwelling-house ; but any other real pro- perty. perty, or immovables, of which he may be possessed within the foreign territory, is subject to its laws and jurisdiction. Nor is the personal property of which he may be possessed as a mer- chant carrying on trade, or in a fiduciary character, as an execu- tor, &c., exempt from the operation of the local laws.^ The question, how far the personal effects of a public Discussion minister are liable to be seized or detained, in order to between the ' American enforce the performance, on his part, of the contract of and Prus- hiring of a dwelling-house, inhabited by him, has been ments, re- recently discussed between the American and Prussian exemptfon^^ governments, in a case, the statement of which may °^ji^;!;'^ei^ serve to illustrate the subject we are treatinsr. f^"°"] *^^®. •• ° local juris- The Prussian Civil Code declares, that " the lessor is diction. entitled, as a security for the rent and other demands arising under the contract, to the rights of a Pfandg-Iaifbig-ei; upon the goods brought by the tenant upon the premises, and there re- maining at the expiration of the lease." 1 Bynkersboek, cap. 15, 20. Vattel, liv. iv. ch. 9, § 124. Rutlierforth's Inst. vol. ii. b. ii. ch. 9, § 20. Kliiber, Pt. II. tit. 2, §§ 212-214. Merlin, Repertoire, tit. Ministre Puhlique, sect. vi. 2 Vattel, liv. iv. cb. 8, ^^ 113-115. Martens, Precis, &c., liv. vii. cb. 8, ^217, Kluber, Pt. II. tit. 2, cb. 3, ^ 210. Merlin, sect. v. ^ iv. No. 6. 288 RIGHTS OF LEGATION. [PART III. The same code defines the nature of the right of a creditor whose debt is thus secured. "A real right, as to a thing belong- ing to another, assigned to any person as security for a debt, and in virtue of which he may demand to be satisfied out of the sub- stance of the thing itself, is called Unterpfands-RechV^ ^ Under this law, the proprietor of the house in which the minis- ter 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 payment of damages alleged to be due, on account of inju- ries 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 by 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, (Pfandg-laubig-er,) 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 diplomatique, 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 distraining the goods of the tenant, to enforce the performance of the contract. The only reason alleged to justify such an exception to the general principle of exemption was, that the right in qviestion 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 con- sideration alone presented a strong objection against its validity, it being notorious that all the exceptions to the principle were 1 AUgemeines Landreclit fiir die Preussisclien Staaten, Pt. i. tit. 21, § 395, tit 30, ^ 1. CHAP. I.] EIGHTS OF LEGATION. 289 carefully enumerated by the most esteemed public jurists. Not 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 sufficient 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 question here was, not what are the rights conferred by the municipal laws of the country upon the proprie- tor, in respect to the tenant, who is a subject of that country ; but what are those rights in respect to a foreign minister, whose 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 appeal to his own government. Here the contract of hiring constitutes, j^er 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 per- form its stipulations. Instead of compelling the lessor to resort 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 subjects of the country, because their goods are sub- ject 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. Let us suppose that the contract in question had been a bill of exchange drawn by the minister, not in the character of a merchant, but for defraying his ordinary expenses. The laws of ev.ery country, in such a case, entitle the holder of the bill to arrest the person of his debtor, in case of non-payment. It might be said, in the case supposed, that the contract itself gives the right of arresting the person, with the same reason that it was pretended, in the case in question, that it gave the right of seizing the goods of the debtor. In fact, there was no one privilege of which a public minister might not be deprived, by the same mode of reasoning which was resorted to in order to deprive him of the exemption to which he was entitled as to his personal effects. But to deprive 25 290 RIGHTS OF LEGATION. [PART III. him of this right alone, would be to deprive him of that inde- pendence and security which are indispensably necessary to ena- ble him to fulfil the duties he owes to his own government. If a single article of his 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 private 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. The exemption of the goods of a public minister from every species of seizure for debt, is laid down by Grotius in the follow- ing manner : " As to what respects the personal effects (mobilia) of an ambassador, which are considered as belonging to his person, they are not liable to seizure, neither for the payment nor for security of a debt, either by order of a court of justice, or, as some pretend, by command of the sovereign. This, in my judg- ment, is the soundest opinion ; for an ambassador, in order to enjoy complete security, ought to be exempt from every species of restraint, both as to his person, and as to those things which are necessary for his use. If, then, he has contracted debts, and if, which is usually the case, he has no real property (immobilia) in the country, he should be politely requested to pay, and if he refuses, resort must be had to his sovereign." ' We here perceive that this great man himself, both as a public minister and public jurist, was decidedly of opinion that the personal property of an ambassador could not be seized, either for the payment or for security of a debt ; or, according to the original text, — Ad solutionem debiti aut pignoris causd. Bynker- shoek, in his treatise De Foro competenti Legatorum, cites with approbation this passage of Grotius. Bynkershoek himself, in commenting upon the declaratory edict of the States-General of the United Provinces, of 1679, exempting foreign ministers from arrest, and their effects from attachment, for debts contracted in the country, observes : — " The declaration of the States-General does not materially ^ Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 18, § 9. CHAP. I.] RIGHTS OF LEGATION. 291 differ from the opinion of Grotius, which I have quoted in the preceding chapter. To which we may add, that this author states, that the effects of an ambassador cannot be seized, either for payment or for security of a debt, because they are consi- dered as appertaining to his person. Respecting this principle Antoine Mornac reports that, in the year 1608, Henry IV. king of France, pronounced against the legality of a seizure made at Paris, for the non-payment of rent, of the goods of the Venetian ambassador. This decision has been since constantly observed in every country. " But this may be said to be carrying the privilege too far, since the seizure of the effects of an ambassador is not so much on account of the person as to a right in the thing thus seized ; a right of which the proprietor cannot be deprived by the ambas- sador." This author had here anticipated the argument of the Prussian government, to which he replies as follows : — "But far from unduly pressing the principle, by the effects which are spoken of in the declaration of 1679 I understood only personal effects, that is to say, those which serve for the use of ambassadors, {id est utensilia,) as I shall point out in that part of this treatise where it will be necessary to speak of their property. It is of these effects that I affirm, that they are not, and never have been, according to the law of nations, considered as in the nature of a pledge, to secure the payment of what is due from an ambassador. I even maintain that it is not lawful to seize them, either in order to institute a suit or to execute a judicial sentence."! ' In his sixteenth chapter Bynkershoek explains what he means by those effects which serve for the use of ambassadors, that is, utensilia. In this chapter he admits that the property, both per- sonal and real, of a public minister, may, in some cases, be attached, to compel him to defend a suit commenced by those who might have a claim against him : — "I say the property {bona) in general, whether personal or real, unless they appertain to the person of the ambassador and he possess them, as ambas- sador ; in a word, all those things without which he may conve- Bynkershoek, de For. Legat. cap. ix. §§ 9, 10, 292 RIGHTS OP LEGATION". [pART III. niently perform the functions of his office. I except, then, from the number of those goods of the ambassador which may be thus attached, corn, wine, oil, every kind of provisions, furniture, gold, toilette, ornaments, perfumes, drugs, clothing, carpets and tapestry, coaches, horses, mules, and all other things which may be comprised in the terms of the Roman law, legati instructi et cum instrumentoJ^ In the following section he explains his doctrine, that cer- tain effects of a public minister may be attached, in order to institute against him a suit, and to compel him to defend it, by showing that it is meant to be limited to the single case where the minister assumes on himself the character of a merchant, in which case the goods possessed by him, as such, may be attached for this purpose. "All these things," says he, "ought not, ac- cording to my view, to be excepted, unless they are destined for the use of the ambassador and his household. For it is not the same with corn, wine, and oil, for example, which an ambassador may have in his warehouses, for the purposes of trade ; nor with horses and mules, which he may keep for the purpose of breeding and selling." Vattel is equally explicit as to the extent of the privilege in question. The only exception he admits to the general rule is that of a public minister who engages in trade, in which case his personal goods may be attached, to compel him to answer to a suit. To this exception he annexes two conditions, the latter of which was deemed decisive of the present question. " Let us subjoin two explanations of what has just been said: 1. In case of doubt, the respect which is due to the character of a public minister requires the most favorable interpretation for the benefit of that character. I mean to say that where there is reason to doubt whether an article is really destined to the use of the minister and his household, or whether it belongs to his stock in trade, the question must be determined in favor of the minister ; otherwise there might be danger of violating his privi- lege. 2. When I say that the effects of a minister, which have no connection with his character, and especially those belong- ing to his stock in trade, may be attached, this must be under- stood on the supposition that the attachment is not grounded on any matter relating to his concerns as minister ; as, for in- CHAP. I.] RIGHTS OF LEGATION. 293 stance, for supplies furnished to his household, for the rent of his hotel, &c."i In reply to these arguments and authorities it was urged, on behalf of the Prussian government, that if, in the present case, any Prussian authority had pretended to exercise a right of jurisdiction, either over the person of the minister or his pro- perty, the solution of the question would doubtless appertain to the law of nations, and it must be determined 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 determine 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.2 The controversy having been terminated, as between the parties, by the proprietor of the house restoring the effects which had been detained, on the payment of a reasonable compensa- tion for the injury done to the premises, the Prussian govern- ment proposed to submit to the American government the following question : " If a foreign [diplomatic agent, accredited near the govern- ment of the United States, enters, of his own accord, and in the prescribed forms, into a contract with an American citizen ; and if, under such contract, the laws of the country give to such citizen, in a given case, a real rights [droit reel) over personal property (Mens mobiliers,) belonging to such agent: does the American government assume the right of depriving the Ameri- can citizen of his real right, at the simple instance of the diplo- matic agent relying upon his extraterritoriality ? " This question was answered on the part of the American gov- ernment, by assuming the instance contemplated by the Prussian government 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 hypothek 1 Vattel, Droit des Gens, liv. iv. cli. 8, § 114. Mr. Wheaton to Barou de Werther. Note verbale, 15 May, 1839. 2 Baron de Werther to Mr. Wheaton. Kote verbale, 19 May, 1839. 25* 294 RIGHTS OF LEGATION. [PART III. ^ or lien upon the furniture of the latter. It was taken for granted that there was no express hypothecation, still less any giving in pledge, which implies a transfer of possession by way of security for a debt. This distinction was deemed important. 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 in re, not in the least affected by diplomatic immunities. And accordingly, this was the course pointed out to creditors by Bynkershoek, who denies them all other means of satisfying themselves out of the minister's personal goods. Of course, these words were used with the proper restriction, which confines them to the apparatus legationis, or such as pass under the description, of legatus instructus et cum instrumento. With these distinctions and qualifications, the American government had no doubt that the view taken by its minister 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. That this exemption was not peculiar to the statute law of this country, but was strictly juris gentium, appeared from the prece- dents mentioned by the great public jurist just cited in his treatise De Foro Legatorum, the great canon of this branch of public law.i 1 " Quia hajc (bona) considerantur ut persona3 accessiones Et secundum hsec Mornacius refert ad L. 2, § 3, de Judlc. Regi Galliarum placuisse, anno 1608, male pro locario Parisiis Venetce reipublicce legali mobilia fuisse retenta; et constanter ita usu est servatum deinceps uhique gentium. Sed forte, dices, id nimium esse, quia ea mohilium detentio non tarn fit ex causa persons, quam jure in re, quod locatori competit in invectis et illatis, quodque Jus, lege qucesitum, legatis auferre non possit. Sed tantum abest, ut nimium dicamus, ut vel bona quorum meminit d. Edictum anni 1679, non aliter interpretemur, qu5,m bona mobilia, id est, utensilia, &c. Haac utensilia nego, ex jure gentium, pignori esse, vel unquam fuisse, quin nee capi posse, vel ad ordiendum judicium, vel ad servandum quod nobis debetur, vel ad exsequendam rem judicatam. Et facile assen- tlor Grotio, si de utensilibus accipias, quae ipse dixit, ea nempe pignoris causa capi non posse, nee per judiciorum ordinem, nee manu regid, explosa sic distinctione, quie aliis olim, sed sine ratione, placuerat." De For. Legat. cap. ix. Compare the catalogue of the personal goods so privileged, id. cap. xvi. CHAP. I.] RIGHTS OF LEGATION. 295 Besides this conclusive authority upon the very point in ques- tion, Bynkershoek states the principle (out of Grotius) that the personal goods of a foreign minister cannot be taken by way of distress or pledge, and gives it the sanction of his most emphatic assent.! Indeed the whole scope of the treatise referred to, went to establish this very doctrine. But to consider it on principle. Three several questions would arise upon the inquiry propounded by the Prussian government. 1st. Is the landlord's right, in such a case, a real right properly so called ? 2d. Admitting it to be so, can it be asserted, consist- ently with Prussian municipal law, against a foreign minister who has not voluntarily parted with his possession, on an express contract, to secure payment of rent or damages? 3d. Supposing the municipal law of Prussia to contemplate the case of a foreign minister, can that law be enforced, in such a case, consistently with the law of nations ? There was, in all systems of jurisprudence, great difficulty in settling the legal category of the landlord's right. Pledge, although not property, is certainly a real right ; but a mere lien or hypothek, in which there is no transfer of possession, is not a pledge. In England, and in the United States, the right of land- lords was originally a mere lien, reducible by distress into a right of pledge. In Scotland the same right is sometimes called a right of property, and sometimes a mere hypothek, springing out of a tacit contract. Without pretending to determine precisely whether its origin ought to be referred to the one or the other principle, (neither perhaps being fully adequate to account for all its effects,) it is considered by the best writers as a right of hypo- thek, convertible by a certain legal process into a real right of pledge. If this be a proper view of the subject, there was surely an end of the question : for the process of conversion is as much ^ "Bona quoque legatl mobilia, etquas proinde habeatur personse accessio, j??*/- noris causa, aut ad solutionem dehiti, capi non posse, nee per judiciorum ordinem, nee, quod quidam volunt, manu regia, verius est : nam omnis coactio a legato abesse debet, tarn quaj res ei necessarias, qutim qua; personam tangit, quo plena ei sit seeuritas." Bynkershoek, de For. Legat. cap. viii. Grotius, de Jur. Bel. ac Pac., lib. ii. cap. 18, § 19. I 296 RIGHTS OF LEGATION. [PART III. the exercise of jurisdiction, as the levying an execution ; and the public minister is exempt from all jurisdiction whatever. It was true that all hypothecations, or privileges upon property, are classed by some writers under the head of real rights, but this was by no means conclusive of the case under consideration. In a conflict of rights, this might entitle the privileged creditor to pre- ference in the distribution of an inadequate fund, but the ques- tion was, how was he to assert that preference ? By means of judicial process ? If so, he is without remedy against one not subject to the jurisdiction, except by open violence, which, of course, is not classed among rights. Accordingly, privileges, and liens by mere operation of law, are usually considered as matters oi remedi/, not of right; as belonging to the lex fori, not to the essence of the contract.^ It might, therefore, be considered as doubtful, a priori, whe- ther, by the Prussian code, the right of the landlord is a real right, to the effect, at least, of putting it on the footing of pro- perty transferred by contract, for that was the argument. 2d. But suppose this to be the usual effect, by operation of law, of the contract between landlord and tenant, does it^hold as against one not subject to the law ; not amenable to the jurisdic- tion ; not, in legal contemplation, residing within the country of the contract ? By the supposition, it was an incident in law of the relation between the landlord and his tenant, and it turns upon an iinplied contract. It was supposed that the tenant agreed to hire the house on the usual conditions; but one of them was, that if he failed to pay the rent, or indemnify for damages done to the pre- mises, the landlord should have a remedy by distress. It was, therefore, inferred that it was not the law, or the judge, but the tenant himself, who had transferred, quasi contractu, this interest in his own property. But if this reasoning was correct, why should it not apply in the case of arrest and holding to bail ? or in any case of attachment ? The consent might as well be im- plied here, as in favor of a landlord. Indeed, the same implica- tion might as reasonably be extended to all laws whatever, and foreign ministers thus be held universally subject by con- Story, Conflict of Laws, §§ 423-456, 2d ed. CHAP. I.] RIGHTS OF LEGATION. 297 tract to the municipal jurisdiction. The presumption implied in the contract under the law of the place, and binding on the parties subject to the jurisdiction is repelled by the im- munity and extraterritoriality of the public minister. He that enters into a contract with another knows, or ought to know, his condition. So says Ulpian, (1. 19, pref. de R. J.,) and the landlord who lets his house to a foreign minister, waives his remedy under the law from which he knows that minister is exempt. The American government was therefore inclined, in the absence of any authority to the contrary, to think that the Prus- sian municipal law, properly interpreted, did not, in fact, authorize any such pretension as that set up by the landlord, in the pre- sent instance. But even supposing it did authorize the preten- sion, it ought no more to derogate from the established law of nations in this case, than in that of personal arrest. The author- ities cited above seemed to the American government entirely conclusive as to this point ; and it was greatly confirmed in this view of the subject by the act of Congress declaratory of the law of nations, and by the opinion of other governments. In short, all the reasons on which diplomatic immunities have been asserted, and are now universally allowed, seem just as appli- cable to the case of liens and hypothecations in favor of land- lords, as to remedies of any other kind. Indeed, nothing could afford a better practical illustration of this than the attempt of the landlord in the present case, by means of his pretended lien, to force the minister to pay damages assessed at his discretion) for an injury proved only by his own allegation.^ The Prussian government declared, that its opinion upon the point in controversy remained unchanged by the above reason- ing, and the authorities adduced in support of it. According to its view, the question was not, whether the lessor had a right to retain a portion of the effects belonging to the lessee, and found on the premises at the expiration of the contract, as security for the damages incurred by its breach ; but whether the lessor, by exerting his right of retention, had committed a violation of the 1 Mr. Legare's Despatch to Mr. Wheaton, 9th June, 1843. 298 RIGHTS OF LEaATION. [PART III. privileges of diplomatic agents, or, at least, a punishable act ; and if, for this reason, he could be compelled, summarily, and before the competent judge had pronounced upon his claim, to restore the effects thus retained. This last question being resolved negatively, the decision of the first must necessarily be reserved to the competent tribunals. The privilege of extraterritoriality consists in the right of the diplomatic agent to be exempt from all dependence on the sovereign power of the country, near the government of which he is accredited. It follows, that the State cannot exercise against him any act of jurisdiction whatsoever, and as by a natural consequence of this principle, the tribunals of the coun- try have, in general, no right to take cognizance of controversies in which foreign ministers are concerned, neither are they author- ized, in the particular case of a controversy arising out of a con- tract of hiring, to ordain the seizure of the effects of a public minister. If, then, the privilege of extraterritoriality regards only the rela- tions which subsist between the diplomatic agent and the sove- reign power of the country where he resides, it is also evident that a violation of this privilege can only be committed by the public authorities of that country, and not by a private person. The legal relations of the subjects of the country are in no respect directly changed by the principle of extraterritoriality ; it is only indirectly that this principle can operate upon those rela- tions ; so that in respect to citizens' controversies, the subject is not entitled to invoke the interposition of the authorities of his own country against the foreign minister upon whom he may have a claim for redress, and if he would commence a suit against him, he must resort to the tribunals of the minister's country. If, on the other hand, the subject can do himself justice, without having recourse to the authorities of his own country, his position in respect to the foreign minister is abso- lutely the same as if the controversy had arisen with one of his own fellow citizens. It was hardly necessary to observe that, in such a case, the party must keep within the limits of what is generally permit- ted. If he should resort to violence, he would render himself guilty of an infraction of the law, and would be punishable in the II CHAP. I.] RIGHTS OF LEGATION. 299 same manner as if the adverse party were an inhabitant of the country. In the controversy now in question, no authority dependent on the Prussian government had participated, either directly or indi- rectly, in the seizure of the effects of the American minister; the proprietor of the house having retained them by his own proper act, there was then no violation of the privilege of extraterrito- riality. There was no proof of any act of violence having been committed by him, and the mere act of retention could not be considered as an unlawful act. On principle, every proprietor of a house, even where it is let to another person, remains in possession of his property. It fol- lows, that the effects brought on to the premises by the tenant may be considered, in some respects, as in possession of the landlord. It is for this reason that the municipal law of Prussia, as well as that of most other European States, gives to the land- lord a lien upon the goods of the tenant, as a security for the payment of the rent. The question how far this right, founded upon the positive law of a particular country, can be exerted against a foreign minister, may be dismissed from consideration ; since the act of retention cannot be regarded as an unlawful and punishable act, and, in such a case, it belongs to the tribunals of justice to pronounce judgment upon the rights which the land- lord may have acquired by the retention.^ (a) The person and personal effects of the minister are § is. Du- not liable to taxation. He is exempt from the paymejit taxes!^ of duties on the importation of articles for his own personal use and that of his family. But this latter exemption is, at present, 1 Baron de Bulow's Letter to Mr. Wheaton, 5th July, 1844. See an able review of the above controversy by M. Foelix, the learned editor of the Revue du Droit Francais et Etranger, tome ii. p. 31. (a) [In the case of an attach^ to the French legation the opinion of the Attor- ney-General was, that neither a landlord nor a taverner, under the color of a Hen, can forcibly take from an ambassador his chest or trunk, whether it contains his wardrobe or other articles of mere personal convenience, or whether it con- tains the instructions or the archives of his legation. Neither the law of nations nor the law of Congress knows any difference. While the Secretary of State can take no legal measures, the law furnishes the attache the most ample protection. Opinions of Attorneys-General, ed. 1852, vol. v. p. 70. Mr. Toucey, Attorney- General, to the Secretary of State, February 13, 1849.] 300 RIGHTS OF LEGATION. [PART III. by the usage of most nations, limited to a fixed sum during the continuance of the mission. He is liable to the payment of tolls and postages. The hotel in which he resides, though exempt from the quartering of troops, is subject to taxation, in common with the other real property of the country, whether it belongs to him or to his government. And though, in general, his house is inviolable, and cannot be entered, without his permission, by police, custom-house, or excise officers, yet the abuse of this pri- vilege, by which it was converted in some countries into an asy- lum for fugitives from justice, has caused it to be very much restrained by the recent usage of nations.^ § 19. Mes- The practice of nations has also extended the invio- coutiers.' lability of public ministers to the messengers and cou- riers, sent with despatches to or from the legations established in different countries. They are exempt from every species of visit- ation and search, in passing through the territories of those powers with whom their own government is in amity. For the purpose of giving effect to this exemption, they must be provided with passports from their own government, attesting their official character; and, in the case of despatches sent by sea, the vessel or aviso must also be provided with a commission or pass. In time of war, a special arrangement, by means of a cartel or flag of truce, furnished with passports, not only from their own government, but from its enemy, is necessary, for the purpose of securing these despatch vessels from interruption, as between the belligerent powers. But an ambassador, or other public minister, resident in a neutral country for the purpose of preserv- ing the relations of peace and amity between the neutral State and his own government, has a right freely to send his despatches in a neutral vessel, which cannot lawfully be interrupted by the cruisers of a power at war with his own country.^ 1 Vattel, liv. iv. ch. 9, §§117, 118. Martens, Precis, &c., liv. vii. ch. 5, § 220. Manuel Diplomatique, ch. 3, §§ 30, 31. Merlin, Repertoire, tit. Ministre Publique, sect. V. § 5, Nos. 2, 3. 2 Vattel, liv. iv. cli, 9, § 123. Martens, Precis, &c., liv. vii. cb. 13, § 250. Eobinson's Adm. Rep. vol. vi. p. 466. The Caroline. [This case is distinguished by Sir W. Scott from the carrying, by a neutral, of despatches from the governor of an enemy's colony to the government at home, which is a ground of condemna- tion. Robinson's Adm. Rep. vol. vi. p. 441. The Atalanta.J CHAP, l] rights of LEGATION. 301 The opinion of public jurists appears to be some- §20. Pub- what divided upon the question of the respect and pro- pagSn"'^*^' tection to which a public minister is entitled, in passing |e™j"^r^/of^ through the territories of a State other than that to another ° . . state than which he is accredited. The inviolability of ambassa- that to dors, under the law of nations, is understood by Grotius accredited' and Bynkershoek, among others, as binding only on those to whom they are sent, and by whom they are received.^ Wicque- fort, in particular, who has ever been considered as the stoutest champion of ambassadorial rights, asserts that the assassination of the ministers of the French king, Francis I., in the territories of the Emperor Charles V., though an atrocious murder, was no breach of the law of nations, as to the privileges of ambassadors. It might be regarded as a violation of the right of innocent pas- sage, aggravated by the circumstance of the dignified character of the persons on whom the crime was committed, — and might even be considered a just cause of war against the emperor, without involving the question of protection in the character of ambassador, which arises exclusively from a legal presumption which can only exist between the sovereigns from and to whom he is sent.2 Vattel, on the other hand, states that passports are necessary to an ambassador, in passing through different territories on his way to his destined post, in order to make known his public character. It is true that the sovereign to whom he is sent is more especially bound to cause to be respected the rights at- tached to that character; but he is not the less entitled to be treated, in the territory of a third power, with the respect due to the envoy of a friendly sovereign. He is, above all, entitled to enjoy complete personal security ; to injure and insult him would be to injure and insult his sovereign and entire nation ; to arrest him, or commit any other act of violence against his person, would be to infringe the rights of legation which belong to every sovereign. Francis I. was therefore fully justified in complaining of the assassination of his ambassadors, and, as 1 Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 18, § 5. Bynkershoek, dc Foro Comp. Legat. cap. ix. § 7. 2 Wicquefbrt, de TAmbassadeur, liv. i. § 29, pp. 433-439. 26 302 RIGHTS OF LEGATION. [PART III. Charles V. refused satisfaction, in declaring war against him. " If an innocent passage, with complete secm-ity, is due to a pri- vate individual, with still more reason is it due to the public minister of a sovereign, who is executing the orders of his mas- ter, and travelling on the business of his nation. I say an inno- cent passage ; for if the journey of the minister is liable to just suspicion, as to its motives and objects ; if the sovereign, through whose territories he is about to pass, has reason to apprehend that he may abuse the liberty of entering them for sinister purposes, he may refuse the passage. But he cannot maltreat him, or suffer others to maltreat him. If he has not sufficient reasons for refusing the passage, he may take such pre- cautions as are necessary to prevent the privilege being abused by the minister." ^ He afterwards limits this right of passage to the ambassadors of sovereigns, with whom the State through which the attempt to pass is, at the time, in the relations of peace and amity ; and adduces, in support of this limitation of the right, the case of Marshal Belle-Isle, French ambassador at the Prussian court, in 1744, (France and Great Britain being then at war,) who, in attempting to pass through Hanover, was arrested and carried off a prisoner to England.^ Bynkershoek maintains that ambassadors, passing through the territories of another State than that to which they are accre- dited, are amenable to the local jurisdiction, both civil and cri- minal, in the same manner with other aliens, who owe a tempo- rary allegiance to the State. He interprets the edict of the States-General, of 1679, exempting from arrest " the persons, domestics, and effects of ambassadors, Mer te lande komende, residerende of passerende" as extending only to those public ministers actually accredited to their High Mightinesses. He considers the last-mentioned term passerende as referring not to those who, coming from abroad, merely pass through the territo- ries of the State in order to proceed to another country, but to those only who are about to leave the State where they have been resident as ministers accredited to its government.^ ' Vattel, Droit des Gens, liv. iv. ch. 7, ^^ 84, 85. 2 Ch. de Martens, Causes C61ebres du Droit des Gens, tome i. p. 310. 3 Bynkershoek, de For. Legat. cap. ix. Wheaton, Hist. Law of Nations, p. 243. CHAP. I.] RIGHTS OF LEGATION. 303 This appears to Merlin to be a forced interpretation. " The word passer in French, and passerende in Dutch," says he, " was never used to designate a person returning from a given place ; but is applicable to one who, having arrived at that place, does not stop there, but proceeds on to another. We must, therefore, conclude that the law in question attributes to ambas- sadors who merely pass through the United Provinces the same independence with those who are there resident. If it be ob- jected, as Bynkershoek does object, that the States- General (that is, the authors of this very law) caused to. be arrested, in 1717, the Baron de Gortz, ambassador of Sweden at the court of Lon- don, at the request of George I., against the security of whose crown he had been plotting, the answer to this example is fur- nished by Bynkershoek himself. ' The only reason,' says hcj * alleged by the States-General for this proceeding was, that this ambassador had not presented to them his letters of credence.' This reason, (continues Merlin,) is not the less conclusive for being the only one alleged by the States-General. When it is said that an ambassador is entitled, in the territories through wiiich he merely passes, to the independence belonging to his pub- lic character, it must be understood with this qualification, that he travels as an ambassador ; that is to say, after having caused himself to be announced as such, and having obtained permis- sion to pass in that character. This permission places the sove- reign, by whom it has been granted, under the same obligation as if the public minister had been accredited to and received by him. Without this permission, the ambassador must be consi- dered as an ordinary traveller, and there is nothing to prevent his being arrested for the same causes which would justify the arrest of a private individual." ^ To these observations of the learned and accurate Merlin it may be added, that the inviolability of a public minister in this case depends upon the same principle with that of his sovereign, coming into the territory of a friendly State by the permission, express or implied, of the local government. Both are equally entitled to the protection of that government, against every act of violence and every species of restraint, inconsistent with their 1 Merlin, Repertoire, tit. Minisire PuNique, sect. v. § 3, Nos. 4, 12. 304 RIGHTS OF LEGATION. [PART III. sacred character. We have used the term permission, express or implied; because a public minister accredited to one country who enters the territory of another, making known his official cha- racter in the usual manner, is as much entitled to avail himself of the permission which is implied from the absence of any prohi- bition, as would be the sovereign himself in a similar case.^ § 21. Free- -^ minister resident in a foreign country is entitled to *]?^" °^.^^^" the privilege of religious worship in his own private ship- chapel, according to the peculiar forms of his national faith, although it may not be generally tolerated by the laws of the State where he resides. Ever since the epoch of the Reform- ation, this privilege has been secured, by convention or usage, between the Catholic and Protestant nations of Europe. It is also enjoyed by the public ministers and consuls from the Christ- ian powers in Turkey and the Barbary States. The increasing spirit of religious freedom and liberality has gradually extended this privilege to the establishment, in most countries, of public chapels, attached to the different foreign embassies, in which not only foreigners of the same nation, but even natives of the country of the same religion", are allowed the free exercise of their peculiar worship. This does not, in general, extend to pub- lic processions, the use of bells, or other external rites celebrated beyond the walls of the chapel.^ Consuls are not public ministers. Whatever protec- § 22. Con- ^ . . ' . suis not tion they may be entitled to in the discharge of their the peculiar official duties, and whatever special privileges may be of'pubffc conferred upon them by the local laws and usages, or ministers, ^y international compact, they are not entitled, by the general law of nations, to the peculiar immunities of ambassa- dors. No State is bound to permit the residence of foreign con- suls, unless it has stipulated by convention to receive them. They are to be approved and admitted by the local sovereign, and, if guilty of illegal or improper conduct, are liable to have the exequatur, which is granted them, withdrawn, and may be '1 Vide supra, Pt.II. ch. 2, ^ 9, p. 143. 2 Vattel, liv. iv. ch. 7, ^ 104. Martens, Precis, «Sjc., liv. vii. ch. 6, ^^ 222-226. Kliibcr, Droit dcs Gens Modernc de I'Europe, Pt. II. tit. ii. ch. 3, §§ 215, 216. I CHAP. I.] RIGHTS OF LEGATION. 305 punished by the laws of the State where they reside, or sent back to their own country, at the discretion of the government which they have offended. In civil and criminal cases they are subject to the local law, in the same manner with other foreign residents owing a temporary allegiance to the State.^ (a) ' Wicquefort, de TAmbassadeur, liv. i. ^ 5. Bynkershoek, cap. 10. Martens, Precis, &c., liv. iv. ch. 3, § 148. Kent's Comment, on American Law, vol. i. pp. 43-45, 5th edit. FoelLx, Droit International Prive, § 191. (a) [Vide supra, Pt. II. c. 2, § 11, p. 167, note, also the Treaty of the United States with Borneo, concluded at Bruni, 23d June, 1850, and promulgated by the President, the 12th of July, 1854; which extends the judicial power of the Ame- rican consuls, beyond the concessions heretofore made to us, in any of our treaties with the nations of the East. By it our consuls have exclusive jurisdiction, with- out any interference, molestation, or hindrance, on the part of any of the author- ities of Borneo, in all cases where American citizens are accused of crime, and in all cases where disputes or differences may arise between American citizens or between American citizens and the subjects of the Sultan of Borneo, or between American citizens and the citizens or subjects of any other foreign power in the dominions of Borneo. Treaties of the United States, 1853-4, p. 90. The following opinion of the Attorney-General, Mi-. Gushing, which has been transmitted with the sanction of the Department of State to the consuls of the United States, though it, also, touches points discussed, under other heads, in this treatise, is inserted in this place, as elucidating the status of consuls under the law of nations. It was prepared in answer to a communication from the Secre- tary of State, which states that it is the practice, to some extent, of the con- suls of the United States abroad to marry parties, either citizens of the United States or not, and this without observance of the laws of the particular place regarding marriage, — and suggests the inquiry whether such marriages are valid in the United States, either as to the personal status of the parties themselves and their issue, or as to any of the rights of property depending on the matri- monial relation. " This inquiry belongs to international law pricate^ as distinguished from inter- national law public ; that is to say, it regards, not the relations of nations among themselves, but the relations of individuals to the laws, civil or criminal, of ditfor- ent nations. Foellx, Dr. Int. Priv6, tit. pr61. • " The different States of Christendom are combined, by religious faith, by civilization, by science and art, by conventions, and by usages or Ideas of right having the moral force of law, Into a >.ommunIty of nations, each politically sove- reign and independent of the other, but all admitting much Interchange of legal rights or duties. Vattel, Droit des Gens, Prel. s. 11 ; Wheaton's Elements, p. 40, 3d ed. ; Garden, Code Dip. de I'Europe, tom. i, int. p. 3. "As between themselves, the general rule of public law is that each independ- ent State is sovereign in itself, and has more or less complete jurisdiction of all persons being, matters happening, contracts made, or acts done, within Its own 26* 306 EIGHTS OP LEGATION. [PART IH. i, 23. Ter- Thc mission of a foreign minister resident at a foreign mination of court, or at a Cons^ress of ambassadors, may terminate public mis- 7 o ^ J sion. during his life in one of the following modes : — territory. EHiiber, Droit des Gens, s. 21 dind passim ; Story's Conflict of Laws, ch. 2. " I say, more or less complete ; because, although each nation possesses Its terri- tory as its own, and exercises jurisdiction within itself, not only as to persons, whether subjects or foreigners, their acts and their property therein, and in gene- ral neither claims itself, nor concedes to others, external jurisdiction ; yet each yields to the other certain reciprocal rights within itself, which are sometimes denominated by the civil law term of servitudes of the public law or law of nations. Martens, Precis, s. 83. " These privileges, servitudes, or easements of public law have grown up either by express convention, or by usage founded on consent. Per Ch. J. Marshall, The Exchange, vii. Cranch, p. 136. Among them are the effect, which, in certain cases, one State concedes to the laws of another in regard to contracts- made in the latter, and the reciprocal rights conceded of per- sonal residence or commercial intercourse, and of the interchange of ministers and consuls, which concessions modify to a certain degree the hypothetical com- pleteness of the internal sovereignty of each nation. " Hence, in all the discussions of private international right, the fundamental and all-jiervadlng distinction between the statute personal, or the laws of one's own proper domicile, and the statute real, or the laws which are independent of the person, and which regulate in a foreign country his acts or interests irre- spective of his domicile. The personal statute is transitory, and follows the per- son ; the real statute is chiefly confined to things, which it controls only in the locus rei sitcc, or the given territory. Dalloz, Diet. Juris, s. v. Loi Pers. ; Proud- hon, Des Personnes, torn. i. p. 8. "To the regular jurisdiction, however, of each country over persons, things, and acts, being or done within it, there exist, by received public law, certain absolute exceptions. These exceptions are the several cases of exterritori- ality : that is, the various conditions in which a person, though abroad, is exempt from the foreign jurisdiction, and is deemed to be still within the territory and jurisdiction of his own country. " The doctrine of exterritoriality is denounced by some speculative publicists as if it were a mere fiction of law. See Pinheiro Ferreira, Droit Public, torn. ii. p. 197. This view of the matter is superficial, for it is only a cavil as to the name ; and erroneous, because it argues upon the name, and not the thing which it represents. " The word ' exterritoriality ' is a sufFicient definite technical designation for the peculiarity of legal condition already defined as attaching to certain persons in a foreign country, to wit : the case of an actual sovereign of an independent State, his person, suite, residence, and furniture, while he resides or sojourns peaceably in a foreign country ; a foreign army, whether in peace or war ; a ship of war generally, and sometimes a merchant ship in a foreign port, and cither of them CHAP. I.] RIGHTS OF LEGATION. 307 1. By the expiration of the period fixed for the duration of the mission; or, where the minister is constituted ad interim only, by on the high seas in all circumstances ; and a foreign ambassador. Wheaton's El. p. 139. " In all these cases, and expressly in that of foreign ministers, the privilege of exterritoriality extends to the residence as well as the person of the foreign minister, and to certain legal acts performed in his presence. Vattel, 1. 8, ch. 7, 8, 9 ; Kliiber, s. 204 ; Martens, Precis, 1. 7, ch. 5 ; Foelix. liv. 2, tit. 2, ch. 2, s. 4 ; Cb. de Martens, Guide Diplomatique, ch. 5. " Such are the rights of an ambassador or other foreign minister. But, although consuls are not merely commercial agents, as many authors assert, (Wicquefort, Ambas., vol. i. p. 133; Bynkersh. de F. Legat, p. 165; Wildman's Institutes, vol. i. p. 130) ; and although they undoubtedly have certain of the qualities and some of the rights of a foreign minister (see De Cussy, Reglements Consulaires, sec. 7) ; still it is undeniable that they do not enjoy the privileges of exter- rltoriaHty, according to the rules of public law received in the United States. Clark 17. Cretico, i. Taunton, 106 ; The Anne, iii. Wheaton, 446 ; United States r. Ravara, ii. Dallas, 297; Yiveash u. Becker, iii. Maule & Sel. 284 ; Barbuit's case, Cases Temp. Talbot, 281 ; Commonwealth v. KorslofF, v. Serg. & R., 545 ; Durand v. Halback, i. Miles, 46; Davis v. Packhard, vii. Peters; 276; S. C, vi. Wend., 327 ; S. C, x. Wend., 50 ; Flynn v. Stoughton, v. Barb. S. C. R., 115; State v. De la Font, ii. Nott & McCord, 217; Mannhardt v. Soderstrom, i. Bin., 138 ; Hall v. Young, iii. Pick., 80 ; Sartori v. Hamilton, i. Green's R., 107. " In all the adjudged cases above cited, it is either expressly ruled, or the point presented assumes, that consuls are subject to the local jurisdiction. The same doctrine is recognized in the modern law treatises of most authority, whether in the United States or in Great Britain. Wheaton's Elements, p. 293 ; Kent's Com., vol. i. p. 43 ; Wildman's Inst., vol. i. p. 130 ; Flynn's Brit. Consuls, ch. 5. " Notwithstanding the somewhat vague speculations of Vattel and some other continental authors on the question whether consuls are quasi ministers or not (Vattel, Droit des G6ns, 1. iv. ch. 8 ; De Cussy Reglements Consulaires, sec. 6 ; Moreuil, Agents Consulaires, p. 348 ; Borel, Des Consuls, ch. 3) ; it is now fully established by judicial decisions on the Continent, and by the opinions of the best modern authorities there, that consuls do not enjoy the diplomatic privileo-es accorded to the ministers of foreign powei-s ; that in their personal affairs they are justiciable by the local tribunals for offences, and subject to the same recourse of execution as other resident foreigners ; and that they cannot pretend to the same personal inviolability and exemption from jurisdiction as foreign ministers enjoy by the law of nations. Fcelix, 1. ii. tit. 2, ch. 2, s. 4 ; Dalloz, Die. de Jurispr., tit. Agents Diplomatiques, No. 35 ; Ch. de Martens, Guide Diplomat., s. 83. "In truth, all the obscurity and contradiction as to this point in diflerent authors arise from the fact that consuls do unquestionably enjoy certain priviloijes of exemption from local political obligation ; but still these privileges arc hmited, and fall very far short of the right of exterritoriality. Masse, Droit Commercial, torn. i. No. 438, 439. 308 RIGHTS OF LEGATION. [PART III. the return of the ordinary minister to his post. In either of these cases a formal recall is unnecessary. " Thus, in the United States, consuls have a right, by the Constitution, to the jui-isdictioa of the federal courts as against those of States. They are privileged from political or military service and from personal taxation. In some cases we have by treaty given to consuls, when they are not proprietors in the country, and do not engage in commerce, a domiciliary and personal immunity beyond ■what they possess by the general public law ; and the extreme point to which these privileges have been carried in any instance may be seen in the Consular Convention of the 23d of February, 1853, between the United States and France. Session Acts, 1853-4, p. 114. " Having premised this explanation of the exact status of consuls by the law of nations, it remains for me to deduce from the general doctrine the particular con- clusions applicable to the special subject of inquiry. " In regard to the contract of marriage, the general principle in the United States is that, as between persons sui juris, marriage is to be determined by the law of the place where it is celebrated. If valid there, then, although the parties be transient persons, and the marriage not in form or substance valid according to the law of their domicile, still it is valid everywhere: — with some exceptions, »e?'7(a/>s, of questions of incest and polygamy. If invalid where celebrated, it is invalid everywhere. Story's Conflict of Laws, s. 113; Bishop on Marriage, s. 125. " The only exceptions to this last proposition, namely, that marriages not valid by the lex loci contractus are not valid anywhere else, are, first, in favor of mar- riaffe, when parties are sojourning in a foreign country where the law is such that it is impossible for them to contract lawful marriage under it. Secondly, in cer- tain cases in which, in some foreign countries, the local law recognizes a marriage as valid when conti'acted according to the law of domicile. Thirdly, where the law of the country goes with the parties, that is, in the contingency of their per- sonal exterritoriality, as in the case of an army and its followers invading or tak- ing possession of a foreign country, (Ruding v. Smith, ii. Hag. C. R., 371, — Huber. Prselec, J. C. de Con. Leg. 1. i., tit. 3, s. 10 ; J. Voet. in Dig., 1. xxii. tit. 2) ; and, perhaps, of an army in transitu through a friendly State, ( Wheaton's El, p. 140,) and of a foreign ship of war in the ports of the nation. The Ex- change, vii. Cranch, p. 136. " It follows by necessary consequence, save in the excepted cases enumerated, that a marriage, celebrated in any given place, must be celebrated according to the law of the place, and by a person whom those laws designate, unless the per- son by whom, or the premises in which, it Is celebrated, possess the privileges of exterritoriality. " Therefore it may be, according to the opinion of Lord Stowell, that the pre- sence of a foreign sovereign sojourning in a friendly country, or that of his minister plenipotentiary, or the act of a clergyman in the chapel or hotel of such sovereign, or his ambassador, may give legality to marriage between subjects of I CHAP. I.] RIGHTS OF LEGATION. 309 2. When the object of the mission is fulfilled, as in the case of embassies of mere ceremony ; or, where the mission is special, and the object of the negotiation is attained or has failed. his or members of his suite. Ruding v. Smith, ii. Haggard's C. R., 371 ; Prentiss '-'. Tudor, i. Hagg. C. R., 136 ; i. Burge on Col. &. F. Laws, p. 168. " But even such right of a foreign sovereign or his ambassador to celebrate a marriage, if it exist, applies only to his subjects, counti-ymen, or suite. Such persons would be married according to the law of their domicile, or that of the sovereign or ambassador in whose service they are, on the assumption that for all the purposes of legal right their domicile goes with them, and that they are still at home, and in point of law are not in the foreign country where the marriage is in fact celebrated. A marriage celebrated by such sovereign or his ambassador in a foreign country, between citizens of that country, or foi'clgners residing there or sojourning there, would derive no force from him : it would be null and void, unless legal according to the law of the place. " Consuls, it is still more evident, have no shadow of power to celebrate mar- riage between foreigners. Nor can they between their own countrymen, unless expressly authorized by the law of their own country : because, according to the law of nations, they have not the privileges of exterritoriality, like an ambassador. '' That American consuls have no such power is clear, because it is not given them by any act of Congress, nor by the common law of marriage as understood in the several States. See Kent v. Burgess, xi. Simons, 361. And marriage, in the United States, is not a federal question, but one of the resort' of the indi- vidual States. Bishop on Marriage, j)assim. Hence it is impossible for me to doubt : " First, that marriages celebrated by a consul of the United States in any foreign country of Christendom, between citizens of the United States, would have no legal effect here, save in one of the exceptional cases above stated of its being impossible for the parties to marry by the lex loci. "And, secondly, that marriages, celebrated by a consul of the United States in a foreign country, between parties not citizens of the United States, would have no legal effect here, unless in case they be recognized expressly as valid by the law of the place of contract. " In countries where the mere consent of the parties, followed by copulation, constitutes marriage, as in Scotland, (McAdam v. Walker, i. Dow's R., 148 ; Dal- rymple v. Dalrymple, ii. Hagg. C. R., 97,) and where the presence and testimony of any person whatever suffice to prove the consent, there a marriage contracted before a foreign consul might be valid, not because he is consul, but because the consent makes the marriage. " But, in most countries of Europe, specific forms of law arc to be followed, without which there can be no valid marriage ; and as it appears that the mar- riages, which the consuls of the United States have celebrated abroad, have in most cases been celebrated between persons collected at some seaport for the pur- pose of emigration, and who are not only foreigners as regards the United States, 310 RIGHTS OF LEGATIO^r. [PART III. 3. By the recall of the minister. 4. By the decease or abdication of his own sovereign, or the but foreigners also as regards the place in which the marriage is celebrated, it becomes material to consider the question, in the sense of this impediment of double alienage, in its relation to the law matrimonial of the United States. " The general rule of our law is to ascribe vaHdity to marriages when they are valid at the place of celebration. " If the parties to the marriage are at the time actually in their own proper domicile, as in the case of Spaniards domiciled in Barcelona, and married there, It is clear that the local jurisdiction is absolute and complete, and that a consul of the United States has no more right to celebrate a marriage between such parties there than he has to undertake the duties of Captain-General. " Suppose, however, that the parties are foreigners to the foreign place, and at the same time not citizens of the United States ? " The other governments of Christendom, and especially those of Europe, are, it is notorious, much more exacting and punctilious than the United States in the application of their own laws of personal status to their own subjects when absent from their country. " We may not regard this here, but they do among themselves ; and therefore it is important to look at the legal bearings of a marriage celebrated in one Euro- pean country between the subjects of some other government of Europe. " The general rule there is, that the civil obligations of a person follow him into a foreign country, save that in some countries forms are prescribed, accord- ing to which a subject may relieve himself of his allegiance to his natural sove- reign and the consequent civil obligations. It is believed that many of the per- sons, who emigrate from Europe to the United States, have not taken these preliminary steps ; and therefore, until they shall have acquired a new domicile in the United States, and while they are sojourning in some other foreign country on their way for, and previous to, their embarkation, they must of necessity be still subject to the law of their domicile in so far as this law is respected by the country of their transit or of their temporary sojourn ; and the question of the validity of their marriage there by a foreign consul must depend on this legal condition of the parties in the countries of Europe. " In order to appreciate the legal relations in Europe of a marriage between parties foreign to the place of marriage, we may take, as a convenient example, the state of the law in France. " In France, of course, all Frenchmen must conform to the precise provisions of their own law ; nay, as a general rule, if they marry abroad, still they must observe certain of the conditions of the Code Civil, in order to give eflect to the marriage In France. Code Civil, No. 1 70 ; Foelix, ubi supra., No. 88. " In regard to such foreign marriages of Frenchmen it has been adjudged by the courts of that country, that, — 1. Frenchmen long established in a foreign country, and who have reserved no habitation and have no domicile there, are not held to the forms of public notice In France required by the code. Dalloz, Diet. Jur., Mariage, No. 374. CHAP. I.] RIGHTS OP LEGATION. 311 sovereign to whom he is accredited. In either of these cases, it is necessary that his letters of credence should be renewed ; which, " 2. Generally, all acts appertaining to the civil condition of Frencliuien abroad may be proved by the modes of proof practised In the foreign country ; and, therefore, a marriage may be proved by fitnesses, or by the certificate of a dio- cesan, when celebrated in a foreign country •where no registers of civil condition exist conformable te the code. Dalloz, iihi supi-a, Nes. 346-356. " 3. There are no differences of opinion as to the point that Frenchmen, who marry abroad, must conform to the provisions of the code as to capacity, age, con- sent, and other conditions of substance ; but there are contradictory decisions and opinions as to the point, whether it be or not essential to the validity of such marriage that there should have been previous publication of bans in France ; and whether, if this be a radical defect, it is curable or not ; (Dalloz, uhi supi-a, Nos. 357-375;) because the article of the code, (No. 170,) which legalizes a marriage contracted between Frenchmen abroad according to the forms used in the foreign country, adds, provided (j^^^^^''^'^) the marriage be preceded by the publication of bans, and do not contravene the other conditions of law, as pre- scribed by the 1st and 2d chapters of the 5th title of the code. See Toullier, Droit Civil, tom. 1, No. 576-579. "4. The code (art. 47 and 48) provides that any civil act of Frenchmen abroad shall be valid if it be drawn up in pursuance of the forms of the place, according to the rule locus regit actum ; or if it has been received conformably to the laws by the diplomatic agents or consuls of France. It has been doubted whether this applies to marriage ; though the better opinion is that it does. Dal- loz, uhi supra, No. 362-363; Toullier, Droit Civil, tom. i. No. 360; MerHn, Repert., Mariage, p. 641. It is said, however, that if one of the parties to a mar- riage by a French consul abroad is French and the other not, then the marriage is null, because the consul has no jurisdiction as to the party not French, and the marriiige may be attacked by either party. Dalloz, ubi supra, No. 365, 366. In one of the cases where this point was decided, the parties possessed an act of marriage, with twenty years cohabitation, and two children. Proudhon, Tr. des Personnes, tom. i. note a. " 5. Finally, a marriage contracted in France by a foreigner accoi-ding to the exterior forms prescribed by the law would be null, of intrinsic nullity, if the foreigner infringed any of the prohibitions of his statute personal, that is, of the personal law of his domicile. Foelix, ubi supra, s. 88. " These views might be extended in detail to other countries of Europe. "Thus, in the Dutch Netherlands, in addition to the conditions of competency and of publication of bans, there must be a legal contract before the proper magis- trate, without which the marriage is a nullity. Van der Linden, by Henry, p. 83. As to this, no exception is made in favor of any persons whatever, being foreigners, or in itinere, or otherwise. See Iluding v. Smith, ii. Hag. C. K., 371, note. " So, in Spain, marriage must be solemnized by prescribed rule, that is, through the intervention of the parish priest, or other clergyman with license of his ordinary, according to the articles of the Council of Trent concerning the 312 EIGHTS OF LEGATION. [PART III. in the former instance, is sometimes done in the letter of notifi- cation written by the successor of the deceased sovereign to the reformation of matrimony. Tapia, Febrero Novis., lib. i. cap. 2 ; Sala, Derecbo real de Espaua, lib. i. tit. 4. " It is unnecessary to extend these examples. Suffice it to say, that in some countries religious or ecclesiastical impediments exist ; in others, where that is not the case, the legal conditions of capacity and requisite forms are very serious obstacles. A critical examination of the law of different countries of Europe •would only serve to augment the weight of legal objections to the celebration of marriages by consuls of the United States. " It may be, that a marriage between foreigners, celebrated by a consul of the United States abroad, though utterly null in the country where it is celebrated, mii'ht, if the parties emigrate to this country, acquire validity in some of the States of the Union, as a marriage proved by repute and by cohabitation following consent, according to the old rule of the common law. Even then, the certificate of the consul would not constitute the marriage ; it would serve at most only as proof of consent, to be connected with proof of cohabitation. " But the practice of celebrating such marriages would be objectionable eA'cn then, because it Is In fraud of the local jurisdiction, and contrary to the dictates of International comity. If not to positive law. " In what precedes, the inquiry has been ti'eated as relating entirely to mar- rla"-es assumed to be legalized by consuls of the United States residing officially in any of the countries of Christendom. " For, In regard to States not Christian, although we make treaties with them as occasion may require, and assert in our intercourse with them all such provi- sions of the law of nations as are of a political nature ; yet we do not suiTer, as to them, that full reciprocity of municipal obligations and rights which obtains among the nations of Christendom. " This point is determined very explicitly in our treaty with China, which, in the most unequivocal terms, places all the rights of Americans in China, whether as to person or property, under the sole jurisdiction, civil and criminal, of the authorities of the United States, (see the Treaty, vlil. Stat, at Large, p. 592) ; and Congress has made provision to meet the exigencies of the treaty in this respect. Act of August 11, 1848, ix. Stat, at Large, p. 276, " Our treaty with Turkey is less explicit on this point ; but it expressly ascribes to citizens of the United States exterritoriality in criminal matters (see the Treaty, vlil. Stat, at Large, p. 408,) provision as to which Is made by the above cited act of Congress : and as the treaty stipulates how controversies In Turkey, between citizens of the United States and subjects of the Porte, shall be adjudi- cated, that is, by the local authorities in presence of a representative of the United States ; and as It stipulates that only a certain class of litigation shall be submitted to the Porte ; and as it gives to Americans in Turkey all the rights of the most favored nation, with express reference to " the usages observed towards other Franks," — it might be assumed that the doctrine of exterritoriality applies to Americans In Turkey, as it certainly does to subjects there of all the Christian States of Europe. Moreull, Guide dcs Agents Consulalres, tit. ii. CHAP. I.] RIGHTS OF LEGATIOj^. 313 prince at whose court the minister resides. In the latter case, he is provided with new letters of credence ; but where there is " Our treaties with the minor Mohammedan governments of Tripoli, Morocco, Muscat, and Bruni, are even less explicit than that of Turkey. Still it may be assumed in regard to them, as a principle of the international law of the world, so far as there is any, that unless there be express agreement to the contrary, no Christian nation admits a full reciprocity of municipal rights as between itself and any State not Christian ; and therefore, that in the IMohammedan governments above enumerated, Americans possess the rights of exterritoriality which belong to all other " Franks," that is, the races of, independent Christian Europe and America. See Ward's Law of Nations, vol. i'l. passim ; Kliiber, Droit des Gens, s. Id.; Wiseman's Institutes, vol. i. p. 130. " In our treaty with Siam, we have inconsiderately engaged that our citizens being there " shall respect and follow the laws and customs of the country in all points." See the Treaty, vlii. Stat, at Large, p. 455. That provision of the treaty is, in the international relations of the United States, the solitary exception, it is believed, to the rule that the municipal rights of citizens of the United States are not subject to the local law of any State not Christian. " True, we deal with such States as governments^ and apply to them, so far as we can, the doctrines of our international law. The Helena, iv. Robins. Adm. R. 5. But, when we speak of the law of nations, we mean the international law of the nations of Christian Europe and America. Our treaties with nations other than these bring them practically within the pale of our public law, but it is only as to political rights : municipal rights remain as they were. Wheaton's Elements, p. 44 ; Poison's Law of Nations, p. 17 ; Phillimore's International Law, p. 86. " The doctrine above enunciated applies to Japan ; to the minor Independent States of Asia and its islands, whether Mohammedan, Indo-Chinese, Malay, or what others ; to the barbaric political communities of Africa ; and still more to the petty insular tribes of Oceanica. " Our treaty with the Hawaiian Islands places them on the footing of a Christian State, with the municipal rights belonging to the international law of Christen- dom, ix. Stat, at Large, p. 977. "Now, in regard to the States not Christian, not only the Mohammedan States but all the rest, it seems to me that the true rule is, that contracts of citizens of the United States In general, and especially the contract of marriage, are not subject to the lex loci, but must be governed by the law of the domicile ; and that, therefore, In such countries, a valid contract of marriage may be solemnized, and the contract authenticated, not only by an ambassador, but by a consul of the United States. " The English authorities come to substantially the same conclusion, for similar reasons. " Nobody can suppose," says Lord Stowell, " that whilst the Mogul empire existed, an Englishman (in Hindostan) was bound to consult the Koran for the celebration of his marriage. In most of the Asiatic and African countries, indeed, the law is personal, not local, as it was in many parts of Modern Europe in the formative period of its present organization. Hence, In British India, 27 314 RIGHTS OF LEGATION. [PART III. reason to believe that the mission will be suspended for a short time only, a negotiation already commenced may be continued with the same minister confidentially sub spe rati. Hindus, Parsis, Jews, Mohammedans, Christians, all marry according to the law of their relifTion. Nay, the ecclesiastical law of England goes farther than this, for it recof-nizes the marriage of Englishmen, celebrated according to the English law, that is, by a clergyman, in British factories abroad, though situated in Christian countries, but countries of the Roman Catholic or Greek religion. Rud- ing V. Smith, ii. Hagg. C. R., p. 371 ; Kent v. Burgess, xi. Simons, 361. Indeed, in the preceding cases, as in others, the English authorities, as we have already seen, lay down the broad rule that where, owing to religious or legal difficulties, the marriage is impossible by the lex loci, still a lawful marriage may be con- tracted, and of course authenticated by the best means of which the circum- stances admit, as in many cases of marriages contracted in the East Indies and in other foreign possessions of Great Britain. See Catterall v. Catterall, i. Roberts, 580. " This doctrine is conformable to the canon law, which gives effect to what are called matrimonia clandestina, that is, marriages celebrated without observance of the religious and other formalities decreed by the Council of Trent (Cavalario, Derecho Canonico, tom. ii. p. 172; Escriche, s. v. Matr.), when contracted in countries where, if those decrees were enforced, there could be no marriage. Walter, Derecho Ecclesiastico, s. 292-294, Nay, in such countries, in the absence of a priest, there may be valid marriage by consent alone, conformably to the canon law as it stood before the Council of Trent, either by verba de j^^'C^senti or by verba de futuro cum copula, as happened ex necessitate rei, under the Spanish law, in remote parts of America. Of course, in circumstances like this, a mar- riage might be legalized by a mere military commandant. Patton v. Phil. & New Orleans, i. La. An. R., p. 98. " Surely this doctrine applies to the present question ; for, seeing that by the comm.on law of marriage, as now received in all or nearly all the States of the Union, marriage is a civil contract, to the validity of which clerical intervention is unnecessary, (Bishop on Marriage, s. 163,) it would seem to follow, at least as to all those countries, bai'baric or other, in which there is in fact no lex loci, or those Mohammedan or Pagan countries in which, though a local law exists, yet Americans are not subject to it, that there the personal statute accompanies them, and the contract of marriage, like any other contract, maybe certified and authen- ticated by a consul of the United States. " But this doctrine does not apply to the countries of Europe, and their colonies in America or other parts of the world, in all which there Is a recognized law of the place, and the rule of locus regit actum is in full force. There, in my opinion, a consul of the United States has no power to celebrate marriage between either foreigners or Americans. "It appears that, in some parts of Europe, in consequence of poverty, or other impediments thrown in the way of marriage, there is great prevalence of concu- CHAP. I.] RIGHTS OF LEGATION. 315 5. When the minister, on aocount of any violation of the law of nations, or any important incident in the course of his negoti- ation, assumes on himself the responsibility of declaring his mis- sion terminated. 6. When, on account of the minister's misconduct or the mea- sures of his government, the court at which he resides thinks fit to send him away without waiting for his recall. 7. By a change in the diplomatic rank of the minister. When, by any of the circumstances above mentioned, the minister is suspended from his functions, and in whatever man- ner his mission is terminated, he still remains entitled to all the privileges of his public character until his return to his own country.^ A formal letter of recall must be""sent to the minister , ^^ ^et- by his government : 1. Where the object of his mission ter of recall. has been accomplished, or has failed. 2. Where he is recalled from motives which do not affect the friendly relations of the tvv^o governments. In these two cases, nearly the same formalities are observed as on the arrival of the minister. He delivers a copy of his letter of recall to the minister of foreign affairs, and asks an audience of the sovereign, for the purpose of taking leave. At this audience the minister delivers the original of his letter of recall to the sovereign, with a complimentary address adapted to the occasion. binage ; that the desire of lawful cohabitation enters into the inducements of emi- gration ; and that it becomes an object, especially "with emigrant females, to ob- tain, before leaving their country, if not a marriage, yet an assured matrimonial engagement ; and that such parties are in the practice of entering into mutual promises of marriage, and procuring the contract to be certified by the consul of the United States. Such a contract would probably give rights of action to the parties In this country ; it must have a tendency to promote good morals, and be particularly advantageous to the party most needing protection, that is, the female emigrant; and nothing in our own laws, or in our public policy, occurs to me as forbidding it, unless it be contrary to the law of the land in which the contract is made." ]\Ir. Gushing, Attorney-General, to Mr. Marcy, Secretary of State, November 4, 1854.] ^ Martens, Manuel Diplomatique, ch. 7, § 59 ; ch, 2, §15. Precis, &c., liv. vil. ch. 9, § 239. Vattel, liv. iv. ch. 9, § 126. 316 RIGHTS OF LEGATION. [part III. If the minister is recalled on account of a misunderstanding between the two governments, the peculiar circumstances of the case must determine whether a formal letter of recall is to be sent to him, or whether he may quit the residence without wait- ing for it ; whether the minister is to demand, and whether the sovereign is to grant him, an audience of leave. Where the diplomatic rank of the minister is raised or lowered, as where an envoy becomes an ambassador, or an ambassador has fulfilled his functions as such, and is to remain as a minister of the second or third class, he presents his letter of recall, and a letter of credence in his new character. Where the mission is terminated by the death of the minister, his body is to be decently interred, or it may be sent home for interment ; but the external religious ceremonies to be observed on this occasion depend upon the laws and usages of the place. The secretary of legation, or, if there be no secretary, the minis- ter of some allied power, is to place the seals upon his effects, and the local authorities have no right to interfere, unless in case of necessity. All questions respecting the succession ah inleslato to the minister's movable property, or the validity of his testa- ment, are to be determined by the laws of his own country. His effects may be removed from the country where he resided, with- out the payment of any droit d^aubaine or deiractiun. Although in strictness the personal privileges of the minister expire with the termination of his mission by death, the custom of nations entitles the widow and family of the deceased minis- ter, together with their domestics, to a continuance, for a limited period, of the same immunities which they enjoyed during his lifetime. It is the usage of certain courts to give presents to foreign ministers on their recall, and on other special occasions. Some governments prohibit their ministers from receiving such presents. Such was formerly the rule observed by the Venetian Republic, and such is now the law of the United States.^ > Martens, Precis, &c., liv. vii. ch. 10, §§ 240-245. Manuel Diplomatique, cb. 7, §§ 60-65, CHAP. II.] RIGHTS OP NEGOTIATION AND TREATIES. 317 CHAPTER II. RIGHTS OF NEGOTIATION AND TREATIES. The power of negotiating and contracting public ^ i. Pa- treaties between nation and nation exists in fall vigor [^nicting^by' in every sovereign State which has not parted with this {2^'^^o°7 portion of its sovereignty, or agreed to modify its exer- modified. cise by compact with other States. Semi-sovereign or dependent States have, in general, only a limited faculty of contracting in this manner ; and even sove- reign and independent States may restrain or modify this faculty by treaties of alliance or confederation with others. Thus the several States of the North American Union are expressly pro- hibited from entering into any treaty with foreign powers, or with each other, without the consent of the Congress ; whilst the sovereign members of the Germanic Confederation retain the power of concluding treaties of alliance and commerce, not incon- sistent with the fundamental laws of the Confederation.^ The constitution or fundamental law of every particular State must determine in whom is vested the power of negotiating and contracting treaties with foreign powers. In absolute, and even in constitutional monarchies, it is usually vested in the reigning sovereign. In republics, the chief magistrate, senate, or exe- cutive council is intrusted with the exercise of this sovereign power. No particular form of words is essential to the conclu- ^ 2. Form sion and validity of a binding compact between nations. ° ^^'^'^ -' The mutual consent of the contracting parties may be given ex- pressly or tacitly ; and in the first case, either verbally or in 1 See Pt. I. cli. 2, §§ 23-24, pp. 59-72. 27* 318 RIGHTS OF NEGOTIATION AND TREATIES. [PART III. writing. It may be expressed by an instrument signed by the plenipotentiaries of both parties, or by a declaration, and counter declaration, or in the form of letters or notes exchanged between them. But modern usage requires that verbal agreements should be, as soon as possible, reduced to writing in order to avoid dis- putes ; and all mere verbal communications preceding the final signature of a written convention are considered as merged in the instrument itself. The consent of the parties may be given tacitly, in the case of an agreement made under an imperfect authority, by acting under it as if duly concluded.^ § 3. Car- There are certain compacts between nations which and capto- ^^^ coucluded, uot In virtue of any special authority, lations. )3^^|. j,^ ^i^g exercise of a general implied power confided to certain public agents, as incidental to their official stations. Such are the official acts of generals and admirals, suspending or limiting the exercise of hostilities within the sphere of their respective military or naval commands, by means of special licenses to trade, of cartels for the exchange of prisoners, of truces for the suspension of arms, or capitvilations for the surrender of a fortress, city, or province. These conventions do not, in general, require the ratification of the supreme power of the State, unless such a ratification be expressly reserved in the act itself.^ §4. Spoil- Such acts or engagements, when made without ®^°°®* authority, or exceeding the limits of the authority under which they purport to be made, are called sponsions. 1 Martens, Precis, liv. 2, ch. 2, §§ 49, 51, 65. Heffter, § 87. The Iloman civilians arranged all international contracts into three classes. 1. Pactiones. 2. Sponsiones. 3. Fcedera. The latter were considered the most solemn ; and Gains, in the recently discovered fragments of his Institutes, speak- ing of the supposition of a treaty of peace concluded in the simple form of a, mere pactio, says : " Dicitur uno casu hoc verbo (Spondesne ? Spondeo.) ; peregrinum quoque obligari posse, velut si Imperator noster Principem alicujus percgrini populi de pace ita interrogetur : quod nimium subtililer dictum est ; quia si quid adversus pactionem fiat, non ex stipulatu agitur, sed jure belli viudlcatur." Comm. iii. § 94.) 2 Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 22, §§ C-8. Yattel, Droit des Gens, liv. ii. ch. 14, § 207. CHAP. II.] RIGHTS OP NEGOTIATION AND TREATIES. 319 These conventions must be confirmed by express or tacit rati- fication. The former is given in positive terms, and with the usual forms ; the latter is implied from the fact of acting under the agreement as if bound by its stipulations. Mere silence is not sufficient to infer a ratification by either party, though good faith requires that the party refusing it should notify its determina- tion to the other party, in order to prevent the latter from carry- ing its own part of the agreement into efiect. If, however, it has been totally or partially executed by either party, acting in good faith upon the supposition that the agent was duly authorized, the party thus acting is entitled to be indemnified or replaced in his former situation.' As to other public treaties : in order to enable a public minister or other diplomatic agent to conclude and sign power and a treaty with the government to which he is accredited, he must be furnished with ?i full power ^ independent of his gene- ral leller of credence. Grotius, and after him Puffendorf, consider treaties and conven- tions, thus negotiated and signed, as binding upon the sovereign in whose name they are concluded, in the same manner as any other contract made by a duly authorized agent binds his princi- pal, according to the general rules of civil jurisprudence. Grotius makes a distinction between the procuration which is communi- cated to the other contracting party, and the instructions which are known only to the principal and his agent. According to him, the sovereign is bound by the acts of his ambassador, within the limits of his patent full-power, although the latter may have transcended or violated his secret instructions.^ ' Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 15, § IG; lib. iii. cap. ■22, §§ 1-3. Vattel, Droit des Gens, liv. ii. cb. 14, §§ 209-212. Rutherforth's Inst. b. ii. ch. 9, § 21. 2 " Et in generall praeposltione accidere potest ut nos obliget qui prajpositus est, agendo contra voluntatem nostrani sibi soli significatam : quia Li distincti sunt actus volendi : unus, quo nos obligamus ratum Labituros quicquid ille in tali nego- tiorum genere fecerit ; alter, quo ilium nobis obligamus, ut non agat nisi ex prtescripto, sibi non aliis cognito. Quod notandum est ad ea qu£B logati promit- tunt pro regibus ex vi instrument! procuratorii, cxcedendo arcana mandata. Grotius, de Jur. Bel. ac Pac. lib. ii. cap. xi. § 12. Puffendorf, de Jur. Xaturaj et Gent. lib. iii. cap. ix. § 2. 320 RIGHTS OF NEGOTIATION AND TREATIES. [PART III. This opinion of the earlier public jurists, founded upon the analogies of the Roman law respecting the contract of mandate or commission, has been contested by more recent writers. Bynkershoek lays down the true principles applicable to this subject, with that clearness and practical precision which distin- guish the writings of that great public jurist. In the second book of his Qucestiones Juris Publici, (cap. vii.) he propounds the ques- tion, whether the sovereign is bound by the acts of his minister, contrary to his secret instructions. According to him, if the question were to be determined by the ordinary rules of private law, it is certain that the principal is not bound where the agent exceeds his powers. But in the case of an ambassador, we must distinguish between the general full-power which he exhibits to the sovereign to whom he is accredited, and his special instruc- tions, which he may, and generally does retain, as a secret be- tween his own sovereign and himself. He refers to the opinion of Albericus Gentilis, {de Jure Belli, lib. iii. cap. xiv.) and that of Grotius above cited, that if the minister has not exceeded the authority given in his patent credentials, the sovereign is bound to ratify, although the minister may have deviated from his secret instructions. Bynkershoek admits that if the credentials are special, and describe the particulars of the authority conferred on the minister, the sovereign is bound to ratify whatever is con- cluded in pursuance of this authority. But the credentials given to plenipotentiaries are rarely special, still more rarely does the secret authority contradict the public full-power, and most rarely of all does a minister disregard his secret instructions.^ But what if he should disregard them ? Is the sovereign bound to ratify in pursuance of the promise contained in the full-power ? According to Bynkershoek, the usage of nations, at the time when he wrote, required a ratification by the sovereign to give validity to treaties concluded by his minister, in every instance, except in the very rare case where the entire instructions were contained in the patent full-power. He controverts the position 1 " Sed rarum est quod publica mandata sint speclalia, I'arius quod arcanum mandatuin publico sit contrarium, rarlssimum vero, quod legatus arcanum poste- rlus spernat, ct ex publico priori rem agat." Bynkershoek, Qua;st. Jur. Pub. lib. ii. cap. •vii. CHAP. II.] RIGHTS OF NEGOTIATION AXD TREATIES. 321 of Wicquefort, {V Ambassadeiir et ses Fonctions, liv. 2, § 15,) con- demning the conduct of those princes who had refused to ratify the acts of their ministers on the ground of their contravening secret instructions. The analogies of the Roman law, and the usages of the Roman people, were not to be considered as an unerring guide in this matter, since time had gradually worked a change in the usage of nations, which constitutes the law of nations; and Wicquefort himself, in another passage, had admitted the necessity of a ratification to give validity to the acts of a minister under his full-power.^ Bynkershoek does not, however, deny that, if the minister has acted precisely in con- formity with his patent full-power, which may be special, or his secret instructions, which are always special, even the sovereign is bound to ratify his acts, and subjects himself to the imputa- tion of bad faith if he refuses. But if the minister exceed his authority, or undertake to treat points not contained in his full-power and instructions, the sovereign is fully justified in delaying, or even refusing his ratification. The peculiar circum- stances of each particular case must determine whether the rule or the exception ought to be applied.^ Vattel considers the sovereign as bound by the acts of his 1 " Sed quod olim obtinuit, nunc non obtlnct, ut mores gentium sajpe solent mutari, nam postquam ratihabitionem usus invaluit, inter gentes tantum non omnes receptura est, ne fcedera et pacta, a Icgatis inita, valerent nisi ea probave- rintpi'incipes, quorum res agltur. Ipse Wicquefort (eodem Opere, 1. 1, sect. 16,) necessitatem ratihabitionum satis agnoscit hisce verbis : Que les pouvoirs, quelques amples et absolus qu'ils soient, aient toujours quelque relation aux ordres secrets qu'on leur donne, qui peuvent 6tre changes et alteres, et qui le sont souvent, selon les conjonctures et les revolutions de.s affaires." Ibid. 2 " Non tamen negaverim, si legatus publicum mandatum, quod forte specials est, vel arcanum, quod semper est speciale, examussim sequutus, fa?dera et pacta ineat, justi principis esse ea probare, et nisi probaverit, malte fidEsi reum esse, simulque legatum ludibrio ; sin autem mandatum excesserit, vel fcederibus et pactis nova quaedam sint inserta, de quibus nihil mandatum erat, optimo jure poterit princeps vel differe ratiliabitionem, vel plane negare. Secundum bajc dam- naverim vel probaverim negatas ratiliabitiones, de quibus prolixe agit Wicquefort, (d. L. ii. sect. 15.) In singulis causis, quas ipse ibi recenset, ego nolim judex sedere, nam plurimum facti habent, quod me latet, et forte ipsum latuit. Non immeritd autem nunc gentibus placuit ratihabitio, cum mandata publica, ut modo dicebam vix unquam sint specialia, et arcana legatus in scriniis suis servare solent, neque adeo de his quicquam rescire possint, quibuscum actum est." Ibid. 322 RIGHTS OP jSTEGOTIATION and treaties. [part III. minister, within the limits of his credentials, unless the power of ratifying be expressly reserved, according to the practice already established at the time when he wrote. " Sovereigns treat with each other through the medium of their attorneys or agents, who are invested with sufficient powers for the purpose, and are commonly called plenipotentiaries. To their office we may apply all the rules of natural law which respect things done by commission. The rights of the agent are determined by the instructions that are given him. He must not deviate from them ; but every promise which he makes, within the terms of his commission, and within the extent of his powers, binds his constituent. "At present, in order to avoid all danger and difficulty, princes reserve to themselves the power of ratifying what has been con- cluded in their name by their ministers. The full-power is but a procuration cum libera. If this procuration were to have its full effect, they could not be too circumspect in giving it. But as princes cannot be compelled to fulfil their engagements, otherwise than by force of arms, it is customary to place no dependence on their treaties until they have agreed to and ratified them. Thus, as every agreement made by the minister remains invalid until sanctioned by the ratification of the prince, there is less danger in giving the minister a full power. But before a sovereign can honorably refuse to ratify that which has been concluded in virtue of a full power, he must have strong and solid reasons, and, in particular, he must show that his minister has deviated from his instructions." ^ The slightest reilection will show how wide is the difference between the power given by sovereigns to their ministers to negotiate treaties respecting vast and complicated international concerns, and that given by an individual to his agent or attorney to contract with another in his name respecting mere private affairs. The acts of public ministers under such full powers have been considered from very early times as subject to ratification.^ » Vattel, Droit des Gens, liv. ii. ch. 12, § 156. 2 One of the earliest recorded examples of this practice was given in the treaty of peace concluded, in 651, by the Roman Emperor Justinian, with Cosroes I. King of Persia. Both the preliminaries and the definitive treaty, signed by the respective plenipotentiaries, were subsequently ratified by the two monarchs, and CHAP. 11.] RIGHTS OF ]snEGOTIATION" AND TREATIES. 323 The reason on which this practice is founded is clearly ex- plained by a veteran diplomate whose long experience gives addi- tional weight to his authority. " The forms in which one Siate negotiates with another," says Sir Robert Adair, " requiring, for the sake of the business itself, that the powers to transact it should be as extensive and general as words can render them, it is usual so to draw them up, even to a promise to ratify ; although in practice, the non-ratification of preliminaries is never con- sidered to be a contravejition of the law of nations. The reason is plain. A plenipotentiary, to obtain credit with a State on an equality with his master, must be invested with powers to do, and agree to, all that could be done and agreed to by his master himself, even to the alienating the best part of his territories. But the exercise of these vast powers, always under the under- stood control of non-ratification, is regulated by his instructions."^ The exposition of the approved practice of nations, from which alone the law of nations applicable to this matter can be deduced, conclusively shovi^s that a full-power, however general, and even extending to a promise to ratify, does not involve the obligation of ratifying in a case where the plenipotentiary has deviated from his instructions. Yet the contrary doctrine inferred, as we have seen, by the earlier public jurists, from the analogies of private law in respect to the obligation of contracts, concluded by pro- curation, is countenanced by a modern writer of no inconsiderable merit. Kliiber asserts that "public treaties can only be con- cluded in a valid manner by the ruler of the State, who repre- sents it towards foreign nations, either immediately by himself, or through tiie agency of plenipotentiaries, and in a manner con- formable to the constitutional laws of the State. A treaty con- cluded by such a plenipotentiary is valid, provided he has not the ratifications formally exchanged. Barbcyrao. Ilistoire des anclens traites Partie ii. p. 295. It has been very justly observed that this example of the exchange of formal ratifications, at a period of the world like that of Justinian, which invented nothing, but only collected and followed the precedents of the preceding ages, is conclusive to show that this sanction was then deemed necessary by the general usage of nations to give validity to treaties concluded under full powers. Wurm, Die Ratification von Staatsvcrtriigen, Deutsche Yierteljahrs-Schrift Nr. 29. 1 Adair, Mission to the Court of Vienna, p. 54. 324 EIGHTS OP NEGOTIATION AND TREATIES. [PAllT. III. transcended his patent full-power; and a subsequent ratification is only required in the case where it is expressly reserved in the full-power, or stipulated in the treaty itself, as is usually the case at present in all those conventions which are not, such as mili- tary arrangements are, of urgent necessity. The ratification by one of the contracting parties does not bind the other party to give his in return. Except in the case of special stipulations, a treaty is deemed to take effect from the time of the signature, and not from that of the ratification. A simple sponsion, an engagement entered into for the State, whether made by the representative of the State or his agent, unless he has full authority for making it, is not binding, except so far as it is ratified by the State. The question whether a treaty, made in the name of the State, by the chief of the government with the enemy, while the former is a prisoner of war, is binding on the State, or whether it is to be regarded even as a sponsion, has given rise to serious disputes." ^ Martens concurs with Kliiber so far as to admit, that what he calls the universal law of nations, " does not require a special ratification to render obligatory the engagement of a minister acting within the limits of his full-power, on the faith of which the other contracting party has entered into negotiation with him, even if the minister has transcended his secret instructions.'* But he very correctly adds, that " the positive law of nations, considering the necessity of giving to negotiators very extensive full-powers, has required a special ratification so as not to expose the State to the irreparable injury which the inadvertence or bad faith of a subordinate authority might occasion it; so that treaties are only relied on when ratified. But the reason of this usage, which may be traced back to the remotest time, suffi- ciently shows, that if one of the two parties duly offers his ratifi- cation, the other party cannot refuse his in return, except so far as his agent may have transcended the limits of his instructions, and consequently is liable to punishment ; and that, at least regularly, it does not depend upon the unlimited discretion of one nation to refuse its ratification by alleging mere reasons of convenience." ^ 1 Kliiber, Droit des Gens Motlerne de I'Europe, § 142. 2 Martens, Precis, &c., § 48. CHAP. II.] RIGHTS OF NEGOTIATION AND TREATIES. *325 Martens remarks, in a note to the third edition of his work, published after KliJber's had appeared, that the latter is of a con- trary opinion, as to the obligation of one party to exchange rati- fications when proposed by the other ; " and as he (Kliiber) considers the ratification as necessary only where it is reserved in the full power, or in the treaty itself, (which is at present rarely omitted,) it seems that this author deduces from this re- servation the right of arbitrarily refusing the ratification, ichich I doubt:' ^ This observation of Martens appears to be founded on a mis- apprehension of the meaning of Kliiber, into which we had our- selves inadvertently fallen, in the first edition of this work. Although he has not, perhaps, guarded his meaning with sufii- cient caution, further examination has convinced us that neither Kliiber, nor any other institutional writer, has laid down so lax a principle, as that the ratification of a treaty, concluded in con- formity with a full power, may be refused at the mere caprice of one of the contracting parties, and without assigning strong and solid reasons for such refusal. The expressions used by Vattel, that " before a sovereign can honorably refuse to ratify that which has been concluded in virtue of a full power, he must have strong and solid reasons, and in particular, he must show that his minister has deviated from his instructions," may seem to imply that he considered such devi- ation as a necessary ingredient in the strong and solid reasons to be alleged for refusing to ratify. But several classes of cases may be enumerated, in which, it is conceived, such refusal might be justified, even where the minister had not transcended or violated his instructions. Among these the following may be mentioned : — 1. Treaties may be avoided, even subsequent to ratification, upon the ground of the impossibility, physical or moral, of fulfill- ing their stipulations. Physical impossibility is where the party making the stipulation is disabled from fulfilling it for want of the necessary physical means depending on himself. Moral impossibility is where the execution of the engagement would affect injuriously the rights of third parties. It follows, in both ' J^Iartens, 3d edit, Note f. 28 326* RIGHTS OF NEGOTIATION AND TREATIES. [PART III. cases, that if the impossibility of fulfilling the treaty arises, or is discovered previous to the exchange of ratifications, it may be refused on this ground. 2. Upon the ground of mutual error in the parties respecting a matter of fact, which, had it been known in its true circumstances, would have prevented the conclusion of the treaty. Here, also, if the error be discovered previous to the ratification, it may be withheld upon this ground. 8. In case of a change of circumstances, on which the validity of the treaty is made to depend, either by an express stipulation, {clausula rebus sic stantibus,) or by the nature of the treaty itself. As such a change of circumstances would avoid the treaty, even after ratification, so if it take place previous to the ratifica- tion, it will afford a strong and solid reason for withholding that sanction. Every treaty is binding on the contracting parties from the date of its signature, unless it contain an express stipulation to the contrary. The exchange of ratifications has a retroactive eflfect, confirming the treaty from its date.^ (a) 1 Martens, Precis, &c., § 48. Essai concernant les Armateurs, &c., § 48. Klii- ber, Droit des Gens Moderne de I'Europe, § 48. Heffter, das Europaisohe Vol- kerrecht, § 87. (a) [When territory is ceded, the national character continues for commercial purposes till actual delivery ; but between the time of signing the treaty and the actual delivery of the territory, the sovereignty of the ceding power ceases, except for strictly municipal purposes, or for such an exercise of it as is necessary to preserve and enforce the sanctions of its social condition. This rule applies to treaties signed by plenipotentiaries having full powers to make the cesssion, and which have afterwards been ratified, and not to those entered into and signed conditionally, suh spe rati, by a minister not furnished with orders to execute it absolutely. Howard's Kep. vol. ix. pp. 280-293. Davis v. The Police Jury of Concordia. In 1841, the King of the Netherlands refused to ratify a treaty made by his plenipotentiaries, for the annexation of Luxembourg to the Customs' Union, after a protracted negotiation ; assigning as a reason the representations made to him by his subjects of the Grand Duchy, of the injurious effects the Convention was likely to have on their local commercial interests. This explanation was not satisfactor)^ to the Prussian cabinet, which considered the treaty as morally bind- ing on the King of Holland, in his capacity of Grand Duke of Luxembourg. Mr. Wheaton's MS. Despatches. The French government refusing, on account of the opposition of the Chambers, to ratify the Quintuple Treaty, of 1841, for the suppression of the slave trade, M. Guizot contended that a ratification was fl CHAP. II.] RIGHTS OF NEGOTIATION AND TREATIES. 327 The recent interference of four of the great European powers in the internal afll'airs of the Ottoman Empire, affords a remark- able example of a treaty concluded by plenipotentiaries, which was not only held to be completely binding between the con- tracting parties, but the execution of which was actually commenced before the exchange of ratifications. Such was the case with the Convention of the 15th July, 1840, between Aus- tria, Great Britain, Prussia, Russia, and Turkey. In the secret protocol annexed to the treaty, it was stated that, on account of the distance which separated the respective courts from each other, the interests of humanity, and weighty considerations of European policy, the plenipotentiaries, in virtue of their full powers, had agreed that the preliminary measures should be immediately carried into execution, and without waiting for the exchange of ratifications, consenting formally by the present act, and with the assent of their courts, to the imm.ediate execution of these measures." ^ This anomalous case may, at first sight, seem to contradict the principles above stated, as to the necessity of a previous rati- fication, to give complete effect to a treaty concluded by plenipo- tentiaries. But further reflection will show the obvious distinc- tion which exists between a declaration of the plenipotentiaries, authorized by the instructions of their respective courts, dispens- ing by mutual consent with the previous ratification ; and a demand by one of the contracting parties, that the treaty should be carried into execution, without waiting for the ratification of the other party.^ (a) not a mere formality but a serious right ; and that no treaty was completely con- cluded till it bad been ratified, and that if between the conclusion and ratification of the treaty grave events occurred, which changed the relations of the two powers and the circumstances under which the treaty had been made, it was a matter of right to refuse the ratification. Moniteur, 1 F6vrier, 1843. Ortolan adds, that this doctrine is founded in reason. Diplomatic de la Mer, t. i. p. 94. In the above cases, the power which gave the instructions to treat was identical with that which was competent to ratify ; and the obligation of the executive is not to be confounded with his position, in those countries where, as in the United States, the internal Constitution requires for a ratification the concurrence of another department of the government.] 1 Murhard, Nouvcau Recueil General, tome i. p. 163. (a) [It is presumed that there is a constitutional impediment to such an arrangement when the United States are a party, as the Senate must concur in 328 RIGHTS OF NEGOTIATION AND TREATIES. [PART III. § 6. The The municipal constitution of every particular State raakni<; determines in whom resides the authority to ratify trea- ^endent^on ^^^^ negotiated and concluded with foreign powers, so themunici- as to render them obligatory upon the nation. In abso- pal consti- . ... tution. lute monarchies, it is the prerogative of the sovereign himself to confirm the act of his plenipotentiary by his final sanction. In certain limited or constitutional monarchies, the consent of the legislative power of the nation is, in some cases, required for that purpose. In some republics, as in that of the United States of America, the advice and consent of the Senate are essential, to enable the chief executive magistrate to pledge the national faith in this form. In all these cases, it is, conse- every treaty. On occasion of the treaty concluded by Mr. "VVheaton with Hanover, it was proposed to declare by a protocol, signed at the same time with the exchange of ratifications, that though the treaty had been concluded in Eng- lish and French, in case of any disagreement as to its interpretation, the French copy should be deemed the original. It was, however, the opinion of Mr. Wheaton, in which the Secretary of State concurred, that no such declaration could be entered into without submitting the treaty anew to the Senate. Mr. "Wheaton to Secretary of State, 8th July, 1840. But in exchanging the ratifications of the treaty between the United States and Great Britain, in relation to an inter- oceanic communication, the British plenipotentiary subjoined the following expla- natory declaration : — " In proceeding to the exchange of the ratifications of the convention, signed at Washington on the 19th of April, 1850, between her Britannic Majesty and the United States of America, relative to the establishment of a communication, by ship-canal, between the Atlantic and Pacific Oceans, the undersigned, her Britannic Majesty's plenipotentiary, has received her Majesty's instructions to declare that her Majesty does not understand the engagements of that convention to apply to her Majesty's settlement at Honduras, or to its dependencies. Her Majesty's ratification of the said convention is exchanged under the explicit decla- ration above mentioned. " Done at Washington, the 29th day of June, 1850. "H. L. BULWEK." It appears from the printed documents that Mr. Clayton filed, on 5th of July, 1854, a memorandum in the Department of State, stating that he had received the above declaration on the day of its date ; that he wrote, in reply, on 4th of July, a note acknowledging that he had understood that British Honduras was not embraced in the Treaty of 19th of April, but, at the same time, declining to afiirm or deny the British title ; and that, after signing the note of 4th of July, which he delivered to Sir Henry Bulwer, they immediately proceeded to exchange the ratifications of the treaty. Cong. Doc. 3 2d Cong. 2d Sess., Senate Ex. Doc. No. 12.] CHAP. II.] RIGHTS OF NEGOTIATION AND TREATIES. 329 quently, an implied condition in negotiating with foreign powers, that the treaties concluded by the executive government shall be subject to ratification in the manner prescribed by the funda- mental laws of the State. " He who contracts with another," says Ulpian, " knows, or ought to know, his condition." Qui cum alio contrahit, vel est, vel debet esse non ignarus conditionis ejus, (1. 19, D. de div. K,. J. 50, 17.) But, in practice, the full powers given by the government of the United States to their plenipotentiaries always expressly reserve the ratification of the treaties concluded by them, by the President, with the advice and consent of the Senate. The treaty, when thus ratified, is obligatory upon the jr. Aux- contracting States, independently of the auxiliary legis- lativemea- lative measures, which may be necessary on the part of f^r^ngc^s^ either, in order to carry it into complete effect. Where, l^^jv^j^"^.*^® indeed, such auxiliary legislation becomes necessary, in a treaty. consequence of some limitation upon the treaty-making power, expressed in the fundamental laws of the State, or necessarily implied from the distribution of its constitutional powers,-— such, for example, as a prohibition of alienating the national domain, — then the treaty may be considered as imperfect in its obligation, until the national assent has been given in the forms required by the municipal constitution. A general power to make treaties of peace necessarily implies a power to decide the terms on which they shall be made ; and, among these, may properly be included the cession of the public territory and other property, as well as of private property included in the eminent domain annexed to the national sovereignty. If there be no limitation expressed in the fundamental laws of the State, or necessarily implied from the distribution of its constitutional authorities on the treaty-making power in this respect, it neces- sarily extends to the alienation of public and private property, when deemed necessary or expedient.^ Commercial treaties, which have the effect of altering the 1 Grotlus, de Jur. Bel. ac Pac. lib. iii. cap. 20, § 7. Vattel, Droit des Gena, liv. i. cb. 20, § 244 ; ch. 2, §§ 262-265. Kent's Comment, on American Law, vol. i. p. 164, 5th ed. 28* 330 RIGHTS OF NEGOTIATION AND TREATIES. [PART III. existing laws of trade and navigation of the contracting parties, may require the sanction of the legislative power in each State for their execution. Thus the commercial treaty of Utrecht, between France and Great Britain, by which the trade between the two countries was to be placed on the footing of reciprocity, was never carried into effect ; the British Parliament having rejected the bill which was brought in for the purpose of modi- fying the existing laws of trade and navigation, so as to adapt them to the stipulations of the treaty.' In treaties' requiring the appropriation of moneys for their execution, it is the usual prac- tice of the British government to stipulate that the king will recommend to parliament to make the grant necessary for that purpose. Under the Constitution of the United States, by which treaties made and ratified by the President, with the advice and consent of the Senate, are declared to be " the supreme law of the land," it seems to be understood that the Congress is bound to redeem the national faith thus pledged, and to pass the laws necessary to carry the treaty into effect.^ (a) 1 Lord Mahon's History of England from the Peace of Utreclit, vol. i. p. 24. 2 Kent's Comment, vol. i. p. 285, 5th ed. (a) [A treaty Is, in its nature, a contract between two nations, not a legisla- tive act, and does not, generally, effect of itself the object to be accomplished, but is carried into execution by the sovereign power of the respective parties to the inurnment. In the United States, the Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equi- valent to an act of the legislature, whenever it operates of Itself, without any legislative provision. But when the terms of the stipulation import a contract, when .either of the parties engages to perform a particular act, the treaty ad- dresses itself to the political, not the judicial department, and the legislature must execute the contract before it can become a rule for the court. Peters's Rep. vol. II. p. 314. Foster et al. v. Neilson. Ibid. vol. vi. p. 735. United States v. Arredondo. This subject has been frequently discussed, in connection with the Constitution of the United States, as to the treaty-making power of the President and Senate, and the legislative authority of Congress. It especially came under the consider- ation of the House of Representatives In 1796, on the bill making appropriations to carry into effect the Treaty of 1794 with Great Britain; when President Washington sent a message to the House denying their right to call for the papers connected with the negotiation, and the act was passed, notwithstanding such refusal, by a majority of two votes. In 1816, after the Commercial Conven- tion with England, the question was, whether It was necessary to pass a bill to make our revenue laws conform to the treaty stipulations, or whether the treaty I CHAP. II.] RIGHTS OF NEGOTIATIO]^^ AND TREATIES. 331 By the general principles of private jurisprudence, § s. Free- recognized by most, if not all, civilized countries, a con- sent, how- tract obtained by violence is void. Freedom of con- sun"tothe sent is essential to the validity of every agreement, and t,:g^UeI °^ itself operated, jvoprio vigore. In that case, a declaratory act was passed. U. S. Statutes at Large, yoI. iii. p. 354. This point was also examined during the session of 18j3-4, in the case of the appropriations required for the convention, then recently entered into by the President and Senate, with Mexico. The conclusion on all these occasions would seem to have been, that as the President and Senate are, by the Constitution, fully authorized to enter into treaties, when- ever the aid of Congress is required to carry out its provisions, if the treaty be within the constitutional limits, free from fraud, and not destructive of any of the great rights or interests of the country, then there is a moral obligation to grant the aid required. When a treaty comes before the House of Representatives, they are not to proceed in the discussion and examination of it as an act of ordi- nary legislation. Such a consti'uction would, in effect, repeal the constitutional provision respecting treaties, and nullify the whole power of the government in its intercourse with foreign nations. Congress. Globe, 1853-4. Appendix, p. 1020. These views were ably vindicated by Mr. Pinkney, in the case of the British Convention of 1815, and his argument has been preserved in ilr. Whea- ton's Uife of Pinkney, pp. 517-549. That the omission of Congress to pass an appropriation act would be no answer to a foreign government for the non-fulfilment of treaty stipulations, is to be deduced from the ground taken by the United States with France, when the legislative power of the latter State refused to vote the moneys required by the Convention of 1831, by which indemnities were provided for the spoliation on Ame- rican commerce. The subject was brought to the notice of Congress by President Jackson, in his Annual Message, in December, 1834 ; with a recommendation that a law should be passed authorizing reprisals upon French property, in case pro- vision should not be made for the payment of the debt at the next session of the French Chambers. Annual Register, 1834, p. 361. Referring to this contro- versy, Mr. Wheaton said : — " Neither government has any thing to do with the auxiliary legislative measures necessary, on the part of the other State, to give effect to the treaty. The nation is responsible to the government of the other nation for its non-execution, whether the failure to fulfil it proceeds from the omission of one or other of the departments of its government to perform its duty in respect to it. The omission here is on the part of the legislature ; but it might have been on the part of the judicial department. The Court of Cassa- tion might have refused to render some judgment necessary to give effect to the treaty. The king cannot compel the Chambers, neither can he compel the Courts ; but the nation is not the less responsible for the breach of faith thus arising out of the discordant action of the internal machinery of its constitution." Letter from Mr. Wheaton to Mr. Butler, then Attorney-General of the United States, Copenhagen, 20th January, 1835.] 332 RIGHTS OF NEGOTIATION AND TREATIES. [PART III. contracts obtained under duress are void, because the gene- ral welfare of society requires that they should be so. If they were binding, the timid would constantly be forced by threats, or by violence, into a surrender of their just rights. The notoriety of the rule that such engagements are void, makes the attempt to extort them among Ihe rarest of human crimes. On the other hand, the welfare of society requires that the engage- ments entered into by a nation under such duress as is implied by the defeat of its military forces, the distress of its people, and the occupation of its territories by an enemy, should be held binding; for if they were not, wars could only be terminated by the utter subjugation and ruin of the weaker party. Nor does inadequacy of consideration, or inequality in the conditions of a treaty between nations, such as might be sufficient to set aside a contract as between private individuals on the ground of gross inequality or enormous lesion, form a sufficient reason for refus- ing to execute the treaty.^ . rj,^^^_ General compacts between nations may be divided sitory con- jn^o what are called transiiorij conventions, and treaties ventions ■, nii r i • i • perpetual in properly SO termed. Ihe first are perpetual m their ' nature, so that, being once carried into effect, they sub- sist independent of any change in the sovereignty and form of government of the contracting parties ; and although their ope- ration may, in some cases, be suspended during war, they revive on the return of peace without any express stipulation. Such are treaties of cession, boundary, or exchange of territory, or those which create a permanent servitude in favor of one nation within the territory of another.^ Thus the treaty of peace of 1783, between Great Britain and the United States, by which the independence of the latter was acknowledged, prohibited future confiscations of property; and the treaty of 1794, between the same parties, confirmed the titles 1 Senior, Edinburgh Rev. No. CLVI. art. 1. Martens, Precis, liv. ii. ch. 2, §§ 50, 52. Grotius, de Jur. Bel. ac Pac. lib. ii. sect. xiv. §§ 4-12. 2 Valtel, Droit dcs Gens, liv. ii. ch. 12, § 192. Martens, Precis, &c., liv. ii. ch. 2, § 58. CHAP. II.] RIGHTS OF ]S^EGOTIATION AND TREATIES. 333 of British subjects holding lands in the United States, and of American citizens holding lands in Great Britain, which might otherwise be forfeited for alienage. Under these stipulations, the Supreme Court of the United States determined, that the title both of British natural subjects and of corporations to lands in America was protected by the treaty of peace, and confirmed by the treaty of 1794, so that it could not be forfeited by any inter- mediate legislative act, or other proceeding, for alienage. Even supposing the treaties were abrogated by the war which broke out between the two countries in 1812, it would not follow that the rights of property already vested under those treaties could be devested by supervening hostilities. The extinction of the treaties would no more extinguish the title to real property acquired or secured under their stipulations than the repeal of a municipal law affects rights of property vested under its provi- sions. But independent of this incontestable principle, on which the security of all property rests, the court was not inclined to admit the doctrine, that treaties become, by war between the two contracting parties, ipso facto extinguished, if not revived by an ex- press or implied renewal on the return of peace. AVhatever might be the latitude of doctrine laid down by elementary writers on the law of nations, dealing in general terms in relation to the subject, it was satisfied that the doctrine contended for was not universally true. There might be treaties of such a nature as to their object and import, as that war would necessarily put an end to them ; but where treaties contemplated a permanent arrange- ment of territory, and other national rights, or in their terms were meant to provide for the event of an intervening war, it would be against every principle of just interpretation to hold them extinguished by war. If such were the law, even the treaty of 1783, so far as it fixed the limits of the United States, and acknowledged their independence, would be gone, and they would have had again to struggle for both, upon original revolu- tionary principles. Such a construction was never asserted, and would be so monstrous as to supersede all reasoning. The court, therefore, concluded that treaties stipulating for permanent rights and general arrangements, and professing to aim at perpe- tuity, and to deal with the case of war as well as of peace, do not cease on the occurrence of war, but are, at most, only sus- pended while it lasts ; and unless they are waived by the parties, 334 RIGHTS OP NEGOTIATION AND TREATIES. [PART III. or new and repugnant stipulations are made, revive upon the return of peace.i Contro- By the 3d article of the treaty of peace of 1783, be- tween the tween the United States and Great Britain, it was American u -aorreed that the people of the United States shall con- and British » r i govern- tinue to cnjoy unmolested the right to take fish of every specting the kind on the Grand Bank, and on all the other Banks fifhery°on of Newfoundland; also in the Gulf of St. Lawrence, theBHUsh^^ and at all other places in the sea, where the inhabitants dominions ^f \)Qi\^ countries used, at any time heretofore, to fish I in >iorth *'. America. and also that the inhabitants of the United States shall have liberty to take fish of every kind on such part of the coast of Newfoundland as British fishermen shall use, (but not to dry or cure the same on that island,) and also on the coasts, bays, and creeks of all other of his Britannic Majesty's dominions in America ; and that the American fishermen shall have liberty to dry and cure fish in any of the unsettled bays, harbors, and creeks of Nova Scotia, Magdalen Islands, and Labrador, so long as the same shall remain unsettled ; but so soon as the same, or either of them shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such settlement, without a previous agreement for that purpose with the inhabitants, pro- prietors, or possessors of the ground." During the negotiation at Ghent, in 1814, the British plenipoten- tiaries gave notice that their government " did not intend to grant to the United States, gratuitously, the privileges formerly granted by treaty to them of fishing witliin the limits of the British sove- reignty, and of using the shores of the British territories for pur- poses connected with the British fisheries." In answer to this declaration the American plenipotentiaries stated that they were " not authorized to bring into discussion any of the rights or liberties which the United States have heretofore enjoyed in rela- tion thereto ; from their nature, and from the peculiar character of the treaty of 1783, by which they were recognized, no further 1 Wheaton's Rep. vol. vlii. p. 464. The Society for tlie Propagation of the Gospel in Foreign Parts u. The Town of New Haven. The same principle was asserted by the English Court of Chancery, as to American citizens holding lands in Great Britain under the treaty of 1794. In Sutton v. Sutton, Russell & Milue, Rep. vol. i. p. 663. CHAP. II.] RIGHTS OF NEGOTIATION AND TREATIES. 335 stipulation has been deemed necessary by the government of the United States to entitle them to the full enjoyment of them all." The treaty of peace concluded at Ghent, in 1814, therefore, contained no stipulation on the subject ; and the British govern- ment subsequently expressed its intention to exclude the Ame- rican fishing vessels from the liberty of fishing within one marine league of the shores of the British territories in North America, and from that of drying and curing their fish on the unsettled parts of those territories, and, with the consent of the inhabitants, within those parts w^hich had become settled since the peace of 1783. In discussing this question, the American minister in London, Mr. J. Q. Adams, stated, that from the time the settlement in North America, constituting the United States, was made, until their separation from Great Britain and their establishment as distinct sovereignties, these liberties of fishing, and of drying and curing fish, had been enjoyed by them, in common with the other subjects of the British empire. In point of principle, they were preeminently entitled to the enjoyment; and, in point of fact, they had enjoyed more of them than any other portion of the empire; their settlement of the neighboring country having naturally led to the discovery and improvement of these fisheries ; and their proximity to the places w^here they w^ere prosecuted, having led them to the discovery of the most advantageous fish- ing grounds, and given them facilities in the pursuit of their occupation in those regions, w^hich the remoter parts of the em- pire could not possess. It might be added, that they had con- tributed their full share, and more than their share, in securing the conquest from France of the provinces on the coasts of which these fisheries were situated. It was doubtless upon considerations such as these that an express stipulation w^as inserted in the treaty of 1783, recogniz- ing the rights and liberties which had always been enjoyed by the people of the United States in these fisheries, and declaring that they should continue to enjoy the right of fishing on the Grand Bank, and other places of common jurisdiction, and have the liberty of fishing, and drying and curing their fish, within the exclusive British jurisdiction on the North American coasts, to w^hich they had been accustomed whilst they formed a part of the British nation. This stipulation was a part of that treaty by 336 RIGHTS OF NEGOTIATION AND TREATIES. [PAET III. which his Majesty acknowledged the United States as free, sove- reign, and independent States, and that he treated with them as such. It could not be necessary to prove that this treaty was not, in its general provisions, one of those which, by the common under- standing and usage of civilized nations, is considered as annulled by a subsequent war between the same parties. To suppose that it is, would imply the inconsistency and absurdity of a sovereign and independent State, liable to forfeit its right of sovereignty by the act of exercising it on a declaration of war. But the very words of the treaty attested that the sovereignty and independ- ence of the United States were not considered as grants from his Majesty. They were taken and expressed as existing before the treaty was made, and as then only first formally recognized by Great Britain. Precisely of the same nature were the rights and liberties in the fisheries. They were, in no respect, grants from the King of Great Britain to the United States ; but the acknowledgment of them as rights and liberties enjoyed before the separation of the two countries, and which it was mutually agreed should continue to be enjoyed under the new relations which were to subsist be- tween them, constituted the essence of the article concerning the fisheries. The very peculiarity of the stipulation was an evi- dence that it was not. on either side, understood or intended as a grant from one sovereign State to another. Had it been so understood, neither could the United States have claimed, nor would Great Britain have granted, gratuitously, any such con- cession. There was nothing, either in the state of things, or in the disposition of the parties, which could have led to such a stipulation on the part of Great Britain, as on the ground of a grant, without an equivalent. If the stipulation by the treaty of 1783, was one of the condi- tions by which his Majesty acknowledged the sovereignty and independence of the United States ; if it was the mere recogni- tion of rights and liberties previously existing and enjoyed, it was neither a privilege gratuitously granted, nor liable to be forfeited by the mere existence of a subsequent war. If it was not for- feited by the war, neither could it be impaired by the declaration of Great Britain at Ghent, that she did not intend to renew the grant. Where there had been no gratuitous concession, there CHAP, n.] RIGHTS OF NEGOTIATION AND TREATIES. 337 could be none to renew; the rights and liberties of the United States could not be cancelled by the declaration of the British intentions. Nothing could abrogate them but a renunciation by the United States themselves.^ In the answer of the British government to this communication, it was stated that Great Britain had always considered the liberty formerly enjoyed by the United States, of fishing within British limits and using British territory, as derived from the 3d article of the Treaty of 1783, and from that alone ; and that the claim of an independent State to occupy and use, at its dis- cretion, any portion of the territory of another, without com- pensation or corresponding indulgence, could not rest on any other foundation than conventional stipulation. It was unne- cessary to inquire into the motives which might have originally influenced Great Britain in conceding such liberties to the United States, or whether other articles of the treaty did or did not, in fact, afford an equivalent for them, because all the stipulations profess to be founded on reciprocal advantage and mutual con- venience. If the United States derived from that treaty privi- leges, from which other independent nations not admitted by treaty were excluded, the duration of the privileges must depend on the duration of the instrument by which they were granted ; and if the war abrogated the treaty, it determined the privileges. It had been urged, indeed, on the part of the United States, that the Treaty of 1783 was of a peculiar character, and that, because it contained a recognition of American independence, it could not be abrogated by a subsequent war between the parties. To a position of this novel nature Great Britain could not accede. She knew of no exception to the rule, that all treaties are put an end to by a subsequent war between the same parties ; she could not, therefore, consent to give her diplomatic relations with one State a ditferent degree of permanency from that on which her connection with all other States depended. Nor could she con- sider any one State at liberty to assign to a treaty made with her such a peculiarity of character as should make it, as to dura- tion, an exception to all other treaties, in order to found, on a 1 Mr. J. Q. Adams to Lord Batliurst, Sept. 25, 1815. American State Papers, fol. edit. 1834, vol. iv. p. 352. 29 338 RIGHTS OF NEGOTIATION AND TREATIES. [PART III. peculiarity thus assumed, an irrevocable title to indulgences which had all the features of temporary concessions. It was by no means unusual for treaties containing recogni- tions and acknowledgments of title, in the nature of perpetual obligation, to contain, likewise, grants of privileges liable to revo- cation. The Treaty of 1783, like many others, contained provi- sions of different character; some in their own nature irrevocable, and others merely temporary. If it were thence inferred that, because some advantages specified in that treaty would not be put an end to by the war, therefore all the other advantages were intended to be equally permanent, it must first be shown that the advantages themselves are of the same, or at least of a simi- lar character ; for the character of one advantage, recognized or conceded by treaty, can have no connection with the character of another, though conceded by the same instrument, unless it arises out of a strict and necessary connection between the advantages themselves. But what necessary connection could there be between a right to independence and a liberty to fish within British jurisdiction, or to use British territory? Liberties within British limits were as capable of being exercised by a dependent as by an independent State ; and could not, therefore, be the necessary consequence of independence. The independence of a State could not be correctly said to be granted by a treaty, but to be acknowledged by one. In the Treaty of 1783, the independence of the United States was cer- tainly acknowledged, not merely by the consent to make the treaty, but by the previous consent to enter into the provisional articles, executed in 1782. Their independence might have been acknowledged, without either the treaty or the provisional arti- cles; but by whatever mode acknowledged, the acknowledgment was, in its own nature, irrevocable. A power of revoking, or even of modifying it, would be destructive of the thing itself I and, therefore, all such power was necessarily renounced when the acknowledgment was made. The war could not put an end to it, for the reason justly assigned by the American minister; because a nation could not forfeit its sovereignty by the act of exercising it ; and for the further reason that Great Britain, when she declared war against the United States, gave them, by that very act, a new recognition of their independence. The rig-hts acknowledged by the Treaty of 1783 were not only CHAP. IL] rights of NEGOTIATION AND TREATIES. 339 distinguishable from the liberties conceded by the same treaty, in the foundation on which they stand, but they were carefully dis- tinguished in the wording of the treaty. In the 1st article, Great Britain acknowledged an independence already expressly recog- nized by the other powers of Europe, and by herself in her con- sent to enter into the provisional articles of 1782. In the 3d article. Great Britain acknowledged the right of the United States to take fish on the Banks of Newfoundland and other places, from which Great Britain had no right to exclude any independ- ent nation. But they were to have the liberiij to cure and dry them in certain unsettled places within the British territory. If the liberties thus granted were to be as perpetual and indefeasible as the rights previously recognized, it was difficult to conceive that the American plenipotentiaries would have admitted a va- riation of language so adapted to produce a different impression ; and, above all, that they should have admitted so strange a re- striction of a perpetual and indefeasible right as that with which the article concludes, which left a right so practical and so bene- ficial as this was admitted to be, dependent on the will of Bri- tish subjects, proprietors, or possessors of the soil, to prohibit its exercise altogether. It was, therefore, surely obvious that the word rigid was, throughout the treaty, used as applicable to what the United States were to enjoy in virtue of a recognized independence; and the word liberty io what they were to enjoy as concessions strictly dependent on the treaty itself.* The American minister, in his reply to this argument, disa- vowed every pretence of claiming for the diplomatic relations between the United States and Great Britain a degree of perma- nency different from that of the same relations between either of the parties and all other powers. He disclaimed all pretence of assigning to any treaty between the two nations, any pecu- liarity not founded in the nature of the treaty itself. But he submitted to the candor of the British government whether the Treaty of 1783 was not, from the very nature of its subject- matter, and from the relations previously existing between the parties to it, peculiar ? Whether it was a treaty which could 1 Earl Bathurst to Mr. J. Q. Adams, Oct. 30, 1815. American State Papers, fol. edit. 1834, vol. iv. p. 354. 340 RIGHTS OF NEGOTIATIOiq' AND TREATIES. [PART III. have been made between Great Britain and any other nation ? And if not, whether the whole scope and object of its stipula- tions were not expressly intended to establish a new and perma- nent state of diplomatic relations between the two countries, which would not and could not be annulled by the mere fact of a subsequent war? And he made this appeal with the more confidence, because the British note admitted that treaties often contained recognitions in the nature of perpetual obligation; and because it implicitly admitted that the whole Treaty of 1783 is of this character, with the exception of the article concerning the navigation of the Mississippi, and a small part of the article con- cerning the fisheries. The position, that " Great Britain knows of no exception to the rule, that all treaties are put an end to by a subsequent war," appeared to the American minister not only novel, but unwar- ranted by any of the received authorities upon the law of nations ; unsanctioned by the practice and usages of sovereign States; suited, in its tendency, to multiply the incitements to war, and to weaken the ties of peace between independent nations ; and not easily reconciled with the admission that treaties not un- usually contain, together with articles of a temporary character, liable to revocation, " recognitions and acknowledgments in the nature of perpetual obligation." A recognition or acknowledgment of title, stipulated by con- vention, was as much a part of the treaty as any other article ; and if all treaties are abrogated by war, the recognitions and acknowledgments contained in them must necessarily be null and void, as much as any other part of the treaty. If there were no exception to the rule, that war puts an end to all treaties between the parties to it, what could be the pur- pose or meaning of those articles which, in almost all treaties of commerce, were provided expressly for the contingency of war, and which during the peace are without operation? For exam- ple, the 10th article of the Treaty of 1794, between the United States and Great Britain, stipulated that " Neither the debts due from individuals of the one nation to individuals of the other, nor shares, nor moneys, which they may have in the public funds, or in the public or private banks, shall ever, in any event of ivar, or national differences, be sequestered or confis- cated." If war put an end to all treaties, what could the parties to this engagement intend by making it formally an article of CHAP. II.] RIGHTS OP NEGOTIATION AND TREATIES. 341 the treaty ? According to the principle laid down, excluding all exception, by the British note, the moment a war broke out between the two countries this stipulation became a dead letter, , and either State might have sequestered or confiscated those spe- cified properties, without any violation of compact between the two nations. The American minister believed that there were many excep- tions to the rule by which the treaties between nations are mutually considered as terminated by the intervention of a war; that these exceptions extend to all engagements contracted with the understanding that they are to operate equally in war and peace, or exclusively during war ; to all engagements by which the parties superadd the sanction of a formal compact to prin- ciples dictated by the eternal laws of morality and humanity ; and, finally, to all engagements, which, according to the expres- sion of the British note, are in the nature of perpetual obligation. To the first and second of these classes might be referred the 10th article of the Treaty of 1794, and all treaties or articles of trea- ties stipulating the abolition of the slave-trade. The treaty of peace of 1783 belongs to the third class. The reasoning of the British note seemed to confine this per- petuity of obligation to recognitions and acknowledgments of title, and to consider its perpetual nature as resulting from the subject-matter of the contract, and not from the engagement of the contractor. While Great Britain left the United States un- molested in the enjoyment of all the advantages, rights, and liberties stipulated in their behalf in the Treaty of 1783, it was immaterial whether she founded her conduct upon the mere fact that the United States are in possession of such rights, or whe- ther she was governed by good faith and respect for her own engagements. But if she contested any of these rights, it was to her engagements only that the United States could appeal, as the rule for settling the question of right. If this appeal were rejected, it ceased to be a discussion of right ; and this observa- tion applied as strongly to the recognition of independence and the boundary line, in the Treaty of 1783, as to the fisheries. It was truly observed in the British note, that in that treaty the inde- pendence of the United States was not granted, but acknow- ledged; and it was added, that it might have been acknowledged without any treaty, and that the acknowledgment, in whatever 29* i 342 RIGHTS OF NEGOTIATION AND TREATIES. [PART III. mode, would have been irrevocable. But the independence of the United States was precisely the question upon which a pre- vious war between them and Great Britain had been waged. Other nations might acknowledge their independence without a treaty, because they had no right or claim of right to contest it; but this acknowledgment, to be binding upon Great Britain, could have been made only by treaty, because it included the dis- solution of one social compact between the parties, as well as the formation of another. Peace could exist between the two nations only by the mutual pledge of faith to the new social relations established between them ; and hence it was, that the stipula- tions to that treaty were in the nature of perpetual obligation, and not liable to be forfeited by a subsequent war, or by any declaration of the will of either party, without the assent of the other.i The above analysis of the correspondence which took place relating to this subject, has been inserted as illustrative of the general question, how far treaties are abrogated by war between the parties to them ; but the particular controversy itself was finally settled between the two countries on the basis of compro- mise, by the convention of 1818, in which the liberty claimed by the United States in respect to the fishery within the British jurisdiction and territory, was confined to certain geographical limits.2 § 10. Trea- Treaties, properly so called, or fccdera, are those of ratton'^of^^" friendship and alliance, commerce, and navigation, which cease which, even if perpetual in terms, expire of course : — m pertain ' ' ' ' ^ ' cases. 1. In case either of the contracting parties loses its existence as an independent State. 2. Where the internal constitution of government of either State is so changed, as to render the treaty inapplicable under circumstances difi'erent from those with a view to which it was concluded. Here the distinction laid down by institutional writers between 1 Mr. J. Q. Adams to Lord Castlereagh, Jan. 22, 1816. American State Papers, fol. edit. 1834, vol. iv. p. 356. 2 Vide supra, pt. 2, ch. iv. § 8, p. 236. CHAP. II.] RIGHTS OF NEGOTIATION AND TREATIES. 343 real and personal treaties becomes important. The first bind the contracting parties independently of any change in the sove- reignty, or in the rulers of the State. The latter include only treaties of mere personal alliance, such as are expressly made with a view to the person of the actual ruler or reigning sove- reign, and though they bind the State during his existence, expire with his natural life or his public connection with the State.i 3. In case of war between the contracting parties; unless such stipulations as are made expressly with a view to a rupture, such as the period of time allowed to the respective subjects to retire with their effects, or other limitations of the general rights of war. Such is the stipulation contained in the 10th article of the Treaty of 1794, between Great Britain and the United States, — providing that private debts and shares or moneys in the public funds, or in public or private banks belonging to private indi- viduals, should never, in the event of war, be sequestered or con- fiscated. There can be no doubt that the obligation of this article would not be impaired by a supervening war, being the very contingency meant to be provided for, and that it must remain in full force until mutually agreed to be rescinded.^ 4. Treaties expire by their own limitation, unless revived by express agreement, or when their stipulations are fulfilled by the respective parties, or when a total change of circumstances renders them no longer obligatory. Most international compacts, and especially treaties § ii. Trea- of peace, are of a mixed character, and contain articles and con- of both kinds, which renders it frequently difficult to thTrenewal distinguish between those stipulations which are per- "^^ P^-^^*^- petual in their nature, and such as are extinguished by war be- tween the contracting parties, or by such changes of circum- stances as affect the being of either party, and thus render the compact inapplicable to the new condition of things. It is for this reason, and from abundance of caution, that stipulations are 1 Vide ante, pt. i. ch. 2, § 11, p. 36. 8 Vattel, liv. iii. ch. 10, § 175. Kent's Comment, on American Law, vol. i. p. 175. 5th ed; 344 RIGHTS OP NEGOTIATION. AND TREATIES. [PART III. frequently inserted in treaties of peace, expressly reviving and con- firming the treaties formerly subsisting between the contracting parties, and containing stipulations of a permanent character, or in some other mode excluding the conclusion that the obligation of such antecedent treaties is meant to be waived by either party. The reiterated confirmations of the treaties of Westphalia and Utrecht, in almost every subsequent treaty of peace or commerce between the same parties, constituted a sort of written code of conventional law, by which the distribution of power and terri- tory among the principal European States was permanently settled, until violently disturbed by the partition of Poland and the wars of the French revolution. The arrangements of terri- tory and political relations substituted by the treaties of Vienna for the ancient conventional law of Europe, and doubtless in- tended to be of a similar permanent character, have already undergone, in consequence of the French, Polish, and Belgic revolutions of 1830, very important modifications, of which we have given an account in another work.^ §12. Trea- ^^"^ convention of guaranty is one of the most usual. tiesofgua- international contracts. It is an engagement by which ranty. _ _ o o ... one State promises to aid another where it is inter- rupted, or threatened to be disturbed, in the peaceable enjoy- ment of its rights by a third power. It may be applied to every species of right and obligation that can exist between nations; to the possession and boundaries of territories, the sovereignty of the State, its constitution of government, the right of succession, &c. ; but it is most commonly applied to treaties of peace. The guaranty may also be contained in a distinct and separate con- vention, or included among the stipulations annexed to the prin- cipal treaty intended to be guaranteed. It then becomes an accessary obligation.- The guaranty may be stipulated by a third power not a party to the principal treaty, by one of the contracting parties in favor 1 Wheaton, Hist. Law of Nations, pp. 435-445, 538-551. 2 Vattel, Droit des Gens, liv. ii. ch. 16, §§ 235-239. Kluber, Droit des Gens Moderne de I'Europe, pt. ii. tit. 2, sect. 1, ch. 2, §§157, 158. Martens, Pr6cis, &c., § 63. CHAP. II.] RIGHTS OF NEGOTIATION AND TREATIES. 345 of another, or mutually between all the parties. Thus, by the treaty of peace concluded at Aix-la-Chapelle in 1748, the eight high contracting parties mutually guaranteed to each other all the stipulations of the treaty. The guaranteeing party is bound to nothing more than to render the assistance stipulated. If it prove insufficient, he is not obliged to indemnify the power to whom his aid has been pro- mised. Nor is he bound to interfere to the prejudice of the just rights of a third party, or in violation of a previous treaty ren- dering the guaranty inapplicable in a particular case. Guaranties apply only to rights and possessions existing at the time they are stipulated. It was upon these grounds that Louis XV. declared, in 1741, in favor of the Elector of Bavaria against Maria The- resa, the heiress of the Emperor Charles VI., although the court of France had previously guaranteed the pragmatic sanction of that Emperor, regulating the succession to his hereditary States. And it was upon similar grounds, that France refused to fulfil the treaty of Alliance of 1756 with Austria, in respect to the pretensions of the latter power upon Bavaria, in 1778, which threatened to produce a war with Russia. Whatever doubts may be suggested as to the application of these principles to the above cases, there can be none respecting the principles them- selves, which are recognized by all the text writers.^ These writers make a distinction between a Surety and a Guarantee. Thus Vattel lays it down, that where the matter relates to things which another may do or give as well as he who makes the original promise, as, for instance, the payment of a sum of money, it is safer to demand a surety (caution) than a guarantee (garant). For the surety is bound to make good the promise in default of the principal ; whereas the guarantee is only obliged to use his best endeavors to obtain a performance of the promise from him who has made it.^ Treaties of alliance may be either defensive or offen- •^ § 13. Trea- sive. In the first case, the engagements of the ally ex- tiesofaiii- tend only to a war really and truly defensive ; to a war of ' Vattel, liv. ii. ch. 16, § 238. Flassan, Ilistoire de la Diplomatle Franraise, torn. vii. p. 195. 2 Vattel, § 239. 346 RIGHTS OF NEGOTIATION AND TREATIES. [PART III. aggression first commenced, in point of fact, against the other contracting party. In the second, the ally engages generally to cooperate in hostilities against a specified power, or against any power with whom the other party may be engaged in war. An alliance may also be both offensive and defensive. General alliances are to be distinguished from treaties tiiictionbe- of limited succor and subsidy. Where one State stipu- ra\°ai'i'i;uicr ^^tes to fumish to another a limited succor of troops, oflimked'* ships of War, money, or provisions, without any promise succour lookins; to an eventual enarasement in sfeneral hostilities, and subsidy. ^ & & & » such a treaty does not necessarily render the party fur- nishing this limited succor, the enemy of the opposite bellige- rent. It only becomes such, so far as respects the auxiliary forces thus supplied ; in all other respects it remains neutral. Such for example, have long been the accustomed relations of the confederated Cantons of Switzerland with the other European powers.' § 15. Casus Grotius, and the other text writers, hold that the defensive ^ casus /(Ecleris of a defensive alliance does not apply to suiiance. -^^g ^g^gg Qf ^ ^jjj. manifestly unjust, that is, to a war of aggression on the part of the power claiming the benefit of the alliance. And it is even said to be a tacit condition annexed to every treaty made in time of peace, stipulating to afford suc- cors in time of war, that the stipulation is applicable only to a just war. To promise assistance in an unjust war would be an obligation to commit injustice, and no such contract is valid. But, it is added, this tacit restriction in the terms of a general alliance can be applied only to a manifest case of unjust aggression on the part of the other contracting party, and cannot be used as a pretext to elude the performance of a positive and unequivocal engagement, without justly exposing the ally to the imputation of bad faith. In doubtful cases, the presumption ought rather to be in favor of our confederate, and of the justice of his quarrel.^ » Vattel, Droit des Gens, llv. iii. ch. 6, §§ 79-82. 2 Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 15, § 13 ; cap. 25, § 4. Bynlcershoek, Quffist. Jur. Pub. lib. i. cap. 9. Vattel, Droit des Gens, liv. ii. ch. 12, § 168; liv. iii. ch. 6, §§ 86-96. I CHAP. II.] RIGHTS OF NEGOTIATION AND TREATIES. 347 The application of these general principles must depend upon the nature and terms of the particular guaranties contained in the treaty in question. This will best be illustrated by specific examples. Thus, the States-General of Holland were engaged, Alliance previously to the war of 1756, between France and ^'^^^^'^^1} ■ r J ' ^ Great Kri- Great Britain, in three different guaranties and defensive tain and; ,1 rr,, n i • Holland. treaties with the latter power. The first was the ori- ginal defensive alliance, forming the basis of all the subsequent compacts between the two countries, concluded at Westminster in 1678. In the preamble to this treaty, the preservation of each other's dominions was stated as the cause of making it ; and it stipulated a mutual guaranty of all they already enjoyed, or might thereafter acquire by treaties of peace, "in Europe only." They further guaranteed all treaties which were at that time made, or might thereafter conjointly be made, with any other power. They stipulated also to defend and preserve each other in the possession of all towns and fortresses which did at that time belong, or should in future belong, to either of them; and, that for this purpose when either nation was attacked or molested, the other should immediately succor it with a certain number of troops and ships, and should be obliged to break with the aggressor in two months after the party that was already at war should require it ; and that they should then act conjointly, with all their forces, to bring the common enemy to a reasonable accommodation. The second defensive alliance then subsisting between Great Britain and Holland was that stipulated by the treaties of barrier and succession, of 1709 and 1713, by which the Dutch barrier on the side of Flanders was guaranteed on the one part, and the Protestant succession to the British crown, on the other ; and it was mutually stipulated, that, in case either party should be attacked, the other should furnish, at the requisition of the injured party, certain specified succors; and if the danger should be such as to require a greater force, the other ally should be obliged to augment his succors, and ultimately to act with all his power in open war against the aggressor. The third and last defensive alliance between the same powers, was the treaty concluded at the Hague in 1717, to which France was also a party. The object of this treaty was declared to be I 348 RIGHTS OF NEGOTIATION AND TREATIES. [PART III. the preservation of each other reciprocally, and the possession of their dominions, as established by the treaty of Utrecht. The contracting parties stipulated to defend all and each of the articles of the said treaty, as far as they relate to the contracting parties respectively, or each of them in particular; and they gua- rantee all the kingdoms, provinces, states, rights, and advantages, which each of the parties at the signing of that treaty possessed, confining this guarantee to Europe only. The succors stipulated by this treaty were similar to those above mentioned ; first, inter- position of good offices, then a certain number of forces, and lastly, declaration of war. This treaty was renewed by the quadruple alliance of 1718, and by the treaty of Aix-la-Cha- pelle, 1748. It was alleged on the part of the British court, that the States- General had refused to comply with the terms of these treaties, although Minorca, a possession in Europe which had been secured to Great Britain by the treaty of Utrecht, was attacked by France. Two answers were given by the Dutch government to the de- mand of the stipulated succors : — 1. That Great Britain was the aggressor in the war; and that, unless she had been first attacked by France, the casus fatderis did not arise. 2. That admitting that France was the aggressor in Furope, yet it was only in consequence of the hostilities previously com- menced in America, which were expressly excepted from the terms of the guarantees. To the first of these objections it was irresistibly replied by the elder Lord Liverpool, that although the treaties which contained these guarantees were called defensive treaties only, yet the words of them, and particularly that of 1678, which was the basis of all the rest, by no means expressed the point clearly in the sense of the objection, since they guaranteed " all the rights and possessions " of both parties, against " all kings, princes, repub- lics, and states ; " so that if either should " be attacked or mo- lested by hostile act, or open war, or in any other manner disturbed in the possession of his states, territories, rights, immunities, and freedom of commerce," it was then declared what should be done in defence of these objects of the gua- rantee, by the^ ally who was not at war, but it was nowhere CHAP. II.] EIGHTS OF NEGOTIATION AND TREATIES. 349 mentioned as necessary that the attack of these should be the first injury or attack. "Nor," continues Lord Liverpool, "doth this loose manner of expression appear to have been an omission or inaccuracy. They who framed these guarantees certainly chose to leave this question, without any further explanation, to that good faith which must ultimately decide upon all contracts between sovereign States. It is not presumed that they hereby meant, that either party should be obliged to support every act of violence or injustice which his ally might be prompted to com- mit tfirough views of interest or ambition ; but, on the other hand, they were cautious of affording too frequent opportunities to pretend that the case of the guarantees did not exist, and of eluding thereby the principal intention of the alliance ; both these inconveniences were equally to be avoided ; and they wisely thought fit to guard against the latter, no less than the former. They knew that in every war between civilized nations, each party endeavors to throw upon the other the odium and guilt of the first act of provocation and aggression ; and that the worst of causes was never without its excuse. They foresaw that this alone would unavoidably give sufficient occasion to endless cavils and disputes, whenever the infidelity of an ally inclined him to avail himself of them. To have confined, therefore, the case of the guarantee by a more minute description of it, and under closer restrictions of form, would have subjected to still greater uncertainty a point which, from the nature of the thing itself, was already too liable to doubt: — they were sensible that the cases would be infinitely various ; that the motives to self- defence, though just, might not always be apparent; that an art- ful enemy might disguise the most alarming preparations ; and that an injured nation might be necessitated to commit even a preventive hostility, before the danger which caused it could be publicly known. Upon such considerations, these negotiators wisely thought proper to give the greatest latitude to this ques- tion, and to leave it open to a fair and liberal construction, such as might be expected from friends, whose interests these treaties were supposed to have forever united." ^ 1 Discourse on the Conduct of the Government of Great Britain in respect to Neutral Nations. By Charles, Earl of Liverpool, 1st ed. 1757. 30 350 EIGHTS OP NEGOTIATION AND TREATIES. [PART III. His lordship's answer to the next objection, that the hostilities commenced by France in Europe were only in consequence of hostilities previously commenced in America, seems equally satis- factory, and will serve to illustrate the good faith by which these contracts ought to be interpreted. " If the reasoning on which this objection is founded was admitted, it would alone be suffi- cient to destroy the effects of every guarantee, and to extinguish that confidence which nations mutually place in each other, on the faith of defensive alliances ; it points out to the enemy a certain method of avoiding the inconvenience of such an al- liance ; it shows him where he ought to begin his attack. Let only the first effort be made upon some place not included in the guarantee, and, after that, he may pursue his views against its very object, without any apprehension of the consequence. Let France first attack some little spot belonging to Holland, in America, and her barrier would be no longer guaranteed. To argue in this manner is to trifle with the most solemn engage- ments. The proper object of guarantees is the preservation of some particular country to some particular power. The treaties above mentioned promise the defence of the dominions of each party in Europe, simply and absolutely, whenever they are attacked or molested. If, in the present war, the first attack was made out of Europe, it is manifest that long ago an attack hath been made in Europe ; and that is, beyond a doubt, the case of these guarantees. " Let us try, however, if we cannot discover what hath once been the opinion of Holland upon a point of this nature. It hath already been observed that the defensive alliance between England and Holland, of 1678, is but a copy of the first twelve articles of the French Treaty of 1662. Soon after Holland had concluded this last alliance with France, she became engaged in a war with England. The attack then began, as in the present case, out of Europe, on the coast of Guinea ; and the cause of the war was also the same, — a disputed right to certain posses- sions out of the bounds of Europe, some in Africa, and others in the East Indies. Hostilities havins; continued for some time in those parts, they afterwards commenced also in Europe. Imme- diately upon this, Holland declared that the case of that gua- rantee did exist, and demanded the succors which were stipu- lated. I need not produce the memorials of their ministers to I CHAP. II.] RIGHTS OF NEGOTIATION AND TREATIES. 351 prove this ; history sufficiently informs us that France acknow- ledged the claim, granted the succors, and entered even into open war in the defence of her ally. Here, then, we have the senti- ments of Holland on the same article, in a case minutely parallel. The conduct of France also pleads in favor of the same opinion, though her concession, in this respect, checked at that time her youthful monarch in the first essay of his ambition, delayed for som.e months his entrance into the Spanish provinces, and brought on him the enmity of England." ^ The nature and extent of the obligations contracted Alliance by treaties of defensive alliance and guarantee, will be Great Bri- further illustrated by the case of the treaties subsisting Portugal. between Great Britain and Portugal, which has been before alluded to for another purpose.^ The treaty of alliance, origin- ally concluded between these powers in 1642, immediately after the revolt of the Portuguese nation against Spain, and the esta- blishment of the House of Braganza on the throne, was renewed, in 1654, by the Protector, Cromwell, and again confirmed by the Treaty of 1661, between Charles 11. and Alfonzo VI., for the marriage of the former prince with Catharine of Braganza. This last-mentioned treaty fixes the aid to be given, and declares that Great Britain will succor Portugal " on all occasions, when that country is attacked." By a secret article, Charles II., in consider- ation of the cession of Tangier and Bombay, binds himself " to defend the colonies and conquests of Portugal against all ene- mies, present or future." In 1703, another treaty of defensive and perpetual alliance was concluded at Lisbon, between Great Britain and the States-General on the one side, and the King of Portugal on the other ; the guarantees contained in which were again confirmed by the treaties of peace at Utrecht, between Portugal and France, in 1713, and between Portugal and Spain, in 1715. On the emigration of the Portuguese royal family to Brazil, in 1807, a convention was concluded between Great Bri- tain and Portugal, by which the latter kingdom is guaranteed to the lawful heir of the House of Braganza, and the British government promises never to recognize any other ruler. By the more recent treaty between the two powers, concluded at Rio 1 Liverpool's Discourse, p. 86. 2 yiJe ante, Pt. II. cli 1, § 8, p. 98. 352 RIGHTS OF NEGOTIATION AND TREATIES. [PART III. Janeiro, in 1810, it was declared, "that the two powers have at^reed on an alliance for defence, and reciprocal guarantee against every hostile attack, conformably to the treaties already subsisting between them, the stipulations of which shall remain in full force, and are renewed by the present treaty in their fullest and most extensive interpretation." This treaty confirms the stipulation of Great Britain to acknowledge no other sovereign of Portugal but the heir of the House of Braganza. The Treaty of Vienna, of the 22d January, 1815, between Great Britain and Portugal, contains the following article : — " The treaty of alliance at Rio Janeiro, of the 19th February, 1810, being founded on temporary circumstances, which have happily ceased to exist, the said treaty is hereby declared to be of no effect ; without prejudice, however, to the ancient treaties of alliance, friendship, and guarantee, which have so long and so happily subsisted between the two crowns, and which are hereby renewed by the high contracting parties, and acknowledged to be of full force and effect." Such was the nature of the compacts of alliance and guaran- tee subsisting between Great Britain and Portugal, at the time when the interference of Spain in the affairs of the latter king- dom compelled the British government to interfere, for the pro- tection of the Portuguese nation against the hostile designs of the Spanish court. In addition to the grounds stated in the Bri- tish Parliament, to justify this counteracting interference, it was urged, in a very able article on the affairs of Portugal, contem- poraneously published in the Edinburgh Review, that although, in general, an alliance for defence and guarantee does not impose any obligation, nor, indeed, give any warrant to interfere in intestine divisions, the peculiar circumstances of the case did constitute the casus fcederis contemplated by the treaties in ques- tion. A defensive alliance is a contract between several States, by which they agree to aid each other in their defensive (or, in other words, in their just) wars against other States. Morally speaking, no other species of alliance is just, because no other species of war can be just. The simplest case of defensive war is, where our ally is openly invaded with military force, by a power to whom she has given no just cause of war. If France or Spain, for instance, had marched an army into Portugal to subvert its constitutional government, the duty of England would CHAP. II.] RIGHTS OF NEGOTIATION AND TREATIES. 353 have been too evident to render a statement of it necessary. But this was not the only case to which the treaties were appli- cable. If troops were assembled and preparations made, with the manifest purpose of aggression against an ally ; if his sub- jects were instigated to revolt, and his soldiers to mutiny ; if insurgents on his territory were supplied with money, with arms, and military stores; if, at the same time, his authority were treated as an usurpation, and all participation in the protection granted to other foreigners refused to the well-affected part of his subjects, while those who proclaimed their hostility to his person were received as the most favored strangers ; in such a combination of circumstances, it could not be doubted that the case foreseen by defensive alliances would arise, and that he would be entitled to claim that succor, either general or specific, for which his alliances had stipulated. The wrong would be as complete, and the danger might be as great, as if his territory were invaded by a foreign force. The mode chosen by his enemy might even be more effectual, and more certainly destruc- tive, than open war. Whether the attack made on him be open or secret, if it be equally unjust, and expose him to the same peril, he is equally authorized to call for aid. All contracts, under the law of nations, are interpreted as extending to every case manifestly and certainly parallel to those cases for which they provide by express words. In that law, which has no tri- bunal but the conscience of mankind, there is no distinction between the evasion and the violation of a contract. It requires aid against disguised as much as against avowed injustice ; and it does not fall into so gross an absurdity as to make the obliga- tion to succor less where the danger is greater. The only rule for the interpretation of defensive alliances seems to be, that every wrong which gives to one ally a just cause of war entitles him to succor from the other ally. The right to aid is a second- ary right, incident to that of repelling injustice by force. Wher- ever he may morally employ his own strength for that purpose, he may, with reason, demand the auxiliary strength of his ally.i 1 Vattel's reasoning is still more conclusive in a case of guarantee : — "Si I'alliance defensive porte une guarantie de toutes les terres que rallit possede actuellement, le casus foederis se deploie toutes les fois que ces terres sent enva- hies ou mena^ies d'invasion." Liv. iii. ch. 6, § 91. 30* 354 RIGHTS OF . NEGOTIATION AND TREATIES. [PART III. Fraud neither gives nor takes away any right. Had France, in the year 1715, assembled squadrons in her harbors and troops on her coasts ; had she prompted and distributed writings against the legitimate government of George I. ; had she received with open arms battalions of deserters from his troops, and furnished the army of the Earl of Mar with pay and arms when he pro- claimed the Pretender ; Great Britain, after demand and refusal of reparation, would have had a perfect right to declare war against France, and, consequently, as complete a title to the succor which the States-General were bound to furnish, by their treaties of alliance and guarantee of the succession of the House of Hanover, as if the pretended king, James HI., at the head of the French army, were marching on London. The war would be equally defensive on the part of England, and the obligation equally incumbent on Holland. It would show a more than ordinary defect of understanding, to confound a war defensive in its principles with a war defensive in its operations. Where attack is the best mode of providing for the defence of a State, the war is defensive in principle, though the operations are offen- sive. Where the w^ar is unnecessary to safety, its offensive cha- racter is not altered ; because the wrongdoer is reduced to defen- sive warfare. So a State, against which dangerous wrong is manifestly meditated, may prevent it by striking the first blow, w^ithout thereby waging a war in its principle offensive. Accord- ingly, it is not every attack made on a State that will entitle it to aid under a defensive alliance ; for if that State had given just cause of war to the invader, the war would not be, on its part, defensive in principle.^ § 16. Hos- The execution of a treaty is sometimes secured by Scutioif ^ hostages given by one party to the other. The most of treaties, recent and remarkable example of this practice occurred at the peace of Aix-la-Chapelle, in 1748 ; where the restitution of Cape Breton, in North America, by Great Britain to France, was secured by several British peers sent as hostages to Paris.- 1 "Dans une alliance defensive le casus fcederis n'existe pas tout de suite dcs que notre allie est attaqu6, II faut voir encore s'il n'a point donn6 si son enne- mi un juste sujet de lui faire la guerre. S'il est dans le tort, il faut I'engager h. donner une satisfaction raisonnable." Vattel, liv. iii. ch. 6, § 90. 2 Vattel, liv. ii. ch. 16, §§ 245-261. CHAP. II.] RIGHTS OF NEGOTIATION AND TREATIES. 355 Public treaties are to be interpreted like other laws § 17. in- aiid contracts. Such is the inevitable imperfection and o?Tmitie=° ambiguity of all human language, that the mere words alone of any writing, literally expounded, will go a very little way towards explaining its meaning. Certain technical rules of interpretation have, therefore, been adopted by writers on ethics and public law, to explain the meaning of international com- pacts, in cases of doubt. These rules are fully expounded by Grotius and his commentators ; and the reader is referred espe- cially to the principles laid down by Vattel and Rutherforth, as containing the most complete view of this important subject.^ Negotiations are sometimes conducted under the §is. Me- mediation of a third power, spontaneously tendering its diatioii. good offices for this purpose, or upon the request of one or both of the litigating powers, or in virtue of a previous stipulation for that purpose. If the mediation is spontaneously offered, it may be refused by either party ; but if it is the result of a previous agreement between the two parties, it cannot be refused without a breach of good faith. When accepted by both parties, it becomes the right and the duty of the mediating power to inter- pose its advice, with a view to the adjustment of their differ- ences. It thus becomes a party to the negotiation, but has no authority to constrain either party to adopt its opinion. Nor is it obliged to guarantee the performance of the treaty con- cluded under its mediation, though, in point of fact, it frequently does S0.2 The art of negotiation seems, from its very nature, § lo. Di- hardly capable of being reduced to a systematic science, history. It depends essentially on personal character and qualities, united with a knowledge of the world and experience in business. These talents may be strengthened by the study of history, and . especially the history of diplomatic negotiations ; but the want of them can hardly be supplied by any knowledge derived 1 Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 10. Yattc!, liv. li. ch. 17. Kutlier- forth's Inst. b. ii. ch. 7. 2 Kluber, Droit des Gens Modcrne dc I'Europe, Pt. II. tit. 2, § 1 ; cb. 2, §160. 356 RIGHTS OF NEGOTIATION AND TREATIES. [PART III. merely from books. One of the earliest works of this kind- is that commonly called Le .Par/ait Ambassadeur, originally pub- lished in Spanish by Don Antonio de Vera, long time ambassa- dor of Spain at Venice, who died in 1658. It was subsequently published by the author in Latin, and different translations ap- peared in Italian and French. Wicquefort's book, published in 1679, under the title of U Ambassadeur et ses Fonctions, although its principal object is to treat of the rights of legation, contains much valuable information upon the art of negotiation. Cal- lieres, one of the French plenipotentiaries at the Treaty of Ryswick, published, in 1716, a work entitled J)e la Maniere de Nc^ocier avec les Souverains, which obtained considerable reputation. The Abb(3 Mably also attempted to treat this subject systematic- ally, in an essay entitled Principes des Negotiations, which is commonly prefixed as an introduction to his Droit Publique de r Europe, in the various editions of the works of that author. A catalogue of the different histories which have appeared of par- ticular negotiations would be almost interminable, but nearly all that is valuable in them will be found collected in the excellent work of M. Flassan, entitled UHistoire de la Diplomatie Fran- caise. The late Count de Segur's compilation from the papers of Favier, one of the principal secret agents employed in the double diplomacy of Louis XV., entitled Politique de tons les Cabinets de V Europe pendant les Ptegnes de Louis XV. et de Louis XVI., with the notes of the able and experienced editor, is a work which also throws great light upon the history of French diplomacy. A history of treaties, from the earliest times to the Emperor Charlemagne, collected from the ancient Latin and Greek authors, and from other monuments of antiquity, was published by Barbeyrac, in 1739.^ It had been preceded by the immense collection of Dumont, embracing all the public treaties of Europe, from the age of Charlemagne to the commencement of the eighteenth century.^ The best collections of the more modern European treaties are those published at different periods ' Histoire des Anciens Trait6s, par Barbeyrac, forming the 5th vol. of Du- ra ont's Supplement au Corps Diplomatique. 2 Corps Universel Diplomatique uu Droit des Gens, &c., 8 tomes fol. Am- sterd. 1726-1731. Supplement au Corps Universel Diplomatique, 5 tomes fol. 1739. CHAP. II.] RIGHTS OF NEGOTIATION AND TREATIES. 357 by Professor Martens, of Gottingen, including the most important public acts upon which the present conventional law of Europe is founded. To these may be added Koch's Histoire abreg-ee des Traites de Paix depuis la Paix de Westphalie, continued by Schoell. A complete collection of the proceedings of the Con- gress of Vienna has also been published in German, by Kliiber.^ 1 Acten des AViener Congresses in den Jahren, 1814 und 1815 ; von J. L. Kliiber. Erlangen, 1815 und 1816 : 6 Bde. 8vo. PART FOUETH. INTERNATIONAL EIGHTS OF STATES IN THEIR HOSTILE RELATIONS. I n PAET FOURTH. INTERNATIONAL RIGHTS OF STATES IN THEIR HOSTILE RELATIONS. CHAPTER L COMMENCEMENT OF WAR, AND ITS IMMEDIATE EFFECTS. The independent societies of men, called States, ac- ^ i. Ee- knowledge no common arbiter or judge, except such as fjr'cfbie' are constituted by special compact. The law by which ^^^g^^^^- they are governed, or profess to be governed, is deficient tions. in those positive sanctions which are annexed to the municipal code of each distinct society. Every State has therefore a right to resort to force, as the only means of redress for injuries in- flicted upon it by others, in the same manner as individuals would be entitled to that remedy were they not subject to the laws of civil society. Each State is also entitled to judge for itself, what are the nature and extent of the injuries which will justify such a means of redress. Among the various modes of terminating the differences be- tween nations, by forcible means short of actual war, are the following : — 1. By laying an embargo or sequestration on the ships and goods, or other property of the offending nation, found within the territory of the injured State. 2. By taking forcible possession of the thing in controversy, by securing to yourself by force, and refusing to the other nation, the enjoyment of the right drawn in question. 3. By exercising the right of vindictive retaliation, [retorsio facti,) or of amicable retaliation, {retorsion de droit) ; by which 31 362 COMMENCEMENT OF WAR, [PART IV. last, the one nation applies, in its transactions with the other, the same rule of conduct by which that other is governed under similar circumstances. 4. By making reprisals upon the persons and things belonging to the offending nation, until a satisfactory reparation is made for the alleged injury.^ , Pg This last seems to extend to every species of forcible prisais. means for procuring redress, short of actual war, and, of course, to include all the others above enumerated. Reprisals are negalwc, when a State refuses to fulfil a perfect obligation which it has contracted, or to permit another nation to enjoy a right which it claims. They are positive, when they consist in seizing the persons and effects belonging to the other nation, in order to obtain satisfaction.^ Reprisals are also either g-eno'al or- special. They ix.xe general, when a State which has received, or supposes it has received, an injury from another nation, delivers commissions to its officers and subjects to take the persons and property belonging to the other nation, wherever the same may be found. It is, according to present usage, the first step which is usually taken at the commencement of a public war, and may be considered as amounting to a declaration of hostilities, unless satisfaction is made by the offending State. Special reprisals are, where letters of marque are granted, in time of peace, to particular individuals who have suffered an injury from the government or subjects of another nation.^ Reprisals are to be granted only in case of a clear and open denial of justice. The right of granting them is vested in the sovereign or supreme power of the State, and, in former times, was regulated by treaties and by the municipal ordinances of different nations. Thus, in England, the statute of 4 Hen. V., cap. 7, declares, " That if any subjects of the realm are oppressed in time of peace by any foreigners, the king will grant marque in due form to all that feel themselves grieved ; " which form is 1 Vattel, liv. ii. ch. 18. Kliiber, Droit des Gens Moderne de I'Europe, § 234. 2 Kliiber, § 234, Note (c). 3 Bynkershoek, Quasst. Jur. Pub. lib. i. Duponceau's Transl. p. 182, Note. CHAP. I.] AND ITS IMMEDIATE EFFECTS. 363 specially pointed out, and directed to be observed in the statute. So, also, in France, the celebrated marine ordinance of Louis XIV., of 1681. prescribed the forms to be observed for obtaining special letters of marque by French subjects against those of other nations ; but these special reprisals in time of peace have, almost entirely fallen into disuse.^ Any of these acts of reprisal, or resort to forcible ^ 3, Effect means of redress between nations, may assume the cha- of reprisals. racter of war in case adequate satisfaction is refused by the offending State. " Reprisals," says Vattel, " are used between nation and nation, in order to do themselves justice when they cannot otherwise obtain it. If a nation has taken possession of what belongs to another, if it refuses to pay a debt, to repair an injury, or to give adequate satisfaction for it, the latter may seize something belonging to the former, and apply it to its own advantage, till it obtains payment of what is due, together with interest and damages ; or keep it as a pledge till the offending nation has refused ample satisfaction. The effects thus seized are preserved, while there is any hope of obtaining satisfaction or justice. As soon as that hope disappears they are confiscated, and then reprisals are accomplished. If the two nations, upon this ground of quarrel, come to an open ruptm-e, satisfaction is considered as refused from the moment that war is declared, or hostilities commenced ; and then, also, the effects seized may be confiscated." 2 Thus, where an embargo w^as laid on Dutch property § 4. Em- in the ports of Great Britain, on the rupture of the vious to de- peace of Amiens, in 1803, under such circumstances as hostilities. were considered by the British government as constituting a hostile aggression on the part of Holland, Sir W. Scott, (Lord Stowell.) in delivering his judgment in this case, said, that " the seizure was at first equivocal ; and if the matter in dispute had 1 Vattel, Droit des Gens, liv. ii. ch. 18, §§ 342-346. Bynkershoek, Qua-st. Jur. Pub. lib. i. cap. 24. Martens, Precis du Droit des Gens Moderne de I'Eu- rope, liv. viii. ch. 2, § 260. Martens, Essai concernant les Armateurs, § 4. 2 Vattel, Droit des Gens, liv. ii. ch. 18, § 342. 364 COMMENCEMENT OF WAR, [PART IV. terminated in reconciliation, the seizure would have been con- verted into a mere civil embargo, so terminated. Such would have been the retroactive effect of that course of circumstances. On the contrary, if the transaction end in hostility, the retro- active effect is exactly the other way. It impresses the direct hostile character upon the original seizure ; it is declared to be no embargo ; it is no longer an equivocal act, subject to two interpretations ; there is a declaration of the animus by which it is done ; that it was done hostili animo, and it is to be considered as a hostile measure, ab initio, against persons guilty of injuries which they refuse to redeem, by any amicable alteration of their measures. This is the necessary course, if no particular compact intervenes for the restoration of such property, taken before a formal declaration of hostilities." ^ § 5. Right The right of making war, as well as of authorizing war, in " reprisals, or other acts of vindictive retaliation, belongs, vested. i^^ every civilized nation, to the supreme power of the State. The exercise of this right is regulated by the fundamen- tal laws or municipal constitution in each country, and may be delegated to its inferior authorities in remote possessions, or even to a commercial corporation — such, for example, as the British East India Company — exercising, under the authority of the State, sovereign rights in respect to foreign nations.^ § 6. Pub- A contest by force between independent sovereign lemn war. States is Called a public war. If it is declared in form, or duly commenced, it entitles both the belligerent parties to all the rights of war against each other. The voluntary or positive law of nations makes no distinction, in this respect, between a just and an unjust war. A war in form, or duly commenced, is to be considered, as to its effects, as just on both sides. What- ever is permitted by the laws of war to one of the belligerent parties is equally permitted to the other.^ 1 Robinson's Adm. Rep. vol. v. p. 246. The Boedes Lust. 2 Yattel, liv. iii. cli. 1, § 4. Martens, Precis, &c. Hv. vill. ch. 2, §§ 260, 264. 3 Vattel, Droit des Gens, liv. iii. ch. 12. Rutherforth, Inst. b. ii. cb. 9, §15. CHAP. I.] AND ITS IMMEDIATE EFFECTS. 365 A perfect war is where one whole nation is at war ,^ Perfect with another nation, and all the members of both na- ^^' imperfect tions are authorized to commit hostilities against all the members of the other, in every case and under every circum- stance permitted by the general laws of war. An imperfect war is limited as to places, persons, and things.^ A civil war between the different members of the same society is what Grotius calls a mixed war ; it is, according to him, public on the side of the established government, and private on the part of the people resisting its authority. But the general usage of nations regards such a war as entitling both the contending parties to all the rights of war as against each other, and even as respects neutral nations.^ A formal declaration of war to the enemy was once . g ^ considered necessary to legalize hostilities between na- ciaiation of . ^ war, how tions. It was uniformly practised by the ancient Ro- far neces- mans, and by the States of modern Europe until about ^^^^' the middle of the seventeenth century. The latest example of this kind was the declaration of war by France against Spain, at Brussels, in 1635, by heralds at arms, according to the forms ob- served during the middle age. The present usage is to publish a manifesto, within the territory of the State declaring war, announcing the existence of hostilities, and the motives for com- mencing them. This pubhcation may. be necessary for the instruction and direction of the subjects of the belligerent State in respect to their intercourse with the enemy, and regarding certain effects which the voluntary law of nations attributes to war in form. Without such a declaration, it might be difficult to distinguish in a treaty of peace those acts which are to be accounted lawful effects of war, from those which either nation may consider as naked wrongs, and for which they may, under certain circumstances, claim reparation. ^ 1 Such were the limited hostilities authorized by the United States against France in 1798. Dallas' Rep. vol. ii. p. 21 ; vol. iv. p. 37. 2 Vide ante, Pt. I. ch. 2, §§ 7-10, pp. 31-35. 3 Grotius, de Jur. Bel. acPac. lib. i. cap. 3, § 4. Bynkershoek, Qua3st. Jur. 31 366 COMMENCEMENT OF WAR, [PART IV. As no declaration, or other notice to the enemy, of my's pro- the existence of war, is necessary, in order to legalize ill the teiri- hostilities, and as the property of the enemy is, in gene- commence^- ^^^1, liable to seizure and confiscation as prize of war, it howVarTia-' would scem to follow as a consequence, that the pro- bie to con- pertv belonsfins: to him and found within the territory of fiscation. i •/ o o ^/ the belligerent State at the commencement of hostilities, is liable to the same fate with his other property wheresoever situated. But there is a great diversity of opinions upon this subject among institutional writers, and the tendency of modern usage between nations seems to be, to exempt such property from the operations of war. One of the exceptions to the general rule, laid down by the text writers, which subjects all the property of the enemy to cap- ture, respects property locally situated within the jurisdiction of a neutral State ; but this exemption is referred to the right of the neutral State, not to any privilege which the situation gives to the hostile owner. Does reason, or the approved practice of nations, suggest any other exception ? With the Romans, who considered it lawful to enslave, or even to kill an enemy found within the territory of the State on the breaking out of war, it would very naturally follow that his property found in the same situation would become the spoil of the first taker. Grotius, whose great work on the laws of war and peace appeared in 1625, adopts as the basis of his opinion upon this question the rules of the Roman law, but qualifies them by the more -humane sentiments which began to prevail in the intercourse of mankind at the time he wrote. In respect to debts, due to private persons, he considers the right to demand them as suspended only during the war, and reviving with the peace. Bynkershoek, who wrote about the year 1737, adopts the same rules, and follows them to all their consequences. He holds that, as no declaration of war to the enemy is necessary, no notice is necessary to legalize the capture of his property, un- Pub. lib. i. cap. 2. Kutherforth's Inst. b. il. ch. 9, § 10. Vattel, Droit dcs Gens, liv. iii. ch. 4, §§ 51-56. Kliibcr, Droit des Gens Moderne de TEurope, §§ 238, 239. H CHAP. I.] AND ITS IMMEDIATE EFFECTS. 367 less he has, by express compact, reserved the right to withdraw it on the breaking out of hostilities. This rule he extends to things in action, as debts and credits, as well as to things in pos- session. He adduces, in confirmation of this doctrine, a variety of examples from the conduct of different States, embracing a period of something more than a century, beginning in the year 1556 and ending in 1657. But he acknowledges that the right had been questioned, and especially by the States-General of Holland ; and he adduces no precedent of its exercise later than the year 1667, seventy years before his publication. Against the ancient examples cited by him, there is the negative usage of the subsequent period of nearly a century and a half previously to the wars of the French revolution. During all this period, the only exception to be found is the case of the Silesian loan, in 1753. In the argument of the English civilians against the reprisals made by the King of Prussia in that case, on account of the capture of Prussian vessels by the cruisers of Great Bri- tain, it is stated that " it would not be easy to find aii instance where a prince had thought fit to make reprisals upon a debt due from himself to private men. There is a confidence that this will not be done. A private man lends money to a prince upon an engagement of honor ; because a prince cannot be compelled, like other men, by a court of justice. So scrupulously did Eng- land and France adhere to this public faith, that even during the war," (alluding to the war terminated by the peace of Aix-la- Chapelle,) " they suffered no inquiry to be made whether any part of the public debt was due to the subjects of the enemy, though it is certain many English had money in the French funds, and many French had money in ours." ' Vattel, who wrote about twenty years after Bynkershoek, after laying down the general principle, that the property of the enemy is liable to seizure and confiscation, qualifies it by the exception of real property Qes immeubles) held by the enemy's subjects within the belligerent State, which having been acquired by 1 Grotlus, de Jur. Bel.ac Pac. lib. iii. cap. 20, § 16. Bynkershoek, QusestJur. Pub. lib. i. cap. 2, 7. Letters of Camillus, by A, Hamilton, No. 20. Vattel calls the Report of the English civilians " un excellent morceau de droit des gens," (liv. ii. ch. 7, § 34, Note a ;) and Montesquieu terms it " une r^ponse sans r6plique." CEuvres, torn. vi. p. 445. 368 COMMENCEMENT OF WAR, [PART IV. the consent of the sovereign, is to be considered as on the same footing with the property of his own subjects, and not liable to confiscation /M7'e belli. But he adds that the rents and profits may be sequestrated, in order to prevent their being remitted to the enemy. As to debts, and other things in action, he holds that war gives the same right to them as to the other property belonging to the enemy. He then quotes the example referred to by Grotius, of the hundred talents due by the Thebans to the Thessalians, of which Alexander had become master by right of conquest, but which he remitted to the Thessalians as an act of favor : and proceeds to state, that the " sovereign has naturally the same right over what his subjects may be indebted to the enemy ; therefore he may confiscate debts of this nature, if the term of payment happen in time of war, or at least he may prohibit his subjects from paying while the war lasts. But at present, the advantage and safety of commerce have induced all the sovereigns of Europe to relax from this rigor. And as this custom has been generally received, he who should act contrary to it would injure the public faith ; since foreigners have confided in his subjects only in the firm persuasion that the general usage would be observed. The State does not even touch the sums which it owes to the enemy ; everywhere, in case of war, the funds confided to the public, are exempt from seizure and con- fiscation." In another passage, Vattel gives the reason of this exemption, " In reprisals, the property of subjects is seized, as well as that belonging to the sovereign or State. Every thing which belongs to the nation is liable to reprisals as soon as it can be seized, provided it be not a deposit confided to the public faith. This deposit being found in our hands only on account of that confidence which the proprietor has reposed in our good faith, ought to be respected even in case of open w^ar. Such is the usage in France, in England, and elsewhere, in respect to money placed by foreigners in the public funds." Again he says : " The sovereign declaring war can neither detain those subjects of the enemy who were within his dominions at the time of the declaration, nor their effects. They came into this country on the public faith ; by permitting them to enter his ter- ritories, and continue there, he has tacitly promised them liberty and perfect security for their return. He ought, then, to allow them a reasonable time to retire with their effects, and if they CHAP. I.] AND ITS IMMEDIATE EFFECTS. 369 remain beyond the time fixed, he may treat them as enemies ; but only as enemies disarmed." ^ It appears, then, to be the modern rule of international usage, that property of the enemy found within the territory of the bel- ligerent State, or debts due to his subjects by the government or individuals, at the commencement of hostilities, are not liable to be seized and confiscated as prize of war. This rule is fre- quently enforced by treaty stipulations, but unless it be thus enforced, it cannot be considered as an inflexible, though an esta- blished rule. " The rule," as it has been beautifully observed, " like other precepts of morality, of humanity, and even of wis- dom, is addressed to the judgment of the sovereign — it is a guide which he follows or abandons at his will ; and although it cannot be disregarded by him without obloquy, yet it may be disregarded. It is not an immutable rule of law, but depends on political considerations, which may continually vary." ^ Among these considerations is the conduct observed , , -r . f HO. Rule by the enemy. If he confiscates property found within of recipro- his territory, or debts due to our subjects on the break- "^' ing out of war, it would certainly be just, and it may, under cer- tain circumstances, be poHtic, to retort upon his subjects by a similar proceeding. This principle of reciprocity operates in many cases of international law. It is stated by Sir W. Scott to be the constant practice of Great Britain, on the breaking out of war, to condemn property seized before the war, if the enemy condemns, and to restore if the enemy restores. " It is," says he, " a principle sanctioned by that great foundation of the law of England, Magna Charta itself, which prescribes, that, at the commencement of a war, the enemy's merchants shall be kept and treated as our own merchants are kept and treated in their country." ^ And it is also stated in the report of the English civilians, in 1753, before referred to, in order to enforce their ' Vattel, Droit des Gens, liv. ii, ch. 18, § 344 ; liv. iii. ch. 4, § 63 ; ch. 5, §§ 73-77. 2 Mr. Chief Justice Marshall, in Brown v. the United States, Cranch's Kep. vol. viii.p. 110. 3 Robinson's Adm. Eep. vol. i. p. 64. The Santa Cruz. 370 COMMENCEMENT OF WAR, [PART IV. argument that the King of Prussia could not justly extend his reprisals to the Silesian loan, that " French ships and effects? wrongfully taken, after the Spanish war, and before the French war, have, during the heat of the war with France, and since, been restored by sentence of your Majesty's courts to the French owners. No such ships or effects ever were attempted to be confiscated as enemy's property, here, during the war ; because, had it not been for the wrong first done, these effects would not have been in your Majesty's dominions." ill Droits ^^^ ancient law of England seems thus to have sur- of Admiral- passed in liberality its modern practice. In the recent maritime wars commenced by that country, it has been the constant usage to seize and condemn as droits of admiralty the property of the enemy found in its ports at the breaking out of hostilities, and this practice does not appear to have been influenced by the corresponding conduct of the enemy in that respect. As has been observed by an English writer, comment- ing on the judgment of Sir W. Scott in the case of the Dutch ships, "there seems something of subtlety in the distinction between the virtual and the actual declaration of hostilities, and in the device of giving to the actual declaration a retrospective efficacy, in order to cover the defect of the virtual declaration previously implied." ' (a) 1 Chitty's Law of Nations, ch. 3, p. 80. (a) [Lorsque la guerre ^.clate entre deux puissances maritimes, il est de prin- cipe que les navires de commerce de Tune d'elles qui se trouvent dans les ports de I'autre ne peuvent etre consideres comme des prises et qu'ils ont la faculty de se retirer pour rentrer dans leur pays ; ce principe est consacre par un grand nom- bre de traites, dont plusieurs ont meme fix6 le d61ai pendant lequel ils peuvent jouir de cette immunity. II est vrai que dans I'usage, les bellig^rants respectent rarement cette loi, et que souvent le premier acte de la guerre est de saisir tous les navires devenus ennemis, qui se trouvent dans les ports du bellig^rant, qui y sont venus sur la foi des trait6s et de la paix ; mais cette violation de la foi publique, malheureusement ti'op fr6quente, ne detruit pas la loi, loi incontestee et surtout incontestable. La raison qui a dict6 ce principe pour les navires qui se trouvent dans le port devenu ennemi au moment de la declaration de guerre, I'a fait 6tendre a ceux qui, 6tant en cours de navigation, a ce meme moment sont rencon- tres par des croiseurs a la haute mer ; on leur accorde un d61ai sufBsant pour se mettre en surete. A cet egard le droit n'est pas douteux, mais sur ce second point comme sur le premier, il faut avouer qu'il est tres-rarement respectfe, cepend- II CHAP. I.] AND ITS IMMEDIATE EFFECTS. 371 During the war between the United States and Great gejzure of Britain, which commenced in 1812, it was determined enemy's ' property by the Supreme Court, that the enemy's property, found found with- within the territory of the United States on the declara- toriai limits tion of war, could not be seized and condemned as aercnt prize of war, without some legislative act expressly fhedeciara- authorizing its confiscation. The court held that the ^'°" °^ ^^^^• ant il existe et les faits contraires ne peuvent le detruire. Hautefeuille, Droits des Nations Neutres, torn. iv. p. 267. The same rule M. Hautefeuille also applies to the case of neutrals, who may have contraband articles on board, or •which have sailed in ignorance of the "war, without the papers required during a war to esta- blish their nationality. Among the treaties whicb he adduces as an evidence of the conventional law of nations on this point, are those concluded between France and England and France and Holland, at Utrecht, and which, confirmed by- all subsequent treaties down to the period of the French revolution, are treated as declaratory of permanent principles. At the same time, the frequent infrac- tion of the rule by Great Britain, including the capture of the French fishing vessels on the Bank of Newfoundland, in 1779, before a declaration of war, with her constant practice of seizing, as droits of admiralty, all vessels of the adverse belligerent, in her ports at the breaking out of hostilities, is adverted to. Another French authority considers the immunity, at the commencement of the war, of individuals from being made prisoners and of vessels from being con- fiscated in the enemy's territory, to stand on an equal footing. "Ainsi le souve- rain qui declare la guerre ou k qui elle est declaree ne pent retenir prisonniers les sujets de I'ennemi qui se trouvent dans ses 6tats au moment de la declaration, non plus que leurs eflfets mobiliers." Masse, Droit Commercial, liv. ii. tit. i. ch. 2, § 1. "Ainsi que nous I'avons vu, un etat belligerant ne peut retenir dans ses ports les batimens ennemis qui s' y trouvent au moment de la declaration de guerre. On doit lui assigner un delai sufiisant pour se retirer. La meme, § 2. To the same effect, Azuni, Droit Maritime de I'Europe, § 7, p. 267, and De Staek, Essais, p. 30, as cited by Hautefeuille. The English text writers, to the time of the present war, continued to maintain the existence of the right to seize, according to their former usage, on the authority of the crown, and without any express act of Parliament to sanction it, enemy's property, which had come within their control on the faith of a different state of political relations. One of those specially invokes as authorities for this position Chancellor Kent, (Kent's Commentaries, vol. i. p. 59,) and the decision of the Supreme Court of the United States, in Brown v. The United States, (Cranch's Rep. vol. 8, p. 110,) which is the case quoted at length, by Mr. Wheaton, in the text, and the one to which Chancellor Kent also refers. Manning's Commentaries on the Law of Nations, p. 127. As to the case from Cranch's Reports, Mr. Man- ning omits to notice the fact that the sentence of the court below, condemning the property, was annulled and reversed, and that it was decided, that, owing to the distribution of powers under our Constitution, to render effective the belligerent 372 COMMENCEMENT OF WAR, [PART IV. law of Congress declaring war was not such an act. That declaration did not, by its own operation, so vest the property of right to seize enemy's property found in the United States at the commencement of the war, an express act of Congress, which had never been passed, was requi- site, and that its confiscation was not a necessary consequence of the declaration of war, without further legislation. Among other modifications of the course adopted by England, during the wars consequent on the French revolution, by which her former practice has been altered to conform to that proclaimed by France, and which, in this particular, is similar to that pursued by Turkey and Russia, may be noticed the orders issued by the two great maritime allies, in reference not only to the vessels belonging to their enemy's subjects, which were in their ports at the declaration of the war, but to all other Russian vessels, which had left their own country, before they were apprized of the hostilities, and had not reached their destination. The Paris Moniteur, of March 28, 1854, contained the following declaration, which was issued in accordance with England, by whose government an Order in Council, to the same effect, was promulgated, bearing date the 29th of March : — "Article 1. Six weeks from the present date are granted to Russian ships of com- merce to quit the ports of France. Those Russian ships which are not actually in our ports, or which may have left the ports of Russia previously to the declara- tion of war, may enter into the French ports, and remain there for the comple- tion of their cargoes until the 9th of May, inclusive. "Article 2. Those vessels which shall be captured by French cruisers after hav- ing left the Russian ports, shall be released if they can establish, by the ship's papers, that they were proceeding direct to the place of destination, and had not yet arrived there. Drouyn de l'Huys. Paris, March 27, 1854." The Moniteur sho announced that the subjects of Russia may continue their resi- dence in France, under the protection which the law provides for foreigners, the only condition being that they respect those laws. Further Indulgencles, In connection with the recognition of neutral rights, were subsequently granted by both governments, to the effect of the subjoined Order in Council, which was officially communicated by the British Minister to the American Secretary of State, on the 9th of JVIay : — '■'■At the Court of Windsor, the 15th day of April, 1S5A, present, the Queen's Most Excellent Majesty in Council. " Whereas, by an order of her Majesty in council, of the 29th of March last, it was, among other things, ordered " that any Russian merchant vessel which, prior to the date of this order, shall have sailed from any foreign port, bound for any port or place in her Majesty's dominions, shall be permitted to enter such port or place and to discharge her cargo, and afterwards forthwith to depart without molestation ; and that any such vessel, if met with by any of her Majesty's ships, shall be permitted to continue her voyage to any port not blockaded ; "And whereas her Majesty, by and with the advice and consent of her said council, is now pleased to alter and extend such part of the said order, it is hereby CttAP. l] and its immediate effects. 373 the enemy in the government, as to support judicial proceedings for its seizure and confiscation. It vested only a right to confis- ordered, by and with such advice as aforesaid, as follows : that is to sav that any- Russian merchant vessel which, prior to the loth day of May, 1854, shall have sailed from any port of Russia situated either in or upon the shores or coasts of the Baltic Sea or of the White Sea, bound for any port or place in her Majesty's dominions, shall be permitted to enter such last-mentioned port or place, and to discharge her cargo, and afterwards forthwith to depart without molestation ; and that any such^vessel, if met at sea by any of her Majesty's ships, shall be permitted to continue her voyage to any port not blockaded. "And her Majesty is pleased, by and with the advice aforesaid, further to order, and it is hereby ordered, that in all other respects her Majesty's aforesaid order in council, of the 29th day of March last, shall be and remain in full force, effect, and operation." London Gazette, 18th April, 1854. Mr. Crampton to Mr. Marcy, 9th May, 1854. Cong. Doc, 33 Cong. 1 Sess. H. R., Xo. 103, p. 5. Similar orders were issued by the French government, but it was subse- quently explained that the relaxation was restricted to Russian vessels destined to and leaving English or French ports, and was not intended to apply to those leaving neutral ports. Circulaire du MInistre de la Marine, Annuaire, &c., 1853-4, App.p. 913. On occasion of the declaration of war by the Ottoman Porte against Russia, in October, 1853, and which preceded, several months, the hostilities of England and France with the latter power, a notice was issued by the Russian government to the effect that, as the Ottoman Porte had not Imposed an embargo on Russian ships in Its ports, and had promised to grant them sufficient delay to repair to their destination, and also not to oppose the free passage of the ships of friendly nations through the Straits to the Black Sea, the Russian government, on its part, grants liberty to the Turkish vessels In Its ports to return to their destination till the 10th (22d) of November, and that, even after that date, Turkish vessels loaded on neutral account. If met at sea, might proceed to the port of destination with their cargoes in case their papers proved that they were loaded before the time mentioned. The notice in other respects conforms the action of the Russian government to that of Turkey, authorizing the capture and condemnation of neutral goods found in enemy's vessels, and allowing entire freedom of commerce to neutral vessels. Avis du MInistre des Finances dans le Journal de St. Petersbourg, le 25 Octobre, (G Novembre) 1853. Id. App. p. 926. But after the declarations of war by England and France against Russia, the Russian Minister of Finance published a notice In the Gazette du Commerce, on 19th of April, 1854, allowing English and French vessels six weeks from the 25th of April to take on board their cargoes and sail from Russian ports In the Black Sea, the Seaof Azoff, and the Baltic, and six weeks, from the opening of navigation, to leave the ports of the White Sea. The notice also declared that enemy's pro- perty in neutral bottoms would be regarded as inviolable, and might be imported, and that the property of neutral powers on board of enemy's ships would not be subject to confiscation, except articles contraband of war, the carrying of which 32 374 COMMENCEMENT OF WAR, [PART IV. cate, the assertion of which depended on the will of the sove- reign power. The judgment of the court stated, that the universal practice of forbearing to seize and confiscate debts and credits, the prin- ciple universally received, that the right to them revives on the restoration of peace, would seem to prove that war is not an ab- solute confiscation of this property, but that it simply confers the right of confiscation. Between debts contracted under the faith of laws, and pro- perty acquired in the course of trade on the faith of the same laws, reason draws no distinction ; and although, in practice, vessels with their cargoes found in port at the declaration of war may have been seized, it was not believed that modern usage would sanction the seizure of the goods of an enemy on land, which were acquired in peace in the course of trade. Such a proceeding was rare, and would be deemed a harsh exer- cise of the rights of war. But although the practice in this respect might not be uniform, that circumstance did not essen- tially affect the question. The inquiry was, whether such pro- perty vests in the sovereign by the mere declaration of war, or remains subject to a right of confiscation, the exercise of which depends upon the national will : and the rule which applies to one case, so far as respects the operation of a declaration of war on the thing itself, must apply to all others over which war gives an equal right. The right of the sovereign to confiscate debts being precisely the same with the right to confiscate other pro- perty found in the country, the operation of a declaration of war on debts, and on other property found within the country must be the same. Even Bynkershoek, who maintains the broad principle, that in war every thing done against an enemy is lawful ; that he may be destroyed, though unarmed and defenceless ; that fraud, or even poison, may be employed against him ; that a most un- limited right is acquired to his person and property ; admits that ■would render even a neutral vessel a good prize. It -was further provided that En*barous practices of those ages when maritime war tors. g^|^(J piracy were synonymous, that captures made by private armed vessels, without a commission, not merely in self- defence, but even by attacking the enemy, are considered lawful, not indeed for the purpose of vesting the enemy's property thus seized in the captors, but to prevent their conduct from being regarded as piratical, either by their own government or by the other belligerent State. Property thus seized is condemned to the government as prize of war, or, as these captures are techni- 1 Vattel, Droit des Gens, liv. iii. ch. 15, §§ 223-228. Kluber, Droit des Gens Moderne de I'Europe, § 267, CHAP. II.] AS BETWEEN ENEMIES. 431 cally called, Droits of Admiralty. The same principle is applied to the captures made by armed vessels commissioned against one power, when war breaks out with another ; the captures made from that other are condemned, not to the captors, but to the government.^ The practice of cruising with private armed vessels , ^q pj.j_ commissioned by the State, has been hitherto sanctioned vateers. by the laws of every maritime nation, as a legitimate means of destroying the commerce of an enemy. This practice has been justly arraigned as liable to gross abuses, as tending to encourage a spirit of lawless depredation, and as being in glaring contra- diction to the more mitigated modes of warfare practised by land. Powerful efforts have been made by humane and enlight- ened individuals to suppress it, as inconsistent with the liberal spirit of the age. The treaty negotiated by Franklin, between the United States and Prussia, in 1785, by which it was stipu- lated that, in case of war, neither power should commission privateers to depredate upon the commerce of the other, fur- nishes an example worthy of applause and imitation. But this stipulation was not revived on the renewal of the treaty, in 1799; and it is much to be feared that, so long as maritime captures of private property are tolerated, this particular mode of injuring the enemy's commerce will continue to be practised, especially where it affords the means of countervailing the superiority of the public marine of an enemy.^ (a) 1 Brown's Civ. and Adm. Law, vol. ii. p. 526, Appendix. Robinson's Adm. Rep. vol. iv. p. 72. The Abigail. Dodson's Adm, Rep. p. 397. The Georgiana. Sparks's Diplomatic Correspondence, vol. i. p. 443. Wheaton's Rep. vol. ii. Appendix, Note I. p. 7. 2 Vattel, liv. iii. eh. 15, § 229. Franklin's "Works, vol. ii. pp. 447, 530. Edin- burgh Review, vol. viii. pp. 13-15. North American Review, vol. ii. (N. S.) pp. 166-196. Wheaton's Hist. Law of Nations, p. 308. (a) [A proposition made by the Legislative Assembly, in 1792, to abolish the taking of private property and of privateering, by mutual arrangement among nations, met with no success, and at no time was privateering carried on more extensively than during the wars of the French Revolution. " Le d6cret pro- clamait I'abolition, 1''- de la prise des propriet6s privees ; 2o- de la course mari- time, et invitation au pouvoir executif de n6gocier avec les puissances etrangeres des traites sur ces bases nouvelles. Le succes ne r6pondit pas £i cette entreprise. 432 RIGHTS OF WAR [PART IV. The title to property lawfully taken in war may, upon general principles, be considered as immediately divested from the original owner, and transferred to the tured in war. La seule ville de Hambourg, tres commer^ante, il est vrai, mais entlerement depourvue de marine militalre, adh6ra a ce systeme philanthropique et pbiloso- pbique." Hautefeuille, Droits des Nations Neutres, torn. i. p. 342. France baving, in her last war against Spain, declared that she would grant no commissions to privateers, and that neither the commerce of Spain herself, nor of neutral nations, should be molested by the naval force of France, except in the breach of a lawful blockade, President Monroe stated in his Annual Mes- sao'e, of 1823, to Congress, that instructions had been given to our ministers with France, Russia, and Great Britain, to propose to their respective governments the abolition, in all future hostilities, of private war on the sea. Annual Register, 1823, p. 185.* This subject was fully brought to the notice of the British government during the negotiations, at London, in 1823-4, between the American minister, Mr. Rush, and the British plenipotentiaries, Messrs. Huskisson and Stratford Can- ning. INIr. Adams, Secretary of State, in his instructions of July 28, 1823, said : — " We press no disavowal on her, (England,) but we think the present time eminently auspicious for urging upon her, and upon others, an object which has long been dear to the hearts and ardent in the aspirations of the benevolent and the wise ; an object essentially congenial to the true spirit of Christianity, and, there- fore, peculiarly fitting for the support of nations intent, in the same spirit, upon the final and total suppression of the slave trade ; and of sovereigns who have given public pledges to the world of their determination to administer imperial dominion upon the genuine precepts of Christianity. " The object to which I allude is the abolition of private war upon the sea. " It has been remarked that, by the usages of modern war, the private pro- perty of an enemy is protected from seizure or confiscation, as such ; and private war itself has been almost universally exploded upon the land. By an excep- tion, the reason of which it is not easy to perceive, the private property of an enemy upon the sea has not so fully received the benefit of the same principle. Private war, banished by the tacit and general consent of Christian nations from their territories, has taken its last refuge upon the ocean, and there continues to disgrace and afflict them by a system of licensed robbery, bearing all the most atrocious characters of piracy. To a government intent, from motives of general benevolence and humanity, upon the final and total suppression of the slave trade, it cannot be unreasonable to claim her aid and cooperation to the aboli- tion of private war upon the sea. From the time that the United States took their place among the nations of the earth, this has been one of their favorite objects. ' It is time,' said Dr. Franklin, (In a letter of 14th March, 1785,) ' it is high time, for the sake of humanity, that a stop were put to this enormity. The United States of America, though better situated than any European nation to CHAP. II.] AS BETWEEN ENEMIES. 433 captor. This general principle is modified by the positive law of nations, in its application both to personal and real property. make profit by privateering, are, as far as in tliem lies, endeavoring to abolish the practice by offering, in all their treaties with otlier powers, an article, engag- ing solemnly that, in case of future war, no privateer shall be commissioned on either side, and that unarmed merchant ships, on both sides, shall pursue their voyages unmolested. This will be a happy improvement of the law of na- tions. The humane and the just cannot but wish general success to the pro- position.' " It is well known that, in the same year in which this letter was written, a ti'eaty between the United States and the King of Prussia was concluded, by the 23d article of which this principle was solemnly sanctioned, in the form of a national compact." In rendering an account of this negotiation, at its close, Mr. Eush writes to the Secretary of State, August 12, 1824 : — " I next said to the British plenipotentiaries, that the question of abolishing privateering and the capture of private property at sea, whether by national ships or by privateers, was one that I considered as standing apart from, those on which their decision had been given to me. Upon this question, therefore, I desired them to understand that I was ready to treat, as of one occupying ground wholly its own. " They replied, that they were not prepared to adopt this course. All other questions of a maritime nature having been shut out from the negotiation, there would be, they said, manifest inconvenience in going into that of abolishing private war ■ upon the ocean. They considered it a question belonging to the same class with maritime questions, and one which, besides being totally new, as between the two governments, contemplated a most extensive change in the principles and practice of maritime war, as hitherto sanctioned by all nations. Such was their answer. " This answer was given in the terms that I state, and so entered upon the protocol. But it is proper for me to remark, that no sentiment dropped from the British plenipotentiaries authorizing the belief, that they would have concurred in the object, if we had proceeded to the consideration of it. My own opinion, unequivocally, is, that Great Britain is not prepared to accede, under any cir- cumstances, to the proposition for abolishing private war upon the ocean." Cong. Doc. Senate, 18th Cong. 2d Session, Confidential, pp. 50, 100. Looking at the relative condition of the two countries, in the event of a war — the immense navy of the one, while the other must ever necessarily depend, at sea, on the conversion of its mercantile marine into private vessels of war, as it does on land, on the enrollment of volunteers to meet any exigency which may arise — it is, at this day, a source of equal astonishment that the United States ever made the proposition for the abolition of privateering, and that Great Britain declined it when made. The treaties of the United States of 1778 with France, of 1794 with England, of 1782 with the Netherlands, of*183G with Peru-Bolivia, of 1785 and 1799 37 434 EIGHTS OF WAR [PART IV. As to personal property, or movables, the title is, in general, con- sidered as lost to the former proprietor, as soon as the enemy has with Prussia, of 1795 •vvitli Spain, of 1783 and 1816 -with Sweden, all provided, that if any citizen or subject of either of the contracting parties took a commis- sion, or- letters of marque, for privateering against the other, from any power with whom the otlier was at war, he should be treated as a pirate ; and in the treaties of 1827 and 1828, renewing those with Sweden and Prussia, which had expired, this provision was retained. U. S. Statutes at Large, vol. vlii. pp. 24, 127, 44, 493, 94, 172, 144, 74, 240, 354, 384. The above-mentioned treaties with England and France have expired, without this provision being renewed In any subsequent treaty ; and, therefore, any prohibition on this subject, which may exist in those countries, beyond the obUgation of neutrality, required by the law of nations, must depend on the internal laws of the respective States. During the war between the United States and Mexico, Mexico made great eiforts to induce the subjects of the neutral States of Europe to take commissions for privateers. England and France prohibited their subjects from accepting the offers made to them ; and almost all the ordinances of neutral States, during war, forbid their subjects from accepting letters of marque from the belligerents, but they are, in general, without any adequate sanction for their enforcement. Haute- feuille. Droits des Nations Neutres, tome Iv. p. 252. The President of the United States announced, in' his message of December, 1846, that he had, immediately after Congress recognized the existence of war with Mexico, called the attention, and, as he conceived, with effect, of the Spanish government, to the provision of the 14th article of our treaty with that power, of the 20th of October, 1795, which is among those above enumerated. The President, at the same time, recommended to Congress to provide, by law, for the trial and punishment, as pirates, of Spanish subjects, who should be found guilty of privateering against the United States. Annual Register, 1846, p. 340. In the present war, between Russia, on the one side, and Turkey, England, and France, on the other, the other powers of Europe have strictly prohibited their subjects from any participation, by accepting letters of marque, or other- wise, In aiding the belligerents. An Auslriaji decree, of May 25, 1854, com- mences by stating that the use of letters of marque, or any participation In the armament of a vessel, no matter under what flag, is strictly forbidden to the sub- jects of his Imperial Majesty. He who shall Infringe this order, will not only be deprived of the protection of the Austrian government, but will be liable to be punished by another State, and will also be proceeded against in the criminal courts of Austria. The entry of foreign privateers Into Austrian ports is forbid- den. Paris Monlteur, June 9, 1854. The Queen of Spain Issued an order. May, 1854, prohibiting proprietors, mas- ters, or captains of Spanish merchant ships, from taking letters of marque from any foreign power, or giving them aid, unless in the cause of humanity, in the case of a fire or shipwreck. Even the Hawaiian government have Issued a pro- clamation, prohibiting their subjects from engaging, (either directly or Indirectly,) i CHAP. II.] AS BETWEEN ENEMIES. 435 acquired a firm possession ; which, as a general rule, is considered as taking place after the lapse of twenty-four hours, or after the in privateering against the shipping or commei'ce of any of the belligerents, under the penalty of being treated and punished as pirates. The King of Denmark, and the King of Sweden and Norway, have given notice to all friendly powers, that, during the existing contest, privateers will not be admitted into their ports, nor tolerated in the anchorage of their respect- ive States. The Charge d' Affaires of Denmark to the Secretary of State of the United States, January 20, 1854, The Charge d'Affaires of Sweden to the same, January 28, 1854. A great change would seem to have taken place in the public sentiment of Europe, especially of the British government, since 1824, on the subject of pr vateering. In communicating to the government of the United States the course which England and France purposed pursuing towards neutrals in the pending war, after stating, under the date of April 21, 1854, that their Majesties had, for" the present, resolved not to authorize the issue of letters of marque, Mr. Cramp- ton says : — "Her Britannic Majesty's government entertains the confident hope, that the United States government will receive with satisfaction the announce- ment of the resolutions thus taken, in common by the two allied governments; and that it wiU, in the spirit of just reciprocity, give orders that no privateer under Russian colors shall be equipped, or victualled, or admitted with its prizes, in the ports of the United States ; and also that the citizens of the United States shall rigorously abstain from taking part in armaments of this natui-e, or in any measure opposed to the duties of a strict neutrality." The Count de Sartiges addressed the Secretary of State, on 28th of April, 1854, to the same effect, on the part of the French government. Mr. Marcy, in returning an answer to the English and French ministers, and which was expressed in the same terms to each of them, on the day of the date of the last note, I'emarks, that the " laws of this country impose severe restric- tions not only upon its own citizens, but upon all persons who may be residents within any of the territories of the United States, against equipping privateers, receiving commissions, or enlisting men therein, for the purpose of taking part in any foreign war." At an interview, in March, between Lord Clarendon and Mr. Buchanan, at which the former read the " declaration " in reference to neutrals, which had not yet been issued, he did not propose the conclusion of a treaty for the suppres- sion of privateering, but he expressed a strong opinion against the practice, as inconsistent with modern civihzation. He spoke in highly complimentary terms of the treaties of the United States with different nations, which stipulate that if one of the parties be neutral and the other belligerent, the subjects of the neuti-al accepting commissions, as privateers, to cruise against the other, from the opposing belligerent, shall be punished as pirates. Mr. Buchanan, in answer, stated that it did not seem to him possible, under existing circumstances, for the United States to agree to the suppression of privateering, unless the naval powers of the world would go one step further, and consent that war against 436 ^ RIGHTS OF WAR [PART IV. booty has been carried into a place of safety, infra prcesidia of the captor.i private property should be abolished altogether upon the ocean, as it had already been upon the land. There was nothing really different, in principle or morality, between the act of a regular cruiser and that of a privateer in robbing a mer- chant vessel upon the ocean, and confiscating the property of private individuals on board, for the benefit of the captor. Suppose a war with Great Britain. The navy of Great Britain was vastly superior to that of the United States, in the number of vessels of war. The only means which we would possess to counter- balance, in some degree, their far greater numerical strength, would be to convert our merchant Vessels, cast out of employment by the war, into privateers, and endeavor, by their assistance, to inflict as much injury on the British as they would be able to inflict on American commerce. On another occasion. Lord Clarendon spoke in high terms of our Xeutrality Law of April 20, 1818, and pronounced it superior to their own, especially in regard to privateers. Mr. Marcy, in his answer of the 13th of April, 1854, to Mr. Buchanan's despatches, says : — " Both Great Britain and France, as well as Russia, feel much concern as to the course which our citizens will take, in regard to pri- vateering. The two former powers would, at this time, most readily enter into a convention, stipulating that the subjects or citizens of the party, being a neutral, who shall accept a commission, or letters of marque, and engage in the privateer service, the other party being a belligerent, may be treated as pirates. A stipu- lation to this effect is contained in several of our treaties ; but I do not think the President would permit it to be inserted in any new one. His objection to it does not arise from a desire to have our citizens embark in foreign belligerent service ; but, on the contrary, he would much regret to see them take such a course. Our laws go as far as those of any nation — I think further — in laying restraints upon them, in regard to going into foreign privateer service. This government is not prepared to listen to any proposition for a total suppression of privateer- ing. It would not enter into any convention, whereby it would preclude itself from resorting to the merchant marine of the country, in case it should become a belligerent party." Cong. Doc. 33d Cong. 1st Sess. H. of Rep. Ex. Doc. No. 103. The views of the American government will be found more fully stated in the notice taken by President Pierce, in the Annual Message of 1854-5, of the suggestion of Prussia to connect the abolition of privateering with the question of neutral rights, which it has been proposed by the United States to regulate by convention. " The King of Prussia entirely approves of the project of a treaty to the same effect, submitted to him, but proposes an additional article providing for the renunciation of privateering. Such an article, for most obvious reasons, is 1 Grotius, de Jur. Bel. ac Pac. lib. ill. cap. 6, § 3 ; cap. 9, § 14. Kliiber, Droit des Gens Moderne de I'Europe, § 254. Vattel, Droit des Gens, llv. iii. ch. 13, § 196 ; ch. 14, § 209. Heffter, Das Europaische Volkerrecht, § 136. CHAP. IL] as BETWEEiq- ENEMIES. 437 As to ships and goods captured at sea, and after- § 12. Re- .wards recaptured, rules are adopted somewhat different and Tah-age. from those which are applicable to other personal property. These rules depend upon the nature of the different classes of cases to which they are to be applied. Thus the recapture may be made either from a pirate ; (a) from a captor, clothed mucli desired by nations heaving naval establishments, large in proportion to their foreign commerce. If it were adopted as an international rule, the commerce of a nation, having comparatively a small naval force, would be very much at the mercy of its enemy, in case of war with a power of decided naval superiority. The bare statement of the condition in which the United States would be placed, after having surrendered the right to resort to privateers, in the event of war with a belligerent of naval supremacy, will show that this government could never listen to such a proposition. The navy of the first maritime power in Europe is at least ten times as large as that of the United States. The foi-eign commerce of the nations is nearly equal, and about equally exposed to hostile depredations. In war between that power and the United States, without resort, on our part, to our mercantile marine, the means of our enemy to inflict injury upon our commerce, would be tenfold greater than ours to retaliate. We could not extricate our country from this unequal condition, with such an enemy, unless we at once departed from our present peaceful policy, and became a great naval power. Nor would this country be better situated, in war with one of the secondary naval powers. Though the naval disparity would be less, the greater extent and more exposed condition of our wide-spread commerce would give any of them a like advantage over us. " The proposition to enter into engagements to forego resort to privateers, in case this country should be forced into war with a great naval power, is not entitled to more favorable consideration than would be a proposition to agree not to accept the services of volunteers for operations on land. When the honor or the rights of our country require it to assume a hostile attitude, it confi- dently relies upon the patriotism of its citizens, not ordinarily devoted to the military profession, to augment the army and navy, so as to make them fully adequate to the emergency which calls them into action. The proposal to sur- render the right to employ privateers Is professedly founded upon the principle, that private property of unofiending non-combatants, though enemies, should be exempt from the ravages of war ; but the proposed surrender goes but little way in carrying out that principle, which equally requires that such private property should not be seized or molested by national ships of war. Should the leading powers of Europe concur in proposing, as a rule of International law, to exempt private property, upon the ocean, from seizure by public armed cruisers, as well as by privateers, the United States will readily meet them upon that broad ground." Cong. Doc. President's Message, 1854.] (a) [The crown is, generally speaking, entitled to all hona jnratorum ; but if any person can establish a title to the goods, the title of the crown ceases. Ilagg. Adm. Eep. vol. i. p. 144. The Hebe.] 37' 438 EIGHTS OF WAR [PART lY. with a lawful commission, but not an enemy; or, lastly, from an enemy. Recap- 1. In the first case, there can be no doubt the property pirates. ought to be restored to the original owner; for as pirates have no lawful right to make captures, the property has not been divested. The owner has merely been deprived of his possession, to which he is restored by the recapture. For the service thus rendered to him, the recaptor is entitled to a remuneration in the nature of salvage.^ Thus, by the Marine ordinance of Louis XIV., of 1681, liv. iii. tit. 9, des Prises, art 10, it is provided, that the ships and effects of the subjects- or allies of France, retaken from pirates, and claimed within a year and a day after being reported at the Admiralty, shall be restored to the owner, upon payment of one third of the value of the vessel and goods, as salvage. And the same is the law of Great Britain, but there is no doubt that the municipal law of any particular State may ordain a different rule as to its own subjects. Thus the former usage of Holland and Venice gave the whole property to the retakers, on the prin- ciple. of public utility ; as does that of Spain, if the property has been in the possession of the pirates twenty-four hours.^ Valin, in his commentary upon the above article of the French Ordinance, is of opinion that if the recapture be made by a foreigner, who is the subject of a State, the law of which gives to the recaptors the whole of the property, it could not be restored to the former owner : and he cites, in support of this opinion, a decree of the Parliament of Bordeaux, in favor of a Dutch sub- ject, who had retaken a French vessel from pirates.^ To this interpretation Pothier objects that the laws of Holland having no power over Frenchmen and their property within the territory of France, the French subject could not thereby be deprived of the property in his vessel, which was not divested by the piratical capture according to the law of nations, and that it ought con- 1 Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 9, § 17. Loccenius, de Jur. Marit. lib. ii. c. 2, No. 4. Brown's Civ. and Adm. Law, vol. ii. c. 3, p. 461. " Ea quae piratEe nobis eripuerunt, non opus habent postliminio ; quia jus gentium illis non concedit, ut jus dominii mutari possint." Dig. de Capt. et Postl. revers. 2 Grotius par Barbeyrac, liv. 3, ch. 9, § xvi. No. 1, and note. 3 Valin, Comm. sur I'Ord. liv. 3, tit. 9, art. 10. CHAP. II.] AS BETWEEN ENEMIES. 439 sequently to be restored to him upon payment of the salvage pre- scribed by the ordinance.^ Under the term allies in this article are included neutrals; and Valin holds that the property of the subjects of friendly powers, retaken from pirates by French captors, ought not to be restored to them upon the payment of salvage, if the law of their own country gives it wholly to the retakers ; otherwise there would be a defect of reciprocity, which would offend against that im- partial justice due from one State to another.^ {a) 2. If the property be retaken from a captor clothed „ "^ , , Kecapture with a lawful commission, but not an enemy, there of neutral would still be as little doubt that it must be restored to the original owner. For the act of taking being in itself a wrongful act, could not change the property, which must still remain in him. If, however, the neutral vessel thus recaptured, were laden with contraband goods destined to an enemy of the first captor, it may, perhaps, be doubted whether they should be restored, inas- much as they were liable to be confiscated as prize of war to the first captor. Martens states the case of a Dutch ship, captured by the British, under the rule of the war of 1756, and recaptured by the French, which was adjudged to be restored by the Coun- cil of Prizes, upon the ground that the Dutch vessel could not have been justly condemned in the British prize courts. But if the case had been that of a trade, considered contraband by the law of nations and treaties, the original owner would not have been entitled to restitution.^ In general, no salvage is due for the recapture of neutral vessels 1 Pothier, Trait6 de Propriete, No. 101. 2 Valin, Comm. sur I'Ord. liv. 3, tit. 9, art. 10. (a) [Hautefeuille gives tlie same interpretation to the ordinance as Yalln, and cites, also, for the rule of reciprocity, Masse. He however objects altogether to salvage, or at least to the allowance of so great an amount as one third, and with approbation refers to the treaty of 1783, art. 17, between Sweden and the United States, which provides for the restitution entire to the true proprietor of a vessel and merchandise belonging to the one party, retaken either from an enemy or from pirates, by a ship of war or privateer of the other. Droit des Gens Neutres, torn. 4, p. 427.] 3 Martens, Essai sur les Prises et les Reprises, § 52. " Sa majest6 a juge pend- ant la demlere guerre, que la reprise du navire neutre fait par un corsaire Fran- 440 RIGHTS OF WAR [PART IV. ^ and goods, upon the principle that the liberation of a honce fidmi neutral from the hands of the enemy of the captor is no benefi- cial service to the neutral, inasmuch as the same enemy would be compelled by the tribunals of his own country to make restitu- tion of the property thus unjustly seized. It was upon this principle that the French council of prizes determined, in 1800, that the American ship Statira, captured by a British, and recaptured by a French cruiser, should be restored to the original owner, although the cargo was condemned as contraband or enemy's property. The sentence of the court was founded^upon the conclusions of M. Portalis, who stated that the recapture of foreign neutral vessels by French cruisers, whether public ships or privateers, gave no title to the retakers. The French prize-code only applied to French vessels and goods recaptured from the enemy. According to the universal law of nations, a neutral vessel ought to be respected by all nations. If she is unjustly seized by the cruisers of any one belligerent nation, this is no reason why another should become an accom- plice in this act of injustice, or should endeavor to profit by it. From this maxim it followed as a corollary that a foreign vessel, asserted to be neutral, and recaptured by a French cruiser from the enemy, ought to be restored on due proof of its neutrality. But, it might be asked, why treat a foreign vessel with more favor in this/iase than a French vessel? The reason was obvi- ous. On the supposition on which the regulations relating to this matter were founded, the French ship fallen into the hands of the enemy would have been lost forever, if it had not been retaken ; consequently the recapture is a prize taken from the enemy. If the case, however, be that of a foreign vessel, asserted to be neu- tral, the seizure of this vessel by the enemy does not render it ipso facto the property of the enemy, since its confiscation has not yet been pronounced by the competent judge ; until that judgment has been pronounced, the vessel thus navigating under the neutral flag loses neither its national character nor its rights. Although it has been seized as prize of war, it may ultimately ^ais (lorsque le navire n'etait pas charge de marchandises proliib6es, ni dans le cas d'etre confisqut; par rennemi) 6tait nulle." Code des Prises, an 1784, torn. ii. CHAP. II.] AS BETWEEN ENEMIES. 441 be restored to the original owner. Under such circumstances, the recapture of this vessel cannot transfer the property to the recaptor. The question of neutrality remains entire, and must be determined, before such a transmutation of property can take place. Such was the language of all public jurists, and such was the general usage of all civilized nations. It followed that the vessel in question was not confiscable by the mere fact of its having been captured by the enemy. Before such a sentence could be pronounced, the French tribunal must do what the enemy's tribunal would have done ; it must determine the ques- tion of neutrality ; and that being determined in favor of the claimant, restitution would follow of course.^ To this general rule, however, an important exception has been made, founded on the principle above quoted from the Code des Prises, in the case where the vessel or cargo recaptured was prac- tically liable to be confiscated by the enemy. In that case, it is immaterial whether the property be justly liable to be thus con- fiscated according to the law of nations ; since that can make no difference in the meritorious nature of the service rendered to the original owner by the recaptor. For the ground upon which salvage is refused by the general rule, is, that the prize courts of the captor's country will duly respect the obligations of that law ; a presumption which, in the wars of civilized States, as they are usually carried on, each belligerent nation is bound to entertain in its dealings with neutrals. But if, in point of fact, those obligations are not duly observed by those tribunals, and, in consequence, neutral property is unjustly subjected to confisca- tion in them, a substantial benefit is conferred upon the original owner in rescuing his property from this peril, which ought to be remunerated by the payment of salvage. It was upon this prin- ciple that the Courts of Admiralty, both of Great Britain and the United States, during the maritime war which was terminated by the peace of Amiens, pronounced salvage to be due upon neutral property retaken from French cruisers. During the revo- lution in France, great irregularity and confusion had arisen in the prize code formerly adopted, and had crept into the tribunals of that country, by which neutral property was liable to con- ^ Decision relative a la prise du navire le Statira, 6 Thermidor, an S, pp. 2-4. 442 RIGHTS OF WAR [PART IV. demnatioii upon grounds both unjust and unknown to the law of nations. The recapture of neutral property, which might have been exposed to confiscation by means of this irregularity and confusion, was, therefore, considered by the American and British courts of prize, as a meritorious service, and was accordingly remunerated by the payment of salvage.' These abuses were corrected under the consular government, and so long as the decisions of the Council of Prizes were conducted by that learned and virtuous magistrate, M. Portalis, there was no par- ticular ground of complaint on the part of neutral nations as to the practical administration of the prize code until the promulga- tion of the Berlin decree in 1806. This measure occasioned the exception to the rule as to salvage to be revived in the practice of the British Courts of Admiralty, who again adjudged salvage to be paid for the recapture of neutral property which was liable to condemnation under that decree.^ It is true that the decree had remained practically inoperative upon American property, until the condemnation of the cargo of The Horizon by the Council of Prizes, in October, 1807 ; and therefore it may per- haps be thought, in strictness, that the English Court of Admi- ralty ought not to have decreed salvage in the case of The Sansom, more especially as the convention of 1800, between the United States and France, was still in force, the terms of which were entirely inconsistent with the provisions of the Berlin decree. But as the cargo of The Horizon was condemned in obedience to the imperial rescript of the 18th September, 1807, having been taken before the capture of The Sansom, whether that rescript be considered as an interpretation of a doubtful point in the original decree, or as a declaration of an anterior and positive provision, there can be no doubt The Sansom would have been condemned under it ; consequently a substantial benefit was rendered to the neutral owner by the recapture, and salvage was due on the principle of the exception to the general rule. And 1 Robinson's Adm. Rep. vol. ii. p. 299, The War Onskan. Vol. iv. p. 156. The Eleonora Catbarina. Vob v. p. 54. Tbe Carlotta. Yob vi. p. 104. The Huntress. Crancb's Rep. vob i. p. 1. Talbot v. Seeman, Dallas' Rep. vol. iv. p. 34, S. C. 2 Robinson's Adm. Rep. vol. vi. p. 410. The Sansom. Edward's Adm. Rep. vol. i. p. 254. The Acteon. CHAP. II.] AS BETWEEN ENEMIES. 443 the same principle might justly be successively applied to the prize proceedings of all the belligerent powers during the last European war, which was characterized by the most flagrant violations of the ancient law of nations, which, in many cases, rendered the rescue of neutral property from the grasp of their cruisers and prize courts, a valuable service entitling the recaptor to a remuneration in the shape of salvage. 3. Lastly, the recapture maybe made from an enemy. ^ . , . '' Recapture ThejMS postliminii was a fiction of the Roman law, from an by which persons or things taken by the enemy were ^ held to be restored to their former state, when cominaf asain under the power of the nation to which they formerly belonged. It was applied to free persons or slaves retnxmng postliminii ; and to real property and certain movables, such as ships of war and private vessels, except fishing and pleasure boats. These things, therefore, when retaken, were restored to the original proprietor, as if they had never been out of his control and possession.^ Grotius attests, and his authority is supported by that of the Consolato del Mare, that by the ancient maritime law of Europe, if the thing captured were carried infra prcesidia of the enemy, the jus postliminii was considered as forfeited, and the former owner was not entitled to restitution. Grotius also states, that by the more recent law established among the European nations, a possession of twenty-four hours was deemed sufficient to divest the property of the original proprietor, even if the cap- tured thing had not been carried infra prcesidia? And Loccenius considers the rule of twenty-four hours possession as the general law of Christendom at the time when he wrote.^ So, also, Byn- 1 Ins. lib. i. tit. 12, Dig. I. 49, tit. 15. " Navis longis atque onerariis, postli- minium est, non piscatiis aut voluptatis causa." Dig. 49. 2 " Cui consequens esse videtur, ut in mari naves, et res alijE captaj censeantur turn demum, cum in navalia aut portus, aut ad eum locum ubi tota classis se tenet, perducta sunt : nam tunc desperari incipit recuperatio, sed recent iori jure gentium inter Europjeos populos introductum, videmus, ut talia capta censeantur ubi per horas viginti quatuor in potestate hostium fuerint." Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 6, § 3. Consolato del Mare, cap. 287, § 1. Wheaton's Eep. vol. V. Appendix, p. 56. Ayala, de Jur. Bel. ac Pac. cap. v. Wheaton's Hist. Law of Nations, p. 45. 3 Loccenius, de Jure Marit. lib. ii. cap. 4, § 4. 444 RIGHTS OF WAR [PART IV. kershoek states the general maritime law to be, that if a ship or goods be carried infra prcesidia of the enemy, or of his ally, or of a neutral, the title of the original proprietor is completely divested.^ Rule of ^^^ ^- Scott, in delivering the judgment of the amicable Enfflish Court of Admiralty, in the case of The Santa i-etaliation, ° •' oriecipro- Cruz and other Portuguese vessels recaptured, in 1796 to recap- and 1797, from the common enemy by a British cruiser, property of stated that it was certainly a question of much curiosity allies. ^Q inquire what was the true rule on this subject. " When I say the true rule, I mean only the rule to which civilized nations, attending to just principles, ought to adhere ; for the moment you admit, as admitted it must be, that the practice of nations is various, you admit that there is no rule operating with the proper force and authority of a general law. It may be fit there should be some rule, and it might be either the rule of immediate possession, or the rule of pernoctation and twenty- four hours possession ; or it might be the rule of bringing infra prcesidia ; or it might be a rule requiring an actual sentence or condemnation : either of these rules might be sufficient for gene- ral practical convenience, although in theory perhaps one might appear more just than another: but the. fact is that there is no such rule of practice. Nations concur in principles, indeed, so far as to require firm and secure possession ; but these rules of evidence respecting that possession are so discordant, and lead to such opposite conclusions, that the mere unity of prin- ciple forms no uniform rule to regulate the general practice. But were the public opinion of European States more distinctly agreed on any principle, as fit to form the rule of the law of na- tions on this subject, it by no means follows that any one nation would lie under an obligation to observe it. That obligation could only arise from a reciprocity of practice in other nations ; for, from the very circumstance of the prevalence of a different rule among other nations, it would become not only lawful, but necessary to that one nation to pursue a different conduct : for instance, were there a rule prevailing among other nations, that 1 Bynkersboek, Qusest. Jur. Pub. lib. i. cap. 5. CHAP. II.] AS BETWEEN ENEMIES. 445 the immediate possession, and the very act of capture should divest the property from the first owner, it would be absurd in Great Britain to act towards them on a more extended principle, and to lay it down as a general rule, that a bringing infra prce- sidia, though probably the true rule, should in all cases of recap- ture be deemed necessary to divest the original proprietor of his right. The efll'ect of adhering to such a rule would be gross injustice to British subjects ; and a rule, from which gross injustice must ensue in practice, can never be the true rule of law between- independent nations ; for it cannot be supposed to be the duty of any country to make itself a martyr to speculative propriety, were that established on clearer demonstration than such ques- tions will generally admit. Where mere abstract propriety, therefore, is on one side, and real practical justice on the other, the rule of substantial justice must be held to be the true rule of the law of nations between independent States. " If I am asked, under the known diversity of practice on this subject, what is the proper rule for a State to apply to the recap- tured property of its allies ? I should answer, that the liberal and rational proceeding would be to apply in the first instance the rule of that country to which the recaptured property belongs. I admit the practice of nattions is not so ; but I think such a rule would be both liberal and just. To the recaptured, it presents his own consent, bound up in the legislative wisdom of his own country : to the recaptor, it cannot be considered as injurious, where the rule of the recaptured would condemn, whilst the rule of the recaptor prevailing among his own countrymen, would restore, it brings an obvious advantage ; and even in case of im- mediate restitution, under the rules of the recaptured, the recap- turing country would rest secure in the reliance of receiving reciprocal justice in its turn. " It may be said, what if this reliance should be disappointed ? — Redress must then be sought from retaliation ; which, in the disputes of independent States, is not to be considered as vin- dictive retaliation, but as the just and equal measure of civil retribution. This will be their ultimate security, and it is a security sufficient to warrant the trust. For the transactions of States cannot be balanced by minute arithmetic ; something must, on all occasions, be hazarded on just and liberal pre- sumption. 38 * 446 RIGHTS OF AVAR [pART IV. " Or it may be asked, what if there is no rule in {he country of the recaptured? — I answer^ first, this is scarcely to be sup- posed ; there may be no ordinance, no prize acts immediately applying to recapture ; but there is a law of habit, a law of usage, a standing and known principle on the subject, in all civilized com- mercial countries : it is the common practice of European States, in every war, to issue proclamations and edicts on the subject of prize ; but till they appear, Courts of Admiralty have a law and •usage on which they proceed, from habit and ancient practice, as regularly as they afterwards conform to the express regulations of their prize acts. But secondly, if there should exist a country in which no rule prevails, — the recapturing country must of necessity apply its own rule, and rest on the presumption that Ihat rule will be adopted and administered in the future practice of its allies. " Again, it is said that a country applying to other countries their own respective rules, will have a practice discordant and irregular : it may be so ; but it will be a discordance proceed- ing from the most exact uniformity of principle ; it will be idem per diversa. It is asked, also, will you adopt the rules of Tunis and Algiers ? If you take the people of Tunis and Algiers for your allies, undoubtedly you must; you must act towards them on the same rules of relative justice on which you conduct your- selves towards other nations. And upon the whole of these objections it is to be observed, that a rule may bear marks of apparent inconsistency, and yet contain much relative fitness and propriety ; a regulation maybe extremely unfit to be made, which yet shall be extremely fit, and shall indeed be the only fit rule to be observed towards other parties, w^io have originally established it for themselves. " So much it might be necessary to explain myself on the mere question of propriety ; but it is much more material to consider, what is the actual rule of the maritime law of England on this subject. I understand it to be clearly this, that the maritime law of England, having adopted a most liberal rule of restitution or salvage with respect to the recaptured property of its own subjects, gives the benefit of that rule to its allies, till it appears that they act towards British property on a less liberal principle. In such a case, it adopts their rule, and treats them according to their own measure of justice. This I consider to be the true state- M CHAP. II.] AS BETWEEN ENEMIES. 447 ment of the law of England on this subject : It was clearly so recognized in the case of The San Jago ; a case which was not, as it has been insinuated, decided on special circumstances, nor on novel principles, but on principles of established use and authority in the jurisprudence of this country. In the discussion of that case, much attention was paid to an opinion found among the manuscript collections of a very distinguished prac- titioner in this profession, (Sir E. Simpson,) which records the practice and the rule as it was understood to prevail in his time. The rule is : that England restores, on salvage, to its allies ; but if instances can be given of British property retaken by them and condemned as prize, the Court of Admiralty will determine their cases according to their own rule." ^ The law of our own country proceeds on the same American principle of reciprocity, as to the restitution of vessels Ij^i^niie'of or goods belonwins: to friendly foreign nations, and re- reciprocity ° & » J b ? as to restitu- captured from the enemy by our ships of war. By the tion of the act of Congress of the 3d March, 1800, ch. xiv. § 3, it is friendly na- provided that the vessels or goods of persons perma- turedfromj' nently resident within the territory, and under the protec- ^^ enemy. tion of any foreign government in amity with the United States, and retaken by their vessels, shall be restored to the owner, he paying, for salvage, such portion of the value thereof, as by the law and usuge of such foreign governments shall be required of any vessel or goods of the United States under like circumstances of recapture; and where no such law or usage shall be known, the same salvage shall be allowed as is provided in the case of the recapture of the property of persons resident within, or under the protection of the United States. Provided that no such vessel or goods shall be restored to such former owner, in any case where the same shall have been condemned as prize by compe- tent authority, before the recapture ; nor in any case, where by the law and usage of such foreign government, the vessels or goods of citizens of the United States would not be restored in like circumstances. It becomes then material to ascertain what is the law Laws of c J- n" J. -i- i- ^ • r dift'erent oi dmerent maritime nations on the subject oi recap- countries as tures; and this must be sought for either in the prize turc's!^^^' 1 Sir W. Scott, Robinson's Adm. Rep. vol. i. pp. 58-63. 448 RIGHTS OF WAR [PART IV. code and judicial decisions of each country, or in the treaties by which they are bound to each other. The present British law of military salvage was British law. ' r ^ o i established by the statutes of the 43d Geo. III. ch. 160, and the 45th Geo. III. ch. 72, which provide that any vessel, or goods therein, belonging to British subjects, and taken by the enemy as prize, which shall be retaken, shall be restored to the former owners, upon payment for salvage of one-eighth part of the value thereof, if retaken by his Majesty's ships ; and if retaken by any privateer, or other ship or vessel under his Ma- jesty's protection, of one sixth part of such value. And if the same shall have been retaken by the joint operation of his Ma- jesty's ships and privateers, then the proper court shall order such salvage to be paid as shall be deemed fit and reasonable. But if the vessel so retaken shall appear to have been set forth by the enemy as a ship of war, then the same shall not be restored to the former owners, but shall be adjudged lawful prize for the benefit of the captors. American The act of Congrcss of the 3d March, 1800, ch. xiv. ^^^^* §§ 1, 2, provides that, in case of recaptures of vessels or goods belonging to persons resident' within, or under the protection of the United States, the same not having been con- demned as prize hy competent authority, before the recapture, shall be restored on payment of salvage of one eighth of the value if recaptured by a public ship ; and if the recaptured vessel shall appear to have been set forth and armed as a vessel of war before such capture, or afterwards, and before the recapture, then the salvage to be one moiety of the value. If the recaptured vessel previously belonged to the Government of the United States, and be unarmed, the salvage is one sixth, if recaptured by a private vessel, and one twelfth, if recaptured by a public ship ; if armed, then the salvage to be one moiety if recaptured by a private vessel, and one fourth if recaptured by a public ship. In respect to public armed ships, the cargo pays the same rate of salvage as the vessel, by the express words of the act ; but in respect to private vessels, the rate of salvage (probably by some unintentional omission in the act) is the same on the cargo, whe- ther the vessel be armed or unarmed.^ 1 Cranch's Rep. vol. ix. p. 244. The Adeline. CHAP. II.] AS BETWEEN ENEMIES. 449 It will be perceived, that there is a material difference between the American and British laws on this subject ; the act of Parlia- ment continuing the jus postliminii forever, between the original owners and recaptors, even if there has been a previous sentence of condemnation, unless the vessel retaken appears to have been set forth by the enemy as a ship of war ; whilst the act of Congress continues the jus postliminii until the property is divested by a sentence of condemnation in a competent court, and no longer ; which was also the maritime law of England, until the statute stepped in, and, as to British subjects, revived the jus postliminii of the original owner. By the more recent French law on the subject of re- ^ •' •' t rehch law. captures, if a French vessel be retaken from the enemy after being in his hands more than twenty-four hours, it is good prize to the recaptor; but if retaken before twenty-four hours have elapsed, it is restored to the owner, with the cargo, upon the payment of one third the value for salvage, in case of recapture by a privateer, and one thirtieth in case of recapture by a public ship. But in case of recapture by a public ship, after twenty-four hours possession, the vessel and cargo are restored on a salvage of one tenth. Although the letter of the ordinances, previous to the revolu- tion, condemned, as good prize, French property recaptured after being twenty-four hours in possession of the enemy, whether the same be retaken by public or private armed vessels ; yet it it seems to have been the constant practice in France to restore such property when recaptured by the king's ships.^ The reserva- tion contained in the ordinance of the 15th of June, 1779, by which property recaptured after twenty-four hours possession by the enemy, was condemned to the crown, which reserved to itself the right of granting to the recaptors such reward as it thought fit, made the salvage discretionary in every case, it being regulated by the king in council according to circumstances.^ (a) 1 Valin, sur I'Ord. llv. iii. tit. 9, art. 3. Traite ties Prises, cli. 6, § 1, No. 8, § 88. Pothier, Trait6 de Propriete, No. 97. Emerigon, des Assurances, torn. i. p. 497. 2 Emerigon, des Assurances, torn. i. p. 497. (a) [L'ordonnance du 15 Juin, 1779, porte : En ce qui concerne les reprises faites par les vaisseaux, fregates, et autres butimens de sa majest6, le tiers sera adjug6 h son profit, pour droit de recousse, si elle a ete, faite dans les vingt quatre 38* 450 RIGHTS OF WAR [PART IV. France applies her own rule to the recapture of the property of her allies. Thus, the Council of Prizes decided on the 9th February, 1801, as to two Spanish' vessels recaptured by a French privateer after the twenty-four hours had elapsed, that they should be condemned as good prize to the recaptor. Had the recapture been made by a public ship, whether before or after twenty-four hours possession by the enemy, the property would have been restored to the original owner, according to the usage with respect to French subjects, and on account of the intimate relation subsisting between the two powers.' The French law also restores, on payment of salvage, even after twenty-four hours possession by the enemy, in cases where the enemy leaves the prize a derelict, or where it reverts to the original proprietor in consequence of the perils of the seas, with- out a military recapture. Thus the Marine Ordinance of Louis XIV., of 1681, liv. iii. tit. 9, art. 9, provides that, " if the vessel, without being recaptured, is abandoned by the enemy, or if in consequence of storms or other accident, it comes into the pos- session of our subjects, before it has been carried into an enemy's port, (avant qu'il ait ete conduit dans aucun port ennemi) ; it shall be restored to the proprietor, who may claim the same within a year and a day, although it has been more than twenty- four hours in the possession of the enemy." Pothier is of opinion that the above words avant quHl aii ete conduit dans aucun port ennemi, are to be understood, not as restricting the right of resti- tution to the particular case mentioned of a vessel abandoned by the enemy before being carried into port, which case is mentioned heures, et apres le dit delai, la reprise sera adjug6e en entier a sa Majest6, comme par le pass6. L'arrdte du 2 pralrial an 2, qui regie aujourd' hui la matlere adoucit uu pen la rigueur de ces reglemens, en ce qui concerne les reprises faites par les vaisseaux de guerre, mais il faut remarquer qu' aujourd' bui nulle autorite n'a plus le droit de faire remise de la partie confisquee. Le navire recous doit ctre restitue au propri6taire avec sa cargaison, ji la charge par lui de payer a lV,quipage repreneur un trentieme de la valeur, si la recousse a eu lieu avant I'expiration du ddlai de vingt quatre heures, et le dixieme si elle a et6 faite apres ce delai. Le droit de recousse pour les armateurs reste fixe au tiers dans la premiere hvpothese ; dans la seconde, le batiment et la cargaison leur appartiennent en entier." Hautefeuille, Droit des gens neutres, t. iv. p. 391.] 1 Pothier, de Propriety, No. 100. Emerigon, torn. i. p. 499. Azuni, Droit Maritime de I'Europe, Partie ii. ch. 4, § 11.. CHAP. II.] AS BETWEEN ENEMIES. 451 merely as an example of what ordinarily happens, " parceque c'est le cas ordinaire auquel un vaisseau echapp^ a I'ennemi qui I'a pris, ne pouvant pas gueres lui echapper lorsqu'il a etc conduit dans ses ports." ' But Valin holds, that the terms of the ordi- nance are to be literally construed, and that the right of the ori- ginal proprietor is completely divested by the carrying into an enemy's port. He is also of opinion that this species of salvage is to be likened to the case of shipwreck, and that the recaptors are entitled to one third of the value of property saved.^ Azuni contends that the rule of salvage in this case is not regulated by the ordinance, but is discretionary, to be proportioned to the nature and extent of the service performed, which can never be equal to the rescue of property from the hands of the enemy by military force, or to the recovery of goods lost by shipwreck.^ Emerigon is also opposed to Valin on this question.^ Spain formerly adopted the law of France as to gpa^jsj^ recaptures, having borrowed its prize code from that ^^^w. country ever since the accession of the house of Bourbon to the Spanish throne. In the case of The San Jago (mentioned in that of The Santa Cruz, before cited,) the Spanish law was applied, upon the principle of reciprocity, as the rule of British recapture of Spanish property. But by the subsequent Spanish prize ordinance of the 20th of June, 1801, art. 38, it was modified as to the property of friendly nations; it being provided that when the recaptured ship is not laden for enemy's account, it shall be restored, if recaptured by public vessels, for one eighth, if by privateers for one sixth salvage : provided that the nation to which such property belongs has adopted, or agrees to adopt, a similar conduct towards Spain. The ancient rule is preserved as to recaptures of Spanish property ; it being restored without salvage, if recaptured by a king's ship before or after twenty-four hours possession; and if recaptured by a privateer within that time, upon payment of one half for salvage ; if recaptured after that time, it is condemned to the recaptors. The Spanish law 1 Pothier, de Propriete, No. 99. 2 Yalin, sur I'Ord. in loco. 3 Azuni, Droit Maritime, Partie ii. ch. 4, §§ 8, 9. 4 Emerigon, des Assurances, torn. i. pp. 504-505. He cites in support of Lis opinion the Consolato del Mare, cap. 287, and Targa, cap. 4C, No. 10. 452 RIGHTS OF WAR [PART IV. has the same provisions with the French in cases of captured property becoming derelict, or reverting to the possession of the former owners by civil salvage, (a) Portuguese Portugal adopted the French and Spanish law of re- ^^"^" captures, in her ordinances of 1704 and 1796. But in May, 1797, after The Santa Cruz was taken, and before the judg- ment of the English High Court of Admiralty was pronounced in that case, Portugal revoked her former rule by which twenty- four hours possession by the enemy divested the property of the former owner, and allowed restitution after that time, on salvage of one eighth, if the capture was by a public ship, and one fifth if by a privateer.. In The Santa Cruz and its fellow cases, Sir W. Scott distinguished between recaptures made before and since the ordinance of May, 1797; condemning the former where the property had been twenty-four hours in the enemy's possession, and restoring the latter upon payment of the salvage established by the Portuguese ordinance. The ancient law of Holland regulated restitution on the payment of salvage at different rates, according to the length of time the property had been in the enemy's pos- session.i The ancient law of Denmark condemned after twenty- four hours possession by the enemy, and restored, if the property had been a less time in the enemy's possession, upon payment of a moiety of the value of salvage. But the ordinance of the 28th March, 1810, restored Danish or allied property with- out regard to the length of time it might have been in the enemy's possession, upon payment of one third the value. Swedish -^y ^^^ Sv^^edish ordinance of 1788, it is provided, that ^^"'^'- the rates of salvage on Swedish property shall be one half the value, without regard to the length of time it may have been in the enemy's possession. (o) [There is a special treaty on the subject of recapture between England and Spain, concluded 5th February, 1814, which fixes the salvage at one eighth ■when the recapture is made by a ship of -war, and one sixth by a privateeer, or jointly by a privateer and ship of war. The restoration is made without reference to the time that the ship has remained in the captor's hands, or whether it has been brought into the port of the captor or been condemned. Hautefeuille, Droit des gens neutres, tom. iv. p. 413.] 1 Bynkershoek, Quajst. Jur. Pub. lib. i. cap. 5. II CHAP. II.] AS BETWEEN ENEMIES. 453 What constitutes a setting: forth as a vessel of vjar What con- has been determined by the British Courts of Prize, in "seufng'^ cases arising under the clause in the act of Parliament, ygslerof^ which may serve for the interpretation of our own law, wiu," under '' ' , , ' the prize as the provisions are the same in both. Thus it has act. been settled, that where a ship was originally armed for the slave-trade, and after capture an additional number of men were put on board, but there was no commission of war, and no addi- tional arming, it was not a setting forth as a vessel of war under the act.i But a commission of war is decisive if there be guns on board.2 And where the vessel, after the capture, has been fitted out as a privateer, it is conclusive against her, although when recaptured, she is navigating as a mere merchant ship ; for where the former character of a captured vessel had been oblite- rated by her conversion into a ship of war, the legislature meant to look no further, but considered the title of the former owner forever extinguished.^ Where it appeared that the vessel had been engaged in the military service of the enemy, under the direction of his minister of the marine, it was held as a sufficient proof of a setting forth as a vessel of war.* So where the vessel is armed, and is employed in the public military service of the enemy by those who have competent authority so to employ it, although it be not regularly commissioned.^ But the mere em- ployment in the enemy's military service is not sufficient; but if there be a fair semblance of authority in the person directing the vessel to be so employed, and nothing upon the face of the pro- ceedings to invalidate it, the court will presume that he is duly authorized ; and the commander of a single ship may be pre- sumed to be vested with this authority as commander of a squadron.^ It is no obiection to an allowance of salvage, or a Recapture *' , . . ■■ '\v a con- recapture, that it was made by a non-commissioned commis- vessel ; it is the duty of every citizen to assist his fel- vessel. ' Robinson's Adm. Rep. vol. vi. p. 320. The Horatio. 2 Dodson's Adm. Rep. vol. i. p. 105. The Ceylon. 3 Edwards' Adm. Rep. 185. The Actif. 4 Robinson's Adm. Rep. vol. iii. p. 65 5 Dodson's Adm. Rep. vol. i. p. 105. The Ceylon. 6 Dodson's Adm. Rep. vol. vol. i. p. 397. The Georgiana. f 454 RIGHTS OF WAR [PART IV. low citizens in war, and to retake their property out of the enemy's possession ; and no commission is necessary to give a person so employed a title to the reward which the law allots to that meritorious act of duty.^ And if a convoying ship recap- tures one of the convoy, which has been previously captured by the enemy, the recaptors are entitled to salvage.^ But a mere rescue of a ship engaged in the same common enterprize gives no right to salvage.^ To entitle a party to salvage, as upon a recapture, there must have been an actual or constructive capture ; for military salvage will not be allowed in any case where the property has not been actually rescued from the enemy.^ But it is not necessary that the enemy should have actual possession ; it is sufficient if the property is completely under the dominion, of the enemy.^ If, however, a vessel be captured going in distress into an enemy's port, and is thereby saved, it is merely a case of civil and not of military salvage.^ But to constitute a recapture, it is not neces- sary that the recaptors should have a bodily and actual posses- sion ; it is sufficient if the prize be actually rescued from the grasp of the hostile captor.' Where a hostile ship is captured, and afterwards recaptured by the enemy, and again recaptured from the enemy, the original captors are not entitled to restitu- tion on paying salvage, but the last captors are entitled to the whole rights of prize ; for, by the first recapture, the right of the original captors is entirely divested.^ Where the original captors have abandoned their prize, and it is subsequently captured by other parties, the latter are solely entitled to the property.^ But 1 Robinson's Adm. Rep. vol. iii. p. 224. The Helen. 2 Robinson's Adm. Rep. yoI. vI. p. 315. The Wight. 3 Edwards' Adm. Rep, vol. i. p. 66. The Belle. 4 Robinson's Adm. Rep. vol. iv. p. 147. The Franklin. 5 Robinson's Adm. Rep. vol. iii. p. 305. The Edward and Mary. Edwards' Adm. Rep. vol. i. p. 116. The Pensamento Felix. 6 Robinson's Adm. Rep. vol. iv. p. 147. The Franklin. 7 Robinson's Adm. Rep. vol. iii. p. 805. The Edward and Mary. 8 Robinson's Adm. Rep. vol. iv. p. 217. Note a. Wheaton's Rep. vol. i. p. 125. The Astrea. Valin, sur I'Ord., torn. ii. pp. 257-259. Traite des Prises, ch. 6, § 1. Pothier, de Proprlete, No. 99. 9 Edwards' Adm. Rep. vol. i. p. 79. The Lord Nelson. Dodson's Adm. Rep- vol. i. p. 404. The Diligentia. I CHAP. II.] AS BETWEEN E?TEMIES. 455 if the abandonment be involuntary, and produced by the terror of superior force, and especially if produced by the act of the second captors, the rights of the original captors are completely revived.^ And where the enemy has captured a ship, and after- wards deserted the captured vessel, and it is then recaptured, this is not to be considered as a case of derelict; for the original owner never had the animus delinquendi, and therefore it is to be restored on payment of salvage ; but as it is not strictly a recap- ture within the prize act, the rate of salvage is discretionary .^ But if the abandonment by the enemy be produced by the terror of hostile force, it is a recapture within the terms of the act.^ Where the captors abandon their prize, and it is afterwards brought into port by neutral salvors, it has been held that the neutral Court of Admiralty has jurisdiction to decree salvage, but cannot restore the property to the original belligerent owners; for by the capture, the captors acquired such a right of property as no neutral nation can justly impugn or destroy, and, conse- quently, the proceeds, (after deducting salvage,) belong to the original captors ; and neutral nations ought not to inquire into the validity of a capture between belligerents.* But if the captors make a donation of the captured vessel to a neutral crew, the latter are entitled to a remuneration as salvors ; but after deduct- ing salvage, the remaining proceeds will be decreed to the ori- ginal owner.^ And it seems to be a general rule, liable to but few exceptions, that the rights of capture are completely divested by a hostile recapture, escape, or voluntary discharge of the captured vessel.^ And the same principle seems applicable to a liostih rescue, but if the rescue be made by the neutral crew of a neutral ship, it may be doubtful how far such an illegal act, which in- volves the penalty of confiscation, would be held, in the prize courts of the captor's country, to divest his original right in case of a subsequent recapture. 1 Wheaton's Rep. vol. ii. p. 123, The Mary. '^ Robinson's Adm. Rep. vol. iv. p. 216. The John and Jane. 3 Robinson's Adm. Rep. vol. vi. p. 273. The Gage. 4 Dallas' Rep. vol. iii. p. 188. The Mary Ford. 5 Cranch's Rep. vol. viii. p. 227. The Adventure. 6 Cranch's Rep. vol. iv. p. 293. Hudson v. Gucstier, vol. vi. p. 281. S. C. Dodson's Adm. Rep. vol. i. p. 404. The Diligentia. 456 RIGHTS OF WAR [PART IV. As to recaptors, although their right to salvage is extinguished by a subsequent hostile recapture and regular sentence of con- demnation, divesting the original owners of their property, yet if the vessel be restored upon such recapture, and resume her voy- age, either in consequence of a judicial acquittal, or a release by the sovereign power, the recaptors are redintegrated in their right of salvage.^ And recaptors and salvors have a legal inte- rest in the property, which cannot be divested by other sub- jects, without an adjudication in a competent court; and it is not for the government's ships or officers, or for other persons, upon the ground of superior authority, to dispossess them with- out cause.2 In all cases of salvage where the rate is not ascertained by positive law, it is in the discretion of the court, as well upon recaptures as in other cases.^ And where, upon a recapture, the parties have entitled themselves to a military salvage, under the Prize Act, the court may also award them, in addition, a civil salvage, if they have subsequently rendered extraordinary ser- vices in rescuing the vessel in distress from the perils of the seas.* § 13. Va- The validity of maritime captures must be determined maiitime in a court of the captor's government, sitting either in detenniii'ed his owu country or in that of its ally. This rule of of ufeTap-* i"^"^^'^^^'^^^" applies, whether the captured property be tor's coi;n- carried into a port of the captor's country, into that of try. Con- _ ' ' •' ' demiiation an ally, or into a neutral port, (a) lying in tiie Respecting the first case, there can be no doubt. In poi^so an ^j^^ 5ecow3 o ' the coasts, invalid. Thus, where a British privateer stationed it- self within the river Mississippi, in the neutral territory of the United States, for the purpose of exercising the rights of war from the river, by standing oft" and on, obtaining information at the Balize, and overhauling vessels in their course down the river, and made the capture in question within three English miles of the alluvial islands formed at its mouth, restitution of the captured vessel was decreed by Sir W. Scott. So, also, where a belligerent ship, lying within neutral territory,, made a capture with her boats out of the neutral territory, the capture was held to be invalid ; for though the hostile force employed was applied to the captured vessel lying out of the territory, yet no such use of a neutral territory for the purposes of war is to be permitted. This prohibition is not to be extended to remote uses, such as procuring provisions and refreshments, which the law of nations universally tolerates ; but no proximate acts of 1 Vide ante, Pt. II. ch. 4, § 12, p. 253. Vattel, Droit des Gens, liv. iii. ch. 7, §§119-131. Grotius, de Jur. Bel. ac Tac. lib. ii. cap. 2, § 13. Sir W. Scott, Kobinson's Adm. Rep. vol. iii. p. 353. 2 Vide ante, Pt. II. ch. 4, §§ 6-8, pp. 233-236. CHAP. III.] AS TO NEUTRALS. 493 war are in any manner to be allowed to originate on neutral ground.^ Although the immunity of the neutral territory from ^10. Vgs- the exercise of any act of hostility is generally admitted, seis chased yet an exception to it has been attempted to be raised neutra?ter- in the case of a hostile vessel met on the high seas and [heTJcap^ pursued; which it is said may, in the pursuit, be chased *"^®^- within the limits of a neutral territory. The only text writer of authority who has maintained this anomalous principle is Bynkershoek.2 He admits that he had never seen it mentioned in the writings of the public jurists, or Efmong any of the Euro- pean nations, the Dutch only excepted ; thus leaving the infer- ence open, that even if reasonable in itself, such a practice never rested upon authority, nor was sanctioned by general usage. The extreme caution, too, with which he guards this license to belligerents, can hardly be reconciled with the practical exercise of it; for how is an enemy to be pursued in a hostile manner within the jurisdiction of a friendly power, without imminent danger of injuring the subjects and property of the latter? Dwni fervet opus — in the heat and animation excited against the flying foe, there is too much reason to presume that little reo-ard will be paid to the consequences that may ensue to the neutral. There is, then, no exception to the rule, that every voluntary entrance into neutral territory, with hostile purposes, is absolutely unlawful. " When the fact is established," says Sir W. Scott, " it overrules every other consideration. The capture is done away ; the property must be restored, notwithstanding that it may actually belong to the enemy." ^ ^a) 1 The Anna, Nov. 1805. Robinson's Adm. Rep. vol. v. p. 373. The Twee Gebroeders, July, 1800. Vol. iii. p. 162. 2 Quaest. Jur. Pub. lib. i. cap. 8, This opinion of Bynkershoek, in which Casa- regis seems to concur, is reprobated by several other public jurists. Azuni, Dir- itto Maritinio, Pt. I. c. 4, art. 1. Valin, Trait6 des Prises, ch. 4, § 3, No. 4, art. 1. D'Habreu, Sobre las Prisas, Pt. I. ch. 4, § 15. 3 Robinson's Adm. Rep. vol. v. p. 15. The Yrow Anna Catharina. (a) [A case of violation of neutral territory occurred in the destruction, in the harbor of Fayal, in September, 1814, of the American privateer General Arm- strong, by an English squadron. Reclamations, founded on it, were made against 42 494 RIGHTS OF WAR [PART IV. §11. Claim Though it is the duty of the captor's country to OToundof rnake restitution of the property thus captured within violation of ^j^g territorial iurisdiction of the neutral State, vet it is neutral _ *■ ' •' territory a technical rule of the prize courts to restore to the indi- inustbe • i i i • • i !• • sanctioned vidual Claimant, in such a case, only on the application trai state.^' of the neutral government whose territory has been thus violated. This rule is founded upon the principle, that the neu- tral State alone has been injured by the capture, and that the hostile claimant has no right to appear for the purpose of sug- gesting the invalidity of the capture.^ § 12. Resti- Where a capture of enemy's property is made within theneutrai neutral territory, or by armaments unlawfully fitted out stateofpro- ■yvithin the same, it is the right as well as the duty of perty cap- ' ^ •' turcdwithin the ucutral State, where the property thus taken comes jtsjurisdic- , . , . . , tion. or into its possession, to restore it to the original owners. the government of Portugal, which were, by the 2d article of the Treaty of 26th of February, 1851, (Treaties of the United States, 1854, p. 92,) agreed to be submitted to the arbitration of a sovereign, potentate, or chief of some nation in amity with both the high contracting parties. Under this provision, Louis Napo- leon, the President of the French RepubUc, was selected as arbitrator. There is some discrepancy between the American statement and the summary of facts on which the award proceeds. The Prince President, however, in pronouncing that no indemnity was due from Portugal, does not deny the responsibility of a neutral to make compensation to a belligerent, whose property has been captured or destroyed within its jurisdictional limits by the opposing belligerent; but he bases his decision on the assumed fact, that the American commander had not applied, from the beginning, for the intervention of the neutral sovereign ; that by having recourse to arms, to repel an unjust aggression of which he pretended to be the object, he had himself failed to respect the neutrality of the territory of the foreign sovereign, and had thereby released that sovereign from the obliga- tion to afford him protection by any other means than that of pacific interven- tion ; and that the Portuguese government could not be held responsible for the result of the collision which took place, in contempt of its rights of sovereignty, and in violation of the neutrality of its territory, and without the local officers being required, in proper time, to grant the necessary aid and protection. Cong. Doc. 32d Cong. 1st Sess. H. Rep. Ex. Doc. No. 63. 32d Cong. 2d Sess. Senate Ex. Doc. No. 24. See Rev. Etr. et Fr. torn. vii. p. 751, for the case of the French ships of war captured by the British in 1759, within the jurisdiction of Portugal, and restored on the demand of the Marquis Pomballos.] 1 Robinson's Adm. Rep. vol. iii. Note. Case of the Etrusco. Wheaton's Rep. vol. iii. p. 447. The Anne. CHAP. III.] AS TO NEUTRALS. 495 This restitution is generally made through the agency otherwise iu of the courts of admiralty and maritime jurisdiction, j^i's^n^eutrai-^ Traces of the exercise of such a jurisdiction are found ^'J- at a very early period in the writings of Sir Leoline Jenkins, who was Judge of the English High Court of Admiralty in the reigns of Charles II. and James II. In a letter to the kina: in n ^ & Captures council, dated October 11, 1675, relating to a French withiuthe • 1 1 • / TT places called privateer seized at Harwich with her prize, (a Hamburg the King's vessel bound to London,) Sir Leoline states several questions arising in the case, among which was,." Whether this Hamburger, being taken within one of your Majesty's chambers, and being bound for one of your ports, ought not to be set free by your Majesty's authority, notwithstanding he were, if taken upon the high seas out of those chambers, a lawful prize. I do humbly conceive he ought to be set free, upon a full and clear proof that he was within one of the king's chambers at the time of the seizure, which he, in his first memorial, sets forth to have been eight leagues at sea, over against Harwich. King James (of blessed memory) his direction, by proclamation, March 2, 1604, being that all officers and subjects, by sea and land, shall rescue and succor all merchants and others, as shall fall within the danger of such as shall await the coasts, in so near places to the hinderance of trade outward and homeward; and all foreign ships, when they are within the king's chambers, being under- stood to be within the places intended in those directions, must be in safety and indemnity, or else when they are surprised must be restored to it, otherwise they have not the protection worthy of your Majesty, and of the ancient reputation of those places. But this being a point not lately settled by any determination, (that I know of, in case where the king's chambers precisely, and under that name, came in question,) is of that importance as to deserve your Majesty's declaration and assertion of thai right of the crown by an act of State in council, your Majesty's coasts being now so much infested with foreign men of war, that there will be frequent use of such a decision." ^ Whatever doubts there may be as to the extent of the terri- torial jurisdiction thus asserted, as entitled to the neutral immu- 1 Life and Works of Sir L. Jenkins, vol. ii. p. 727. 496 RIGHTS OF WAR [PART IV. nity, there can be none as to the sense entertained by this emi- nent civilian respecting the right and the duty of the neutral sovereign to malse restitution where his territory is violated. Extent of When the maritime war commenced in Europe, in *uriscfict!on l'^93, the American government, which had determined along the ^q remain neutral, found it necessary to define the ex- coasts ana . . within the tent of the line of territorial protection claimed by the rivers. United States on their coasts, for the purpose of giving effect to their neutral rights and duties. It was stated on this occasion, that governments and writers on public law had been much divided in opinion as to the distance from the seacoast within which a neutral nation might reasonably claim a right to prohibit the exercise of hostilities. The character of the coast of the United States, remarkable in considerable parts of it for admitting no vessel of size to pass near the shore, it was thought would entitle them in reason to as broad a margin of protected navigation as any nation whatever. The government, however, did not propose, at that time, and without amicable commu- nications with the foreign powers interested in that navigation, to fix on the distance to which they might ultimately insist on the right of protection. President Washington gave instructions to the executive officers to consider it as restrained, for the pre- sent, to the distance of one sea league, or three geographical miles, from the sea-shores. This distance, it was supposed, could admit of no opposition, being recognized by treaties between the United States, and some of the powers with whom they were connected in commercial intercourse, and not being more exten- sive than was claimed by any of them on their own coasts. As to the bays and rivers, they had always been considered as por- tions of the territory, both under the laws of the former colonial government and of the present union, and their immunity from belligerent operations was sanctioned by the general law and usage of nations. The 25th article of the treaty of 1794, between Great Britain and the United States, stipulated that '' neither of the said parties shall permit the ships or goods belonging to the citizens or subjects of the other, to be taken within cannon shot of the coast, nor in any of the bays, ports, or rivers, of their terri- tories, by ships of war, or others, having commissions from any prince, republic, or State whatever. But in case it should so happen, the party whose territorial rights shall thus have been I CHAP. III.] AS TO NEUTRALS. 497 violated, shall use his utmost endeavors to obtain from the offending party full and ample satisfaction for the vessel or vessels so taken, whether the same be vessels of war or mer- chant vessels." Previously to this treaty with Great Britain, the United States were bound by treaties with three of the bel- ligerent nations, (France, Prussia, and Holland,) to protect and defend, " by all the means in their power," the vessels and effects of those nations in their ports or waters, or on the seas near their shores, and to recover and restore the same to the right owner when taken from them. But they were not bound to make compensation if all the means in their power were used, and failed in their effect. Though they had, when the war com- menced, no similar treaty with Great Britain, it was the Presi- dent's opinion that they should apply to that nation the same rule which, under this article, was to govern the others above- mentioned ; and even extend it to captures made on the high seas, and brought into the American ports, if made by vessels which had been armed within them. In the constitutional arrangement of the different authorities of the American Federal Union, doubts were at first entertained whether it belonged to the executive government, or the judiciary department, to per- form the duty of inquiring into captures made within the neutral territory, or by armed vessels originally equipped or the force of which had been augmented within the same, and of making resti- tution to the injured party. But it has been long since settled that this duty appropriately belongs to the federal tribunals, act- ing as courts of admiralty and maritime jurisdiction.' It has been judicially determined that this peculiar , ^g j^jj^j_ jurisdiction to inquire into the validity of captures made tations of , . , . . . theneuh-a! in violation of the neutral immunity, will be exercised jurisdiction only for the purpose of restoring the specific property, ca?esofiUe- when voluntarily brought within the territory, and does ^"^ '^^'^ ^^^" not extend to the infliction of vindictive damages, as in ordinary 1 Mr. Jefferson's Letter to M. Genet, Nov. 8, 1793. Waite's State Papers, vol. vi. p. 195. Opinion of the Attorney-General on the capture of the British ship Grange, May 14, 1 793. Ibid. vol. i. p. 75. Mr. Jefferson's Letter to Mr. Hammond, Sept. 5, 1793. Waite's State Papers, vol. i. p. 165. Wheaton's Reports, vol. iv. p. 65, Note a. 42* 498 RIGHTS OF WAR [PART IV. cases of maritime injuries. And it seems to be doubtful whether this jurisdiction will be exercised where the property has been once carried infra prcesidia of the captor's country, and there regularly condemned in a competent court of prize. However this may be in cases where the property has come into the hands of a bond fide purchaser, without notice of the unlawfulness of the capture, it has been determined that the neutral court of admiralty will restore it to the original owner, where it is found in the hands of the captor himself, claiming under the sentence of condemnation. But the illegal equipment will not affect the validity of a capture, made after the cruise to which the outfit had been applied, is actually terminated.^ § 14. Right An opinion is expressed by some text writers, that neutrai^"^^'^ belligerent cruisers, not only are entitled to seek an pendenton ^sylum and hospitality in neutral ports, but have a the consent x'lshi to brins; in and sell their prizes within those ports. oftheneu- o o r r^ ^ trai State. But there seems to be nothing in the established princi- ples of public law which can prevent the neutral State from with- holding the exercise of this privilege impartially from all the belli- gerent powers ; or even from granting it to one of them, and refus- ing it to others, where stipulated by treaties existing previous to the war. The usage of nations, as testified in their marine ordi- nances, sufficiently shows that this is a rightful exercise of the sovereign authority which every State possesses, to regulate the police of its own sea-ports, and to preserve the public peace within its own territory. But the absence of a positive prohibi- tion implies a permission to enter the neutral ports for these purposes.^ * J, j^^g^_ Vattel states that the impartiality, which a neutral traiimpar- nation ought to obscrvc between the belligerent parties, tiahty, in ° . , what it COD- consists of two poiuts. 1. To give no assistance where there is no previous stipulation to give it ; nor volun- tarily to furnish troops, arms, ammunition, or any thing of direct 1 Wheaton's Rep. vol. v. p. 385. The Amistad de Eues, vol. viii. p. 108. La Nereyda, vol. ix. p. 658. The Fanny, vol. vii. p. 519. The Arrogante Barce- lones. Ibid. p. 283. The Santissima Trinidad. 2 Bynkershoek, Qu«ss. Jur. Pub. lib. i. cap. 15. Vattel, liv. iii. ch. 7, § 132- Valiu, Comm. sur I'Ordonn. de la Marine, torn. ii. p. 272. CHAP, in.] AS TO NEUTRALS. 499 use in war. " I do not say to give assistance equally, but to give no assistance : for it would be absurd that a State should assist at the same time two enemies. And besides, it would be impos- sible to do it with equality: the same things, the like number of troops, the like quantity of arms, of munitions, &c., furnished under different circumstances, are no longer equivalent succors. 2. In whatever does not relate to the war, the neutral must not refuse to one of the parties, merely because he is at war with the other, what she grants to that other." ' These principles were appealed to by the American . jg t^^^ government, when its neutrality was attempted to be "^S P4 ^5 ' J i- equipping violated on the commencement of the European war, in vessels, and 1793, by arming and equipping vessels, and enlisting men witMn men within the ports of the United States, by the territory, by respective belligerent powers, to cruise against each ggre^'nt un-" other. It was stated that if the neutral power might lawful. not, consistently with its neutrality, furnish men to either party for their aid in war, as little could either enrol them in the neu- tral territory. The authority both of Wolfius and Vattel was appealed to in order to show, that the levying of troops is an ex- clusive prerogative of sovereignty, which no foreign power can lawfully exercise within the territory of another State, without its express permission. The testimony of these and other writers on the law and usage of nations was sufficient to show, that the United States, in prohibiting all the belligerent powers from equipping, arming, and manning vessels of war in their ports, had exercised a right and a duty with justice and moderation. By their treaties with several of the belligerent powers, treaties forming part of the law of the land, they had established a state of peace with them. But without appealing to treaties, they were at peace with them all by the law of nature ; for, by the natural law, man is at peace w^ith man, till some aggression is committed, which by the same law authorizes one to destroy another, as his enemy. For the citizens of the United States, then, to commit murders and depredations on the members of other nations, or to combine to do it, appeared to the American 1 Droit des Gens, liv. iii. cli. 7, § 10-i. 500 EIGHTS OF WAR [PART IV. government as much against the laws of the land as to murder or rob, or combine to murder or rob, their own citizens ; and as much to require punishment, if done within their limits, where they had a territorial jurisdiction, or, on the high seas, where they had a personal jurisdiction, that is to say, one which reached their own citizens only; this being an appropriate part of each nation, on an element where each has a common jurisdiction.^ The same principles were afterwards incorporated hibition en- in a law of Congrcss passed in 1794, and revised and municipal reenacted in 1818, by which it is declared to be a mis- statutes, demeanor for any person, within the jurisdiction of the United States, to augment the force of any armed vessel, belong- ing to one foreign power at war with another power, with whom they are at peace ; or to prepare any military expedition against the territories of any foreign nation with whom they are at peace ; or to hire or enlist troops or seamen for foreign military or naval service ; or to be concerned in fitting out any vessel, to cruise or commit hostilities in foreign service, against a nation at peace with them : and the vessel, in this latter case, is made sub- ject to forfeiture. The President is also authorized to employ force to compel any foreign vessel to depart, which by the law of nations or treaties ought not to remain within the United States, and to employ generally the public force in enforcing the duties of neutrality prescribed by the law.^ The example of America was soon followed by Great Foreign '^ . "^ Enlistment Britain, in the act of Parliament 59 Geo. III. ch. 69, Act entitled, " An act to prevent the Enlisting or Engage- ment of His Majesty's Subjects to serve in foreign Service, and the Fitting out or Equipping in His Majesty's Dominions Ves- sels for warlike purposes, without His Majesty's License." The previous statutes, 9 and 29 Geo. XL, enacted for the purpose of preventing the formation of Jacobite armies in France and Spain, annexed capital punishment as for a felony, to the offence of entering the service of a foreign State. The 59 Geo. HI. ch. 69, 1. Mr. Jefferson's Letter to M. Genet, June 17, 1793. American State Papers, vol. i. p. 155. 2 Kent's Comm. on American Law, vol. i. p. 123. 5th ed. II CHAP. III.] AS TO NEUTRALS. 501 commonly called the Foreign Enlistment Act, provided a less severe punishment, and also supplied a defect in the former law, by introducing after the words " king, prince, state, or potentate," the words " colony or district assuming the powers of a govern- ment," in order to reach the case of those who entered the service of unacknowledged as well as of acknowledged States. The act also provided for preventing and punishing the offence of fitting out armed vessels, or supplying them with warlike stores, upon which the former law had been entirely silent. In the debates which took place in Parliament upon the enact- ment of the last-mentioned act in 1819, and on the motion for its repeal in 1823, it was not denied by Sir J. Mackintosh and other members who opposed the bill, that the sovereign power of every State might interfere to prevent its subjects from engaging in the wars of other States, by which its own peace might be endangered, or its political and commercial interests affected. It was, however, insisted that the principles of neutrality only required the British legislature to maintain the laws in being, but could not command it to change any law, and least of all to alter the existing laws for the evident advantage of one of the bellige- rent parties. Those who assisted insurgent States, however meritorious the cause in which they were engaged, were in a much worse situation than those who assisted recognized governments, as they could not lawfully be reclaimed as prisoners of war, and might, as engaged in what was called rebellion, be treated as rebels. The proposed new law would go to alter the relative risks, and operate as a law of favor to one of the belligerent parties. To this argument it was replied by Mr. Canning, that when peace was concluded between Great Britain and Spain in 1814, an article was introduced into the treaty by which the former power stipulated not to furnish any succors to what were then denominated the revolted colonies of Spain. In process of time, as those colonies became more powerful, a question arose of a very difficult nature, to be decided on a due consideration of their dejure relation to Spain on the one hand, and their de facto independence on the other. The law of nations afforded no pre- cise rule as to the course which, under circumstances so peculiar as the transition of colonies from their allegiance to the parent State, ought to be pursued by foreign powers. It was difficult to know how far the statute law or the common law was appli- 502 RIGHTS OF WAR [PART IV. cable to colonies so situated. It became necessary, therefore, in the act of 1819, to treat the colonies as actually independent of Spain ; and to prohibit mutually, and with respect to both, the aid which had been hitherto prohibited with respect to one only. It was in order to give full and impartial effect to the provisions of the treaty with Spain, which prohibited the exportation of arms and ammunition to the colonies, but did not prohibit their exportation to Spain, that the act of Parliament declared that the prohibition should be mutual. When, however, from the tide of events flowing from the proceedings of the Congress of Verona, war became probable between France and Spain, it became necessary to review these relations. It was obvious that if war actually broke out, the British government must either extend to France the prohibition which already existed with respect to Spain, or remove from Spain the prohibition to which she was then subject, provided they meant to place the two countries on an equal footing. So far as the exportation of arms and ammunition was concerned, it was in the power of the crown to remove any inequality between the belligerent parties, simply by an order in council. Such an order was consequently issued, and the prohi- bition of exporting arms and ammunition to Spain was removed. By this measure the British government offered a guarantee of their bond fide neutrality. The mere appearance of neutrality might have been preserved by the extension of the prohibition to France, instead of the removal of the prohibition from Spain : but it would have been a prohibition of words only, and not at all in fact; for the immediate vicinity of the Belgic ports to France w^ould have rendered the prohibition of direct exportation to France totally nugatory. The repeal of the act of 1819 would have, not the same, but a correspondent effect to that which would have been produced by an order in council prohibiting the exportation of arms and ammunition to France. It would be a repeal in words only as respects France, but in fact respecting Spain ; and would occasion an inequality of operation in favor of Spain, inconsistent with an impartial neutrality. The example of the American government was referred to, as vindicating the justice and policy of preventing the subjects of a neutral country from enlisting in the service of any belligerent power, and of pro- hibiting the equipment in its ports of armaments in aid of such power. Such was the conduct of that government under the II CHAP. III.] AS TO NEUTRALS. 503 presidency of Washington, and the secretaryship of Jefferson ; and such was more recently the conduct of the American legis- lature in revising their neutrality statutes in 1818, when the Con- gress extended the provisions of the act of 1794 to the case of such unacknowledged States as the South American colonies of Spain, which had not been provided for in the original law.^ The unlawfulness of belligerent captures, made with- , jg j^_ in the territorial jurisdiction of a neutral State, is incon- munity of '' _ _ ' the neutral testably established on principle, usaee, and authority, territory, ^ ... . r , ' ^ . r / how far it Does this immunity ot the neutral territory from the extends to exercise of acts of hostility within its limits, extend to "eisonthe " the vessels of the nation on the high seas, and without ^'S^®'^^®- the jurisdiction of any other State? We have already seen, that both the public and private vessels of every independent nation on the high seas, and without the territorial limits of any other State, are subject to the municipal jurisdiction of the State to which they belong.^ This jurisdic- tion is exclusive, only so far as respects offences against the municipal laws of the State -to which the vessel belongs. It excludes the exercise of the jurisdiction of every other State under its municipal laws, but it does not exclude the exercise of the jurisdiction of other nations, as to crimes under international law ; such as piracy, and other offences, which all nations have an equal right to judge and to punish. Does it, then, exclude the exercise of the belligerent right of capturing enemy's pro- perty ? This right of capture is confessedly such a right as may be exercised within the territory of the belligerent State, within the enemy's territory, orjn a place belonging to no one ; in short, in any place except the territory of a neutral State. Is the vessel of a neutral nation on the high seas such a place ? A distinction has been here taken between the public Distinction 1 1 • 1 r T • between and the private vessels of a nation. In respect to its public and public vessels, it is universally admitted, that neither the sei's?^^^^*' ' Annual Register, vol. Ixi. p. 71. Canning's Speeches, vol. iv. p. 150; vol. v. p. 34. 2 Vide ante, Pt. 11. ch. 2, § 10, p. 158. 504 RIGHTS OF WAR [PART lY. right of visitation and search, of capture, nor any other bellige- rent right, can be exercised on board such a vessel on the high seas. A public vessel, belonging to an independent sovereign, is exempt from every species of visitation and search, even within the territorial jurisdiction of another State ; a fortiori, must it be exempt from the exercise of belligerent rights on the ocean, which belongs exclusively to no one nation ? ^ In respect to private vessels, it has been said the case is differ- ent. They form no part of the neutral territory, and, when within the territory of another State, are not exempt from the local jurisdiction. That portion of the ocean which is temporarily occupied by them forms no part of the neutral territory ; nor does the vessel itself, which is a movable thing, the property of private individuals, form any part of the territory of that power to whose subjects it belongs. The jurisdiction which that power may lawfully exercise over the vessel on the high seas, is a jurisdiction over the persons and property of its citizens ; it is not a territorial jurisdiction. Being upon the ocean, it is a place where no particular nation has jurisdiction ; and where, consequently, all nations may equally exercise their international rights.2 §19. Usage Whatever may be the true original abstract principle sui^ecting of natural law on this subject, it is undeniable that the ^oods^n constant usage and practice of belligerent nations, neutral ves- from the earliest times, have subjected enemy's goods in S61S lO Ctip" • c ture. neutral vessels to capture and condemnation, as prize ot war. This constant and universal usage has only been inter- rupted by treaty stipulations, forming a temporary conventional law between the parties to such stipulations.* 1 Vide ante, Ft. II. eh. 2, § 10, p. 158. 9 Rutherforth's Inst. vol. ii. b. ii. ch. 9, § 19. Azuni, Dlritto Maritimo, Pt. II. ch. 3, art. 2. Letter of American Envoys at Paris to M. de Talleyrand, January, 1798. Waite's American State Papers, vol. iv. p. 34. 3 Consolato del Mare, cap. 273. Wheaton's Hist. Law of Nations, pp. 65, 115-119, 200-206. Albericus Gentilis, Hisp. Advoc. lib. i. cap. 27. Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 6, §§ 6, 26; cap. 1, § 5, Note 6. Bynkershoek, Quajst. Jur. Pub. lib. i. cap. 14. Vattel, Droit des Gens, liv. iii. ch. 7, § 115, Heineccius, de Nav. ob. vect. cap. 2, § 9. Loccenius, de Jure Marit. lib. ii. cap. 4. § 12. Azuni, Diritto Marit. Pt. II. ch. 3, art. 1, 2. CHAP, in.] AS TO NEUTRALS. 505 The regulations and practice of certain maritime ^ 20. Neu- nations, at different periods, have not only considered |aden°A\^th the "-oods of an enemy, laden in the ships of a friend, enemy o "Z ^ ' ' goods sub- liable to capture, but have doomed to confiscation the ject to con- 1 c 1 • 1 1 fiscation by neutral vessel on board of which these goods were laden, the ordi- This practice has been sought to be justified, upon a some states, supposed analogy with that provision of the Roman law, which involved the vehicle of prohibited commodities in the confiscation pronounced against the prohibited goods themselves.^ Thus, by the marine ordinance of Louis XIV., of 1681, all vessels laden with enemy's goods are declared lawful prize of war. The contrary rule had been adopted by the preceding prize ordinances of France, and was again revived by the regle- ment of 1744, by which it was declared, that " in case there should be found on board of neutral vessels, of whatever nation, goods or effects belonging to his Majesty's enemies, the goods or effects shall be good prize, and the vessel shall be restored." Va- lin, in his commentary upon the ordinance, admits that the more rigid rule, which continued to prevail in the French prize tribu- nals from 1681 to 1744, was peculiar to the jurisprudence of France and Spain ; but that the usage of other nations was only to confiscate the goods of the enemy.^ Although by the general usage of nations, inde- § 21. pendently of treaty stipulations, the goods of an enemy, friend^ on found on board the ships of a friend, are liable to cap- s^fps'^of^an ture and condemnation, yet the converse rule, which f."?™^' ' •' _ ' liable to subjects to confiscation the goods of a friend, on board confiscation . bv the prize the vessels of an enemy, is manifestly contrary to rea- codes of son and justice. It may, indeed, afford, as Grotius has tions. stated, a presumption that the goods are enemy's property; but it is such a presumption as will readily yield to contrary proof, and not of that class of presumptions which the civilians cali presump- tiones juris el de jure, and which are conclusive upon the party. 1 Barbeyrac, Note to Grotius, lib. iii. cap. 6, § 6, Note 1. 2 Valiu, Comm. liv. iii. tit. 9. Des Prises, art. 7. Wbeaton's Hist. Law of Nations, pp. 111-114. 43 506 RIGHTS OF WAPw [PART IV. But however unreasonable and unjust this maxim ma}' be, it has been incorporated into the prize codes of certain nations, and enforced by them at different periods. Thus, by the French ordinances of 1538, 1543, and 1584, the goods of a friend, laden on board the ships of an enemy, are declared good and lawful prize. The contrary was provided by the subsequent declaration of 1650 ; but by the marine ordinance of Louis XIV., of 1681, the former rule was again established. Valin and Pothier are able to find no better argument in support of this rule, than that those who lade their goods on board an enemy's vessels thereby favor the commerce of the enemy, and by this act are considered in law as submitting themselves to abide the fate of the vessel ; and Valin asks, " How can it be that the goods of friends and allies, found in an enemy's ship, should not be liable to confiscation, whilst even those of subjects are liable to it?" To which Pothier himself furnishes the proper answer : that, in respect to goods, the property of the king's subjects, in lading them on board an enemy's vessels they contravene the law which interdicts to them all commercial intercourse with the enemy, and deserve to lose their goods for this violation of the law.i The fallacy of the argument by which this rule is attempted to be supported, consists in assuming, what requires to be proved, that, by the act of lading his goods on board an enemy's vessel, the neutral submits himself to abide the fate of the vessel ; for it cannot be pretended that the goods are subjected to capture and confiscation ex re, since their character of neutral property exempts them from this liability. Nor can it be shown that they are thus liable ex delicto, unless it be first proved that the act of lading them on board is an offence. against the law of nations. It is therefore with reason that Bynkershoek concludes that this rule, where merely established by the prize ordinances of a belligerent power, cannot be defended on sound principles. Where, indeed, it is made by special compact the equivalent for the converse maxim, that free ships make free goods, this relaxa- 1 Valin, Comm. liv. iii. tit. 9. Des Prises, art. 7. Pothier, Traite de Pro- priete, No. 96. 11 CHAP, in.] AS TO NEUTRALS. 507 tion of belligerent pretensions may be fairly coupled with a cor- respondent concession by the neutral, that enemy ships should make enemy goods. These two maxims have been, in fact, commonly thus coupled in the various treaties on this subject, with a view to simplify the judicial inquiries into the proprietary interest of the ship and cargo, by resolving them into the mere question of the national character of the ship. The two maxims are not, however, inseparable. The ^ 22. The primitive law, independently of international compact, [,^° ™f /Vee rests on the simple principle, that war gives a right to '''^'^^j -^'"^f capture the goods of an enemy, but eives no right to enemy ships 1 1 r p • 1 rni • i enemy goods, capture the goods 01 a friend, ihe right to capture an notiiecessa- enemy's property has no limit but of the jylace where the nected. goods are found, which, if neutral, will protect them from cap- ture. We have already seen that a neutral vessel on the high seas is not such a place. The exemption of neutral property from capture has no other exceptions than those arising from the carrying of contraband, breach of blockade, and other analogous cases, where the conduct of the neutral gives to the belligerent a right to treat his property as enemy's property. The neutral flag constitutes no protection to an enemy's property, and the belligerent flag communicates no hostile character to neutral pro- perty. States have changed this simple and natural principle of the law of nations, by mutual compact, in whole or in part, according as they believed it to be for their interest; but the one maxim, that free ships make free goods, does not necessarily imply the converse proposition, that enemy ships make enemy goods. The stipulation, that neutral bottoms shall make neutral goods, is a concession made by the belligerent to the neutral, and gives to the neutral flag a capacity not given to it by the primitive law of nations. On the other hand, the stipulation subjecting neutral property, found in the vessel of an enemy, to confiscation as prize of war, is a concession made by the neutral to the belligerent, and takes from the neutral a privilege he pos- sessed under the preexisting law of nations ; but neither reason nor usage renders the two concessions so indissoluble, that the one cannot exist without the other. It was upon these grounds that the Supreme Court of the United States determined that the Treaty of 1795, between them 508 RIGHTS OF WAR [PART IV. and Spain, which stipulated that free ships should make free goods, did not necessarily imply the converse proposition, that enemy ships should make enemy goods, the treaty being silent as to the latter ; and that, consequently, the goods of a Spanish subject, found on board the vessel of an enemy of the United States, were not liable to confiscation as prize of war. And although it was alleged, that the prize law of Spain would sub- ject the property of American citizens to condemnation, when found on board the vessels of her enemy, the court refused to condemn Spanish property, found on board a vessel of their enemy, upon the principle of reciprocity ; because the American government had not manifested its will to retaliate upon Spain ; and until this will was manifested by some legislative act, the court was bound by the general law of nations constituting a part of the law of the land.^ (a) § 23. Con- The conventional law, in respect to the rule now in law as to question, has fluctuated at different periods, according free^ooih. ^o the fluctuating policy and interests of the different maritime States of Europe. It has been much more flexible than the consuetudinary law ; but there is a great preponderance of modern treaties in favor of the maxim, free ships free goods, sometimes, but not always, connected with the correlative maxim, enemy ships enemy goods ; so that it may be said that, for two centuries past, there has been a constant tendency to establish, by compact, the principle, that the neutrality of the ship should exempt the cargo, even if enemy's property, from capture and confiscation as prize of war. The capitulation granted by the Ottoman Porte to Henry IV. of France, in 1604, has commonly been supposed to form the earliest example of a relaxation of the primitive rule of the maritime law of nations, as recognized by the Consolato del Mare, by which the goods of an enemy, found ' Crancli's Eep. vol. ix. p. 388. The Nereide. (a) [A late Frcncli writer thus distinguishes, in the two cases, the cfTcct of the nationality of the ship on that of the cargo : — " Dans le premier cas, le pavil- ion ami pi-otege la propriete ennemic, parcequ'il inter dit au.x croiseurs I'entrcc et par consequent la visite du batiment ; dans le second cas, parceque le pavilion n'en denature point la propri6te." Garden, Traite de Diplomatic, torn. ii. p. 365.] i CHAP. III.] AS TO NEUTRALS. 509 on board the ships of a friend, were liable to capture and confis- cation as prize of war. But a more careful examination of this instrument will show, that it was not- a reciprocal compact between France and Turkey, intended to establish the more liberal maxim of free ships free goods ; but was a gratuitous concession, on the part of the Sultan, of a special privilege, by which the goods of French subjects laden on board the vessels of his enemies, and the goods of his enemies laden on board French vessels, were both exempted from capture by Turkish cruisers. The capitulation expressly declares, art. 10 : — " Par- ceque des sujets de la France naviguent sur vaisseaux apparte- nans a nos ennemis, et les chargent de leurs marchandises, et dtant rencontrds, ils sont faits le plus souvent esclaves, et leurs marchandises prises ; pour cette cause, nous commandons et voulons qu'a I'avenir, ils ne puissent etre pris sous ce pretexte, ni leurs facult^s confisquees, a moins qu'ils ne soient trouvcs sur vaisseaux en course," etc. Art. 12 : — " Que les marchandises qui seront chargees sur vaisseaux Francais appartenantes aux ennemis de notre Porte, ne puissent etre prises sous couleur qu'ils sont de nos dits ennemis, puisque ainsi est notre vou- loir." 1 It became, at an early period, an object of interest with Hol- land, a great commercial and navigating country, whose perma- nent policy was essentially pacific, to obtain a relaxation of the severe rules which had been previously observed in maritime warfare. The States-General of the United Provinces having 1 Flassan, Histoire do la Diplomatie Fran^aise, torn. ii. p. 226. M. Flassan observes : — " C'est a tort qu'on a donne a ces Capitulations le nom de traiii, lequel suppose deux parties contractantes, stipulans sur leurs interets ; ici on ne trouve que des concessions de priveleges, et des exemptions de pure lib^ralite faites par la Porte a la France." In the first English edition of this -work, and also in another more recently published, under the title of " History of the Law of Nations," the author has been misled, by following the authority of Azuni and other compilers, into the erroneous conclusion, that the above capitulation was intended to change the primitive law, as observed among the maritime States of the Mediterranean from the earliest times, and to substitute a more liberal rule for that of the Consolato del Mare, of which the Turks must necessarily be sup- posed to have been ignorant, and which the French king did not stipulate to relax in their favor, where the goods of his enemies should be found on board Turkish vessels. 43* 510 EIGHTS OF WAR [PART IV. complained of the provisions in the French ordinance of Henry II.. 1538, a treaty of commerce was concluded between France and the Republic, in 1646, by which the operation of the ordi- nance, so far as respected the capture and confiscation of neutral vessels for carrying enemy's property, was suspended ; but it was found impossible to obtain any relaxation as to the liability to capture of enemy's property in neutral vessels. The Dutch negotiator in Paris, in his correspondence with the grand pen- sionary De Witt, states that he had obtained the " repeal of the pretended French law, que robed^ennemi confisque celle d'ami; so that if, for the future, there should be found in a free Dutch vessel effects belonging to the enemies of France, these effects alone will be confiscable, and the ship with the other goods will be restored ; for it is impossible to obtain the twenty-fourth article of my Instructions, where it is said that the freedom of the ship ought to free the cargo, even if belonging to an enemy." This latter concession the United Provinces obtained from Spain by the treaty of 1650 ; from France by the treaty of alliance of 1662; and by the commercial treaty signed at the same time with the peace at Nimiguen in 1678, confirmed by the treaty of Ryswick in 1697. The same stipulation was continued in the treaty of the Pyrenees between France and Spain, in 1659. The rule of free ships free goods was coupled, in these treaties, with its correlative maxim, enemy ships enemy goods. The same concession was obtained by Holland from England, in 1668 and 1674, as the price of an alliance between the two countries against the ambitious designs of Louis XIV. These treaties gave rise, in the war which commenced in 1756 between France and Great Britain to a very remarkable controversy between the British and Dutch governments, in which it was con- tended, on the one side, that Great Britain had violated the rights of neutral commerce, and on the other, that the States-General had not fulfilled the guarantee which constituted the equivalent for the concession made to the neutral flag, in derogation of the preexisting law of nations.^ 1 Dumont, Corps Diplomatique, torn. vi. pt. i. p. 342. Flassan, Histoire de la Diplomatie Fran■ Mr. J. Q. Adams to Mr. Secretary Pickering, May 25, 1798. 2 Mr. J. Q. Adams to MM. Finkenstein, Alvensleben, and Haugwitz, July 11th, 1798. 44* 522 RIGHTS OF WAR [PART IV. the two last wars, and especially in that which still subsisted ; but it was not the less true that it had served, until the present time, as the basis of the commerce of all neutral nations ; that it had been, and was still maintained, in consequence. If it should be suddenly abandoned and subverted, in the midst of the then present war, the following consequences would result : — ' 1. An inevitable confusion in all the commercial speculations of neutral nations, and the rejection of all the claims prosecuted by them in the Admiralty Courts of France and Great Britain, for illegal captures. 2. A collision with the northern powers, which sustained the ancient principle, at that very moment by armed convoys. 3. Nothing would be gained in establishing, at the present moment, the principle that neutral property on hoard enemy ves- sels should be free from capture. The belligerent powers would be no more disposed to admit this principle than the other, and it would furnish an additional reason to authorize their tribunals to condemn prizes made in contravention of the ancient rule. 4. Even supposing that the great maritime powers of Europe should be willing to recognize the principle proposed to be sub- stituted by the United States, it would only increase the existing embarrassments incident to judicial proceedings respecting mari- time captures ; as, instead of determining the national character of the cargo by that of the vessel, it would become necessary to furnish separate proofs applicable to each. All these difficulties combined induced the Prussian minister to insist on inserting the 12th article of the Treaty of 1785 in the new treaty, qualified with the following additional stipula- tion : — " That experience having unfortunately proved, in the course of the present war, that the ancient principle of free neutral navigation has not been sufficiently respected by the belligerent powers, the two contracting parties propose, after the restoration of a general peace, to agree, either separately between them- • selves, or jointly with the other powers alike interested, to con- cert with the great maritime powers of Europe such an arrange- ment as may serve to establish, by fixed and permanent rules, the freedom and safety of neutral navigation in future wars."^ 1 MM. Finkenstein, Alvensleben, and Haugwitz, to Mr. J. Q. Adams, 25th September, 1798. fl CHAP. III.] AS TO NEUTRALS. 523 The American negotiator, in his reply to this communication, stated, that the alteration in the former treaty, proposed by his government, was founded on the supposition, that, by the ordi- nary law of nations, enemy's property, on board of neutral ves- sels, is subject to capture, whilst neutral property, on board of enemy's- vessels, is free. That this rule could not be changed but by the consent of all maritime powers, or by special treaties, the stipulations of which could only extend to the contracting parties. That the opposite principle, the establishment of which was one of the main objects of the armed neutrality during the war of American Independence, had not been universally recog- nized even at that period ; and had not been observed, during the then present war, by any one of the powers who acceded to that system. That Prussia herself, whilst she remained a party to the war against France, did not admit the principle; and that, at the then present moment, the ancient principle of the law of nations subsisted in its whole force between all the powers, except in those cases where the contrary rule was stipulated by a positive treaty. In proposing, therefore, to recognize the freedom of neutral property on board of enemy's vessels, and to recognize, as sub- ject to capture, enemy's property, on board of neutral vessels, nothing more was intended than to confirm by the treaty those principles which already existed independently of all treaty ; it was not intended to make, but to avoid a change, in the actual order of things. Far from wishing to dictate, in this respect, to the belligerent powers, it had not been supposed that an agreement between Prussia and the United States could, in any manner, serve as a rule to other powers not parties to the treaty, in respect to mari- time captures ; and as the effect of such a convention, even between the contracting parties, would not be retroactive, but would respect the future only, it had been still less supposed that the just claims of the subjects of neutral powers, whether in England or in France, on account of illegal captures, could be in any manner affected by it. Nor had it been apprehended that such a convention would produce any collision with the northern powers, since they could not be bound by a treaty to which they were not parties ; and this suppposed contradiction would still less concern Russia, 524 RIGHTS OF WAR [PART IV. because, far from having maintained the principle that the neu- tral flag covers enemy's property, she had engaged by her con- vention with Great Britain, of the 25th of March, 1793, to employ all her efforts against it during the then present war. Sweden and Denmark, by their convention of the 27th March, 1794, engaged reciprocally towards each other, and towards all Europe, not to claim, except in those cases expressly provided for by treaty, any advantage not founded upon the universal law of nations, " recognized and respected unto the present time by all the powers and by all the sovereigns of Europe." It w^as not conceived possible to include, under this description, the princi- ple that the cargo must abide the doom of the flag under which it is transported ; and it might be added, that experience had constantly demonstrated the insufficiency of armed convoys to protect this principle, since they were seen regularly following, without resistance, the merchant vessel under their convoy into the ports of the belligerent powers, to be there adjudged accord- ing to the principles established by their tribunals ; principles which were entirely contrary to that by which the ship neutralizes the cargo. According to the usage adopted by the tribunals of all mari- time States, the proofs as to the national character of the cargo ought to be distinct from those which concern that of the vessel. Even in those treaties which adopt the principle that the flag covers the property, it is usual to stipulate for papers applicable to the cargo, in order to show that it is not contraband. The charter-party and the bills of lading had been referred to by the Prussian ministers, as being required by the Prussian tribunals, and which it was proposed to designate as essential documents in the new treaty. It would seem, then, that the adoption of the principle in question would not require a single additional paper, and, consequently, would not increase the difficulty of prosecuting claims against captors ; at the utmost, it could only be regarded as a very small inconvenience, in comparison with the losses occasioned by the recognition of a principle already abandoned by almost all the maritime powers, and which had been efficaciously sustained by none of them ; of a principle which would operate injuriously to either of the contracting par- ties that might be engaged in war, whilst its enemy would not respect it, and that party which remained neutral would hold out CHAP. III.] AS TO NEUTRALS. 525 to its subjects the illusory promise of a free trade, only to see it intercepted and destroyed. But as the views of the Prussian government appeared, in some respects, to differ from those of the American, in regard to the true principle of the law of nations, and it appeared to the Prussian ministers that several inconveniences might result from the substitution of the opposite principle to that contained in the former treaty, the American negotiator proposed, as an alter- native, to omit entirely the stipulations of the 12th article in the new treaty ; the effect of which would be, to leave the question in its then present situation, without engaging either of the con- tracting parties in any special stipulation respecting it. And as the establishment of a permanent and stable system, with the hope of seeing it maintained and respected in future wars, was an important object to commerce in general, and especially to that of the contracting parties, he was willing to consent to an eventual stipulation similar to that proposed by the Prussian ministers; but which, without implying, on either part, the admission of a contested principle, should postpone the decision of it until after the general peace, either by an ulterior agreement between the contracting parties, or in concert with other powers interested in the question. The United States would always be disposed to adopt the most liberal principles that might be desired, in favor of the freedom of neutral commerce in time of war, whenever there should be a reasonable expectation of seeing them adopted and recognized in a manner that might secure their practical execution.^ The Prussian ministers replied to this counter-proposition, by admitting that the rule by which neutral property, found on board enemy vessels, was free from capture, had been formerly followed by the greater part of European powers, and was esta- blished in several treaties of the fourteenth and fifteenth centu- ries ; but they asserted that it had been abandoned by maritime and commercial nations, ever since the inconveniences resulting from it had become manifest. In the two treaties concluded as early as 1646, by the United Provinces, with France and with ^ Mr. J. Q. Adams to MM. Finkenstein, Alvensleben, and Haugwitz, October 29th, 1798. 526 RIGHTS OF WAR [PART IV. England, the rules of free ships free goods, and of enemy ships enemy goods, were stipulated ; and these principles, once laid down, had been repeated in almost all the treaties since con- cluded between the different commercial nations of Europe. The Convention of 1793, between Russia and England, to which the American negotiator had referred, was exclusively directed against France, and merely formed an exception to the rule ; and if, during the commencement of the revolutionary war, the allied powers deemed it necessary to deviate from the recognized principle, this momentary deviation could only be attributed to peculiar circumstances, and it was not the less certain that Prus- sia had never followed any other than one and the same perma- nent system, relative to neutral commerce and navigation. This system was founded upon the maxim announced in the 12th article of her former treaty with the United States, which best accorded with the general convenience of commercial nations, by simplifying the proofs of national character, and exempting neutral navigation from vexatious search and interruption. The Prussian ministers also declared their conviction that, during the then present war, when the commerce and navigation of neutral nations had been subjected to so many arbitrary mea- sures, the principle proposed by the American negotiator would not be more respected than the former rule ; several recent exam- ples having demonstrated that even neutral vessels, exclusively laden with neutral property, had been subjected to capture and confiscation, under the most frivolous pretexts. But it would be useless to prolong the discussion, as both the parties to the negotiation were agreed that, instead of hazarding a new stipu- lation, eventual and uncertain in its effects, it would be better to leave it in suspense until the epoch of a general peace, and then to seek for the means of securing the freedom of neutral com- merce upon a solid basis during future wars. The Prussian ministers, therefore, proposed to suppress provisionally the 12th article of the former treaty, and to substitute in its place the fol- lowing stipulation : — " Experience having demonstrated, that the principle adopted in the 12th article of the Treaty of 1785, according to which free ships make free goods, has not been sufficiently respected during the last two wars, and especially in that which still subsists ; and the contradictory dispositions of the principal belligerent powers CHAP. III.] AS TO NEUTRALS. 527 not allowing the question in controversy to be determined in a satisfactory manner at the present moment, the two high con- tracting parties propose, after the return of a general peace, to agree, either separately between themselves, or conjointly with other powers alike interested, to concert with the great maritime powers of Europe such arrangements and such permanent prin- ciples, as may serve to consolidate the liberty of neutral naviga- tion and commerce in future wars."i In his reply to this note, the American negotiator declared that he would not hesitate to subscribe to the stipulation proposed by the Prussian ministers, if the following words could be omitted : " And the contradictory dispositions of the principal belligerent powers not allowing the question in controversy to be determined in a satisfactory manner at the present moment." It was possi- ble that the belligerent powers might find in these expressions a kind of sanction to their dispositions, which would not accord with the intentions of the contracting parties ; and, besides, the American negotiator would desire to omit entirely an allusion to a point, of which it was the wish of the two governments to defer the consideration, rather than to announce it formally as a contested question. In order to justify the opinion of his government on the sub- ject of the principle in question, he deemed it his duty to observe, that this opinion was not founded on the treaties of the four- teenth and fifteenth centuries. He considered the principle of the law of nations as absolutely distinct from the engagements stipulated by particular treaties. These treaties could not esta- blish a fixed principle on this point ; because such stipula- tions bound only the parties by whom they were made, and the persons on whom they operated ; and because, too, in the seven- teenth and eighteenth centuries, as well as in the fourteenth and fifteenth, different treaties had adopted different rules for each particular case, according to the convenience and agreement of the contracting parties. Rejecting, therefore, all positive engagements stipulated in treaties, it might well be doubted whether a single example could ' MM. Finkenstein, Alvensleben, and Haugwitz, to Mr. J. Q. Adams, 29th October, 1798. 528 RIGHTS OF WAR [PART IV. be found, antecedent to the American war, of a maritime belli- gerent power which had adopted the principle, that enemy's pro- perty is protected by a neutral flag. For, without speaking of England, whose system in this respect is known, France, by the Ordinance of 1774, renewing the provisions of that of 1681, declared enemy's property, on board neutral vessels, subject to seizure and confiscation. It excepted from this rule the ships of Denmark and the United Provinces, conformably to the treaties then existing between these powers and France. This ordinance continued to have its effect in the French tribunals until the epoch of the Ordinance of the 26th July, 1778. By the first arti- cle of this last ordinance the freedom of enemy's property, on board of neutral ships, is yielded to neutrals as a favor, but not as a principle of the law of nations, since the power is reserved to withdraw it at the expiration of six months, if a reciprocal sti- pulation should not be conceded by the enemy. Spain, by the Ordinance of the 1st of July, 1779, and the 13th March, 1780, ordered, in like manner, the seizure and confiscation of enemy's property, found on neutral vessels. It would only be added that a celebrated public jurist, a Prus- sian subject, who, in the first part of the ISth century, wrote a highly esteemed work upon the law of nations, Vattel, says expressly, (Book 3, sect. 115,) that " when effects belonging to an enemy are found on board a neutral vessel, they may be seized by the laws of war." He cited no example where the opposite principle had been practiced or insisted on. When, however, the system of armed neutrality was announced, the United States, although a belligerent power, hastened to adopt its principles ; and during the period succeeding this epoch, in which they were engaged in war, they scrupulously conformed to them. But on the first occasion when, as a neutral power, they might have enjoyed the advantages attached to this system, they saw themselves deprived of these advantages, not only by the powers who had never acceded to those principles, but also even by the founders of the system. The intentions of the combined powers, it was true, were exclusively directed against France ; but the operation of their measures did not less extend to all neutrals, and especially to the United States. However peculiar might have been the circumstances of the war, the rights of neutrality could not be thereby affected. The II CHAP, ni.] AS TO NEUTRALS. 629 United States had regretted the abandonment of principles favorable to the rights of neutrality, but they had perceived their inability to prevent it ; and were persuaded that equity could not require of them to be the victims, at the same time, both of the rule and of the exception ; to be bound, as a belligerent party, by laws of the advantage of which, as a neutral power, they were wholly deprived. It was the wish, however, of the United States government to prove, that it had no desire to depart from the principles adopted by the treaty of 1785, except upon occasions when an adherence to those principles -would be an act of injustice to the nation whose interests were confided to it. The American negotiator therefore agreed to adopt the proposed new stipulation, excepting the words above cited, and adding the following clause : — "And if, during this interval, one of the high contracting parties shall be engaged in a war, to which the other is neutral, the belligerent power will respect all the property of enemies laden on board the vessel of the neutral party, provided that the other belligerent power shall acknowledge the same principle with regard to every neutral vessel, and that the decisions of his mari- time tribunals shall conform to it." If this proposition should not be acceptable to the Prussian cabinet, then the American negotiator proposed to adopt nearly the formula of the treaty of 1766 between Prussia and Great Britain, and to stipulate that " as to the search of merchant vessels, in time of war, the vessels of war and the private armed vessels of the belligerent power will conduct themselves as favorably as the objects of the then existing war will permit ; observing, as much as possible, the principles and rules of the law of nations as generally recognized."' The treaty was finally concluded on the 11th July, 1799, with the article on this subject proposed by the Prussian plenipoten- tiaries, and modified on the suggestion of the American nego- tiator in the following terms : — "Art. 12. Experience having proved that the principle adopted in the twelfth article of the treaty of 1785, according to which 1 Mr. J. Q. Adams tcr 'MM. Finkenstein, Alvensleben and Haugwitz, 24th December, 1799. 45 530 RIGHTS OF WAR [PART IV. free ships make free goods, has not been sufficiently respected during the last two wars, and especially in that which still con- tinues, the two contracting parties propose, after the return of a general peace, to agree, either separately between themselves, or jointly with other powers alike interested, to concert with the great maritime powers of Europe such arrangements and such permanent principles, as may serve to consolidate the liberty and the safety of the neutral navigation and commerce in future wars. And if, in the interval, either of the contracting parties should be engaged in war, to which the other should remain neutral, the ships of war and privateers of the belligerent power shall con- duct themselves towards the merchant vessels of the neutral power, as favorably as the course of the war then existing may permit ; observing the principles and rules of the law of nations generally acknowledged." ' On the expiration of the treaty of 1799, the twelfth article of the original treaty of 1785 was again revived, by the present sub- sisting treaty between the United States and Prussia of 1828, with the addition of the following clause : — *' The parties being still desirous, in conformity with their intention declared in the twelfth article of the said treaty of 1799, to establish between themselves, or in concert with other mari- time powers, further provisions to insure just protection and freedom to neutral navigation and commerce, and which may at the same time advance the cause of civilization and humanity, engage again to treat on this subject at some future and con- venient period." During the war which commenced between the United States and Great Britain in 1812, the prize courts of the former uni- formly enforced the generally acknowledged rule of international law, that enemy's goods in neutral vessels are liable to capture and confiscation, except as to such powers with whom the Ame- rican government had stipulated by subsisting treaties the con- trary rule, that free ships should make free goods. In their earliest negotiations with the newly established republics of South America, the United States proposed the establishment of the principle of free ships free goods, as be- ' American State Papers, fol. edit. vol. il. pp. 251-269. CHAP. III.] AS TO NEUTRALS. 531 tween all the powers of the North and South American conti- nents. It was declared that the rule of public law — that the property of an enemy is liable to capture in the vessels of a friend, has no foundation in natural right, and, though it be the established usage of nations, rests entirely on the abuse of force. No neutral nation, it was said, was bound to submit to the usage ; and though the neutral may have yielded at one time to the practice, it did not follow that the right to vindicate by force the security of the neutral flag at another, was thereby permanently sacrificed. But the neutral claim to cover enemy's property was conceded to be subject to this qualification ; that a belligerent may justly refuse to neutrals the benefit of this principle, unless admitted also by their enemy for the protection of the same neutral flag. It is accordingly stipulated, in the treaty between the United States and the Republic of Columbia, that the rule oi free ships free goods should be understood "as applying to those powers only who recognize this principle ; but if either of the two contracting parties shall be at war with a third, and the other neutral, the flag of the neutral shall cover the property of enemies whose governments acknowledge the same principle, and not of others." The same restriction of the rule had been previously incorporated into the treaty of 1819, between the United States and Spain, and has been subsequently inserted in their different treaties with the other South American Re- publics.^ It has been decided in the prize courts, both of the United States and of Great Britain, that the privilege of the neutral flag of protecting enemy's property, whether stipulated by treaty or established by municipal ordinances, however comprehensive may be the terms in which it may be expressed, cannot be interpreted to extend to the fraudulent use of that flag to cover enemy's property in the sJdp, as well as the cargo.^ Thus dur- ^ Mr. Secretary Adams's Letter to Mr. Anderson, American minister to the Republic of Columbia, 27th of May, 1823. For the practice of the prize court, as to the allowance or refusal of freight on enemies' goods taken on board neutral ships, and on neutral goods found on board an enemy's ship, sec Wheaton's Rep. vol. ii. Appendix, Note I. pp. 54-56. 2 Robinson's Adm. Rep. vol. vi. p. 358. The Citade de Lisboa. 532 RIGHTS OF WAR [PART IV. ing the war of the Revolution, the United States, recognizing the principles of the armed neutrality of 1780, exempted by an ordi- nance of Congress all neutral vessels from capture, except such as were employed in carrying contraband goods, or soldiers, to the enemy ; it was held by the continental Court of Appeals in prize causes, that this exemption did not extend to a vessel which had forfeited her privilege by grossly unneutral conduct in taking a decided part with the enemy, by combining with his subjects to wrest out of the hands of the United States, and of France, their ally, the advantages they had acquired over Great Britain by the rights of war in the conquest of Dominica. By the capitulation of that island, all commercial intercourse with Great Britain had been prohibited. In the case in question, the vessel had been purchased in London, by neutrals, who supplied her with false and colorable papers, and assumed on themselves the ownership of the cargo for a voyage from London to Domi- nica. Had she been employed in a fair commerce, such as was consistent with the rights of neutrality, her cargo, though the property of an enerny, could not be seized as prize of war ; be- cause Congress had said, by their ordinance, that the ri"ghts of neutrality should extend protection to such effects and goods of an enemy. But if the neutrality were violated. Congress had not said that such a violated neutrality shall give such protec- tion. Nor could they have said so, without confounding all the distinctions of right and wrong ; and Congress did not mean, in their ordinance, to ascertain in what cases the rights of neutrality should be forfeited, to the exclusion of all other cases ; for the instances not mentioned were as flagrant as the cases particu- larized.i By the treaty of 1654, between England and Portugal, it was stipulated, (art. 23,) " That all goods and merchandise of the said Republic or King, or of their people, or subjects found on board the ships of the enemies of either, shall be made prize, together with the ships, and confiscated. But all the goods and merchandise of the enemies of either on board the ships of either, or of their people or subjects, shall remain free and untouched." 1 Dallas's Rep. vol. ii. p. 34, The Erstern. CHAP. III.] AS TO NEUTRALS. 533 Under this stipulation, thus coupling the two opposite maxims of free ships free goods, and enemy ships enemy goods, it was determined by the British prize courts, that the former provision of this article, which subjects to condemnation the goods of either nation found on board the ships of the enemy of the other contracting party, could not be fairly applied to the case of pro- perty shipped before the contemplation of war. Sir W. Scott (Lord Stowell) observed, in delivering his judgment in this case, that it did not follow, that because Spanish property put on board a Portuguese ship, would be protected in the event of the interruption of war, therefore Portuguese property on board a Spanish ship should become instantly confiscable on the breaking out of hostilities with Spain : that, in one case, the conduct of the parties would not have been different, if the event of hostili- ties had been knt)wn. The cargo was entitled to the protection of the ship, generally, by this stipulation of the treaty, even if shipped in open war; and a fortiori, \i shipped under circum- stances still more favorable to the neutrality of the transaction. In the other case, there might be reason to suppose, that the treaty referred only to goods shipped on board an enemy's vessel, in an avowed hostile character; and that the neutral merchant would have acted differently, if he had been apprized of the character of the vessel at the time when the goods were put on board.^ The same principle has been frequently incorporated into treaties between various nations, by which the principle of free ships free goods is associated with that of enemy ships enemy goods. The treaties of Utrecht expressly recognize it, and it has been also incorporated into the different treaties between the United States and the South American Republics, with this qualification, " that it shall always be understood, that the neu- tral property found on board such enemy's vessels shall be held and considered as enemy's property, and as such shall be liable to detention and confiscation, except such property as was put on board such vessel before the declaration of war, or even after- wards, if it were done without the knowledge of it ; but the con- 1 Kobinson's Adm. Rep. vol. v. p. 28. The Marianna. 45* 534 RIGHTS OF WAR [PART IV. tracting parties agree that tivo months having elapsed after the declaration, their citizens shall not plead ignorance thereof." ' [a) ' Treaty of 1828, between the United States and Columbia, art. 13. By the treaty of 1831, between the United States and Mexico ; by that of 1834, with Chili, art. 13, the term of four months is established for the same purpose, and by that of 1842, with Equador, art. 16, the term of six months. (a) [In the relations of neutrals and belligerents, as regards the rules of mari- time law, the present European war has produced the most important modifica- tions. Though the treaties of commerce, concluded at Utrecht, between the principal maritime powers, were repeatedly renewed by conventions, to which England was a party, and, though in the case of the Spanish marriages, in 1846, she invoked the political arrangements there entered into, having for their object to prevent the union of the French and Spanish crowns, neither her government nor her courts of admiralty have, since her ascendency on the ocean has been esta- blished, admitted that the rules of maritime law there recognized were binding as the common law of nations; but they have maintained that their operation was confined to the contracting parties. "Whatever fluctuations her orders in council have, in other respects, occasioned in her maritime code, yet England has con- stantly asserted, as a general principle, in the absence of conventional engage- ments, that enemy's goods, on board of neutral vessels are good prize, while she has conceded the immunity of neutral goods in enemy's ships. The latter part of the rule, however, was not unfrequently rendered nugatory by an arbitrary law of contraband, and by the prohibition of the enemy's coasting and colonial trade, extending sometimes to a practical interdict of all neutral commerce. England had, indeed, in all her treaties with France from the year 1655 to 1786, it being recognized in five treaties of peace and three commercial conven- tions, adopted the rule that free shijys make free goods; and the same principle is found in most of her treaties with other powers, before the French Revolution. But for the last three quarters of a centui^, her policy had been different even as respects treaty stipulations, and since the commercial convention with France of 1786, she had entered into no new compact to the prejudice of her belligerent pretensions ; and which, as asserted by her, under the plea of the right of search, enabled her to institute a police over all neutral navigation, applying not only to the merchandise, but extending to an investigation, tested by her own municipal laws, of the nationality of the'crew, with a view of subjecting them, by impress- ment, to a forced duty in her military marine. The only treaty, containing the provision that the flag covered the property of the cargo, to which England was a party, that was operative during any portion of the wars between 1793 and 1814, was that of 1654 with Portugal, and which, as regards that point, was abrogated by the treaty of commerce of 19th February, 1810. The mutual abandonment of the privilege, granted by former treaties to vessels of the respective countries to carry merchandise, belonging to the enemies of the other, is also repeated in the subsisting treaty between these powers of 13th July, 1842. CHAP. III.] AS TO NEUTRALS. 535 The seneral freedom of neutral commerce with the , „, ^ . . . . ^24. Con- respective belligerent powers is subject to some excep- trabaud of tions. Among these is the trade with the enemy in cer- England succeeded in having lier views recognized, with some concessions, after the failure of the second armed neutrality, in the maritime convention of 1801, with Russia, to which Sweden and Denmark acceded, as well as in the treaty of 1794 with the United States. And she ever resisted the attempts, made by the latter power, previously to the present war, to induce her to take into consideration, with a view to their modification, those rules of maritime law, which though recognized by the courts of both countries were at variance with the common sense of^Christendom, as shown by the general current of conventional stipulations during the last two centuries. In 1823, it was proposed by us to dis- cuss them in connection with the abolition of privateering, but with no other suc- cess than attended the suggestions on that subject. Nor, in 1826-7, when many questions in controversy between the two countries were settled, was there any better disposition manifested to examine the conflicting maritime principles. See Schoell, Histoire des Traites de Paix, tom. ii. pp. 108, 121. Id. torn. iv. p. 21. Id. tom. X. pp. 44, 127. Annual Reg. 1846, p. 286. Hautefeuille, Droits des Nations Neutres, tom. iii. p. 270. Mr. Rush to Mr. Adams, August 12, 1824. Cong. Doc. Senate, 18 Cong. 2 Sess. Confidential, p. 99. Mr. Gallatin to Mr. Clay, Secretary of State, 26th September, 1827, MS. Notwithstanding the capitulation granted by the Ottoman Porte to Henry IV., in 1604, according immunity to French property in enemy's ships, while it allowed the French flag to protect enemy's property, was the first concession to that extent, in favor of neutrals, the internal ordinances of France were not only inconsistent with the numerous treaties, including those of Utrecht, to which she was a party, but were even more severe than those of England, or of the Conso- lato del Mare, on which the latter were based. That code, while it authorized the condemnation of enemy's property, on board of neutral vessels, left free the vessel itself and the rest of the cargo, and moreover allowed freight to the place of destination to the neutral carrier, with an indemnity for the detention. By a decree of Francis I., in 1543, (the principles of which, after some tempo- rary modifications, were reaffirmed in the marine ordinance of 1681, and which continued in force till 1744,) not only was enemy's property, on board of a neutral vessel, condemned, but the vessel itself and the rest of the cargo Avere, also, con- fiscated. At the same time, the goods of a friend, laden on board of an enemy's ship, were declared good and lawful prize. By an ordinance of 1704, all articles of the produce and manufacture of the enemy's country, on board of a neutral vessel, were subject to capture, though they did not cause the confiscation of the vessel and of the other parts of the cargo, which the carrying of enemy's property still continued to do. The peculiar provisions of this ordinance, like the French decrees and British Orders in Council of the present century, of which neutral nations were the victims, were attempted to be justified as retaliatory measures ; England and Holland, with whom France was at war, having by the convention of 22d August, 1 689, which was renewed in the war of the Spanish Succession, not only declared all articles of the produce and manufacture of France liable to 536 RIGHTS OF WAR [PART IV. tain articles called contraband of war. The almost unanimous authority of elementary writers, of prize ordinances, and of seizure in neutral vessels, but subjected the rest of tbe cargo, as well as the vessel, to be confiscated. In 1744, the ordinance of 1681 was so far modified that the carrying of enemy's goods did not confiscate the neutral vessel or the rest of the cargo, but enemy's goods, as well as articles of the produce and manufacture of the enemy's country, in neutral vessels, were still liable to confiscation. The treaty of February 6, 1778, between the United States and France, adopting the principle /ree ships free goods, vf&s extended by an ordinance of July 26, 1778, to all neutrals, but it contained a provision for returning to the old law, if the enemies of France did not recognize the same rule, and the neutral powers suffered it to be violated. The ordinance was in fact suspended, with respect to the United Provinces, from 14th January, 1779, to 22d April, 1780. As the ordinance of 1681 governed in those cases, for which that of 1778 had made no provision, neutral goods, on board of enemy ships continued to be sub- ject to confiscation. The principle that free ships make free goods has, since the American war, been the generally recognized rule of French maritime law, though it was, not unfrequently, violated by the revolutionary governments. The national assemblj-, by a decree of 14th February, 1 793, continued in force the existing laws as to 2^rizes, until otherwise ordered, though by a decree of May 9, of the same year, in consequence of the course of the British government, enemy's property on board of neutral vessels was made liable to confiscation. From the operation of this order the United States were, on the 1st of July, declared to be excepted on account of their treaty of 1778, as were likewise, subsequently, Sweden and Den- mark, and all others who had treaties with France consecrating the rights of the neutral flag. The Government of the Directory considered the treaty of 1 794, between the United States and Great Britain, as a hostile act, on the part of Ame- rica, towards France, and taking advantage of one of the articles of the treaty of 1778, by which it was declared that any favors granted by the one party to a foreign nation should become common to the other, it was declared by the decree of 12 Ventose, year 5, (2 March, 1797,) that the French had acquired by reason of the treaty with England, the right of taking enemy's property in American vessels. The United States, on their part, by an act of Congress of July 7, 1798, declared themselves, in consequence of the violation of the existing treaties by France, and her refusal to make reparations for injuries, or to negotiate respecting them, freed from their stipulations. After some acts of reprisal, authorized by the laws of the United States, the provision respecting " free ships free goods," as contained in the treaty of 1778, was renewed in the treaty of 1800, with a declaration, at the time of the exchange of ratifications, on which the claims of American citizens on their own government for spoliations anterior to its date are founded, of a renunciation of the indemnities mutually due or claimed growing out of the preceding treaties. A law of 29 Nivose, year 6, (18 January, 1798,) .declared good prize every neutral vessel laden with enemy's goods, coming fi-om England or her possessions. This was abrogated by the law of 23 Frimaire, year 8, (14 December, 1799,) and a decree was issued on 20th December, 1799, after the accession of Bonaparte, as First Consul, restoring the laws and usages of the monarchy, as they were in CHAP. III.] AS TO NEUTRALS. 537 treaties, agrees to enumerate among these all warlike instru- ments, or materials by their own nature fit to be used in war. 1778, in regard to neutrals. The report of the Minister of Foreign Affairs to the Emperor Napoleon, of March 10, 1812, commences by declaring that the maritime rights of neutrals were solemnly recognized by the treaty of Utrecht, which, it assumes, had become the common law of nations. That the flag covers the pro- perty, — that goods under a neutral flag are neutral, and that goods under the enemy's flag are enemy's goods, are among the principles recited. The disregard by England and France of all international rights, from the rupture consequent on the peace of Amiens to the end of the general European war in 1815, by orders and decrees professedly retaliatory of each other, and which sacrificed all neutral powers to their conflicting belligerent pretensions, have been disavowed by both, as constituting precedents for the future conduct of nations. So far as England is concerned, all claims of the United States for indemnity were merged in the war of 1812, induced by a violation of our neutral rights both as regards persons and property ; while, in the case of France, as well as of Spain, Denmark, and Naples, whose illegal edicts were, in general, based on those of France, adequate indemnities were paid to the American government, under conventions to that efTect, and distributed to the citizens aggrieved . Turkey, the ally or protegee in the present contest of England and France, has done much to vindicate a claim to be received within the pale of international law, by the respect which she has ever evinced for the immunity of the flag. The other maritime powers of Europe have, especially since the armed neutrality of 1780, to which most of them became parties, conformed their internal ordinances, when not under the controlling influence of the dominant States, to the principles, so generally adopted in their commercial conventions. Russia, during the excep- tional period of the French Revolution, especially in 1793 and 1801, deviated widely from that system, of which it was the glory of Catharine II. to have been the champion, and which is now sanctioned, and even extended beyond what was established in the respective conventions of armed neutrality, by her great belli- gerent adversaries. See Hautefeuille, Droit des Nations Neutres, tom. iii. pp. 254- 279. Martens, Recueil de Traites, Supplement, tom. v. p. 530. Ortolan, Diplo- matle de la Mer, liv. iii. ch. 5, t. ii. p. 140. Annual Reg. 1800, p. 55. United States Statutes at Large, vol. i. p. 578. Id. vol. viii. pp. 26, 192. Cong. Doc. 19 Cong. 1 Sess. Senate, No. 102, Ex. Doc. Though following England in the recognition by their executive government, as well as by their tribunals of a different principle, as the rule of international law, independently of conventional arrangements, the United States, who, as belligerents, in 1781, declared their adhesion to the first armed neutrality, have always endeavored to incorporate the principle of free ships free goods in their treaties. This was done in those with France of 1778 and 1800, (neither of which is now in force,) with the United Provinces in 1782, with Sweden in 1 783, 1816, and 1827, with Prussia in 1785 ; and although the rule was suspended in the treaty of 1799 with the last power, it was revived in that of 1828. United States Statutes at Large, vol. viii., passim. In no case has a treaty been concluded by the United States, sustaining a dif- 538 EIGHTS OF WAR [PART IV. Beyond these, there is some difficulty in reconciling the conflict- ing authorities derived from the opinions of public jurists, the ferent principle, except the one of 1794, witli England, already noticed, and •which expired before the war of 1812, -while in the next year, 1795, a treaty was negotiated with Spain, making free ships free goods, without including the usual accompanying provision, that enemy ships make enemy goods. The embarrass- ments, however, arising from a different rule, as to the two belligerents, when one of the contracting parties is at war with a third power, and the other neutral, induced, in 1819, a change in the treaty to the effect, that the flag of the neutral should only cover the property of an enemy, whose government acknowledged the principle. The rule thus modified has since been applied in our treaties with the other American States, viz., in that of 1824 with Columbia, of 1828 with Brazil, of 1825 with Central America, of 1832 with Chili, of 1831 with Mexico, of 1833 with Teru-Bolivia, and of 1836 with Venezuela. United States Statutes at Large, vol. viii. pp. 262, 312, 393, 328, 437, 490, 472. Recurring to their respective systems, as understood previous to the present war, it is very evident, that if two nations situated like England and France, one pos- sessing the largest military marine in the world, and the other a navy only inferior to that of its ally, were as co-belligerents, each to maintain its own peculiar principles of maritime law, neutral commerce must altogether cease. Neutral property, Avhich England would not condemn for being found in an enemy's vessel, would be good prize to the French cruiser; while the neutral ship, whose flag was a protection against France, would be subject to be searched by English officers for enemy's property, the mere suspicion of having which on board might induce the sending of the vessel into an English port, and" thus breaking up a voyage, for which any allowance, either as freight or for damages, would be a very inadequate indem- nity. A compromise of principles was necessary to the cooperation of the navies of the allies. And this, instead of further aggravating the difficulties to which war always subjects neutrals, has been effected by an abandonment of the obnoxious pretensions of England, as a consideration for obtaining from France additional concessions, on her part. The Ministers of England and France communicated to the Secretary of State of the United States, on the 21st April, 1854, the declaration made in the same terms by their governments, on occasion of the commencement of the war, the preceding month, against Russia. That of England was as follows: — " DECLARATION OF THE QUEEX. ^^Declaration. " Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, having been compelled to take up arms in support of an ally, is desirous of rendering the war as little onerous as possible to the powers with whom she remains at peace. " To preserve the commerce of neutrals from all unnecessary obstruction, her Majesty is willing, for the present, to waive a part of the belligerent rights apper- taining to her by the law of nations. " It is impossible for her Majesty to forego the exercise of her right of seizing articles contraband of war, and of preventing neutrals from bearing the enemy's CHAP. III.] AS TO NEUTRALS. 539 fluctuating usage among nations, and the texts of various con- ventions designed to give to that usage the fixed form of positive despatches ; and she must maintain the right of a belligerent to prevent neutrals from breaking any effective blockade -which may be established with an adequate force against the enemy's forts, harbors, or coasts. " But her Majesty will waive the right of seizing enemy's property laden on board a neutral vessel, unless it be contraband of war. " It is not her Majesty's intention to claim the confiscation of neutral property, not being contraband of war, found on board enemies' ships ; and her Majesty further declares, that, being anxious to lessen' as much as possible the evils of war, and to restrict its operations to the regularly organized forces of the country, it is not her present intention to issue letters of marque for the commissioninor of privateers. " Westminster, March 28, 1854." Mr. ]\Iarcy, in acknowledging, on the 28th of April, the note of Mr. Crampton, with its inclosure, says : " The undersigned has submitted those communications to the President, and received his direction to express to her Majesty's government his satisfaction that the principle that free ships make free goods, which the United States have so long and so strenuously contended for as a neutral right, and in which some of the leading powers of Europe have concurred, is to have a qualified sanction by the practical observance of it in the present war by both Great Britain and France — two of the most powerful nations of Europe. " Notwithstanding the sincere gratification which her Majesty's declaration has given to the President, it would have been enhanced if the rule alluded to had been announced as one which would be observed not only in the present, but in every future war in which Great Britain shall be a party. The unconditional sanction of this rule by the British and French governments, together with the practical observance of it in the present war, would cause it to be hence- forth recognized throughout the civilized world as a general principle of in- ternational law. This government, from its very commencement, has labored for its recognition as a neutral right. It has incorporated it in many of its treaties with foreign powers. France, Russia, Prussia, and other nations, have, in various ways, fully concurred with the United States in regarding it as a sound and salu- tary- principle, in all respects proper to be incorporated in the law of nations. " The same consideration which has induced her Britannic Majesty, in concur- rence with the Emperor of the French, to present it as a concession in the pre- sent war, the desire ' to preserve the commerce of neutrals from all unnecessary obstruction,' will, it is presumed, have equal weight with the belligerents in any future war, and satisfy them that the claims of the principal maritime powers while neutral, to have it recognized as a rule of international law, arc well founded, and should be no longer contested. " To settle the principle that free ships make free goods, except articles contra- band of war, and to prevent it from being called again in question from any quarter, or under any circumstances, the United States are desirous to unite with 540 RIGHTS OF WAR [PART IV. law. Grotius, in considering this subject, makes a distinction between those things which are useful only for the purposes of other powers in a declaration that it it shall be observed by each, hereafter, as a rule of international law." An answer, in the same terms, was addressed to the Count de Sartiges. On the 9th of May, 1854, Mr. Crampton transmitted to Mr. Marcy the two orders in council of the 15th of April, before referred to. Supra, pp. 372, 390. One of them enlarges the time for the departure of Russian vessels ; the other, after reciting and confirming the royal declaration of the 28th of March, still fur- ther extends the privileges accorded to neutrals : " It is this day ordered, by and with the advice of her privy council, that all vessels under a neutral or friendly flag, being neutral or friendly property, shall be permitted to import into any port or place in her Majesty's dominions all goods and merchandise, whatsoever, to ■whomsoever the same may belong ; and to export from any port or place in her Majesty's dominions, to any port, not blockaded, any cargo or goods not being contraband of war, or not requiring a special permission, to whomsoever the same may belong. "And her Majesty is further pleased, by and with the advice of her privy council, to order, and it is hereby further ordered, that, save and except only as aforesaid, all the subjects of her Majesty and the subjects or citizens of any neu- tral or friendly State shall and may, during and notwithstanding the present hos- tilities with Russia, freely trade with all ports and places, wheresoever situate, which shall not be in a state of blockade, save and except that no British vessel shall, under any circumstances whatsoever, either under or by virtue of this order or otherwise, be permitted or empowered to enter or communicate with any port or place which shall belong to or be in the possession or occupation of her Ma- jesty's enemies." Cong. Doc. 33 Cong. 1st Sess. II. of R., Ex. Doc. No. 103. The articles requiring a special permission to export are confined to arms, munitions, and marine machinery, which m^' be available in war, and the total prohibition to export them, contained in the order in council of 18th of February, 1854, in anticipation of hostilities, was subsequently modified, as is hereafter stated. See infra, § 24, note. Whatever doubts may have existed as to the permanent character of the modifi- cations in the principles of international law, adopted, during the present war, by England, would seem to be removed by the subsequent explanations given in Parliament, by a minister of the crown, (Sir W. Molesworth,) speaking avowedly in behalf of the government. In a debate, on the 4th of July, in answer to Mr. J. Phillimore, who had moved a resolution that, however, from the peculiar circum- stances of this war, a relaxation of the principle that the goods of an enemy in the ship of a friend are lawful prize may be justifiable, to i-enounce or surrender the right would be inconsistent with the security and honor of the country. Sir W. Molesworth said, the resolution raised two distinct questions — one a practical question of political expediency ; the other a theoretical question of inter- national law, as to the rights of the subjects of neutral States, with reference to belligerents. The expediency of relaxing the principles that the goods of an CHAP. III.] AS TO NEUTRALS. 541 war, those which are not so, and those which are susceptible of indiscriminate use in war and peace. The Jirst, he agrees with enemy in the ship of a friend might be confiscated, had been admitted by Mr. Phillimore from the peculiar circumstances of this war ; but he, (Sir William,) denied that the position of that honorable member, that the right to confiscate an enemy's goods on boara a friend's ship was on principle maintainable, was indisput- ably true; and he disputed the validity of the authorities he had cited, contending- that all the best modern publicists dissented from the old authorities, and sup- ported the rule ' free ships free goods.' Sir William developed and discussed at considerable length the arguments urged by the friends of the extension of neu- ral rights, ^vho maintained that a belligerent had no more right to enter a neutral ship to search for enemy's goods than to enter a neutral port for that purpose, and that so long as an independent sovereign was at peace with a belligerent power, the latter had no right to ask any questions as to articles on board the ships of subjects of the neutral sovereign. So far from the principle contended for by Mr. Phillimore being indisputably true, he insisted that it was demonstrably false, and he appealed to bilateral treaties concluded between this country and the maritime powers of Western Europe; from that of 1654 with Portugal, which recognized as a rule of amicable intercourse that free ships make free goods, which rule was all but invariable during the last two centuries, although it had not always been observed in practice. Even if reasonable doubts might be enter- tained upon the question, the House ought not to pledge itself to an assertion of the right contended for, and he insisted that there was no logical connection be- tween the rules, ' free ships free goods,' and ' enemy's ships enemy's "-oods,' which were placed in juxtaposition as a mere verbal antithesis. Sir William then discussed the practical question, arguing that it was wise and expedient to waive, in conjunction with France, our belligerent rights ; and a rule of maritime war- fare has been adopted by a mutual compromise between the two countries. Assuming that the position of Mr. Phillimore was true, the House, he contended ought not to agree to this abstract resolution, unless some practical benefit would result from Its adoption. None had been shown, and the waivino- a Y\ ' t^ stores, when ently of special treaty stipulations, is laid down very contraband. fully by Sir W. Scott, in the case of The Jonge Margaretha. He there states that the catalogue of contraband had varied very much, and sometimes in such a manner as to make it difficult to assign the reason of the variations, owing to particular circum- stances, the history of which had not accompanied the history of the decisions. " In 1673, when many unwarrantable rules were laid down by public authority respecting contraband, it was ' Martens, Recueil, tome vii. pp. 150-281. 552 RIGHTS OP WAR [PART IV. expressly asserted, by a person of great knowledge and expe- rience in the English admiralty, that, by its practice, corn, 2vme, and oil, were liable to be deemed contraband. In much later times, many sorts of provisions, such as butter, salted fish, and rice, have been condemned as contraband. The modern esta- blished rule was, that generally they are not contraband, but may become so under circumstances arising out of the peculiar situation of the war, or the condition of the parties engaged in it. Among the causes which tend to prevent provisions from being treated as contraband, one is, that they are of the growth of the country which exports them. Another circumstance, to which some indulgence by the practice of nations is shown, is when the articles are in their native and unmanufactured state. Thus iron is treated with indulgence, though anchors and other instruments fabricated out of it are directly contraband. Hemp is more favorably considered than cordage ; and wheat is not considered so noxious a commodity as any of the final prepara- tions of it for human use. But the most important distinction is, whether the articles are destined for the ordinary uses of life, or for military use. The nature and quality of the port to which the articles were going, is a test of the matter of fact to which the distinction is to be applied. If the port is a general com- mercial port, it shall be understood that the articles were going for civil use, although occasionally a frigate or other ships of war may be constructed in that port. On the contrary, if the great predominant character of a port be that of a port of naval equipment, it shall be intended that the articles were going for military use, although merchant ships resort to the same place, and although it is possible that the articles might have been applied to civil consumption ; for it being impossible to ascer- tain the final application of an article ancipitis usus, it is not an injurious rule which deduces both ways the final use from the immediate destination ; and the presumption of a hostile use, founded on its destination to a military port, is very much in- flamed, if, at the time when the articles were going, a considera- ble armament was notoriously preparing, to which a supply of those articles would be eminently useful." ^ ' Robinson's Adm. Eep. vol. i. p. 192. CHAP. III.] AS TO NEUTRALS. 653 The distinction, under which articles of promiscuous Articles use are considered as contraband, when destined to a cumaTuse' port of naval equipment, appears to have been subse- po,^°r'aband quentlv abandoned by Sir W. Scott. In the case of ^y''en des- ^ - •' tined to a The Charlotte, he states that " the character of the port port of is immaterial; since naval stores, if they are to be con- ment. sidered'as contraband, are so without reference to the nature of the port, and equally, whether bound to a mercantile port only, or to a port of naval military equipment. The consequence of the supply may be nearly the same in either case. If sent to a mercantile port, they may then be applied to immediate use in the equipment of privateers, or they may be conveyed from the mercantile to the naval port, and there become subservient to every purpose to which they could have been applied if going directly to a port of naval equipment." ^ The doctrine of the En2;lish Courts of Admiralty, as ^ . , J . . Provisions to provisions becoming contraband under certam cir- becoming cum.stances of war, was adopted by the British govern- under cer- ment in the instructions given to their cruisers on the stance3*^of^ 8th June, 1793, directing them to stop all vessels laden ^^'^'"• wholly or in part with corn, flour, or meal, bound to any port in France, and to send them into a British port, to be purchased by government, or to be released, on condition that the master should give security to dispose of his cargo in the ports of some country in amity with his Britannic Majesty. This order was justified, upon the ground that, by the modern law of nations, all provisions are to be considered contraband, and, as such, liable to confiscation, wherever the depriving an enemy of these supplies is one of the means intended to be employed for reduc- ing him to terms. The actual situation of France (it was said) was notoriously such, as to lead to the employing this mode of distressing her by the joint operations of the different powers engaged in the war; and the reasoning which the text-writers apply to all cases of this sort, was more applicable to the present case, in which the distress resulted from the unusual mode of war adopted by the enemy himself, in having armed almost the whole laboring class of the French nation, for the purpose of 1 Kobinson's Adm. Eep. vol. v. p. 305. 47 554 RIGHTS OF WAR [PART IV. commencing and supporting hostilities against almost all Euro- pean governments ; but this reasoning was most of all applicable to a trade, which was in a great measure carried on by the then actual rulers of France, and was no longer to be regarded as a mercantile speculation of individuals, but as an immediate ope- ration of the very persons who had declared war, and were then carrying it on against Great Britain.^ This reasoning was resisted by the neutral powers, Sweden, Denmark, and especially the United States. The American government insisted, that when two nations go to war, other nations, who choose to remain at peace, retain their natural right to pursue their agriculture, manufactures, and other ordinary voca- tions ; to carry the produce of their industry for exchange to all countries, belligerent or neutral, as usual ; to go and come freely, without injury or molestation ; in short, that the war among others should be, for neutral nations, as if it did not exist. The only restriction to this general freedom of commerce, which has been submitted to by nations at peace, was that of not furnish- ing to either party implements merely of war, nor any thing whatever to a place blockaded by its enemy. These implements of war had been so often enumerated in treaties under the name of contraband, as to leave little question about them at that day. It was sufficient to say that corn, flour, and meal, were not of the class of contraband, and consequently remained articles of free commerce. The state of war then existing between Great Britain and France furnished no legitimate right to either of these belligerent powers to interrupt the agriculture of the United States, or the peaceable exchange of their produce with all na- tions. If any nation whatever had the right to shut against their produce all the ports of the earth except her own, and those of her friends, she might shut these also, and thus prevent altogether the export of that produce.^ In the treaty subsequently concluded between Great Britain and the United States, on the 19th November, 1794, it was sti- pulated, (article 18,) that under the denomination of contraband 1 Mr. Hammond's Letter to Mr. Jefferson, 12th September, 1793. Waite's State Papers, vol. i. p. 398. - Mr. Jefferson's Letter to Mr. T. Pinkney, 7th September, 1793. Waite's State Papers, vol. i. p. 393. J CHAP, in.] AS TO NEUTRALS. 555 should be comprised all arms and implements serving for the purposes of war, " and also timber for ship-building, tar or rosin, copper in sheets, sails, hemp, and cordage, and generally what- ever may serve directly to the equipment of vessels, unwrought iron and fir planks only excepted." The article then goes on to provide, that " whereas the difficulty of agreeing on the precise cases, in which alone provisions and other articles, not generally contraband, may be regarded as such, renders it expedient to pro- vide against the inconveniences and misunderstandings which might thence arise ; it is further agreed, that whenever any such articles, so becoming contraband according to the existing law of nations, shall for that reason be seized, the same shall not be confiscated ; but the owners thereof shall be speedily and completely indemnified ; and the captors, or, in their default, the government under whose authority they act, shall pay to the masters or owners of such vessels the full value of all such articles, with a reasonable mercantile profit thereon, together with the freight, and also the demurrage incident to such de- tention." The instructions of June, 1793, had been revoked British previous to the signature of this treaty ; but, before its ^J^^^^^q^^ ratification, the British government issued, in April, April, i795. 1795, an Order in Council, instructing its cruisers to stop and detain all vessels, laden wholly or in part with corn, flour, meal, and other articles of provisions, and bound to any port in France, and to send them to such ports as might be most convenient, in order that such corn, &c,, might be purchased on behalf of government. This last order was subsequently revoked, and the question of its legality became the subject of discussion before the mixed commission, constituted under the treaty to decide upon the claims of American citizens, by reason of irregular or illegal captures and condemnations of their vessels and other property, under the authority of the British government. The Order in Council was justified upon two grounds: — 1. That it was made when there was a prospect of reducing the enemy to terms by famine, and that, in such a state of things, provisions bound-to the ports of the enemy became so far contra- band, as to justify Great Britain in seizing them upon the terms of paying the invoice price, with a reasonable mercantile profit thereon, together with freight and demurrage. 556 RIGHTS OF WAR [PART IV. 2. That the order was justified by necessity; the British nation being at that time threatened with a scarcity of the articles directed to be seized. The first of these positions was rested not only upon the gene- ral law of nations, but upon the above quoted article of the treaty between Great Britain and America. The evidence adduced of this supposed law of nations was principally the following passage of Vattel : — "Commodities particularly useful in war, and the carrying of which to an enemy is prohibited, are called contraband goods. Such are arms, am- munition, timber for ship-building, every kind of naval stores, horses, and even provisions, in certain junctures, when we have hopes of reducing the enemy by famine." ^ In answer to this authority, it was stated that it might be sufficient to say that it was, at best, equivocal and indefinite, as it did not designate what the junctures are in which it might be held, that " there are hopes of reducing the enemy by famine ; " that it was entirely consistent with it to affirm, that these hopes must be built upon an obvious and palpable chance of effecting the enemy's reduction by this obnoxious mode of warfare, and that no such chance is by the law of nations admitted to exist, except in certain defined cases ; such as the actual siege, block- ade, or investment of particular places. This answer would be rendered still more satisfactory, by comparing the above quoted passage with the more precise opinions of other respectable writ- ers on international law, by which might be discovered that which Vattel does not profess to explain — the combination of circum- stances to which his principle is applicable, or is intended to be applied. But there was no necessity for relying wholly on this answer, since Vattel would himself furnish a pretty accurate commentary on the vague text which he had given. The only instance put by this writer, which came within the range of his general prin- ciple, was that which he, as well as Grotius, had taken from Plutarch. " Demetrius," as Grotius expressed it, " held Attica by the sword. He had taken the town of Rhamnus, designings a famine in Athens, and had almost accomplished his design, when a vessel laden with provisions attempted to relieve the city." 1 Droit des Gens, liv. iii, ch. 7, § 112. I CHAP. III.] AS TO NEUTRALS. 557 Vattel speaks of this as of a case in which provisions were con- traband, (section 17,) and although he did not make use of this example for the declared purpose of rendering more specific the passage above cited, yet as he mentions none other to which it can relate, it is strong evidence to show that he did not mean to carry the doctrine of special contraband farther than that example would warrant. It was also to be observed that, in section 113, he states ex- pressly that all contraband goods, (including, of course, those becoming so by reason of the junctures of which he had been . speaking at the end of section 112.) are to be confiscated. But nobody pretended that Great Britain could rightfully have con- fiscated the cargoes taken under the order of 1795 ; and yet if the seizures made under that order fell within the opinion ex- pressed by Vattel, the confiscation of the cargoes seized would have been justifiable. It had long been settled, that all contra- band goods are subject to forfeiture by the law of nations, whe- ther they are so in their own nature, or become so by existing circumstances ; and even in early times, when this rule was not so well established, we find that those nations who sought an exemption from forfeiture, never claimed it upon grounds pecu- liar to any description of contraband, but upon general reasons, embracing all cases of contraband whatsoever. As it was ad- mitted, then, that the cargoes in question were not subject to forfeiture as contraband, it was manifest that the juncture which gave birth to the Order in Council could not have been such a one as Vattel had in view ; or, in other words, that the cargoes were not become contraband at all within the true meaning of his principle, or within any principle known to the general law of nations. The authority of Grotius was also adduced, as countenancing this position. Grotius divides commodities into three classes, the first of which he declares to be plainly contraband ; the second plainly not so; and as to the third, he says: — " In tertio illo genere usus ancipitis, distinguendus erit belli status. Nam si tueri me non possum nisi quae mittuntur intercipiam, necessitas, ut alibi expo- suimus, jus dabit, sed sub onere restitutionis, nisi causa alia acce- dat." This "causa alia" is afterwards explained by an example, "ut si oppidum obsessum tenebam,si portus clausos, et jam dedi- tio aut pax expectabatur." 47* 558 RIGHTS OF WAR [PART IV. This opinion of Grotius, as to the third class of goods, did not appear to proceed at all upon the notion of contraband, but sim- ply upon that of a pure necessity on the part of the capturing belligerent. He does not consider the right of seizure as a means of effecting the reduction of the enemy, but as the indis- pensable means of our own defence. He does not state the seizure upon any supposed illegal conduct in the neutral, in attempting to carry articles of the third class, (among which pro- visions are included,) 7iot hound to a port besieged or blockaded, to be lawful, when made with the mere view of annoying or reducing the enemy, but solely when made with a view to our own preservation or defence, under the pressure of that imperious and unequivocal necessity, which breaks down the distinctions of property, and, upon certain conditions, revives the original right of using things as if they were in common. This necessity he explains at large in his second book, (cap. ii. sec. 6,) and, in the above-recited passage, he refers expressly to that explanation. In sections 7, 8, and 9, he lays down the con- ditions annexed to this right of necessity : as, 1. It shall not be exercised until all other possible means ha.ve been used ; 2. Nor if the right owner is under a like necessity ; and, 3. Restitution shall be made as soon as practicable. In his third book, (cap. xvii. sec. 1,) recapitulating what he had before said on this subject, Grotius further explains this doctrine of necessity, and most explicitly confirms the construc- tion placed upon the above-cited texts. And Rutherforth, in commenting on Grotius, (lib. iii. cap. 1, sec. 5,) also explains what he there says of the right of seizing provisions upon the ground of necessity; and supposes his meaning to be that the seizure would not be justifiable in that view, " unless the exi- gency of affairs is such, that \ve cannot possibly do without them." 1 Bynkershoek also confines the right of seizing goods, not gene- rally contraband of war, (and provisions among the rest,) to the above-mentioned cases.^ It appeared, then, that so far as the authority of text writers could influence the question, the Order in Council of 1795 could 1 Rutherfortli's Inst. vol. ii. b. ii. ch. 9, § 19. 2 Bynkershoek, Quaest. Jur. Pub. lib. i. cap. 9. CHAP. III.] AS TO NEUTRALS. 559 not be rested upon any just notion of contraband ; nor could it, in that view, be justified by the reason of the thing or the ap- proved usage of nations. If the mere hope, however apparently well founded, of annoy- ing or reducing an enemy, by intercepting the commerce of neutrals in articles of provision, (which, in themselves, are no more contraband than ordinary merchandise,) to ports not besieged or blockaded, would authorize that interruption, it would follow that a belligerent might at any time prevent, without a siege or blockade, all trade whatsoever with its enemy ; since there is at all times reason to believe that a nation, having little or no ship- ping of its own, might be so materially distressed by preventing all other nations from trading with it, that such prevention might be a powerful instrument in bringing it to terms. The principle is so wide in its nature, that it is, in this respect, incapable of any boundary. There is no solid distinction, in this view of the principle, between provisions and a thousand other articles. Men must be clothed as well as fed ; and even the privation of the conveniences of life is severely felt by those to whom habit has rendered them necessary. A nation, in proportion as it can be debarred its accustomed commercial intercourse with other States, must be enfeebled and impoverished ; and if it is allow- able to a belligerent to violate the freedom of neutral commerce, in respect to any one article not contraband in se, upon the expect- ation of annoying the enemy, or bringing him to terms by a seizm'e of that article, and preventing it reaching his ports, why not, upon the same expectation of annoyance, cut off as far as possible by captures, all communication with the enemy, and thus strike at once effectually at his power and resources? As to the 18th article of the Treaty of 1794, between the United States and Great Britain, it manifestly intended to leave the question where it found it ; the two contracting parties, not being able to agree upon a definition of the cases in which pro- visions and other articles, not generally contraband, might be regarded as such, (the American government insisting on confin- ing it to articles destined to a place actually besieged, blockaded, or invested, whilst the British government maintained that it ought to be extended to all cases where there is an expectation of reducing the enemy by famine,) concurred in stipulating, that " whenever any such articles, so becoming contraband, accordiiig^ 560 RIGHTS OF WAR [pART IV. to the existing' law of nations, shall for that reason be seized, the same shall not be confiscated," but the owners should be com- pletely indemnified in the manner provided for in the article. When the law of nations existing at the time the case arises pronounces the articles contraband, they may for that reason be seized ; when otherwise, they may not be seized. Each party was thus left as free as the other to decide whether the law of nations, in the given case, pronounced them contraband or not, and neither was obliged to be governed by the opinion of the other. If one party, on a false pretext of being authorized by the law of nations, made a seizure, the other was at full liberty to contest it, to appeal to that law, and, if he thought fit, to resort to reprisals and war. As to the second ground upon which the Order in Council was justified, necessity, Great Britain being, as alleged at the time of issuing it, threatened with a scarcity of those articles directed to be seized, it was answered that it would not be denied that extreme necessity might justify such a measure. It was only important to ascertain whether that necessity then existed, and upon what terms the right it communicated might be carried into exercise. Grotius, and the other text writers on the subject, concurred in stating that the necessity must be real and pressing ; and that even then it does not confer a right of appropriating the goods of others, until all other practicable means of relief have been tried and found inadequate. It was not to be doubted that there were other practicable means of averting the calamity apprehended by Great Britain. The offer of an advantageous market in the different ports of the kingdom, was an obvious expedient for drawing into them the produce of other nations. Merchants do not require to be forced into a profitable com- merce ; they will send their cargoes where interest invites ; and if this inducement is held out to them in time, it will always produce the effect intended. But so long as Great Britain offered less for the necessaries of life than could have been obtained from her enemy, was it not to be expected that neutral vessels should seek the ports of that enemy, and pass by her own ? Could it be said that, under the mere apprehension (not ■under the actual experience) of scarcity, she was authorized to have recourse to the forcible means of seizing provisions belong- CHAP. III.] AS TO NEUTRALS. 661 ing to neutrals, without attempting those means of supply which were consistent with the rights of others, and which were not incompatible with the exigency ? After this order had been issued and carried into execution, the British government did what it should have done before; it offered a bounty upon the importation of the articles of which it was in want. The conse- quence was, that neutrals came with these articles, until at length the market was found to be overstocked. The same arrangement, had it been made at an earlier period, would have rendered wholly useless the order of 1795. Upon these grounds, a full indemnification was allowed by the commissioners, under the seventh article of the Treaty of 1794, to the owners of the vessels and cargoes seized under the Orders in Council, as well for the loss of a market as for the other con- sequences of their detention.^ (a) ' Proceedings of the Board of Commissioners under the seventh article of the Treaty of 1794. MS. Opinion of Mr. W. Pinkney, case of The Neptune. (a) [The "declarations" of the French and English governments, at the com- mencement of the war, except contraband of icar from the articles, whether they be enemy's property on board of neutral vessels, or neutral property on board of enemy's vessels, to which immunity is accorded. The documents of this period contain no new definition of contraband, unless we are to regard the Bri- tish Order in Council, of the 18th of February, 1854, issued in anticipation of the declaration of war, as indicative of its views on that subject. By it, " all arms, ammunition, and gunpowder, military and naval stores, and the following articles, being articles which are judged capable of being converted into or made useful in increasing the quantity of military or naval stores ; that is to say, marine engines, screw propellers, paddle wheels, cylinders, cranks, shafts, boilers, tubes for boilers, boiler plates, f re bars, and every article or any other component part of an engine or boiler, or any article whatsoever, tchich is, or can, or 7nay, become appli- cable for the manufacture of marine machinery, are prohibited either to be exported from the United Kingdom, or carried coastwise." London Gazette. This order is not in terms a belligerent measure, but purports to be founded on the Customs' Consolidation Act of 1853. The application of it was restricted soon after it was issued, and, by a further modification, on 24th of April, the prohibited articles were reduced to three classes only : namely, 1st. Gun- powder, saltpetre, and brimstone ; 2d. Arms and ammunition ; and, 3d. Marine engines and boilers, and the component parts thereof These articles were forbidden to be exported to any port of Europe, north of Dunkirk or of the Mediterranean Sea, east of Malta, without a special permit of the Privy Council. To all other places they might be exported, with the restriction of a bond. It is understood, however, that the permit given in such case is merely an authority to the officers of the customs to allow the export of the articles, 562 RIGHTS OF WAR [PART IV. § 25. Of the same nature with the carryina: of contraband Transporta- , . , . , .,. tion of miii- goods IS the transportation or mihtary persons or de- tarv persons ,1 • .1 • r- .1 and cie- spatches in the service ot the enemy. but not a license for their transport at sea, as aflFecting the law of contraband. We are, therefore, still referred, in determining Avhat may safely be done in this matter by neutrals, to the former usages of the tribunals of the two countries, and to the past decrees and orders of their governments. Destination is essen- tial in a question of contraband ; and, consequently, under the existing regula- tions, the trade in all articles, whether included in that denomination or not, is free to all vessels under a neutral or friendly flag, as long as it is not obnoxious to the suspicion of conveying contraband or prohibited articles to an enemy's port, or indirectly for the enemy's use. By the French Ordinance of 1681, which is still the rule, it being recognized in the Ordinance of 1778, which abolished the intervening regulations, only arms and ammunition are regarded as contraband ; though, during the wars of the French Revolution, all distinctions on this point, as in other matters relating to neutrals, were often practically disregarded. The English rule has varied, as well for those cases in which there were no treaty stipulations, as in their conventional arrangements ; their Orders in Council, and admiralty decisions, frequently includ- ing naval stores in the permanent list of contraband articles, and, under circum- stances, extending the list even to provisions, in some cases absolutely, and in others so far as to authorize their appropriation to the use of the belligerent government, on its paying the value thereof. One of their latest text writers, before the war, defined contraband to be : — " 1. Articles which have been con- structed, fabricated, or compounded into actual instruments of war; 2. Articles which from their nature, qualities, and quantities, are applicable and useful for the purposes of war; 3. Articles which, although not subservient generally to the purposes of war, such as grain, flour, provisions, naval stores, become so by their special and direct destination for such purposes, namely, by their destination for the supply of armies, garrisons or fleets, naval arsenals and ports of military equipment." Reddie, Researches Historical and Critical in Mai'itime Interna- tional Law, vol. ii. p. 456. It is remarked by publicists, that a mere change of the implements of war can make no difference with regard to the principle of the prohibition, as applied to contraband ; and that if the usus bellici, as to particular articles, shift, the law shifts with them. No greater change could have occurred in maritime warfare than what has been produced, since the last general war, by the introduction of steam into navigation. In the Order of the 18th of February, 1854, steam engines are classed with naval stores, into which category, when intended for vessels, they properly fall, and whether they are to be considered as contraband, therefore, depends on the rule as to naval stores generally. So far as regards the two great maritime belligerents, there was no greater accordance in their views on this than on other questions, connected with neutral rights ; though, as in the case of the flag covering the property, the only treaties between them, which refer to this subject, as is shown in the text, adopt the most liberal rule ; and they, more- over, exclude, in express terms, naval stores from the list of contraband. CHAP. III.] AS TO NEUTRALS. 563 A neutral vessel, which is used as a transport for the spatches in enemy's forces, is subject to confiscation, if captured by service.'"^ ^ The subject of the introduction, among contraband of war, of steam engines, as well as of coal, as necessary to their use, was discussed even in advance of the present contest, by text writers on the Continent, especially Hautefeuille and Ortolan. The latter objects to the English extension of contraband ad libitum, and declares his opinion to be, that, on principle, under ordinary circumstances, arms and munitions of war, which serve directly and exclusively for belligerent purposes, are alone contraband. In his second edition, (1853,) he confines the special cases to certain determinate articles, whose usefulness is greater in war than in peace, and which, from circumstances, are in their character contraband, without being actually arms or munitions of war; such as timber, evidently intended for the construction of ships of war or for gun carriages, boilers or machinery, for the enemy's steam vessels, sulphur and saltpetre, or other mate- rials for arms or munitions of war. He corrects his former opinion, that, with the increased importance of the military steam marine, coal, as indispensable for it, may be included in this class, notwithstanding its great use for industrial and pacific purposes ; and denies that, looking to the immense commercial navigation to which it is essential, and to the fact that it can never assume a form, which shows that it is intended for the exclusive use of the military marine, it can ever, under any circumstances, become contraband. Ortolan, Diplomatic de la Mer, liv. iii. ch. 6, torn. ii. p. 206, 2d edit. Hautefeuille, of course, excludes these arti- cles from the contraband list. This is consistent with the principles of his trea- tise, which admits but one class of contraband, and confines it to objects of first necessity for war, which are exclusively useful in war, and which can be directly employed for that purpose, without undergoing any change ; that is to say, to arms and munitions of war. He considers that steam engines are, like sails, the moving powers of a ship, and cannot be distinguished from the other articles which enter into the construction of the vessel ; and he deems them, as naval stores, the objects of a free commerce. Hautefeuille, Droits des Gens Neutres, t. ii. p. 412. The numerous treaties, to which the United States have been parties, which contain any stipulations respecting contraband, with the single exception of that of 1794, with England, confine it to arms and munitions of war; and the early ones exclude naval stores, in express terms, from the list. See U. S. Statutes at Large, vol. viii. passim. A Swedish ordinance of the 8th of April, 1854, issued with reference to the present war, declares : — " Sec. 5. All kinds of goods, even such as belong to belligerents, may be car- ried in Swedish ships as neutral, except contraband of war ; by which are under- stood cannons, mortars, all kinds of arms, bombs, grenades, balls, flints, linstocks, gunpowder, saltpetre, sulphur, cuirasses, pikes, belts, cartouch-boxes, saddles, bridles, and all other manufactures (tilloerkningav) immediately applicable to war- like purposes ; herein, however, are not Included a stock of such articles necessary for the defence of ship and crew. " In regard to contraband of war, should any change or addition be made, in consequence of agreement between us and other powers, a separate notice thereof shall be proclaimed." Public Documents. 564 EIGHTS OF WAR [PART IV. the opposite belligerent. Nor will the fact of her having been impressed by violence into the enenny's service, exempt her. The master cannot be permitted to aver that he was an involuntary agent. Were an act of force exercised by one belligerent power on a neutral ship or person to be considered a justification for an act, contrary to the known duties of the neutral character, there would be an end of any prohibition under the law of nations to carry contraband, or to engage in any other hostile act. If any loss is sustained in such a service, the neutral yield- ing to such demands must seek redress from the government which has imposed the restraint upon him.i As to the number of military persons necessary to subject the vessel to confisca- tion, it is difficult to define ; since fewer persons of high quality and character may be of much more importance than a much greater number of persons of lower condition. To carry a vete- ran general, under some circumstances, might be a much more noxious act than the conveyance of a whole regiment. The consequences of such assistance are greater, and therefore the belligerent has a stronger right to prevent and punish it ; nor is it material, in the judgment of the Prize Court, whether the In an English review of tbe Orders in Council on trade, during war, it is said : — "It was never Intended that the prohibition (in the Order of the 18th of February, and the subsequent orders modifying it) should be construed into a fresh declaration of contraband of war. It rests with the courts of maritime juris- diction to determine that question ; and we presume that as steam machinery has become an important element of navigation and maritime warfare since the last war, the parts or materials of this machinery, when transported to an enemy's port, or for the use of the enemy, will be as liable to condemnation as sailcloth, cordage, or spars, have been in former wars, when not restricted by treaty with neutrals." . . . . "A question has been much discussed, whether coals, which are destined to play so essential a part in modern warfare, are to be held to be contraband ; but it is of so much importance to our own cruisers to be able to take in coals at neutral ports, which they would not be able to do if coal was universally regarded as a prohibited article, that we should probably lose more than we can gain by contending for the prohibition. Coals, however, have been stopped on their way to an enemy's port on the Black Sea ; though it appears, from an answer given in the House of Commons by Sir James Graham, that coala ■will be regarded by our cruisers as one of the articles aiicipitis usus, not necessar rily contraband, but liable to detention under circumstances that warrant suspicion of their being applied to the military or naval uses of the enemy." Edinburgh Review, No. 203, Art. 6, July, 1854, p. 103, Am. ed.] 1 Robinson's Adm. Rep. vol. iv. p. 25G. The Carolina. I CHAP. III.] AS TO NEUTRALS. 565 master be ignorant of the character of the service on which he is engaged. It is deemed sufficient if there has been an injury arising to the belligerent from the employment in which the vessel is found. If imposition be practised, it operates as force ; and if redress is to be sought against any person, it must be against those who have, by means either of compulsion or deceit, exposed the property to danger ; otherwise such opportunities of conveyance would be constantly used, and it would be almost impossible, in the greater number of cases, to prove the privity of the immediate offender.^ The fraudulently carrying the despatches of the enemy will also subject the neutral vessel, in which they are transported, to capture and confiscation. The consequences of such a service are indefinite, infinitely beyond the effect of any contraband that can be conveyed. " The carrying of two or three cargoes of military stores," says Sir W. Scott, " is necessarily an assistance of a limited nature ; but in the transmission of despatches may be conveyed the entire .plan of a campaign, that may defeat all the plans 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 evan- escent quantity of which no account is taken ; and the practice has been, accordingly, that it is in considerable quantities only that the offence of contraband is contemplated. The case of des- patches is very different ; it is impossible to limit a letter to so small a size as not to be capable of producing the most import- ant consequences. It is a service, therefore, which, in whatever degree it exists, can only be considered in one character — as an act of the most hostile nature. The offence of fraudulently carrying despatches in the service of the enemy being, then, greater than that of carrying contraband under any circum- stances, it becomes absolutely necessary, as well as just, to resort to some other penalty than that inflicted in cases of contraband. The confiscation of the noxious article, which constitutes the penalty in contraband, where the vessel and 1 Eobinson's Adm. Rep. vol. vi. p. 430. The Orozembo. 48 f 566 RIGHTS OP WAR [PART IV. cargo do not belong to the same person, would be ridiculous when applied to despatches. There would be no freight depend- ent on their transportation, and therefore this penalty could not, in the nature of things, be applied. The vehicle in which they are carried must, therefore, be confiscated." ^ But carrying the despatches of an ambassador or other public minister of the enemy, resident in a neutral country, is an excep- tion to the reasoning on which the above general rule is founded. " They are despatches from persons who are, in a peculiar manner, the favorite object of the protection of the law of nations, residing in the neutral country for the purpose of pre- serving the relations of amity between that State and their own government. On this ground, a very material distinction arises, with respect to the right of furnishing the conveyance. The neutral country has a right to preserve its relations with the enemy, and you are not at liberty to conclude that any com- munication between them- can partake, in any degree, of the nature of hostility against you. The limits assigned to the ope- rations of war against ambassadors, by writers on public law, are, that the belligerent may exercise his right of war against them, wherever the character of hostility exists : he may stop the ambas- sador of his enemy on his passage ; but when he has arrived in the neutral country, and taken on himself the functions of his office, and has been admitted in his representative character, he becomes a sort of middle man, entitled to peculiar privileges, as set apart for the preservation of the relations of amity and peace, in maintaining which all nations are, in some degree, interested. If it be argued, that he retains his national character unmixed, and that even his residence is considered as a residence in his own country ; it is answered, that this is a fiction of law, invented for his further protection only, and as such a fiction, it is not to be extended beyond the reasoning on which it depends. It was intended as a privilege ; and cannot be urged to his disadvantage. Could it be said that he would, on that principle, be subject to any of the rights of war in the neutral territory ? Certainly not : he is there for the purpose of carrying on the relations of peace and amity, for the interests of his own country primarily, but, at 1 Robinson's Adm. Rep. vol. vi. p. 440. The Atalanta. CHAP. III.] AS TO NEUTRALS. 567 the same time, for the furtherance and protection of the interests which the neutral country also has in the continuance of those relations. It is to be considered also, with regard to this ques- tion, what may be due to the convenience of the neutral State ; for its interests may require that the intercourse of correspond- ence with the enemy's country should not be altogether inter- dicted. It might be thought to amount almost to a declaration, that an ambassador from the enemy shall not reside in the neu- tral State, if he is declared to be debarred from the only means of communicating with his own. For to what useful purpose can he reside there, without the opportunity of such a communi- cation ? It is too much to say that all the business of the two States shall be transacted by the minister of the neutral State resident in the enemy's country. The practice of nations has allowed to neutral States the privilege of receiving ministers from the belligerent powers, and of an immediate negotiation with them." i (a) In general, where the ship and cargo do not belong ^ 26. Pen- to the same person, the contraband articles only are can-yinVof confiscated, and the carrier- master is refused his freight, contraband. to which he is entitled upon imiocent articles which are con- 1 Sir W. Scott, Robinson's Adm. Rep. vol. vi. p. 461. The Caroline. (a) [The preventing of neutrals bearing enemy despatches is included with the seizing of articles of contraband, as an exception to the otherwise unrestricted freedom of commerce, conceded to them by the " declarations " of England and France, and by the Order in Council, of the 15th of April, 1854. It is conceived that the carrying of despatches can only invest a neutral vessel with a hostile character in the case of its being employed for that purpose by the belligerent, and that it cannot affect with criminality either a regular postal packet or a merchant ship, which takes a despatch in its ordinary course of conveying letters, and with the contents of which the master must necessarily be ignorant. This view, it is supposed, is not inconsistent with the text, which refers to a fraudulent carrying of " the despatches of the enemy." Since the former European wars, some governments have established regular postal packets, whose mails, by international conventions, are distributed throughout the civilized world ; while in other countries every merchant vessel is obliged to receive, till the moment of its setting sail, not only the despatches of the government, but all letters sent to it from the post-offices. Hautefeuille, Droits des Nations Neutres, tom. ii. p. 463. See also Postal Treaty of December 15, 1848, between the United States and Great Britain. U. S. Stat, at Large, vol. 9, p. 965.] 568 RIGHTS OF WAR [PART IV. demned as enemy's property. But where the ship and the inno- cent articles of the cargo belong to the owner of the contraband, they are all involved in the same penalty. And even where the ship and the cargo do not belong to the same person, the carriage of contraband, under the fraudulent circumstances of false papers and false destination, will work a confiscation of the ship as well as the cargo. The same effect has likewise been held to be pro- duced by the carriage of contraband articles in a ship, the owner of which is bound by the express obligation of the treaties sub- sisting between his own country and the capturing country, to refrain from carrying such articles to the enemy. In such a case, it is said that the ship throws off her neutral character, and is liable to be treated at once as an enemy's vessel, and as a violator of the solemn compacts of the country to which she belongs.^ The general rule as to contraband articles, as laid down by Sir W. Scott, is, that the articles must be taken in delicto, in the actual prosecution of the voyage to an enemy's port. " Under the present understanding of the law of nations, you cannot generally take the proceeds in the return voyage. From the moment of quitting port on a hostile destination, indeed, the offence is complete, and it is not necessary to wait till the goods are actually endeavoring to enter the enemy's port ; but beyond that, if the goods are not taken in delicto, and in the actual pro- secution of such a voyage, the penalty is not now generally held to attach." 2 But the same learned judge applied a different rule in other cases of contraband, carried from Europe to the East Indies, with false papers and false destination, intended to con- ceal the real object of the expedition, where the return cargo, the proceeds of the outward cargo taken on the return voyage, was held liable to condemnation.^ 1 Robinson's Adm. Rep. vol. i. p. 91. The Ringende Jacob. Ibid. 244. The Sarah Christina. Ibid. 288. The Mercurius. Ibid. vol. iii. p. 217. The Franklin. Ibid. vol. iv. p. 69. The Edward. Ibid. vol. vi. p. 125. The Ranger. Ibid. vol. iii. p. 295. The Neutralitet. As to how far the ship-owner is liable for the act of the master in cases of con- traband, see Wheaton's Rep. vol. ii. Appendix, Note I. pp. 37, 38. 2 Robinson's Adm. Rep. vol. iii. p. 168. The Ionia. 3 Ibid. vol. ii. p. 343. The Rosalie and Betty. Ibid. vol. iii. p. 122. The Nancv. I CHAP. III.] AS TO NEUTRALS. 569 Although the general policy of the American government, in its diplomatic negotiations, has aimed to limit the catalogue of contraband by confining it strictly to munitions of war, exclud- ing all articles of promiscuous use, a remarkable case occurred during the late war between Great Britain and the United States, in which the Supreme Court of the latter appears to have been disposed to adopt all the principles of Sir W. Scott, as to provi- sions becoming contraband under certain circumstances. But as that was not the case of a cargo of neutral property, supposed to be liable to capture and confiscation as contraband of war, but of a cargo of enemy's property going for the supply of the enemy's naval and military forces, and clearly liable to condemnation, the question was, whether the neutral master was entitled to his freight, as in other cases of the transportation of innocent articles of enemy's property ; and it was not essential to the determination of the case to consider under what circumstances articles and- pitis usus might become contraband. Upon the actual question before the court, it seems there would have been no difference of opinion among the American judges in the case of an ordinary war; all of them concurring in the principle, that a neutral, carrying supplies for the enemy's naval or military forces, does, under the mildest interpretation of international law, expose him- self to the loss of freight. But the case was that of a Swedish vessel, captured by an American cruiser, in the act of carrying a cargo of British property, consisting of barley and oats, for the supply of the allied armies in the Spanish peninsula, the United States being at war with Great Britain, but at peace with Sweden and the other powers allied against France. Under these circumstances a majority of the judges were of the opinion that the voyage was illegal, and that the neutral carrier was not entitled to his freight on the cargo condemned as enemy's pro- perty. It was stated in the judgment of the court, that it had been The soundness of these last decisions may be well questioned ; for in order to sustain the penalty, there must be, on principle, a delictum at the moment of seizure. To subject the property to confiscation whilst the offence no longer continues, would be to extend it indefinitely, not only to the return voyage, -but to all future cargoes of the vessel, which would thus never be purified from the contagion communicated by the contraband articles. 48* 570 EIGHTS OF WAR [PART IV. solemnly adjudged in the British prize courts, that being engaged in the transport service of the enemy, or in the conveyance of military persons in his employment, or the carrying of despatches, are acts of hostility which subject the property to confiscation. In these cases, the fact that the voyage was to a neutral port was not thought to change the character of the transaction. The principle of these determinations was asserted to be, that the party must be deemed to place himself in the service of the enemy State, and to assist in warding off the pressure of the war, or in favoring its offensive projects. Now these cases could not be distinguished, in principle, from that before the court. Here was a cargo of provisions exported from the enemy's country, with the avowed purpose of supplying the army of the enemy. Without this destination, they would not have been permitted- to be exported at all. It was vain to contend that the direct effect of the voyage was not to aid the British hostilities against the United States. It might enable the enemy indirectly to operate with more vigor and promptitude against them, and increase his disposable force. But it was not the effect of the particular transaction which the law regards : it was the general tendency of such transactions to assist the military operations of the enemy, and to tempt deviations from strict neutrality. The destination to [a neutral port could not vary the application of this rule. It was only doing that indirectly, which was directly prohibited. Would it be contended that a neutral might lawfully transport provisions for the British fleet and army, while it lay at Bordeaux preparing for an expedition to the United States ? Would it be contended that he might lawfully supply a British fleet stationed on the American coast ? An attempt had been made to distinguish this case from the ordinary cases of employ- ment in the transport service of the enemy, upon the ground that the war of Great Britain against France was a war distinct from that against the United States ; and that Swedish subjects had a perfect right to assist the British arms in respect to the former, though not to the latter. But the court held, that whatever might be the right of the Swedish sovereign, acting under his own authority, if a Swedish vessel be engaged in the actual service of Great Britain, or in carrying stores for the exclusive use of the British armies, she must, to all intents and purposes, be deemed a British transport. It was perfectly immaterial in J CHAP. III.] AS TO NEUTRALS. 571 what particular enterprise those armies might, at the time, be engaged ; for the same important benefits were conferred upon the enemy of the United States, who thereby acquired a greater disposable force to bring into action against them. In The Friendship, (6 Rob. 420,) Sir W. Scott, speaking on this subject, declared that " it signifies nothing, whether the men so conveyed are to be put into action on an immediate expedition or not. The mere shifting of drafts in detachments, and the convei/ance of stores from one place to another, is an ordinary employment of a transport vessel, and it is a distinction totally unimportant whether this or that case may be connected with the immediate active service of the enemy. In removing forces from distant settlements, there may be no intention of immediate action ; but still the general importance of having troops conveyed to places where it is convenient that they should be collected, either for present or future use, is what constitutes the object and employ- ment of transport vessels." It was obvious that the learned judge did not deem it material to what places the stores might be destined ; and it must be equally immaterial, what is the immediate occupation of the enemy's force. That force was always hostile to America, be it where it might. To-day it might act against France, to-morrow against the former coun- try ; and the better its commissary department was supplied, the more life and activity was communicated to all its motions. It was not therefore material whether there was another distinct war, in which the enemy of the United States was engaged, or not. It was sufficient, that his armies were everywhere their enemies ; and every assistance offered to them must, directly or indirectly, operate to their injury. The court was, therefore, of opinion that the voyage in which the vessel was engaged was illicit, and inconsistent with the duties of neutrality, and that it was a very lenient adminis- tration of justice to confine the penalty to a mere denial of freight.^ (a) 1 Wheaton's Rep. vol. i. p. 382. The Commercen. (a) [" Is is not the practice of nations to undertake to prohibit their own sub- jects, by previous laws, from trafficing in articles contraband of war. Such trade is carried on at the risk of those engaged in it, under the liabihties and penalties prescribed by the law of nations or particular treaties. If it be ti'ue, therefore, 572 RIGHTS OP WAR [PART IV. § 27. Rule It had been contended in argument in the above case, of the war . . ° of 1756. that the exportation of grain from Ireland being gene- that citizens of the United States LaA-e been engaged in a commerce by which Texas, an enemy of Mexico, has been supplied with arms and munitions of war, the government of the United States, nevertheless, was not bo«nd to prevent It, could not have prevented it without a manifest departure from the principles of neutrality, and is in no way answerable for the consequences The 18th article (of the treaty between the United States and Mexico) enumerates those commodities which shall be regarded as contraband of war ; but neither that article nor any other imposes on either nation any duty of preventing, by previous regulation, commerce In such articles. Such commerce is left to its ordinary fate, according to the law of nations." Mr. Webster to Mr. Thompson, July 8, 1842. Webster's Works, vol. vi. p. 452. " As the law has been declared by the decisions of courts of admiralty and ele- mentary writers, It allows belligerents to search neutral vessels for articles contra- band of war and for enemy's goods. If the doctrine is so modified as to except from seizure and confiscation enemy's property under a neutral flag, still the right to seize articles contraband of war, on board of neutral vessels, implies the right to ascertain the character of the cargo. ... A persistent resistance by a neutral vessel to submit to a search renders it confiscable, according to the settled determinations of the English admiralty." Mr. Marcy to Mr. Buchanan, April 13, 1854. Cong. Doc. 33 Cong. 1 Sess. H. R., Doc. 103, p. 21. Such is the law of nations, as hitherto understood, but as, by the adoption of the principle that neutral vessels give immunity even to enemy's goods, there Is no longer a pretence for the existence of the right of search, unless, as connected with contraband. It may well become the Interest of neutrals, if this exception is to remain the rule, not only that the extent to which It Is to be applied should be defined, but that their own governments should themselves undertake to enforce the prohibition, and thus remove from belligerents the only apology for violating that nationality which should attach to the ship, in common with the territory of the country to which it belongs. This has been done in the present war by Austria, whose decree of 25th May, 1854, prohibits Austrian vessels from transportlncr troops belonging to the belligerent powers and from carrying articles contraband of war. Paris Moniteur, June 9, 1854. By a Swedish ordinance, bearing date the 8th of April, 1854, Swedish sea captains are forbidden, unless under actual force, and in that case after formal protest — to carry despatches, troops, or articles con- traband of war, for any belligerent power. See Cong. Doc. 33 Cong. 1 Sess. H. R. No. 103, p. 21. It Is Indeed already established by many treaties that, in the case of vessels under convoy, the declaration of the commander that there is no contra- band on board vessels destined for an enemy's port shall suffice. Tide infra, note to § 29. It Is to be remembered as a further Inducement for getting rid of the right of search on account of contraband, now that it Is no longer applicable for enemy's goods, that it has never been claimed that British men of war could enter a mer- chant ship for the purpose of searching for seamen, but the Prince Regent, in CHAP. III.] AS TO NEUTRALS. 573 rally prohibited, a neutral could not lawfully engage in that trade during war, upon the principle of what has been called the " Rule of the War of 1756," in its application to the colonial and coasting trade of an enemy not generally open in time of peace. The court deemed it unnecessary to consider the prin- ciples on which that rule is rested by the British prize courts, not regarding them as applicable to the case in judgment. But the legality of the rule itself has always been contested by the Ameri- can government, and it appears in its origin to have been founded upon very different principles from those which have more recently been urged in its defence. During the war of 1756, the French government, finding the trade with their colonies almost entirely cut off by the maritime superiority of Great Britain, relaxed their monopoly of that trade, and allowed the Dutch, then neutral, to carry on the commerce between the mother country and her colonies, under special licenses or passes, granted for this particular purpose, excluding, at the same time, all other neutrals from the same trade. Many Dutch vessels so employed were captured by the British cruisers, and, together with their cargoes, were condemned by the prize courts, upon the principle, that by such employment they were, in effect, incorporated into the French navigation, having adopted the commerce and char- acter of the enemy, and identified themselves with his interests his declaration, in reference to the causes of the war of 1812, puts the exercise of the right of impressment, as incidental to that of search for enemy's goods and contraband. He says, that he can never admit that, " in the exercise of the un- doubted and hitherto undisputed right of searching neutral merchant vessels in time of war," the impressment of British seamen, when found therein, can be deemed any violation of a neutral flag ; nor that taking such seamen from on board such vessels, can be considered a hostile measure or a justifiable cause of war. Annual Register, 1813, p. 2. The Russian declaration differs from the English and French, inasmuch as by it the vessel carrying contraband, as well as the article itself is confiscated; whereas the cruisers of the latter seize the contraband only. " II s' entend de soi-meme que le pavilion neutre ne pourra couvrir les cargaisons et objets qui d'apres le droit des gens sont reconnus contrebande de guerre. En consequence les navires a bord desquels il sera trouv^ de la contrebande de cette nature seront saisis par nos croiseurs et reconnus de bonne prise, conform6ment a I'avis deja publi6 par le ministere des finances le 27 Novembre, de I'annee derniere." Avis du 19 Avril, 1854, Annuaire, &c., 1853-4, App. p. 928.] 574 RIGHTS OF WAR [PART IV. and purposes. They were, in the judgment of these courts, to be considered like transports in the enemy's service, and hence liable to capture and condemnation, upon the same principle with property condemned for carrying military persons or des- patches. In these cases, the property was considered, pro hac vice, as enemy's property, as so completely identified with his in- terests as to acquire a hostile character. So, where a neutral is engaged in a trade, which is exclusively confined to the subjects of any country, in peace and in war, and is interdicted to all others, and cannot at any time be avowedly carried on in the name of a foreigner, such a trade is considered so entirely na- tional, that it must follow the hostile situation of the country.^ There is all the difference between this principle and the more modern doctrine which interdicts to neutrals, during war, all trade not open to them in time of peace, that there is between the granting by the enemy of special licenses to the subjects of the opposite belligerent, protecting their property from capture in a particular trade which the policy of the enemy induces him to tolerate, and a general exemption of such trade from capture. The former is clearly cause of confiscation, whilst the latter has never been deemed to have such an effect. The Rule of the War of 1756 was originally founded upon the former principle: it was suffered to lay dormant during the war of the American Revolution ; and when revived at the commencement of the war against France in 1793, was applied, with various relaxations and modifications, to the prohibition of all neutral traffic with the colonies and upon the coasts of the enemy. The principle of the rule was frequently vindicated by Sir W. Scott, in his masterly judgments in the High Court of Admiralty and in the writings of other British public jurists of great learning and ability. But the conclusiveness of their reasonings was ably con, tested by different American statesmen, and failed to procure the acquiescence of neutral powers in this prohibition of their trade with the enemy's colonies. The question continued a fruitful source of contention between Great Britain and those powers. 1 1 Robinson's Adm. Rep. vol. ii. p. 52, The Princessa. Ibid. vol. iv. p. 118. The Anna Catharina. Ibid. 121. The Rendsborg. Ibid. vol. v. p. 150. The Vrow Anna Catharina. Wheaton's Rep. vol. ii. Appendix, p. 29. I CHAP. III.] AS TO NEUTRALS. 675 until they became her allies or enemies at the close of the war; but its practical importance will probably be hereafter much diminished by the revolution which has since taken place in the colonial system of Europe.^ (a) Another exception to the general freedom of neutral § 28. commerce in time of war, is to be found in the trade to blockade. ports or places besieged or blockaded by one of the belligerent powers. The more ancient text writers all require that the siege or blockade should actually exist, and be carried on by an adequate force, and not merely declared by proclamation, in order to ren- der commercial intercourse with the port or place unlawful on the part of neutrals. Thus Grotius forbids the carrying any thing to besieged or blockaded places, "z/ it might impede the execution of the belligerent's lawful designs, and if the carriers might have known of the siege or blockade ; as in the case of a town actually invested, or a port closely blockaded, and when a surrender or peace is already expected to take place." ^ And Bynkershoek, in commenting upon this passage, holds it to be " unlawful to carry any thing, whether contraband or not, to a 1 Wheaton's Hep. vol. i. Appendix, Note III. See Madison's " Examination of the British doctrine which subjects to capture a neutral trade not open in time of peace." (a) [The rule of 1756 is, of course, •wholly superseded during the present war by the provision in the Order in Council of the loth of April, allowing neutrals to trade to all ports and places wheresoever situated, that are not in a state of blockade. But, it is on other accounts, also, obsolete. The free trade ■which England has proffered to the navigation of all the world, including a partici- pation in her colonial and coasting trade, on an equality with her own vessels, does not admit of rules, which governed in a period of monopoly, and when any relaxa- tion, which a belligerent accorded to neutrals, might be deemed not a permanent regulation of trade, but strictly a measure to evade those advantages which a superior militarj' marine placed within the control of its enemy. The Edin- burgh Review says : " In the case of Russia, as she has no colonies, the rule of 1756 is inapplicable; and, indeed, since the colonial trade of England and Spain has become free, the theory on which that restriction was based falls to the ground." Edinburgh Review, No. 203, art. 6.] ^ '^ Si juris mei execulionem rerum suhcectio impediret, idque scii'e potuerit qui advezit, ut si oppidum obsessum tenebam, si poktus clausos, et Jam deditio aut pax expectahatur" &c. Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 1, § 5, note 3. 576 RIGHTS OF WAR [PART IV. place thus circumstanced ; since those who are within may be compelled to surrender, not merely by the direct application of force, but also by the want of provisions and other necessaries. If, therefore, it should be lawful to carry to them what they are in need of, the belligerent might thereby be compelled to raise the siege or blockade, which would be doing him an injury, and therefore unjust. And because it cannot be known what articles the besieged may want, the law forbids, in general terms, carrying any thing to them ; otherwise disputes and altercations would arise to which there would be no end." ^ Bynkershoek appears to have mistaken the true sense of the above-cited passage from Grotius, in supposing that the latter meant to require, as a necessary ingredient in a strict blockade, that there should be an expectation of peace or of a surrender, when, in fact, he merely mentions that as an example, by way of putting the strongest possible case. But that he concurred with Grotius in requiring a strict and actual siege or blockade, such as where a town is actually invested with troops, or a port closely blockaded by ships of war, [oppidum obsessum, partus clausos,) is evident from his subsequent remarks in the same chapter, upon the decrees of the States-General against those who should carry any thing to the Spanish camp, the same not being then actually besieged. He holds the decrees to be per- fectly justifiable, so far as they prohibited the carrying of contra- band of war to the enemy's camp ; " but, as to other things, whether they were or were not lawfully prohibited, depends entirely upon the circumstance of the place being besieged or ' " Sola obsldio in causti est, car nihil obsessis subvehere liceat, sive contraban- dum sit, sive non sit, nam obsessi non tantam vi coguntur ad deditionem, sed et fame, et aliil aliarum rerum penuria. Si quid eorum, quibus indigeat, tibi adferre liceret, ego forte cogerer obsidionem solvere, et sic facto tuo mihi noceres, quod iniquum est. Quia autem scire nequit, quibus rebus obsessi indigeant, quibus abundent, omnis subvectio vetita est, alioquin altercationum nullus omnino esset modus vel finis. Hactenus Grotii sententije accedo, sed vellem ne ibidem addi- disset, tunc demum id verum esse, si jam dedilio aut pax expectahatur, .... nam nee rationi conveniunt, nee pactis Gentium, quse mihi succurrerunt. Qua3 ratio me arbitrum constituit de futura deditione aut pace ? et, si neutra cxspecte" tur,jam licebit obsessis qujelibet ad vehere ? imo nunquam licet, durante obsidione* et amici non est causam amici perdere, vel quoque modo deteriorem facere." Bynkershoek, Quajst. Jur. Pub. lib. i. cap. 11. CHAP. III.] AS TO NEUTRALS. 577 not." So, also, in commenting upon the decree of the States- General of the 26th June, 1630, declaring the ports of Flanders in a state of blockade, he states that this decree was, for some time, not carried into execution, by the actual presence of a suffi- cient naval force, during which period certain neutral vessels trading to those ports were captured by the Dutch cruisers ; and that part of their cargoes only which consisted of contraband articles was condemned, whilst the residue was released with the vessels. " It has been asked," says he, " by what law the contraband goods were condemned under those circumstances, and there are those who deny the legality of their condemnation. It is evident, however, that whilst those coasts were guarded in a lax or remiss manner, the law of blockade, by which all neu- tral goods going to or coming from a blockaded port may be lawfully captured, might also have been relaxed ; but not so the general law of war, by which contraband goods, when carried to an enemy's port, even though not blockaded, are liable to confis- cation." ^ " To constitute a violation of blockade," says Sir W. ^,^^^ Scott, " three things must be proved : 1st. The exist, things must 1)6 Droved. ence of an actual blockade ; 2dly. The knowledge of to consti- the party supposed to have offended ; and, 3dly. Some tion of act of violation, either by going in or coming out with blockade. a cargo laden after the commencement of blockade." ^ 1. The definition of a lawful maritime blockade, re- Actual quiring the actual presence of a maritime force, sta- the w'ock-^ tioned at the entrance of the port, sufficiently near to ^'^^^s force. prevent communication, as given by the text writers, is confirmed by the authority of numerous modern treaties, and especially by the Convention of 1801, between Great Britain and Russia, intended as a final adjustment of the disputed points of maritime law, which had given rise to the armed neutrality of 1780 and of 1801.3 1 Wheaton's Hist. Law of Nations, pp. 138-143. 2 Robinson's Adm. Rep. vol. i. p. 92. The Betsey. 3 The 3d art. sect. 4, of this convention, declares : — " That in order to deter- mine what characterizes a blockaded port, that denomination Is given only where there is, by the disposition of the power which attacks it with ships stationary, or sufficiently near, an evident danger in entering." 49 578 RIGHTS OF WAR [PART IV. The only exception to the general rule, which requires the actual presence of an adequate force to constitute a lawful blockade, arises out of the circumstance of the occasional tem- porary absence of the blockading squadron, produced by accident, as in the case of a storm, which does not suspend the legal ope- ration of the blockade. The law considers an attempt to take advantage of such an accidental removal a fraudulent attempt to break the blockade.^ iKnowiedge 2. As a proclamation, or general public notification, party^ is not of Itsclf Sufficient to constitute a legal blockade, so neither can a knowledge of the existence of such a blockade be imputed to the party, merely in consequence of a such a pro- clamation or notification. Not only must an actual blockade exist, but a knowledge of it must be brought home to the party, in order to show that it has been violated.^ As, on the one hand, a declaration of blockade which is not supported by the fact cannot be deemed legally to exist, so, on the other hand, the fact, duly notified to the party on the spot, is of itself sufficient to affect him with a knowledge of it ; for the public notifications between governments can be meant only for the information of individuals ; but if the individual is personally informed, that purpose is still better obtained than by a public declaration.^ "Where the vessel sails from a country lying sufficiently near to the blockaded port to have constant information of the state of the blockade, whether it is contiimed or is relaxed, no special notice is necessary ; for the public declaration in this case implies notice to the party, after sufficient time has elapsed to receive the declaration at the port whence the vessel sails.* But where the country lies at such a distance that the inhabitants cannot have this constant information, they may lawfully send their vessels conjecturally, upon the expectation of finding the blockade broken up, after it has existed for a considerable time. In this case, the party has a right to make a fair inquiry whether the blockade be determined or not, and consequently cannot be involved in the penalties affixed to a violation of it, unless. 1 Robinson's Adm. Rep. vol. i. p. 154. The Columbia. 2 Ibid. p. 93. The Betsey. 3 ibid. p. 83. The Mercurius. 1 Ibid. vol. ii. p. 131. The Jonge Petronella. Ibid. 298. The Calypso. i CHAP. ni.J AS TO NEUTRALS. 579 upon such inquiry, he receives notice of the existence of the blockade.! " There are," says Sir W. Scott, " two sorts,-*! blockade : one by the simple fact only, the other by a notification accompanied with the fact. In the former case, when the fact ceases other- wise than by accident, or the shifting of the wind, there is immediately an end of the blockade ; but where the fact is ac- companied by a public notification from the government of a belligerent country to neutral governments, I apprehend, primd facie, the blockade must be supposed to exist till it has been publicly repealed. It is the duty, undoubtedly, of a belligerent country, which has made the notification of blockade, to notify in the same way, and immediately, the discontinuance of it ; to suffer the fact to cease, and to apply the notification again at a distant time, would be a fraud on neutral nations, and a conduct which we are not to suppose that any country would pursue. I do not say that a blockade of this sort may not, in any case, expire de facto; but I say that such a conduct is not hastily to be presumed against any nation ; and, therefore, till such a case is clearly made out, I shall hold that a blockade by notification is, prima facie, to be presumed to continue till the notification is revoked." ^ And in another case he says : — " The effect of a notification to any foreign government would clearly be to include all the individuals of that nation ; it would be nugatory, if indi- viduals were allowed to plead their ignorance of it ; it is the duty of foreign governments to communicate the information to their subjects, whose interests they are bound to protect. I shall hold, therefore, that a neutral master can never be heard to aver against a notification of blockade that he is ignorant of it. If he is really ignorant of it, it may be subject of representation to his own government, and may raise a claim of compensation from them, but it can be no plea in the court of a belligerent. In the case of a blockade de facto only, it may be otherwise ; but this is a case of a blockade by notification. Another distinc- tion between a notified blockade and a blockade existing de facto only, is, that in the former the act of sailing for a blockaded 1 Robinson's Adm. Rep. vol. i. p. 332. The Betsey. 2 Ibid. vol. i. p. 171. The J^eptunus. 580 RIGHTS OF WAR [PART IV. place is sufficient to constitute the offence. It is to be pre- sumed that the notification will be formally revoked, and that due notice will I*, given of it ; till that is done, the port is to be considered as closed up ; and from the moment of quitting port to sail on such a destination, the offence of violating the block- ade is complete, and the property engaged in it subject to confis- cation. It may be different in a blockade existing de facto only; there no presumption arises as to the continuance, and the igno- rance of the party may be admitted as an excuse for sailing on a doubtful and provisional destination.^ A more definite rule, as to the notification of an existing block- ade, has been frequently provided by conventional stipulations between different maritime powers. Thus, by the 18th article of the Treaty of 1794, between Great Britain and the United States, it was declared : — " That whereas it frequently happens that vessels sail for a port or place belonging to an enemy, with- out knowing that the same is either besieged, blockaded, or invested, it is agreed that every vessel so circumstanced may be turned away from such port or place ; but she shall not be de- tained, nor her cargo, if not contraband, be confiscated, unless, after notice, she shall again attempt to enter; but she shall be permitted to go to any other port or place she may think proper." This stipulation, which is equivalent to that contained in pre- vious treaties between Great Britain and the Baltic powers, having been disregarded by the naval authorities and prize courts in the West Indies, the attention of the British government was called to the subject by an official communication from the Ame- rican government. In consequence of this communication, in- structions were sent out, in the year 1804, by the Board of Admiralty, to the naval commanders and judges of the Vice- Admiralty Courts, not to consider any blockade of the French West India islands as existing, unless in respect to particular ports which were actually invested ; and then not to capture vessels bound to such ports, unless they should previously have been warned not to enter them. The stipulation in the treaty intended to be enforced by these instructions seems to be a cor- rect exposition of the law of nations, and is admitted by the 1 Robinson's Adm. Rep. vol. ii. p. 112. The Neptunus, Hempel. I I I CHAP. III.] AS TO NEUTRALS. 581 contracting parties to be a correct exposition of that law, or to constitute a rule between themselves in place of it. Neither the law of nations nor the treaty admits of the condemnation of a neutral vessel for the mere intention to enter a blockaded port, unconnected with any fact. In the above-cited cases, the fact of sailing was coupled with the intention, and the condemnation was thus founded upon a supposed actual breach of the block- ade. Sailing for a blockaded port, knowing it to be blockaded, was there construed into an attempt to enter that port, and was, therefore, adjudged a breach of blockade from the departure of the vessel. But the fact of clearing out for a blockaded port is, in itself, innocent, unless it be accompanied with a knowledge of the blockade. The right to treat the vessel as an enemy, is declared by Vattel, (liv. iii. sect. 177,) to be founded on the attempt to enter; and certainly this attempt must be made by a person knowing the fact. The import of the treaty, and of the instructions issued in pursuance of the treaty, is, that a vessel cannot be placed in the situation of one having a notice of the blockade, until she is warned off. They gave her a right to inquire of the blockading squadron, if she had not previously received this warning from one capable of giving it, and conse- quently dispensed with her making that inquiry elsewhere. A neutral vessel might thus lawfully sail for a blockaded port, know- ing it to be blockaded ; and being found sailing towards such a port would not constitute an attempt to break the blockade, un- less she should be actually warned off.^ Where an enemy's port was declared in a state of blockade by notification, and at the same time when the notification was issued news arrived that the blockading squadron had been driven off by a superior force of the enemy, the blockade was held by the Prize Court to be null and defective from the begin- ning, in the main circumstance that is essentially necessary to give it legal operation ; and that it would be unjust to hold neu- tral vessels to the observance of a notification, accompanied by a circumstance that defeated its effect. This case was, therefore, considered as independent of the presumption arising from noti- 1 Cranch's Rep. vol. iv. p. 185. Fitzsimmons v. The Newport Insurance Com- pany. Mr. Merry's Letter to Mr. Secretary Madison, 12th April, 1804. TVhea- ton's Rep. vol. iii. Appendix, p. 11. 49* 582 RIGHTS OF WAR [PART IV. fication in other instances ; the notification being defeated, it must have been shown that the actual blockade was again re- sumed, and the vessel would have been entitled to a warning, if any such blockade had existed when she arrived off the port. The mere act of sailing for the port, under the dubious state of the actual blockade at the time, was deemed insufficient to fix upon the vessel the penalty for breaking the blockade.^ In the above case, a question was raised whether the notifica- tion which had issued w^as not still operative ; but the court was of opinion that it could not be so considered, and that a neutral power was not obliged, under such circumstances, to presume the continuance of a blockade, nor to act upon a supposition that the blockade would be resumed by any other competent force. But in a subsequent case, where it was suggested that the blockading squadron had actually returned to its former sta- tion off the port, in order to renew the blockade, a question arose whether there had been that notoriety of the fact, arising from the operation of time, or other circumstances, which must be taken to have brought the existence of the blockade to the knowledge of the parties. Among other modes of resolving this question, a prevailing consideration would have been the length of time, in proportion to the distance of the country from which the vessel sailed. But as nothing more came out in evidence, than that the squadron came off the port on a certain day, it was held that this would not restore a blockade which had been thus effectually raised, but that it must be renewed again by notifica- tion, before foreign nations could be affected with an obligation to observe it. The squadron might return off the port with dif- ferent intentions. It might arrive there as a fleet of observation merely, or for the purpose of only a qualified blockade. On the other hand, the commander might attempt to connect the two blockades together ; but this is what could not be done ; and, in order to revive the former blockade, the same form of communi- cation must have been observed de novo that is necessary to esta- blish an original blockade.^ Some 3. Besides the knowledge of the party, some act of fation.^^°' violation is essential to a breach of blockade ; as either 1 Robinson's Adm. Hep. vol. vi. p. 65. The Triheten. 2 Ibid. p. 112.- The Hoffnung. 1 CHAP. III.] AS TO NEUTRALS. 583 going in or coming out of the port with a cargo laden after the commencement of the blockade.^ Thus, by the edict of the States-General of Holland, of 1630, relative to the blockade of the ports of Flanders, it was ordered that the vessels and goods of neutrals which should be found going in or coming out of the said ports, or so near thereto as to show beyond a doubt that they were endeavoring to run into them ; or which, from the documents on board, should appear bound to the said ports, although they should be found at a dis- tance from them, should be confiscated, unless they should, voluntarily, before coming in sight of or being chased by the Dutch ships of war, change their intention, while the thing was yet undone, and alter their course. Bynkershoek, in commenting upon this part of the decree, defends the reasonableness of the provision which affects vessels found so near to the blockaded ports as to shoio beyond a doubt that they were endeavoring to run into them, upon the ground of legal presumption, with the excep- tion of extreme and well-proved necessity only. Still more rea-- sonable is the infliction of the penalty of confiscation, where the intention is expressly avowed by the papers found on board. The third article of the same edict also subjected to confiscation such vessels and their cargoes as should come out of the said ports, not having been forced into them by stress of weather, although they should be captured at a distance from them, unless they had, after leaving the enemy's port, performed their voyage to a port of their own country, or to some other neutral or free port, in which case they should be exempt from condemnation ; but if, in coming out of the said ports of Flanders, they should be pursued by the Dutch ships of war, and chased into another port, such as their own, or that of their destination, and found on the high seas coming out of such port, in that case they might be captured and condemned, Bynkershoek considers this provision as distinguishing the case of a vessel having broken the blockade, and afterwards terminated her voyage by proceed- ing voluntarily to her destined port, and that of a vessel chased and compelled to take refuge ; which latter might still be cap- tured after leaving the port in which she had taken refuge. And 1 Robinson's Adm. Kep. vol. i. 93. The Betsey. 584 RIGHTS OP WAR [PART IV. in conformity with these principles is the more modern law and practice.^ With respect to violating a blockade by coming out with a cargo, the time of shipment is very material ; for although it might be hard to refuse a neutral liberty to retire with a cargo already laden, and by that act already become neutral property ; yet, after the commencement of a blockade, a neutral cannot be allowed to interpose, in any way, to assist the exportation of the property of the enemy.^ A neutral ship departing can only take away a cargo bond fide purchased and delivered before the com- mence.ment of the blockade ; if she afterwards take on board a cargo, it is a violation of the blockade. But where a ship was transferred from one neutral merchant to another in a blockaded port, and sailed out in ballast, she was determined not to have violated the blockade.^ So where goods were sent into the block- aded port before the commencement of the blockade, but reshipped by order of the neutral proprietor, as found unsaleable, during the blockade, they were held entitled to restitution. For the same rule which permits neutrals to withdraw their vessels from a block- aded port extends also, with equal justice, to merchandise sent in before the blockade, and withdrawn bond fide by the neutral proprietor.* After the comjnencement of a blockade, a neutral is no longer at liberty to make any purchase in that port. Thus, where a ship which had been purchased by a neutral of the enemy in a blockaded port, and sailed on a voyage to the neutral country, had been driven by stress of weather into a belligerent port, where she was seized, she was held liable to condemnation under the general rule. That the vessel had been purchased out of the proceeds of the cargo of another vessel, was considered as an unavailing circumstance on a question of blockade. If the ship has been purchased in a blockaded port, that alone is the illegal 1 Bynkershoek, Qusest. Jur. Pub. lib. i. cap. 11. Robinson's Adm. Eep. vol. ii. p. 128. The Welvaart Van Pillaw. Ibid. toI. iii. p. 147. The Juffrow Maria Schroeder. 2 Eobinson's Adm. Rep. vol. i. p. 93. The Betsey. 3 Ibid. p. 150. The Vrow Judith. 4 Ibid. vol. iv. p. 89. The Potsdam. Wheaton's Rep. vol. iii. p. 183. Olivera V. Union Insurance Company. II \ CHAP. III.] AS TO NEUTRALS. 685 act, and it is perfectly immaterial out of what funds the pur- chase was effected. Another distinction taken in argument was, that the vessel had terminated her voyage, and therefore that the penalty would no longer attach. But this was also overruled, because the port into which she had been driven was not repre- sented as forming any part of her original destination. It was therefore impossible to consider this accident as any discontin- uance of the voyage, or as a defeasance of the penalty which had been incurred.^ A maritime blockade is not violated by sending goods to the blockaded port, or by bringing them from the same, through the interior canal navigation or land carriage of the country. A blockade may be of different descriptions. A mere maritime blockade, effected by ti force operating only at sea, can have no operation upon the interior communications of the port. The legal blockade can extend no further than the actual blockade can be applied. If the place be not invested on the land side, its interior communications with other ports cannot be cut off. If the blockade be rendered imperfect by this rule of construc- tion, it must be ascribed to its physical inadequacy, by which the extent of its legal pretensions is unavoidably limited.^ But goods shipped in a river, having been previously sent in lighters along the coast from the blockaded port, with the ship under charter-party proceeding also from the blockaded port in ballast to take them on board, were held liable to confiscation. This case is very different from the preceding, because there the com- munication had been by inland navigation, which was in no manner and in no part of it subject to the blockade.^ The offence incurred by a breach of blockade generally remains during the voyage ; but the offence never travels on with the vessel further than to the end of the return voyage, although if she is taken in any part of that voyage, she is taken in delicto. This is deemed reasonable, because no other opportunity is afforded to the belligerent cruisers to vindicate the violated law. But where the blockade has been raised between the time of sailing 1 Robinson's Adm. Rep. vol. iv. Note. The Juffrow Maria Schroeder. 2 Edwards's Adm. Rep. p. 32. The Comet. 3 Robinson's Adm. Eep. vol. iii. p. 297. The Neutralitet. Vol. iv. p. Go. The Stert. 586 EIGHTS OP WAR [pART IV. and the capture, the penalty does not attach ; because the block- ade being gone, the necessity of applying the penalty to prevent future transgression no longer exists. When the blockade is raised, a veil is thrown over every thing that has been done, and the vessel is no longer taken in delicto. The delictum may have been completed at one period, but it is by subsequent events done away.' (a) 1 Robinson's Adm. Rep. vol. ii. p. 128. The Welvaart Van Pillaw. Vol. vi. p. 387. The Lisette. As to how far the act of the master binds the ship-owner in cases of breach of blockade, see the cases collected in AVheaton's Reports, a'oI. ii. Appendix, pp. 36-40. (a) [The prohibition on the trade of neutrals with blockaded ports, in the Eng- lish and French "declarations" of ]March, 1854, already noticed, applies in terms to an " effective blockade, which may be established with an adequate force against the enemy's forts, harbors, or coasts." The further definition of what shall constitute an effective blockade is not given. The section from the maritime convention of 1801, cited note 3, p. 577, was understood to have adopted, as a concession to the northern powers, in return for their abandonment of more important points of maritime law, the rule of the armed neutralities of 1 780 and 1800 ; which declared that no port should be considered blockaded, unless where the power attacking it should maintain a squadron constantly stationed before it, and sufficiently near to create an evndent danger of entering. There is, however, a substitution of the disjunctive for the copulative conjunction in the Convention of 1801 ; so that instead of requiring, to effect a valid blockade, that the ships of the blockading squadron should be " stationary and sufficiently near," that convention only provides that they shall be " stationary or sufficiently near." By this minute change, it was contended in parliament, that it was intended to establish, in their full extent, the principles which Great Britain had maintained on this question of maritime law, and which the article, as it stood in the two declarations of armed neutrality, was calculated completely to subvert. Wheaton's Hist, of the Law of Nations, p. 418. The doctrine of Sir AVIlliam Scott, announced in the text, that a blockade may continue during a temporary absence of the blockading squadron, and which gives to the diplomatic notification of the blockade once made, and even to the pretended notoriety of the fact, an effect independent of the actual presence of the blockading squadron, is contro- verted, on principle, by the French publicists, who contend that it must cease by an absence, however occasioned; and whatever may be the formalities under which it was instituted — that a nation can only execute its laws within its own jurisdiction — that it is upon the supposition that a part of the sea, within the jurisdictional limits of the enemy, and where their squadron Is stationed, has been conquered, and that the blockading squadron has succeeded to the occupation of the former possessors, that its interference with the navigation of neutrals can on principle be maintained. Hautefeuille, Droits des Nations Neutres, t. ill. p. 120. Ortolan, Diplomatic de la Mer, chap. 9, torn. II. p. 311, 2d edit. II CHAP. III.] AS TO NEUTRALS. 687 The right of visitation and search of neutral vessels § 29. Right at sea is a belligerent right, essential to the exercise of aud search." As to the rule, not allowing a vessel to depart which has taken her cargo on board after the blockade was known, Mr. Marcy remarks : — "In some respects I think the law of blockade is unreasonably rigorous towards neutrals, and they can fairly claim a relaxation of it. By the decisions of the English Courts of Admiralty — and ours have generally followed in their footsteps — a neutral vessel which happens to be in a blockaded port is not permitted to depart with a cargo, unless that cargo was on board at the time when the blockade was com- menced, or was first made known. Having visited the port in the common free- dom of trade, a neutral vessel ought to be permitted to depart with a caroro, with- out regard to the time when it was received on board." Mr. j\Iarcy to Mr. Buchanan, April 13, 1854. Cong. Doc. The rule here objected to is adopted in the treaties of the United States with Chili, of 1832, and with Peru-BoHvia, of 1836. U. S. Statutes at Large, vol. viii. p. 437, 492. The instructions of the French government, in the case of the Mexican and Argentine blockades, direct their commanders to oppose, even by force, the entry of neutral ships of war into the blockaded ports. Ortolan, Diplomatie de la Mer, liv. iii. c. 9, torn, ii, p. 334, 2d edit. Though a blockade is, in its nature, a belligerent act, the blockade of the Turco-Egyptian fleet, at Navarino, in 1827, was instituted during a period of professed peace. Such was also the case as to the blockade of the ports of the Argentine Republic, commencing in 1838, by England and France, and which was submitted to by other nations, though contraband articles destined for those ports were released, on the ground that, notwithstanding the blockade, France ■was not at war with that Republic. Hautefeuille, Droits des Nations Neutres, torn. ii. p. 423. The war of France with Mexico, which terminated by a treaty of peace in 1839, was preceded by two years of blockade. In the last case, a question, which it was agreed 10 refer to* the arbitration of a third power, arose, on the conclusion of peace, whether the vessels sequestered during the blockade, and before the declaration of war by Mexico, should be restored. However the point, whether a blockade is to be deemed a pacific remedy, may be settled, as regards the parties immediately concerned, it cannot be sustained as to neutrals, otherwise than as a belligerent measure. From the right of conquest exercised over the territorial sea arises the right of blockade, which is the right of jurisdiction accorded by the primitive law to the territorial sovereign ; a right by wtue of which he excludes all foreigners from passing through his dominions, and the immediate consequence of which is, to cut off the place surrounded by the conquered territory from all communication with the foreigners beyond it. The duty of these foreigners, of these neutrals, is to respect the law of the terri- torial sovereignty ; they cannot enter his dominions against his consent, without being exposed to the application of the laws, which they violate. A blockade is, then, an act of war. It is the result of a previous act, which can only take place during war — the complete conquest and continued possession of a part of the enemy's territory. Ibid. torn. iii. pp. 10, 182.] 588 RIGHTS OF WAR [PART IV. the right of capturing enemy's property, contraband of war, and vessels committing a breach of blockade. Even if the right of capturing enemy's property be ever so strictly limited, and the rule oi free skips free goods be adopted, the right of visitation and search is essential, in order to determine whether the ships themselves are neutral, and documented as such, according to the law of nations and treaties ; for, as Bynkershoek observes, " It is lawful to detain a neutral vessel, in order to ascertain, not by the flag merely, which may be fraudulently assumed, but by the documents themselves on board, whether she is really neu- tral." Indeed it seems that the practice of maritime captures could not exist without it. Accordingly the text writers generally concur in recognizing the existence of this right.^ The international law on this subject is ably summed up by Sir W. Scott, in the case of The Maria, where the exercise of the right was attempted to be resisted by the interposition of a convoy of Swedish ships of war. In delivering the judgment of the High Court of Admiralty in that memorable case, this learned civilian lays down the three following principles of law : — 1. That the right of visiting and searching merchant-ships on the high seas, whatever be the ships, the cargoes, the destinations, is an incontestable right of the lawfully 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 destination 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 right of maritime capture ; because if you are not at liberty to ascertain by sufficient inquiry whether there is property that can legally be captured, it is impossible to capture. Even those who contend for the inadmissible rule that free ships make free goods, must admit the exercise of this right at least for the purpose of , ascertaining whether the ships are free ships or not. The right 1 Bynkershoek, Qua3st. Jur. Pub. lib. i. cap. 14. Vattel, Droit des Gens, Hv. iii. eh. 7, § 114. Martens, Pr6cis, &c., liv. viii. ch. 7, §§ 317, 321. Galliani, dei Doveri de Principi Neutrali, &c., p. 458. Lampredi, Del Commercio de Popoli Neutrali, &c., p. 185. Kliiber, Droit des Gens Moderne de I'Europe, § 293. CHAP. III.] AS TO NEUTRALS. 589 is equally clear in practice ; for practice is uniform and universal upon the subject. The many European treaties which refer to this right, refer to it as preexisting, and merely regulate the exer- cise of it. All writers upon the law of nations unanimously acknowledge it, without the exception even of Hubner himself, the great champion of neutral privileges." 2. That the authority of the neutral sovereign being forcibly in- terposed cannot legally vary the rights of a lawfully commissioned belligerent cruiser. " Two sovereigns may unquestionably agree, if they think fit, as in some late instances they have agreed, by special covenant, that the presence of one of their armed ships along with their merchant-ships shall be mutually understood to imply that nothing is to be found in that convoy of merchant- ships inconsistent with amity or neutrality ; and if they consent to accept this pledge, no third party has a right to quarrel with it, any more than any other pledge which they may agree mutually to accept. But surely no sovereign can legally compel the acceptance of such a security by mere force. The only security known to the law of nations upon this subject, independently of all special covenant, is the right of personal visitation and search, to be exercised by those who have the interest in making it." 3. That the penalty for the violent contravention of this right is the confiscation of the property so withheld from visitation and search. " For the proof of this I need only refer to Vattel, one of the most correct and certainly not the least indulgent of modern professors of public law. In book iii. c. 7, sect. 114, he expresses himself thus : — 'On ne peut empecher le transport des effets de contrebande, si I'on ne visite pas les vaisseaux neutres. On est done en droit de les visiter. Quelques nations puissantes ont refuse en differents temps de se soumettre a, cette visite. Aujourd'hui un vaisseau neutre, qui refuseroit de souffrir la visite, se feroit condamner par cela seul,comme etant de bonne prise.' Vattel is here to be considered not as a lawyer merely delivering an opinion, but as a witness asserting a fact — the fact that such is the existing practice of modern Europe. Con- formably to this principle, we find in the celebrated French ordi- nance of 1681, now in force, article 12, ' That every vessel shall be good prize in case of resistance and combat;' and Valin, in his smaller Commentary, p. 81, says expressly, that, although the expression is in the conjunctive, yet that the resistance alone is 50 690 EIGHTS OF WAR [PART IV. Sufficient. He refers to the Spanish ordinance, 1718, evidently copied from it, in which it is expressed in the disjunctive, ' in case of resistance or combat.' And recent instances are at hand and within view, in which it appears that Spain continues to act upon this principle. The first time it occurs to my notice on the inquiries I have been able to make in the institutes of our own country respecting matters of this nature, except what occurs in the Black Book of the Admiralty, is in the order of council, 1664, art. 12, which directs, ' That when any ship, met withal by the royal navy or other ship commissionated, shall fight or make resist- ance, the ship and goods shall be adjudged lawful prize.' A similar article occurs in the proclamation of 1672. I am, there- fore, warranted in saying, that it was the rule and the undisputed rule of the British admiralty. I will not say that the rule may not have been broken in upon, in some instances, by considera- tions of comity or of policy, by which it may be fit that the admi- nistration of this species of law should be tempered in the hands of those tribunals which have a right to entertain and apply them ; for no man can deny that a State may recede from its extreme rights, and that its supreme councils are authorized to determine in what cases it may be fit to do so, the particular captor having, in no case, any other right and title than what the State itself would possess under the same facts of cap- ture. But I stand with confidence upon all principles of reason, — upon the distinct authority of Vattel, — upon the institutes of other great maritime countries, as well as those of our own country, when I venture to lay it down that, by the law of nations, as now understood, a deliberate and continued resistance to search, on the part of a neutral vessel, to a lawful cruiser, is followed by the legal consequence of confiscation." ' The judgment of condemnation pronounced in this case was followed by the treaty of armed neutrality, entered into by the Baltic powers, in 1800, which league was dissolved by the death of the Emperor Paul ; and the points in controversy between those powers and Great" Britain were finally adjusted by the con- vention of 5th June, 1801. By the 4th article of this convention, the right of search as to merchant vessels sailing under neutral ' Robinson's Adm. Rep. vol. i. p. 340. The Maria. II CHAP. III.] AS TO NEUTRALS. 591 convoy was modified, by limiting it to public ships of war of the belligerent party, excluding private armed vessels. Subject to this modification, the pretension of resisting by means of convoy the exercise of the belligerent right of search, was surrendered by Russia and the other northern powers, and various regulations were provided to prevent the abuse of that right to the injury of neutral commerce. As has already been observed, the object of this treaty is expressly declared by the contracting parties, in its preamble, to be the settlement of the differences which had grown out of the armed neutrality by " an invariable determina- tion of their principles upon the rights of neutrality in their appli- cation to their respective monarchies." The 8th article also provides that " the principles and measures adopted by the pre- sent act, shall be alike applicable to all the maritime wars in which one of the two powers may be engaged, whilst the other remains neutral. These stipulations shall consequently be regarded as permanent, and shall serve as a constant rule for the contracting parties in matters of commerce and naviga- tion." 1 (a) ' The question arising out of the case of the Swedish convoy gave rise to seve- ral instructive polemic essays. The judgment of Sir W. Scott was attacked by Professor J. F. W. Schlegel, of Copenhagen, in a Treatise on the Visitation of Neutral Ships under Convoy, transl. London, 1801 ; and vindicated by Dr. Croke in "Remarks on M. Schlegel's Work," 1801. See also "Letters of Sulpicius on the Northern Confederacy," London, 1801. " Substance of the Speech of Lord Grenville in the House of Lords, November 13, 1801," London, 1802. Wheaton's Hist. Law of Nations, pp. 390-420. (a) [As neutral vessels, under the existing regulations of all the belligerents during the present war, give immunity to enemy's goods, the visitation must be limited to an inquiry, with a view to the seizure of such contraband goods, as may be on board of neutral vessels bound to an enemy's port and to ascertaining the vessel's neutrality. The treaty of 1801 was annulled, in consequence of the second attack upon Copenhagen and the destruction of the Danish fleet ; and the Russian govern- ment published, the 26th of October, 1807, a declaration, proclaiming " anew the principles of the armed neutrality, the monument of the wisdom of the Empress Catharine." The maritime convention has since received no sanction in any international stipulations, to which England was not a party. The recent orders and decrees of the belligerents are silent as to convoy. The treaties which the United States made with France, of 30th September, 1800, with Columbia of 3d of October, 1824, with Brazils of 12th December, 1828, with Mexico of 5th of April, 1831, with Chili of 16th of May, 1832, with Peru- 592 RIGHTS OF WAR [PART IV. , „ ,, . In the case of The Maria, the resistance of the con- \ 30. Forci- , . ' , bie resist- voying ship was held to be a resistance of the whole ance by an ^ , - , , , , ■,,.-, enemy mas- fleet oi nmerchant vessels under convoy, and subjected the whole to confiscation. This was a case of neutral property condemned for an attempted resistance by a neutral armed vessel to the exercise of the right of visitation and search, by a lawfully commissioned belligerent cruiser. But the forcible resistance by an enemy master will not, in general, affect neutral property laden on board an enemy's merchant vessel; for an attempt on his part to rescue his vessel from the possession of the captor, is nothing more than the hostile act of a hostile person, who has a perfect right to make such an attempt. " If a neutral master," says Sir W. Scott, " attempts a rescue, or to withdraw himself from search, he violates a duty which is imposed upon him by the law of nations, to submit to search, and to come in for inquiry as to the property of the ship or cargo ; and if he violates this obliga- tion by a recurrence to force, the consequence will undoubtedly reach the property of his owner ; and it would, I think, extend also to the whole property intrusted to his care, and thus fraudu- lently attempted to be withdrawn from the operation of the rights of war. With an enemy master, the case is very different ; no duty is violated by such an act on his part — Ivpum aiiribiis ieneo, and if he can withdraw himself he has a right so to do." ^ Bolivia of 13th November, 1836, and with Venezuela of 20th January, 1836, all provide that in case of convoy, " the declaration of the commander of the con- voy, that the vessels under his protection belong to the nation, whose flag he car- ries, and, when they are bound to an enemy's port, that they have no contraband goods on board, shall be sufficient." U. S. Stat, at Large, vol. viii. p. 188, 316, 395, 420, 438,493, 478. Ortolan comes to the conclusion that, independently of treaties, neither the ships of war nor privateers of a belligerent have a right to visit vessels under the convoy of a vessel of war of their own nation, but that the declaration of the commander is sufficient. Ortolan, Diplomatic de la Mer, torn, ii. ch. 7, tom. 11. p. 240, 2eme edit. Such, also, is the doctrine of the other mo- dern continental text writers. See De Martens, Essai sur les Armateurs, ch. 2. De llayneval, De la Liberte de la Mer, tom. i. c. 18. Kluber, Droit des Gens Moderne, tom. II. sec. 2, ch. 5, § 293. Even Manning, who holds to the old rules of English admiralty law, while he denies that neutrals, under convoy, can claim to be exempted from search, as a matter of right, deems it desirable that it should be accorded to them by agreement. Manning's Commentaries of the Law of Eng- land, p. 360.] 1 Robinson's Adm. Rep. vol. v. p. 232. The Catharina Elizabeth. 11 CHAP. III.] AS TO NEUTRALS. 693 The question how far a neutral merchant has a right §31. Right to lade his goods on board an armed enemy vessel, and toc^anyhif how far his property is involved in the consequences of goo^s "i an • • •' _ ^ armed ene- resistance by the enemy master, was agitated both in my vessel. the British and American prize courts, during the last war be- tween Great Britain and the United States. In a case adjudged by the Supreme Court of the United States, in 1815, it was determined, that a neutral had a right to charter and lade his goods on board a belligerent armed merchant ship, without for- feiting his neutral character, unless he actually concurred and participated in the enemy master's resistance to capture.' (a) Contemporaneously with this decision of the American court, Sir W. Scott held directly the contrary doctrine, and decreed salvage for the recapture of neutral Portuguese property, previ- ously taken by an American cruiser from on board an armed British vessel, upon the ground that the American prize courts might justly have condemned the property.^ In reviewing its former decision, in a subsequent case adjudged in 1818, the American court confirmed it; and, alluding to the decisions in the English High Court of Admiralty, stated, that if a similar case showld again occur in that court, and the decisions of the American court should in the mean time have reached the learned judge, he would be called upon to acknowledge that the danger of condemnation in the United States courts was not as great as he had imagined. In determining the last-mentioned 1 Crancli's Rep. vol. ix. p. 388. The Nereide. (a) [See dissenting opinion, in this case, of Story, Justice, referred to in Wild- man's International Law, vol. ii. p. 126, where on its authority the opposite prin- ciple is stated as American law. This same dissenting opinion will be found cited in the remarks connected with the negotiations of Mr. Wheaton, which resulted in the treaty of indemnity with Denmark. Vide infra, § 32, note. The question could not practically arise in France, before the assimilation in the present war of the Maritime Codes of the allies, as where the nationality of the cargo followed that of the ship the lading of neutral goods, on board of an enemy's ship, whether armed or not, would have equally subjected them to capture and condemnation. Ortolan states the contradictory English and American decisions, and Haute- feuille sustains on principle the American against that of Sir "William Scott. Diplomatic de la Mer, liv. iii. ch. 7, p. 225, 2eme ed. Droits des Nations Neutres, torn. iii. p. 420.] 2 Dodson's Adm. Rep. vol. i. p. 443. The Fanny. 50* 594 RIGHTS OF WAR [PART IV. case, the American court distinguished it both from those where neutral vessels were condemned for the unneutral act of the con- voying vessel, and those where neutral vessels had been con- demned for placing themselves under enemy's convoy. With regard to the first class of cases, it was well known that they originated in the capture of the Swedish convoy, at the time when Great Britain had resolved to throw down the glove to all the world, on the contested principles of the northern maritime confederacy. But, independently of this, there was several con- siderations which presented an obvious distinction between both classes of cases and that under consideration. A convoy was an association for a hostile object. In undertaking it, a State spreads over the merchant vessels an immunity from search which belongs only to a national ship ; and by joining a con- voy, every individual vessel puts off her pacific character, and undertakes for the discharge of duties which belong only to the military marine. If, then, the association be voluntary, the neu- tral, in suffering the fate of the entire convoy, has only to regret his own folly in wedding his fortune to theirs ; or if involved in the resistance of the convoying ship, he shares the fate to which the leader of his own choice is liable in case of capture,-^ § 32. Neu- The Danish government issued, in 1810, an ordinance undei^e^ne- relating to captures, which declared to be good and law- "■^'^ikbie ^^^ prize " such vessels as, notwithstanding their flag is to capture? considered neutral, as well with regard to Great Britain as the powers at war with the same nation, still, either in the Atlantic or Baltic, have made use of English convoy." Under this ordinance, many American neutral vessels were captured, and, with their cargoes, condemned in the Danish prize courts for offending against its provisions. In the course of the discus- sions which subsequently took place between the American and Danish governments respecting the legality of these condemna- tions, the principles upon which the ordinance was grounded were questioned by the United States government, as inconsist- ent with the established rules of international law. It was in- sisted that the prize ordinances of Denmark, or of any other 1 Wheaton's Rep. vol, iii. p. 409. The Atalanta. 1 I CHAP. III.] AS TO NEUTRALS. 595 particular State, could not make or alter the general law of nations, nor introduce a new rule binding on neutral powers. The right of the Danish monarch to legislate for his own subjects and his own tribunals, was incontestible ; but before his edicts could operate upon foreigners carrying on their commerce upon the seas, which are the common property of all nations, it must be shown that they were conformable to the law by which all are bound. It was, however, unnecessary to suppose, that in issuing these instructions to its cruisers, the Danish government intended to do any thing more than merely to lay down rules of decision for its own tribunals, conformable to what that government understood to be just principles of public law. But the observa- tion became important when it was considered, that the law of nations nowhere existed in the written code accessible to all, and to whose authority all deferred ; and that the present ques- tion regarded the application of a principle (to say the least) of doubtful authority, to the confiscation of neutral property for a supposed offence committed, not by the owner, but by his agent the master, without the knowledge or orders of the owner, under a belligerent edict, retrospective in its operation, because un- known to those whom it was to affect. The principle laid down in the ordinance, as interpreted by the Danish tribunals, was, that the fact of having navigated under enemys' convoy is, per se, a justifiable cause, not of capture merely, but of condemnation in the courts of the other bellige- rent ; and that^ without inquiring into the proofs of proprietary interest, or the circumstances and motives under which the cap- tured vessel had joined the convoy, or into the legality of the voyage, or the innocence of her conduct in other respects. A belligerent pretension so harsh, apparently so new, and so im- portant in its consequences, before it could be assented to by the neutral States, must be rigorously demonstrated by the authority of the writers on public law, or shown to be countenanced by the usage of nations. Not one of the numerous expounders of that law even mentioned it; no belligerent nation had ever before acted upon it ; and still less could it be asserted that any neutral nation had ever acquiesced in it. Great Britain, indeed, had contended that a neutral State had no right to resist the exercise of the belligerent claim of visitation and search by means of convoys consisting of its own ships of war. But the 596 RIGHTS OF WAR [PART IV. records even of the British courts of admiralty might be searched in vain for a precedent to support the principle maintained by Denmark, that the mere fact of having sailed under a belligerent convoy is, in all cases and under all circumstances, conclusive cause of condemnation. The American vessels in question were engaged in their accus- tomed lawful trade, between Russia and the United States ; they were unarmed, and made no resistance to the Danish cruisers ; they were captured on the return voyage, after having passed up the Baltic and been subjected to examination by the Danish cruisers and authorities; and were condemned under an edict which was unknown, and consequently, as to them, did not exist when they sailed from Cronstadt, and which, unless it could be strictly shown to be consistent with the preexisting law of nations, must be considered as an unauthorized measure of retrospective legislation. To visit upon neutral merchants and mariners extremely penal consequences from an act, which they had reason to believe to be innocent at the time, and which is not pretended to be forbidden by a single treaty or writer upon public law, by the general usage of nations, or even by the practice of any one belligerent, or the acquiescence of any one neutral State, must require something more than a mere resort to the supposed analogy of other acknowledged principles of international law, but from which it would be vain to attempt to deduce that now in question as a corollary. Being found in company with an enemy's convoy might, indeed, furnish a presumption that the captured vessel and cargo belonged to the enemy, in the same manner as goods taken in an enemy's vessel are presumed to be enemy's property until the contrary is proved; but .this presumption is not of that class of presumptions cdWed pre sumptiones juris" et de jure, which are held to be conclusive upon the party, and which he is not at liberty to controvert. It is a slight presumption only, which will readily yield to countervailing proof. One of the proofs which, in the opinion of the American negotiator, ought to have been admitted by the prize tribunal to countervail this presumption, would have been evidence that the vessel had been compelled to join the convoy ; or that she had joined it, not to protect herself from examination by Danish cruisers, but against others, whose noto- rious conduct and avowed principles render it certain, that cap- CHAP. III.] AS TO NEUTRALS. 597 tures by them would inevitably be followed by condemnation. It followed, then, that the simple fact of having navigated under British convoy could be considered as a ground of suspicion only, warranting the captors in sending in the captured vessel for fur- ther examination, but not constituting in itself a conclusive ground of confiscation. Indeed it was not perceived how it could be so considered, upon the mere ground of its interfering with the exercise of the belligerent pretension of visitation and search, by a State, which, when neutral, had asserted the right of protecting its private commerce against belligerent visitation and search by armed convoys of its own public ships. Nor could the consistency of the Danish government, in this respect, be vindicated, by assuming a distinction between the doctrine maintained by Denmark, when neutral, against Great Britain, from that which she sought, as a belligerent to enforce against America. Why was it that navigating under the convoy of a neutral ship of war was deemed a conclusive cause of condemnation ? It was because it tended to impede and defeat the belligerent right of search — to render every attempt to exercise this lawful right a contest of violence — to disturb the peace of the world, and to withdraw from the proper forum the determination of such controversies by forcibly preventing the exercise of its jurisdiction. The mere circumstance of sailing in company with a bellige- rent convoy had no such effect ; being an enemy, the belligerent had a right to resist. The masters of the vessels under his convoy could not be involved in the consequences of that resist- ance, because they were neutral, and had not actually partici- pated in the resistance. They could no more be involved in the consequences of a resistance by the belligerent, which is his own lawful act, than is the neutral shipper of goods on board a belligerent vessel for the resistance of the master of that vessel, or the owner of neutral goods found in a belligerent fortress for the consequences of its resistance. The right of capture in war extends only to things actually belonging to the enemy, or such as are considered as construct- ively belonging to him, because taken in a trade prohibited by the laws of war, such as contraband property taken in breach of blockade, and other analogous cases ; but the property now in 598 RIGHTS OF WAR [PART IV. question was neither constructively nor actually the property of the enemy of Denmark. It was not pretended that it was actually his property, and it could not be shown to have been constructively his. If, indeed, these American vessels had been armed ; if they had thus contributed to augment the force of the belligerent convoy ; or if they had actually participated in battle with the Danish cruisers, — they would justly have fallen by the fate of war, and the voice of the American government would never have been raised in their favor. But they were, in fact, unarmed merchantmen ; and far from increasing the force of the British convoying squadron, their junction tended to weaken it by expanding the sphere of its protecting duty; and instead of participating in the enemy's resistance, in fact there was no battle and no resistance, and the merchant vessels fell a defence- less prey to the assailants. The illegality of the act on the part of the neutral masters, for which the property of their owners had been confiscated, must then be sought for in a higher source, and must be referred back to the circumstance of their joining the convoy. But why should this circumstance be considered illegal, any more than the fact of a neutral taking shelter in a belligerent port, or under the guns of a belligerent fortress which is subsequently invested and taken ? The neutral cannot, indeed, seek to escape from visitation and search by iinlaivfid means, either of force or fraud ; but if, by the use of any lawful and innocent means, he may escape, what is to hinder his resorting to such means for the purpose of avoiding a proceeding so vexatious ? The belligerent cruisers and prize courts had not always been so moderate and just as to render it desirable for the neutral voluntarily to seek for an opportunity of being examined and judged by them. Upon the supposition, indeed, that justice was administered promptly, impartially, and purely in the prize tribunals of Denmark, the American ship- masters could have had no motive to avoid an examination by Danish cruisers, since their proofs of property were clear, their voyages lawful, and they were not conscious of being exposed to the slightest hazard of condemnation in these tribunals. Indeed, some of these vessels had been examined on their voyage up the Baltic, and acquitted by the Danish courts of admiralty. Why, then, should a guilty motive be imputed to them, when their conduct could be more naturally explained by an innocent one? CHAP, m.] AS TO NEUTRALS. 599 Surely, in the multiplied ravages to which neutral commerce was then exposed on every sea, from the sweeping decrees of confiscation fulminated by the great belligerent powers, the con- duct of these parties might be sufficiently accounted for, without resorting to the supposition that they meant to resist or even to evade the exercise of the belligerent rights of Denmark. Even admitting, then, that the neutral American had no right to put himself under convoy or in order to avoid the exercise of the right of visitation and search by a. friend, as Denmark professed to be, he had still a perfect right to defend himself against his enemy, as France had shown herself to be, by her conduct, and the avowed principles upon which she had declared open war against all neu- tral trade. Denmark had a right to capture the commerce of her enemy, and for that purpose to search and examine vessels under the neutral flag, whilst America had an equal right to protect her commerce against French capture by all the means allowed by the ordinary laws of war between enemies. The exercise of this per- fect right could not legally be affected by the circumstance of the war existing between Denmark and England, or by the alliance between Denmark and France. America and England were at peace^ The alliance between Denmark and France was against England, not against America ; and the Danish govern- ment, which had refused to adopt the decrees of Berlin and Milan as the rule of its conduct towards neutrals, could not surely consider it culpable on the part of the American ship- masters to have defended themselves against the operation of these decrees by every means in their power. If the use of any of these means conflicted in any degree with the belligerisnt rights of Denmark, that was an incidental consequence, which could not be avoided by the parties without sacrificing their incontestible right of self-defence. But it might perhaps be said, that as resistance to the right of search is, by the law and usage of nations, a substantive ground of condemnation in the case of the master of a single ship, still more must it be so, where many vessels are associated ior the pur- pose of defeating the exercise of the same right. In order to render the two cases stated perfectly analogous, there must have been an actual resistance on the part of the vessels in question, or, at least, on the part of the enemy's fleet, having them at the time under its protection, so as to connect 600 RIGHTS OF WAR [PART IV. them inseparably with the acts of the enemy. Here was no actual resistance on the part of either, but only a constructive resistance on the part of the neutral vessels, implied from the' fact of their having joined the enemj/'s convoy. This, how- ever, was, at most, a mere intention to resist, never carried into effect, which had never been considered in the case of a single ship, as involving the penalty of confiscation. But the resistance of the master of a single ship, which is supposed to be analo- gous to the case of convoy, must refer to a neutral master, whose resistance would, by the established law of nations, involve both ship and cargo in the penalty of confiscation. The same princi- ple would not, however, apply to the case of an e«ew7/-master, who has an incontestible right to resist his enemy, and whose resist- ance could not affect the neutral owner of the cargo, unless he was on board, and actually participated in the resistance. Such was, in a similar case, the judgment of Sir W. Scott. So also the right of a neutral to transport his goods on board even of an armed belligerent vessel, was solemnly affirmed by the decision of the highest judicial tribunal in the United States, during the late war with Great Britain, after a most elaborate discussion, in which all the principles and analogies of public law bearing upon the question were thoroughly examined and considered. The American negotiator then confidently relied upon the position assumed by him — that the entire silence of all the authoritative writers on public law, as to any such exception to the general freedom of neutral navigation, laid down by them in such broad and comprehensive terms, and of every treaty made for the special purpose of defining and regulating the rights of neutral commerce and navigation, constituted of itself a strong negative authority to show, that no such exception exists, espe- cially as that freedom is expressly extended to every case which has the slightest resemblance to that in question. It could not be denied that the goods of a friend, found in an enemy's fortress, are exempt from confiscation as prize of war; that a neutral may lawfully carry his goods in an armed belligerent ship ; that the neutral shipper of goods on board an enemy's vessel, (armed or unarmed,) is not responsible for the consequences of resistance by the enemy-master. How then could the neutral owner, both of ship and cargo, be responsible for the acts of the belligerent convoy, under the protection of which his property had been CHAP. III.] AS TO NEUTRALS. 601 placed, not by his own immediate act, but by that of the master proceeding without the knowledge or instructions of the owner ? Such would certainly be the view of the question, even apply- ing to it the largest measure of belligerent rights ever assumed by any maritime State. But when examined by the milder inter- pretations of public law, which the Danish government, in com- mon with the other northern powers of Europe had hitherto patronized, it would be found still more clear of doubt. If, as Denmark had always insisted, a neutral might lawfully arm himself against all the belligerents; if he might place himself under the convoying force of his own country, so as to defy the exercise of belligerent force to compel him to submit to visitation and search on the high seas; the conduct of the neutral Americans who were driven to take shelter under the floating fortresses of the enemy of Denmark, not for the purpose of resisting the exer- cise of her belligerent rights, but to protect themselves against the lawless violence of those, whose avowed purpose rendered it certain, that, notwithstanding this neutrality, capture would in- evitably be followed by condemnation, would find its complete vindication in the principles which the public jurists and states- men of that country had maintained in the face of the world. Had the American commerce in the Baltic been placed under the protection of the public ships of war of the United States, as it was admitted it might have been, the belligerent rights of Den- mark would have been just as much infringed as they were by what actually happened. In that case, the Danish cruisers must, upon Danish principles, have been satisfied with the assurance of the commander of the American convoying squadron, as to the neutrality of the ships and cargoes sailing under his protec- tion. But that assurance could only have been founded upon their being accompanied with the ordinary documents found on board of American vessels, and issued by the American govern- ment upon the representations and proofs furnished by the inte- rested parties. If these might be false and fraudulent in the one case, so might they be in the other, and the Danish government would be equally deprived of all means of examining their authenticity in both. In the one, it would be deprived of those means by its own voluntary acquiescence in the statement of the commander of the convoying squadron, and in the other, by the 51 602 RIGHTS OF WAR [PART IV. presence of a superior enemy's force, preventing the Danish cruisers from exercising their right of search. This was put for the sake of illustration, upon the supposition that the vessels under convoy had escaped from capture ; for upon that supposi- tion only could any actual injury have been sustained by Den- mark as a belligerent power. Here they were captured without any hostile conflict, and the question was, whether they were liable to confiscation for having navigated under the enemy's convoy, notwithstanding the neutrality of the property and the lawfulness of their voyage in other respects. Even supposing, then, that it was the intention of the Ameri- can shipmasters, in sailing with the British convoy, to escape from Danish as well as French cruisers, that intention had failed of its effect; and it might be asked, what belligerent right of Denmark had been practically injured by such an abortive attempt ? If any, it must be the right of visitation and search. But that right is not a substantive and independent right, with which belligerents are invested by the law of nations for the pur- pose of wantonly vexing and interrupting the commerce of neu- trals. It is a right growing out of a greater right of capturing enemy's property, or contraband of war, and to be used, as means to an end, to enforce the exercise of that right. Here the actual exercise of the right was never in fact opposed, and no injury had accrued to the belligerent power. But it would, perhaps, be said, that it might have been opposed and actually defeated, had it not been for the accidental circumstance of the separation of these vessels from the convoying force, and that the entire com- merce of the world with the Baltic Sea might thus have been effectually protected from Danish capture. And it might be asked in reply, what injury would have resulted to the bellige- rent rights of Denmark from that circumstance ? If the pro- perty were neutral, and the voyage lawful, what injury would result from the vessels escaping from examination? On the other hand, if the property were enemy's property, its escape must be attributed to the superior force of the enemy, which, though a loss^ could not be an injury of which Denmark would have a lawful right to complain. Unless it could be shown that a neutral vessel navigating the seas is bound to volunteer to he searched by the belligerent cruisers, and that she had no right to avoid search by any means whatever, it was apparent that she II CHAP. III.] AS TO NEUTRALS. 603 might avoid it by any means not unlawful. Violent resistance to search, rescue after seizure, fraudulent spoliation or conceal- ment of papers, are all avowedly unlawful means, which, unless extenuated by circumstances, may justly be visited with the penalty of confiscation. Those who alleged that sailing under belligerent convoy was also attended with the same conse- quences, must show it, by appealing to the oracles of public law, to the text of treaties, to some decision of an interna- tional tribunal, or to the general practice and understanding of nations.! The negotiation finally resulted in the signature of a treaty, in 1830, between the United States and Denmark, by which the latter power stipulated to indemnify the American claimants generally for the seizure of their property by the payment of a fixed sum en bloc, leaving it to the American government to apportion it by commissioners appointed .by itself, and author- ized to determine " according to the principles of justice, equity, and the law of nations," with a declaration that the convention, having no other object than to terminate all the claims, " can never hereafter be invoked, by one party or the other, as a prece- dent or rule for the future." ^ («) ' Mr. Wheaton to Count Schimmelmann, 1828. 2 Martens, Nouveau Recueil, torn. vili. p. 350. Elliot's American Diplomatic Code, vol.i. p. 453. (a) [The Danish Commissioners, in their reply, in reference to the vessels under convoy, said : — " They first submit to an examination before they are received under convoy, decline to submit to search by the other belligerent, and are defended by the convoy, if of superior force, or endeavor to escape during the contest, as the Americans generally did. If worsted, they still claim their neu- trality. Is it neutrality to accord the right of visitation to one belligerent and refuse it to the other ? If one belligerent was predominant, neutrals, by putting themselves under its protection, would, always, avoid the visitation of the other." M. de Redtz, whose memoir, jirepared for the Danish government, was inclosed in Mr. Wheaton's despatch of April 9, 1830, also thus refers, in this connection, to the use which England made of American vessels to obtain naval stores from Russia. " After having made the purchases in Russia, these vessels assembled on the coast of Sweden, where they met British ships of war, which convoyed them during the remainder of their voyage, or as far as they had any danger to apprehend. Den- mark saw, every day, along her coast, and even within the waters to which her jurisdiction extended, numerous convoys protected by English vessels ; and it is contended that, if she was able to surprise these convoys, or some of the vessels belonging to them, they should be liberated on the presentation of American 604 RIGHTS OF WAR [PART IV. papers, declaring the neutral character and destination of the vessels. All the vessels seized were in this category, though it is not denied that forged documents were frequently used. The offence against the belligerent party is committed whenever the contract is concluded with the chief of the convoy ; nor is it mate- rial whether the master acted on his own suggestion, or in accordance with instructions. That is an inquiry never made, in the case of a vessel breaking a blockade or transporting enemy's troops. The only point to be established is, whether the neutral was voluntarily under enemy's convoy. The order of the 28th of May, 1810, was only an instruction to cruisers; and the right of capture, it was admitted, did not depend on the application of the principle, but on the principle itself." It was also maintained, in defence of some of the captures, " that Denmark and her allies, including Russia, constituted a belligerent corps or asso- ciation in the war against England. They engaged with each other to prohibit all trade between their States and the common enemy. The neutral who vio- lated the prohibition as to one, violated it as to all, and rendered his property taken in this unlawful commerce liable to confiscation by any of the allied powers. England refuses to substitute for a search of the merchantmen the word of honor of the officer of a neutral convoy ; and contends that such a modification of the right of visit can only be required by virtue of a particular treaty. Can it be expected that the other belligerent should have the courtesy to consider and treat as neutral vessels, which, to escape a visit and to dispute its indubitable right, may employ the whole marine of the enemy ? " The memoir refers to the several treaties by which enemy's ships make enemy's goods, as adopted by the United States, and says that if a different principle has been applied in their tribunals, it must be in the case of those nations which have not adopted this rule towards them. It likewise notices the doubts contained in Mr. Erving's note of June 23, 1811, as to the validity of this claim, as well as a passage to the same eflFect in Mr. Wheaton's note of July 7, 1828; and concludes by asking whether, under those circumstances, it could be expected that the Danish government would admit that the principle which it had adopted was deemed totally unjust and unjustifiable? As a general proposition, sailing under enemy's convoy has been assimilated to putting neutral merchandise on board of an armed vessel of the enemy, as to the efiect of which the English and American courts differ. The Lords of Appeal in England have decided that sailing under enemy's convoy was a con- clusive ground of condemnation. See case of The Sampson, Barney, an Ameri- can vessel sailing with French cruisers, referred to by Judge Story in the case of The Nei-elde, Cranch's Rep. vol. ix. p. 442. There has been no direct decision on this subject in the United States, but In the case of The Nerelde, Ibid. p. 437, in which it was decided, by a majority of the court, that a neutral cargo, found on board of an enemy's vessel, is not liable as prize of war, the vessel, which was a British armed merchantman, had covenanted to sail under British con- voy, though at the time of the capture she was separated from the convoy. Justice Story, in his dissenting opinion, says : — " My judgment is, that the act of sailing under belligerent convoy is a violation of neutrality, and the ship and cargo. If caught in delicto, are justly confiscable ; and further, that if re- sistance is necessary, as in my opinion it is not, to perfect the offence, still the resistance of the convoy is, to all purposes, the resistance of the association." CHAP. III.] AS TO NEUTRALS. 605 Crancli's Rep. vol. Ix. p. 445. And in The Atalanta, "Wheat, Rep. vol. iii. p. 423, which was a case of neutral property, on board of an armed enemy's vessel, wherein the decision in the case of The Nereide is affirmed, a distinction is made, which is referred to in the text, § 31, p. 594, between such a case and that of putting a vessel under enemy's convoy, unfavorable to the latter. This negotiation is thus commented on by subsequent text writers : " An interesting discussion, on the principle of convoy, occurred in the last war, on a dispute between the United States and Denmark. "We have seen that resistance to search by a neutral, confiscates his vessel and cargo. On the other hand, resistance to search by an enemy, does not entail the confiscation of the neu- tral goods on board his vessel ; the latter resistance violates no duty on the part of the captain, who is right to get away if he can. In 1810, the Danish government issued an ordinance condemning as lawful prize " such vessels as, notwithstanding their flag is considered neutral, as well with regard to Great Britain as the powers at war with the same nation, still, either in the Atlantic or Baltic, have made use of English convoy." Several American vessels were captured, and, with their cargoes, condemned for ofi"ending against this ordinance. The Minister of the United States contended that such confiscations were unjust ; that the rule laid down by Denmark was an innovation unsupported by any precedent ; that the cargoes of the vessels captured were 'of an innocent nature ; and that the joining the British convoy was intended, not to withdraw them from the search of the Danes, but to avoid the being subjected to the decisions of the French prize courts. These latter circumstances would induce a prize court to regard with all possible lenity of construction the case of such captures ; but, as to the principle, I think that the Danish ordinance was in perfect conformity with the law of nations. In this opinion I find I am at issue with Dr. "Wheaton, who has given an excellent statement of the American positions in the discussion. He has, however, but very slightly noticed the strong positions of the Danish government, and I hope he will pardon my thinking that he has treated this part of his subject more as an advocate than as a judge. He is, however, an author with whom it would always give me more satisfaction to find that I coincide than that I disagree. In the parti- cular case above stated there may have been hardship ; but, as far as principle goes, had the case been different, and had the American ships, instead of having inno- cent cargoes on board, been laden with contraband of war, or with the property of enemies of Denmark, they might, by the escort of the British convoy, have avoided the detention of Danish cruisers of smaller force, and have thus defeated the clear rights of Denmark. As a general principle, I think that the sailing under the convoy of a belligerent must be regarded as a withdrawal from the search of the other belligerent, as a resistance to his rights, and as entailing con- fiscation as a consequence of such attempted evasion." Manning's Commentaries on the Law of Nations, p. 369. See also, Wildman's International Law, vol. ii. p. 126, which cites, in support of the Danish ordinance, in which he erroneously says that the government of the United States acquiesced, the dissenting opinion of Story, Justice, in the case of The Nereide, as above referred to. Ortolan says : " A part les circonstances, qui motivcrent dans le cas ci-dessus, la com- plete r6ussite du n^gotiateur Americain, on ne pent pas dire, a notre avis, que le fait d'un navire neutre naviguant sous le convoi dun belllgerant ne 51 * 606 RIGHTS OF WAR AS TO NEUTRALS. [PART IV. soit pas un fait irr^gulier et meme illegal. Un pareil convoi ne peut dans tous les cas, exempter de la visite. Mais si le neutre se joint en pleine mer a im ou h plusieurs navires de guerre bellig^rants et navigue de conserve avec ces navires sans pr^tendre a aucune protection de leur part dans la seule esperance de pouvoir echapper pacifiquement et par la fuite h, la visite, a la faveur d'une ren- contre et d'un combat possible entre les seuls bellig6rants, c'est la de sa part une ruse innocente qui ne peut lui etre Imputee a d61it, et qui ne peut pas, a elle seule, entrainer la confiscation. C'6tait la pr6cis^-ment le cas des navires Am6ricains, dont Taction 6tait d'ailleurs excusable par le d^sir qu'ils avaient d'^chapper aux rigueurs extraordinaires des decrets de Napoleon, sur le blocus continental." Diplomatic de la Mer, torn. ii. p. 245, 2^me ed. Ilautefeuille thus refers to the transaction : " Le gouvernement Americain reclama vivement contre la saisie des navires de ses sujets. L'affaire ne fut terminee que le 28 Mars, 1830. La convention qui intervint entre les parties et par laquelle le Danemark s'engagea a payer une indemnit6, aux proprietaires Americains, pr6sente ce caractere remarquable que le gouvernement Danois ne s'est pas d6parti de sa pretention et stipule que cette indemnite ne pouvait pas 6tre consideree comme un precedent ni servir de regie il I'avenir. " Le gouvernement Am6ricain fut repr6sent6 dans cette negotiation par un diplomate dont j'ai souvent cit6 les opinions, par Wheaton. Ce publiciste parait convenir que le fait reproclie h ses compatriotes les soumettait h une presomp- tion legale, qui a pu motiver leur arrestation ; mais il soutient que cette presomp- tion devait ceder devant la preuve de leur nationalite. D'ailleurs, ils avaient et6 saisis au retour, en vertu d'un edit rendu depuis que le delit reproclie etait con- s6mm6, et qui leur 6tait inconnu." Droits des Nations Neutres, torn. iv. p. 115.] CHAP. IV.] TREATY OF PEACE. 607 CHAPTER IV. TREATY OF PEACE. The power of concluding peace, like that of declar- . ^ power ing war, depends upon the municipal constitution of the of making State. These authorities are generally associated. In pendent on unlimited monarchies, both reside in the sovereign; and paiconstitu- even in limited or constitutional monarchies, each may ^'°"' be vested in the crown. Such is the British Constitution, at least in form ; but it is well known, that in its practical adminis- tration, the real power of making war actually resides in the Parliament, without whose approbation it cannot be carried on, and which body has consequently the power of compelling the crown to make peace, by withholding the supplies necessary to prosecute hostilities. The American Constitution vests the power of declaring war in the two houses of Congress, with the assent of the President. By the forms of the Constitution, the President has the exclusive power of making treaties of peace, which, when ratified with the advice and consent of the Senate, become the supreme law of the land, and have the effect of repealing the declaration of war and all other laws of Congress, and of the several States which stand in the way of their stipulations. But the Congress may at any time compel the President to make peace, by refusing the means of carrying on war. In France the King has, by the express terms of the constitutional charter, power to declare war, to make treaties of peace, of alliance, and of commerce; but the real power of making both peace and war resides in the Chambers, which have the authority of granting or refusing the means of prosecuting hostilities, (a) (a) [By the French Constitution of January 14, 1852, the President had the power of declaring war, making treaties of peace, of alliance and of commerce, and he had solely the initiative of all laws. The projeis of laws were prepared 608 TREATY OF PEACE. [PART IV. § 2. Power The power of making treaties of peace, like that of treatfes'^of making other treaties with foreign States, is, or maybe, ed^Tit's"^!^- limited in its extent by the national constitution. We tent. have already seen that a general authority to make treaties of peace necessarily implies a power to stipulate the con- ditions of peace ; and among these may properly be involved the cession of the public territory and other property, as well as of private property included in the eminent domain. If, then, there be no limitation, expressed in the fundamental laws of the State, or necessarily implied from the distribution of its constitutional authorities, on the treaty-making power in this respect, it neces- sarily extends to the alienation of public and private property, when deemed necessary for the national safety or policy.^ The duty of making compensation to individuals, whose pri- vate property is thus sacrificed to the general welfare, is incul- cated by public jurists, as correlative to the sovereign right of alienating those things which are included in the eminent do- main ; but this duty must have its limits. No government can be supposed to be able, consistently with the welfare of the whole community, to assume the burden of losses produced by con- quest, or the violent dismemberment of the State. Where, then, the cession of territory is the result of coercion and conquest, forming a case of imperious necessity beyond the power of the State to control, it does not impose any obligation upon the government to indemnify those who may suffer a loss of property by the cession.^ by the Council of State and discussed by them, in the name of the government, before the Corps L^gislat if and the Senate. The Corps Ligislatif discussed and voted the projets of laws and the taxes, and no law could be promulgated, without being submitted to the Senate. By the Senatits-Consulte of November 7, 1852, on the reestablishment of the imperial dignity, in the person of the Emperor, Napoleon III., the Constitution was maintained in all matters, in which it was npt specially altered; and by a Senatus-Consulle of December 23, 1852, it was ex- pressly provided that treaties of commerce, made by virtue of the 6th article of the Constitution should have the force of law, in modifying the existing tariffs. Annuaire des Deux Mondes, 1851-2, p. 952. Ibid. 1852-3, pp. 887, 891.] 1 Vide ante, Pt. III. ch. 2, § 7, p. 329. 2 Grotius, de Jur. Bel. ac Pac. lib. iii. cap. 20, § 7. Vattel, Droit des Gens, liv. i. ch. 20, § 244; liv. iv. ch. 2, § 12. Kent's Comment, on American Law, vol. i. p. 178, 5th ed. CHAP. IV.] TREATY OF PEACE. 609 The fundamental laws of most free governments limit the treaty-making power, in resjDect to the dismemberment of the State, either by an express prohibition, or by necessary implica- tion from the nature of the constitution. Thus, even under the constitution of the old French monarchy, the States-General of the kingdom declared that Francis I. had no power to dismember the kingdom, as was attempted by the Treaty of Madrid, con- cluded by that monarch ; and that not merely upon the ground that he was a prisoner, but that the assent of the nation, repre- sented in the States-General, was essential to the validity of the treaty. The cession of the province of Burgundy was therefore annulled, as contrary to the fundamental laws of the kingdom ; and the provincial States of that duchy, according to Mezeray, declared, that " never having been other than subjects of the crown of France, they would die in that allegiance ; and if abandoned by the king, they would take up arms, and maintain by force their independence, rather than pass under a foreign dominion." But when the ancient feudal constitution of France was gradually abolished by the disuse of the States-General, and the absolute monarchy became firmly established under Riche- lieu and Louis XIV., the authority of ceding portions of the public territory, as the price of peace, passed into the hands of the king, in whom all the other powers of government were con- centrated. The different constitutions established in France, subsequently to the Revolution of 17S9, limited this authority in the hands of the executive in various degrees. The provision in the Constitution of 1795, by which the recently conquered countries on the left bank of the Rhine were annexed to the French territory, became an insuperable obstacle to the conclu- sion of peace in the conferences at Lisle. By the Constitutional Charter of 1830, the king is invested with the power of making peace, without any limitation of this authority, other than that which is implied in the general distribution of the constitutional powers of the government. Still it is believed that, according to the general understanding of French public jurists, the as- sent of the Chambers, clothed with the forms of a legislative act, is considered essential to the ultimate validity of a treaty ceding any portion of the national territory. The extent and limits of the territory being defined by the municipal laws, the treaty-making power is not considered sufficient to repeal those laws. 610 TREATY OF PEACE. [PART IV. In Great Britain, the treaty-making power, as a branch of the regal prerogative, has in theory no limits ; but it is practically limited by the general controlling authority of Parliament ; whose approbation is necessary to carry into effect a treaty, by which the existing territorial arrangements of the empire are altered. In confederated governments, the extent of the treaty-making power, in this respect, must depend upon the nature of the con- federation. If the union consists of a system of confederated States, each retaining its own sovereignty complete and unim- paired, it is evident that the federal head, even if invested with the general power of making treaties of peace for the confede- racy, cannot lawfully alienate the whole or any portion of the territory of any member of the union, without the express assent of that member. Such was the theory of the ancient Germanic Constitution ; the dismemberment of its territory was contrary to the fundamental laws and maxims of the empire ; and such is believed to be the actual constitution of the present Germanic Confederation. This theory of the public law of Germany has often been compelled to yield in practice to imperious necessity ; such as that which forced the cession to France of the territories belonging to the States of the empire, on the left bank of the Rhine, by the Treaty of Luneville, in 1800. Even in the case of a supreme federal government, or composite State, like that of the United States of America, it may, perhaps, be doubted how far the mere general treaty-making power, vested in the federal head, necessarily carries with it that of alienating the territory of any member of the union without its consent. § 3. Ef- The effect of a treaty of peace is to put an end to the treat ^of^ war, and to abolish the subject of it. It is an agree" peace. ment to waive all discussion concerning the respective rights and claims of the parties, and to bury in oblivion the ori- ginal causes of the war. It forbids the revival of the same war by resuming hostilities for the original cause which first kindled' it, or for whatever may have occurred in the course of it. But the reci])rocal stipulation of perpetual peace and amity between the parties does not imply that they are never again to make war against each other for any cause whatever. The peace relates to the war which it terminates; and is perpetual, in the il CHAP. IV.] TREATY OF PEACE. 611 sense that the war cannot be revived for the same cause. This? will not, however, preclude the right to claim and resist, if the grievances which originally kindled the war be repeated — for that would furnish a new injury and a new cause of war, equally just with the former. If an abstract right be in question between the parties, on which the treaty of peace is silent, it follows, that all previous complaints and injury, arising under such claim, are thrown into oblivion, by the amnesty^ necessarily implied, if not expressed ; but the claim itself is not thereby settled either one way or the other. In the absence of express renunciation or recognition, it remains open for future discussion. And even a specific arrangement of a matter in dispute, if it be special and limited, has reference only to that particular mode of as- serting the claim, and does not preclude the party from any subsequent pretensions to the same thing on other grounds. Hence the utility in practice of requiring a general renunciation of all pretensions to the thing in controversy, which has the effect of precluding for ever the assertion of the claim in any mode.i The treaty of peace does not extinguish claims founded upon debts contracted or injuries inflicted previously to the war, and unconnected with its causes, unless there be an express stipula- tion to that effect. Nor does it affect private rights acquired antecedently to the war, or private injuries unconnected with the causes which produced the war. Hence debts previously con- tracted between the respective subjects, though the remedy for their recovery is suspended during the war, are revived on the restoration of peace, unless actually confiscated, in the mean time, in the rigorous exercise of the strict rights of war, contrarv to the milder practice of recent times. There are even c<^>^'^s where debts contracted, or injuries committed, between the reV spective subjects of the belligerent nations during the war, may become the ground of a valid claim, as in the case of ransom- bills, and of contracts made by prisoners of war for subsistence, or in the course of trade carried on under a license. In all these cases, the remedy may be asserted subsequently to the peace.2 (a) 1 Yattel, Droit des Gens, liv. iv. ch. 2, §§ 19-21. 2 Kent's Comment, vol. i. p. 168, 5th ed. (a) [" A state of war abrogates treaties previously existing between the belli- 612 TREATY OF PEACE. [PART IV. § 4. Uii The treaty of peace leaves every thing in the state in the^basis of which it fouod it, unless there be some express stipula- every treaty ^Jqj^ -(-q ^he contrary. The existing state of possession is of peace, *' a i unless the maintained, except so far as altered by the terms of the expressed, treaty. If nothing be said about the conquered coun- "■erents and a treaty of peace puts an end to all claims for indemnity for tortious acts committed under the authority of one government against the citizens or subjects of another, unless they are provided for in its stipulations." President's Messao-e. Annual Register for 1847, p. 407. Thus the Treaty of the 6th of February, 1853, for the adjustment of private claims of citizens of the United States on the government of Great Britain, and of subjects of Great Britain on that of the United States, ^vas limited to such as arose subsequently to the treaty of peace of the 24th December, 1814. Treaties of the United States, 1854, p. 110. As to the character of the difficulties with France, in 1798-9 — the Supreme Court, premising that " Congress had raised an army, stopped all intercourse ■with France, dissolved our treaties, built and equipped ships of war, and com- missioned private armed ships, enjoining the former and authorizing the latter to defend themselves against the armed ships of France, to attack them on the high seas, to subdue and take them as prize, and to recapture vessels found in their possession," declared that a public war, though an imperfect war, existed between the two nations, and that they were enemies to one another. The Court accordingly awarded salvage of one half, as for a recapture from an enemy, in the case of an American vessel, captured by a French privateer and recaptured by a public armed American ship. Dallas's Rep. vol. iv. p. 37. Bos v. Tingy. See further, as to the effect of this war in extinguishing prior claims, Webster's Works, vol.iv.p.lG2. Benton'sThirty Years in the Senate, p. 487. Cong. Globe, 1854-5. By the second article, as originally proposed, of the Convention of September 30, 1800 for " terminating the differences" between the United States and France, between whom, as stated, actual hostilities then existed. It was stipulated that the parties would negotiate further, respecting the treaties of alliance and of Jor »^ercc of 1778, and of the consular convention of 1788, and upon "the in decfjnitles mutually due and claimed." This article the Senate, in ratifying t*he treaty, expunged ; and, at the same time, notwithstanding the perpetual cha- racter of its first article, which, as is usual at the close of a war, declared that there should be " a firm, inviolable, and universal peace between the French Republic und the United States," they limited the duration of the whole treaty, without an exception even of that article, to eight years. The First Consul, In ratifying it, added as a proviso, " that by this retrenchment the two States renounce the respective pretensions, which are the object of the said article." In this form the ratlfica'aons were exchanged in Paris. Mr. Madison, Secretary of State, wrote to Mr /Livingston, Minister to France, 18th December, 1801: — "I am authorized to say, that the President does not regard the declaratory clause as mq-e than a legitimate Inference from the rejection by the Senate of the second article." Cong. Doc. 19th Cong. 1st Sess. No. 122, p. 703. President Jefferson, CHAP. IV.] TREATY OF PEACE. 613 try or places, they remain with the conqueror, and his title can- not afterwards be called in question. During the continuance of however, deemed it advisable to submit the convention anew to that body. The Senate, taking the same view of it as he did, resolved that they considered the convention duly ratified, and returned the same to the President for the usual promulgation. U. S. Statutes at Large, vol. viii. p. 194. The treaty thus stood, it is conceived, when promulgated, as respects the subject of the second article, precisely as it would have done, if that article had never been contained in it ; and, moreover, by the express declaration of both governments, its omission was tantamount to a renunciation of the pretensions to which it refers, whatever the eflfect, in other respects, of the limitation, as to the duration of the treaty, might be. In a case, arising under the Treaty of 1819, with Spain, the Supreme Court held, "That where one of the parties to a treaty, at the time of its ratification, annexes a written declaration explaining ambiguous language in the instrument, or adding a new and distinct stipulation, and the treaty is afterwards ratified by the other party with the declaration attached to it, and the ratifications duly exchanged, the declaration thus annexed is a part of the treaty, and as binding and obligatory, as if it were inserted in the body of the instrument. The intention of the parties is to be gathered from the whole instrument, as it stood when the ratification were exchanged." Howard's E,ep. vol. xvi. p. 650. Doe et al. v. Braden. But the expunging of the second article did not affect the other provisions of the treaty. By the third article the public ships, that had been captured, were to be mutually restored. By the fourth article, it was agreed that " property cap- tured, and not yet definitively condemned, or which may be captured before the exchange of ratifications, (contraband goods destined to an enemy's port excepted,) shall be mutually restored," &c. The proofs, on both sides, to be required in reference to vessel and cargo, are minutely prescribed in the treaty ; and it is added : — " This article shall take etfect from the date of the signature of the present Convention. And if, from the date of the said signature, any property shall be condemned, contrary to the intent of the said convention, before the knowledge of this stipulation shall be obtained, the property so condemned shall, without delay, be restored or paid for." The fifth article would seem to be confined to matters of contract, which are not extinguished by a state of war, but are revived at peace. " Art. 5. The debts contracted by one of the two nations with individuals of the other, or by the indi- viduals of one with the individuals of the other, shall be paid, or the payment may be prosecuted, in the same manner as if there had been no misunderstanding between the two States. But this clause shall not extend to indemnities claimed on account of captures or confiscations." Complaints very soon arose of the non-performance, by France, of the stipula- tions of these articles, particularly of the fourth article. In a note, 29th Thermi- dor, year 9, (1 7th August, 1801,) from M. Talleyrand, Minister of Foreign Affairs, to the Commissary of the Government, near the Council of Prizes, he tells him : " The two nations have guaranteed, the one to the other, the restitution — 1. Of national ships ; 2. Of armed or unarmed ships that shall be known to belong to 52 614 TREATY OF PEACE. [PART IV. the war, the conqueror in possession has only a usufructuary right, and the latent title of the former sovereign continues, until their citizens, according to the proofs specified in the fourth article, and that •with- out anj' exception, restriction, or reserve ; 3. Of all property forming part of the cargo of said ships, with the only exception of merchandise specified by the thir- teenth article, under the denomination of contraband of war, and which shall be destined for the enemy. You will, therefore, solicit the Council to apply, as soon as possible, the provisions of the convention to American prizes, in all that relates to them." Cong. Doc. 19 Cong. 1st Sess. No. 102, p. 555. The claims under this (fourth) article, as well as those under the fifth, continued to be pressed upon the French government, during the period intervening be- tween the ratification of the Convention of 1800 and the conclusion of the nego- tiations for the purchase of Louisiana. By one of the conventions of 30th April, 1803, connected with that transaction, 20,000,000 francs were set aside, for the pay- ment of American claims ; and it would seem, from the diplomatic correspond- ence of that period, that it was expected that it would exceed the amount, for which France was justly liable, and be applicable to all subsisting claims. The matter, however, became involved in almost inextricable confusion, by the terms used in the treaty, and the looseness with which it appears to have been drawn. By "Art. 1. The debts due by France to citizens of the United States, con- tracted before the 8th of Vendemiaire, ninth year of the French Republic, (30th September, 1800,) shall be paid according to the following regulations, with inte- rest at six per cent., to commence from the periods when the accounts and vouch- ers were presented to the French government." It was declared, by the second article, that " the debts provided for, &c., are those whose result is com- prised in the conjectural note, (a,) annexed to the present convention, and which, with the interest, cannot exceed the sum of twenty millions of francs. The claims comprised in the said note, which fall within the exceptions of the following articles, shall not be admitted to the benefit of this provision." " Art. 4. It is expressly agreed that the preceding articles shall comprehend no debts but such as are due to citizens of the United States, who have been and are yet creditors of France, for supplies, embargoes, and for prizes made at sea, in which the appeal has been properly lodged, within the time mentioned in the said conven- tion of the 8th Vendemiaire, ninth year, {30th September, 1800.) Art. 5. The preceding articles shall apply only, first, to captures, of which the Council of Prizes shall have ordered restitution ; it being well understood that the claimant cannot have recourse to the United States, otherwise than he might have had to the government of the French Republic, and only in case of the insufficiency of the captors ; second, the debts mentioned in the said fifth article of the convention contracted before the 8th Vendemiaire, an 9, (30th September, 1800,) the pay- ment of which has heretofore been claimed of the actual government of France, and for which the creditors have a right to the protection of the United States ; the said fifth article does not comj^jrehend prizes whose condemnation has been or shall be confirmed. Art. 10. The rejection of any claim (by the American commissioners appointed under the convention to examine the claims) shall have II CHAP. IV.] TREATY OF PEACE. 615 the treaty of peace, by its silent operation, or express provisions, extinguishes his title for ever.^ no other effect than to exempt the United States from the payment of it • the French government reserving to itself the right to decide definitively on such claim, so far as it concerns itself." U. S. Statutes at Large, vol. viii. p. 212. It will be seen, by a reference to the two conventions, that the lantTua^e of the one of 1803 does not, in terms, describe the claims for which, after the abrofration of the second article, France remained liable to the United States, under the Treaty of 1800. The conjectural note, though not printed in the Statutes of the United States with the treaty to which it was annexed, will be found in Cono-. Doc. 19 Cong. 1st Sess. No. 102, at p. 760. It is principally composed of claims for supplies received by the French government, most of which were cases of contract, and for losses sustained at Bordeaux, in consequence of the embargo of 1 793, which latter are not embraced within the language of the fifth article of the Convention of 1800 ; though, as a right to an indemnity against a foreign State attaches to the property, and passes by cession, they may be included in the term " debts," as employed in the fourth article of that of 1803. See Peters's Rep. vol. i. p. 215. Comegys v. Vasse. The subject was involved in additional obscurity, by the reference in the preamble of the latter convention, in connection with the fifth article, to the second or abrogated article of the first convention. It would seem, from the contemporaneous correspondence, that many of the cases provided for, though included in the second article, were also within the scope of the fifth, and, therefore, not extinguished by the annulling of the former article. Mr. Livingston, in a letter of 17th April, 1802, to the Minister of Exterior Rela- tions, had said: — "The whole of the fifth article, taken together, amounts to an express stipulation to pay every debt due to individuals, except such as they might claim for indemnities for captures and condemnations, and must have been so construed, had the second article continued in the treaty. On its being erased, the fifth article stands alone as a promise to pay, with the single exception of indemnities for captures and confiscations." Ibid. p. 717. The difficulty of rendering the two conventions consistent with one another may well be conceded, after the following admission of one of the American Plenipo- tentiaries : — "Your instructions," says Mr. Livingston, 3d May, 1804, to the Secretary of State, " to negotiate a new explanatory treaty, proceeds upon the idea, that the convention does not include all the hond fide debts provided for by the Convention of Morfontaine, (30th September, 1800.) Whatever inaccuracy there may be in the expression, it was certainly the intention to make it co-exten- sive, except so far as to preclude foreigners and foreign property from its provi- sions. The first article shows clearly that this was the object of the treaty ; nor do I think that the subsequent words control, though they certainly somewhat obscure, the sense. The fact was, I had drawn the convention with particular 1 Grotius, de Jur. Bel. ac Pac. lib. ill. cap. 6, §§ 4, 5. Vattel, Droit des Gens, liv. ill. ch. 13, §§ 197, 198. Martens, Precis du Droit des Gens, liv. ili. ch. 4, § 282. Kluber, Droit des Gens Moderne de I'Europe, §§ 254-259. 616 TREATY OF PEACE. [PART IV. The restoration of the conquered territory to its original sove- reign, by the treaty of peace, carries with it the restoration of attention ; it did not exactly meet with Mr. Monroe's ideas, to whom the subject was new ; this produced some modifications, and these, again, which would have fully answered our purposes, were struck out by Mr. Marbois's wish to give a pre- ference to debts that had a certain degree of priority in the French bureau. The moment was critical ; the question of peace or war was in the balance, and it was important to come to a conclusion before either scale preponderated. I consi- dered the convention as a trifle, compared with the other great object ; and I was ready to take it under any form." Ibid. p. 817. As intimated in the preceding extract, Mr. Livingston had been directed, January 31, 1804, " to adjust with the French government a provision for comprehending, in the Convention of 1803, the claims still remaining under the Convention of 1800; and, should the Fi-ench government refuse to concur in any proposition that will restore the latitude given to claims, as defined by the first convention, and which is narrowed and obscured by the text of the last, it will be proper to settle with the government, if it can be done, such a construction of this text, as will be most favorable to all just claims," &c. Ibid. p. 800. This arrangement was declined ; the French Minister of Exterior Aflairs, in his note to Mr. Livingston, 6th September, 1804, declaring, that, " in adhering to the dispositions of the treaty, from which his Imperial Majesty will not deviate, any explanatory convention would be super- fluous ; and the intention of his Imperial Majesty is, to keep from all future questions an affair completely terminated. The Convention of the year 9, (1803,) foresaw the whole case; the whole of the American claims are to be placed to the account of the Federal Government ; a list of them has been made. The liquidation of the articles of which it is composed shall be decided before the rest ; if it does not reach the sum of twenty millions, other claims will be compre- hended therein, but none shall be which exceed this sum, because it is at this point that the two governments are agreed to stop." Ibid. p. 830. The following statement is from a work originally published by the French negotiator of the treaty, the Marquis de Marbois, in 1828 : — "The Convention of the 30th of September, 1800, had for its object the secur- ing of reciprocal satisfaction to the citizens of the two States, and the preventing, as far as possible, of any thing that could for the future alfect their good under- standing. AVe there find the principle, the wisdom and legality of which only one nation disputes, ' that free ships make free goods, although they are the pro- perty of an enemy.' " A special promise had been given to pay the debts arising from requisitions, seizures and captures of ships made in time of peace ; but the execution of the agreement had not followed the treaty. For two years and a half, the Minister of the United States had been reiterating his reclamations, and demanding in vain the reparation of these losses. The cession of Louisiana afforded the means of realizing promises that had been so long Illusory. The Americans consented to pay eighty millions of francs, on condition that twenty millions of this sum should be assigned to the payment of what was due by France to the citizens of the United States. CHAP. IV.] TREATY OF PEACE. 617 all persons and things which have been temporarily under the enemy's dominion, to their original state. This general rule is " The two (American) ministers fixed this condition of an indemnity at twenty- millions of francs, and they probably expected that they would be required to state the grounds of this estimate, in order that they might be discussed and a reduction effected. But no opposition was made, and it was instantly agreed that this amount should be deducted from that of the eighty millions. The intention of extinguishing all former claims was sincere on both sides. The round sum of twenty millions was evidently an estimate foi-med on reasonable conjecture, and could not be an absolute result established by documents. But the American negotiators agreed, that if there was any difference, the amount rather exceeded than fell short of the claims ; and the French Plenipotentiary gave assurances, that in no case should this excess be claimed by France. Thus the respective demands were easily agreed to. A mutual ft-ankness, which smoothed all the diffi- culties from which the most simple negotiations are not always exempt, was the only address employed by the ministers of either party." Marbois's History of Louisiana, translated by an American Citizen, p. 303. If any claims reserved by the Treaty of 1800, and not included in that of 1803, were still obligatory on France, they would have been embraced in the general terms of the Convention of the 4th of July, 1831, the first article of which declares, without any limit as to date, the object of the French government, in agreeing to pay the indemnity therein stipulated, to be, " to liberate itself completely from all the reclamations preferred against it by citizens of the United States, for unlawful seizures, captures, sequestrations, confiscations, or destruction of their vessels, car- goes, or other property." And as this fund was to be distributed by the American government " among those interested, in the manner and according to the rules which it shall determine," it rested with them to make the application. U. S. Sta- tutes at Large, vol. viii. p. 430. The language of the Act of July 13, 1832, is, that the Commissioners appointed under it are " to receive and examine all claims which are presented to them under the convention, which are provided for by the said convention, according to the provisions of the same, and the principles of jus- tice, equity, and the law of nations." Ibid. vol. Iv. p. 574. The statement of the Commissioners of the classes of cases allowed by them will show that no claims, pretermitted in the Convention of 1800 or existing at the conclusion of that of 1803, were admitted by them ; and they thought It necessary particularly to note the allowance of some claims " for property captured, after the signature and before the ratification of the Convention of 1803," because, they say, " that con- vention had limited the indemnity to cases arising before the 30th of September, 1803." Cong. Doc. Senate, 24 Cong. 1st Sess. No. 161. It has been contended, by those interested in claims supposed to have been omitted In the Treaty of 1800, that the circumstances connected wath the expunging of the second article, to which France had already acceded, had given them an equity, as against their own government; and two acts of Congress, providing for the ascertainment of claims of American citizens, for spoliations committed by France prior to the 31st of July, 1801, have been passed, though in both instances they failed to receive 52* 618 TREATY OF PEACE. [PART IV. applied, without exception, to real property or immovables. The title acquired in war to this species of property, until confirmed by a treaty of peace, confers a mere temporary right of posses- sion. The proprietary right cannot be transferred by the con- queror to a third party, so as to entitle him to claim against the former owner, on the restoration of the territory to the original sovereign. If, on the other hand, the conquered territory is ceded by the treaty of peace to the conqueror, such an intermediate transfer is thereby confirmed, and the title of the purchaser be- comes valid and complete. In respect to personal property or movables, a different rule is applied. The title of the enemy to things of this description is considered complete against the ori- ginal owner after tv/enty-four hours' possession, in respect to booty on land. The same rule was formerly considered applica- ble to captures at sea ; but the more modern usage of maritime nations requires a formal sentence of condemnation as prize of war, in order to preclude the right of the original owner to resti- tution on payment of salvage. But since the jus postliminii does not, strictly speaking, operate after the peace ; if the treaty of peace contains no express stipulation respecting captured pro- perty, it remains in the condition in which the treaty finds it, and is thus tacitly ceded to the actual possessor. The jus post- liminii is a right which belongs exclusively to a state of war; and therefore a transfer to a neutral, before the peace, even with- out a judicial sentence of condemnation, is valid, if there has been no recovery or recapture before the peace. The interven- tion of peace covers all defects of title, and vests a lawful pos- session in the neutral, in the same manner as it quiets the title of the hostile captor himself.^ § 5. From A treaty of peace binds the contracting parties from the^tieliTy of ^^^ time of its signature. Hostilities are to cease be- peacecom- twcen them from that time, unless some other period mences its ' r operation, be provided in the treaty itself. But the treaty binds the sanction of the President, or to obtain the constitutional majority to enact them, notwithstanding his objection. The first veto was interposed by President Polk, on 8th of August, 1846. Senate Journal, 29 Cong. 1st Sess. p. 514. The other was by President Pierce, on 17th February, 1855. Journal H. K. 33d Cong. 2d Sess.] 1 Vattel, liv. iii. ch. 14, §§ 209, 212, 21G. Robinson's Adm. Rep. vol. vi. p. 45. The Purissima Conception. Ibid. p. 138. The Sophia. CHAP. IV.] TREATY OF PEACE. 619 the subjects of the belligerent nations only from the time it is notified to them. Any intermediate acts of hostility committed by them before it was known, cannot be punished as criminal acts, though it is the duty of the State to make restitution of the property seized subsequently to the conclusion of the treaty; and, in order to avoid disputes respecting the consequences of such acts, it is usual to provide, in the treaty itself, the periods at which hostilities are to cease in different places. Grotius inti- mates- an opinion that individuals are not responsible, even civil- iter, for hostilities thus continued after the conclusion of peace, so long as they are ignorant of the fact, although it is the duty of the State to make restitution, wherever the property has not been actually lost or destroyed. But the better opinion seems to be, that wherever a capture takes place at sea, after the signa- ture of the treaty of peace, mere ignorance of the fact will not protect the captor from civil responsibility in damages ; and that, if he acted in good faith, his own government must protect him and save him harmless. When a place or country is exempted from hostility by articles of peace, it is the duty of the State to give its subjects timely notice of the fact; and it is bound in jus- tice to indemnify its officers and subjects who act in ignorance of the fact. In such a case it is the actual wrong-doer who is made responsible to the injured party, and not the superior commanding officer of the fleet, unless he be on the spot, and actually participating in the transaction. Nor will damages be decreed by the Prize Court, even against the actual wrong-doer, after a lapse of a great length of time.' When the treaty of peace contains an express stipulation that hostilities are to cease in a given place at a certain time, and a capture is made previous to the expiration of the period limited, but with a knowledge of the peace on the part of the captor, the capture is still invalid ; for since constructive knowledge of the peace, after the periods limited in the different parts of the world, renders the capture void, much more ought actual know- ledge of the peace to produce that effect. It may, however, be questionable whether any thing short of an official notification from his own government would be sufficient, in such a case, to 1 Robinson's Adm. Rep. vol. i. p. 121. The Mentor. 620 TREATY OF PEACE. [PART IV. affect the captor with the legal consequences of actual know- ledge. And where a capture of a British vessel was made by an American cruiser, before the period fixed for the cessation of hostilities by the Treaty of Ghent, in 1814, and in ignorance of the fact, — but the prize had not been carried infra prcesidia and condemned, and while at sea was recaptured by a British ship of war, after the period fixed for the cessation of hostilities, but without knowledge of the peace, — it was judicially determined, that the possession of the vessel by an American cruiser was a lawful possession, and that the British recaptor could not, after the peace, lawfully use force to divest this lawful possession. The restoration of peace put an end, from the time limited, to all force ; and then the general principle applied, that things acquired in war remain, as to title and possession, precisely as they stood when the peace took place. The uti possidetis is the basis of every treaty of peace, unless the contrary be expressly stipulated. Peace gives a final and perfect title to captures with- out condemnation, and as it forbids all force, it destroys all hope of recovery, as much as if the captured vessel was carried infra prcesidia and judicially condemned.^ § 6. In Things stipulated to be restored by the treaty, are to tlon things'' ^^ restored in the condition in which they were first taken are taken, unless there be an express provision to the con- stored, trary ; but this does not refer to alterations which have been the natural effect of time, or of the operations of war. A fortress or town is to be restored as it was when taken, so far as it still remains in that condition when the peace is concluded. There is no obligation to repair, as well as restore, a dismantled fortress or a ravaged territory. The peace extinguishes all claim for damages done in war, or arising from the operations of war. Things are to be restored in the condition in which the peace found them ; and to dismantle a fortification or waste a country after the conclusion of peace, and previously to the surrender, would be an act of perfidy. If the conqueror has repaired the fortifications, and reestablished the place in the state it was in 1 Valin, Traite des Prises, ch. 4, §§ 4, 5. Etnerigon, Trait6 d' Assurance, ch. 12, § 19. Merlin, Repertoire de Jurisprudence, torn. ix. tit. Prise Maritime, ^ 5. Kent's Comment. a'oI. i. p. 172, 5th ed. II CHAP. IV.] TREATY OF PEACE. 621 before the siege, he is bound to restore it in the same condition. But if he has constructed new works, he may demolish them ; and, in general, in order to avoid disputes, it is advisable to stipulate in the treaty precisely in what condition the places occupied by the enemy are to be restored.^ The violation of any one article of the treaty is a §7. Breach violation of the whole treaty ; for all the articles are treaty. dependent on each other, and one is to be deemed a condition of the other. A violation of any single article abrogates the whole treaty, if the injured party so elects to consider it. This may, however, be prevented by an express stipulation, that if one article be broken, the others shall nevertheless continue in full force. If the treaty is violated by one of the contracting parties, either by proceedings incompatible with its general spirit? or by a specific breach of any one of its articles, it becomes not absolutely void, but voidable at the election of the injured party. If he prefers not to come to a rupture, the treaty remains valid and obligatory. He may waive or remit the infraction commit- ted, or he may demand a just satisfaction. ^ Treaties of peace are to be interpreted by the same § 8. Dis- putcs rc- rules with other treaties. Disputes respecting their specting its meaning or alleged infraction may be adjusted by ami- adjusted.*^^ cable negotiation between the contracting parties, by the media- tion of friendly powers, or by reference to the arbitration of some one power selected by the parties. This latter office has recently been assumed, in several instances, by the five great powers of Europe, with the view of preventing the disturbance of the gene- ral peace, by a partial infraction of the territorial arrangements stipulated by the treaties of Vienna, in consequence of the inter- nal revolutions which have taken place in some of the States constituted by those treaties. Such are the protocols of the con- ference of London, by which a suspension of hostilities between Holland and Belgium was enforced, and terms of separation 1 Vattel, Droit des Gens, liv. iv. ch. 3, § 31. 2 Grotius, de Jur. Bel. ac Pac. lib. ii. cap. 15, § 15 ; lib. iii. cap. 19, § 14. Vattel, liv. iv. ch. 4, §§ 47, 48, 54. 622 TREATY OP PEACE. [PART IV. between the two countries proposed, which, when accepted by both, became the basis of a permanent peace. The objections to this species of interference, and the difficulty of reconciling it with the independence of the smaller powers, are obvious ; but it is clearly distinguishable from that general right of superin- tendence over the internal affairs of other States, asserted by the powers who were the original parties to the Holy Alliance, for the purpose of preventing changes in the municipal constitutions not proceeding from the voluntary concession of the reigning sovereign, or supposed in their consequences, immediate or remote, to threaten the social order of Europe. The proceedings of the conference treated the revolution, by which the union between Holland and Belgium, established by the Congress of Vienna, had been dissolved, as an irrevocable event ; and con- firmed the independence, neutrality, and state of territorial pos- session of Belgium, upon the conditions contained in the Treaty of the 15th November, 1831, between the five powers and that kingdom, subject to such modifications as might ultimately be the result of direct negotiations between Holland and Belgium.^ ^ Wheaton's Hist. Law of Nations, pp. 538-555. I APPENDIX. APPENDIX, NO. I. ADDITIONAL NOTE ON NATURALIZATION, BY THE EDITOR.^ [By the Constitution of the United States, Congress have power to establish a uniform rule of naturalization ; and this power is recognized by the Supreme Court, as being exclusive of that of the individual States. Kent's Commentaries, vol. i. p. 424:. Wheaton's Rep. vol. ii. p. 269, Chirac v. Chirac. Ibid. vol. v. p. 49, Houston V. Moore. The following is the substance of the laws passed by Con- gress in pursuance of this provision of the Constitution : — By the act of March 26, 1790, it is provided that any free white alien, who had resided two years within the United States, may become a citizen on application to any court of record of the State where he had resided one year, making proof to the satisfaction of the Court that he is a person of good character, and taking the oath or afSrmation prescribed by law, to support the Constitution of the United States ; and the minor children of such persons so naturalized, and the children of citizens that may be out of the United States, were to be considered citizens. This act requires no abjuration of former allegiance. United States Statutes at Large, vol. i. p. 103. The act of January 29, 1795, requires a preliminary decla- ration of intention to become a citizen, and to renounce all foreign allegiance, particularly to the Prince or State of whom the applicant was a subject or citizen, three years before admission, and a residence, at the time of admission, of five years ■within the United States, and of one year within the State. This act also requires that the alien should renounce any title of nobility, and that the Court admitting him should be satisfied of his good moral character, that he was attached to the principles of the Constitution, and well disposed to the good order and happiness of the same. The aliens, then, residing in the United States, might become citizens on a residence of two years, one of which was in the State where apply- ing, according to the law previously in ibrce, and on complying with the other requirements of the new act. There are the same provisions as before, as to the minor children of naturalized citizens, and the children of citizens born abroad. Ibid. p. 414. By the act of June 18, 1798, no alien could become a citizen, unless he had declared his intention five years before his admission, and proved a resi- dence of fourteen years in the United States, and five years in the State where 1 See Part II. c. 2, § 5, p. 122, also Introductory Remarks, p. cxvi. 53 626 APPENDIX. he applied. This law contains a saving in favor of those who became residents durin" the operation of the previous laws, and who were still to be admitted according to the terms required by them. No alien, a subject or citizen of a State at war with the United States at the time of his application, could be admitted to become a citizen. The declaration, renunciations, and proofs of the former act are retained. Ibid. p. 5G6. By the^ct of April 14, 1802, and which is the law now applicable in ordinary cases, a free white person may become a citizen, by declaring, three years before his admission, his intention ; and on the Court beinof satisfied that he has resided, at the time of his admission, five years in the United States, and one year in the State where the Court sits, and complied with the other conditions of abjuration, &c., which are the same as prescribed in the act of 1795. Minor children, whose parents had been naturalized citizens, and children of citizens that had been born out of the United States, were not to be deemed aliens. Ibid. vol. ii. p. 153. By the 12th section of the act of March 3, 1813, " for the regulation of seamen on board the public and private vessels of the United States," five years continuous residence was required for naturalization. Ibid. p. 811. But this provision was repealed, June 26, 1848. Ibid. vol. ix. p. 240. By the act of May 26, 1824, minors, who shall have resided in the United States three years next before they are twenty-one years of age, after a residence of five years, including the three years of minority, may, without having made the pre- vious declaration, be admitted by taking the oath of abjuration, &c., as in other cases. Ibid. vol. iv. p. 69. And, to meet a supposed defect in the act of 1802, by the act of February 10, 1855, persons heretofore born or hereafter to be born out of the United States, whose fathers were, or shall be, at the time of their birth, citizens of the United States, shall be deemed citizens, but the rights of citizenship shall not descend to persons, whose fathers never resided in the United States ; and a woman, who might be naturalized under existing laws, who is married, or who shall be married, to a citizen, shall be deemed a citizen. It will be perceived, by comparing the provisions of these naturalization laws with those of the principal countries of Europe, that our requirements are more severe than theirs ; while, with us, not only is an oath of allegiance to the United States required, but what is omitted in the naturalization law of England, and of many other countries, an abjuration of all other princes and States, and espe- cially of the one of which the applicant was a subject or citizen, is necessary. The following decisions under these statutes have been rendered by the Supreme Court of the United States, viz. : — The various acts on the subject of natural- ization submit the decision upon the right of aliens to courts of record. They are to receive testimony ; to compare it with the law ; and to judge both on the law and the fact. If their judgment is entered on record in legal form, it closes all inquiry, and like other judgments, is complete evidence of its own validity. Peter's Rep. vol. iv. p. 393, Spratt i'. Spratt. It need not appear by the record of naturalization that all the requisites prescribed by law for the admission of aliens to the right of citizenship have been complied with. Cranch's Rep. vol. vii. p. 420, Starke v. The Chesapeake Insurance Company. A certificate by a com- petent court that an alien has taken the oath prescribed by the act respecting naturalization, raises the presumption that the Court was satisfied as to the moral character of the alien, and of his attachment to the principles of the Constitution of the United States. The oath, when taken, confers the right of a citizen. It II APPENDIX. 627 is not necessary that there should be an order of court admitting the applicant to be a citizen. Cranch's Rep. vol. vi. p. 176, Campbell v. Gordon. There have been, also, several cases of collective naturalization. By the third article of the first convention of April 30, 1800, with France, for the cession of Louisiana, it is provided that the inhabitants of the ceded territory shall be incor- porated into the Union of the United States, and admitted, as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States. Ibid. vol. viii. p. 202. A provision to the same effect is to be found in the Gth article of the treaty of 1819, with Spain, for the purchase of the Floridas. Ibid. p. 256. By the 8th article of the treaty of 1848, with Mexico, those Mexicans who remained in the territories ceded, and who did not declare their intention, within one year, to continue Mexican citizens, were to be deemed citizens of the United States. Ibid. vol. ix. p. 930. By the annexation of Texas, under a resolution of Congress, and its admission into the Union on an equal footing with the original States, all the citizens of the former Republic became citizens of the United States. Ibid. vol. v. p. 798 ; vol. ix. p. 108. According to the constitutional jurists of Europe the right of voting, or of being eligible as an elector, is the test of citizenship, or of the droit de cit6, and it is, as it will hereafter appear, so recognized by the law of France. Mr. TLorbeck, the learned publicist of Holland, says, in a discourse, entitled " des Droits du citoyen d'aujourdhui," which was translated for the Review of Mr. Foclix : " Ce qui constitue le caractere distinctif de notre epoque, c'est le d^veloppement du droit de cit6. Dans I'esception la plus large comme dans le sens le plus restreint, ce droit comprend un grand nombre de facult6s. Le droit de cite est le droit de voter dans le gouvernementde la commune locale, provinciale on nationale dont on est membre. Dans ce dernier sens, le droit de cite signifie participation au droit de vote dans le gouvernement general, comme membre de I'etat. La reconnoissance de la qualite de citoyen comme un droit des membres de I'etat dont le droit actuel de representation du peuple n'est qu' une application, voila la grande question et la cause du mouvement de notre epoque formaliste." Rev. Etr. et Fr. torn. v. p. 383. But though the power of naturalization be nominally exclusive in the federal government, its operation, in the most important respects, has been made to depend on the action of the individual States, through their constitutions and local laws. The right of suing in the United States courts, in controversies with citizens of other States, is one in which the naturalized citizens only participate with foreigners ; while the provisions for common citizenship, intended to be se- cured throughout the Union, are jeoparded by the comprehensive operation given to the police regulations of the several States. The right of holding real estate is not necessarily connected with citizenship ; and in France and other countries of Europe it is possessed by foreigners without naturalization, a privi- lege which has, also, in the United States, been accorded by treaty stipulations to citizens of other countries. And in those States which by their general laws exclude aliens, special acts are habitually passed for the benefit of individuals, or the right is granted to all, on condition of their complying with certain formalities. The great distinctive characteristic of naturalization, of the droit de cit^, the right of voting, of exercising the elective franchise on an equality with native citizens, and without the value of the privilege being diminished by its' being shared with 628 APPENDIX. aliens, is practically controlled by the varying constitutions and laws of the several States. The qualifications for voters, even in elections under its provisions, are not prescribed in the Constitution of the United States. Citizenship, however, at the time of the adoption of the Federal Constitution, was, under the State Constitu- tions then in force, universally a requisite for the electors of the State legislatures, •who are, cither directly or through these legislatures, made the electors of the two houses of Congress; while the equality with native citizens of all citizens then naturalized was affirmed, in the provision in reference to the Presidency, by which citizens, at the adoption of the Constitution, were excepted from the exclu- sion applied, in the case of that office, to those that might thereafter be admitted. It might then well have been inferred that, by making the qualifications of electors as to the term of residence, property, payment of taxes, &c., vary in tbe different States, for which^ looking to the diversity in the population of the several sections of the Union, there might have been very good reasons, neither the exclusive right of naturalization by Congress nor the full effect of the exercise of that power would be endangered. By the Constitution of the United States, it is provided, that the electors for the House of Representatives in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature, (Art. 1, § 2;) that the Senate shall be composed of two senators from each State chosen by the Legislature thereof, § 3 ; and that each State shall appoint, in such manner as the Legislature thereof may direct, a number of electors equal to the whole num- ber of senators and representatives, to which the State may be entitled In the Congress. Art. 2, § 1. It hence follows, that if the Individual States can dis- franchise naturalized citizens, (and if they can superadd requirements from them not demanded of natives, It Is obvious that they may exclude them altogether from voting,) or if they can admit to the elective franchise those who are not citizens, thereby neutralizing the votes of citizens, not only the federal power over naturalization becomes a nullity, but a minority of actual citizens, by the aid of aliens, may control the government of the States, and, through the States, the government of the Union. By the Constitution of Rhode Island, Art. 2, § 2, a discrimination Is made In the exercise of the elective franchise, between native and naturalized citizens, only the latter being required to have a freehold ; while by the Constitution of Illinois, Art. 2, § 27, It Is provided that "in all elections, all white male Inhabitants above the age of twenty-one years, having resided In the State six months next preceding the election, shall enjoy the right of an elector." In some of the States, the free people of Afi'Ican descent, though they are excluded from the provisions of the naturalization law of Congress, nowhere enjoy, in all respects, equal civil or political privileges with the whites, and have been, by several judicial decisions, declared not to be citizens within the meaning of the Constitution of the United States, are admitted to the elective franchise, either on equal terms with the whites, or, as In New York, on a freehold qualification, acording to the rule Imposed In Rhode Island, in reference to naturalized citizens. See inter al. opinion of Daggett, C. J. of Connecticut, 1833. Meigs's Rep. vol. I. p. 333, State V. Clairbone ; Mitchill v. Lamar, in the U. S. C. C. for Ohio. Opinions of Attorneys-General of U. S. vol. I. p. 382. The power of naturalization Is confer- red by the act of Congress on Courts of Record, including those of the several APPENDIX. 629 States. It has been made a question how far, even if not repugnant to the Fede- ral Constitution, it be expedient to employ functionaries responsible only to the State Governments for carrying into effect any of the powers confided to that of the United States. One of the States, (Rhode Island,) has (1855) forbidden its courts from performing any of the duties connected with the naturalization of aliens; and there, of course, they must devolve exclusively on the courts of the Union. Since the act of Parliament, of 1844, 7 and 8 Vict. c. 66, cited Part II. c. 2, § 6, p. 122, note a, in every country in Europe the executive branch of the government possesses the power of naturalization. Before the passage of that statute, not only were special acts of Parliament ordinarily required in each case of naturalization, but, owing to a provision originating In the Act of Settlement, of 12 William III. c. 3, and reenacted 1 Geo. I. c. 4, no naturalization bill could be presented to either house of Parliament, unless it contained a clause declaring that the petitioner should be incapable of filling any public office whatever, or of sit- ting in Parliament, or in the Privy Council. It was, however, sufficient, in order to meet the requirements of the statute that the clause should have been origin- ally inserted, and it might have been subsequently struck out ; though in the natu- ralization of foreign princes and princesses, it was usual, previously, to pass a law specially suspending the operation of the clause. Thus, in the naturalization of Prince Albert, the consort of the present queen, no restrictions Avere imposed, and he was only required to take the oaths of allegiance and supremacy. By the act of 7 Anne, c. 5, all foreign Protestants might have been naturalized ; but this act was repealed by 10 Anne, c. 5, except as regards the children of English parents born abroad. That statute, however, as well as the old one of 25 Ed. 3, required both father and mother to be subjects; but by the act of 4 Geo. c. 2, ch. 21, it is only necessary that the father should be a natural-born subject. Naturalization was also accorded by the king's proclamation, with the restrictions as to holding office contained in the cases passed on by Parliament, to those who had served, in time of war, two years on board a king's ship, and under certain provisions to those engaged in the whale fishery. By the above act of 7 & 8 Vict. ch. 66, the provisions in previous acts requiring that " no person shall be thereafter naturalized, unless in the bill exhibited for that purpose, there shall be a clause or particular words inserted to declare that such per- son shall not thereby be enabled to be of the Prlv}- Council or a member of either House of Parliament, or to take any office, either civil or military, or to have any grant of lands, tenements, or hereditaments, from the crown, to himself or any other person in trust for him, and that no bill of naturalization shair"^hereafter be received in either House of Parliament, unless such clause or words be first inserted," were repealed. That act further provided that every person born of a British mother may hold real or personal estate; that alien friends may hold every species of personal property, except chattels real ; that subjects of a friendly State may hold lands, &c., for the purpose of residence, &c., for twenty-one years ; that aliens may become naturalized, upon obtaining a certificate, as hereinafter mentioned, and taking the I)rescribed oath, to disclose conspiracies against the crown, to defend the succes- sion to the crown, as limited to the house of Hanover, and renouncing alle- giance unto any other person claiming or pretending a right to the crown of the British realm ; but the oath does not contain any abjuration, by the new subjects, 53* 630 APPENDIX. of their original sovereign or country. The certificate is to be obtained on pre- senting a memorial to the Secretary of State, for the Home Department, and it may give all the rights and capacities of a natural-born citizen, except those of being a member of the Privy Council, or of either House of Parliament. The act also declares, that all who have been naturalized before the act was passed, and ■who have resided during five consecutive years in the United Kingdom, shall enjoy all the rights, as conferred on aliens by that statute ; that women married to natu- ral-born subjects are to be deemed naturalized. For sitting in Parliament or the Privy Council the assent of the Queen and the two Houses of Parliament is neces- sary ; but it was remarked by Lord Brougham, at the time of the passage of this act, that that consent would never be refused, except for good and sufficient rea- sons ; whereas, under the old legislation, a special law must have preliminarily suspended the efl^ect of the prohibitory clause contained in the Act of Settlement, or the bill of naturalization must have been thus amended, after its introduction. In the Colonies, even during the restrictions on naturalization in England, there were always greater or less facilities accorded. Before our Revolution, all foreign Protestants and Jews, upon their residing seven years in the American colonies, were naturalized as if born in the United Kingdom, with the exception of holding offices ; and that even more liberal enactments were not made was, in the decla- ration of American Independence, assigned as one of the grounds of separation. It it is there stated, as a subject of complaint against the King of Great Britain, that "he has endeavored to prevent the population of these States; for that pur- pose obstructing the laws for naturalization of foreigners ; refusing to pass others to encourage their migrations hither, and raising the conditions of new appropria- tions of lands." By the act of July 27, 1847, (10 and 11 Vict. c. 83,) " all acts, statutes, and ordi- nances heretofore made and enacted by the legislatures of any of Her Majesty's colonies and possessions abroad, for imparting to any person or persons the pri- vileges or any of the privileges of naturahzation, to be by such person or persons exercised or enjoyed within the respective limits of such colonies respect- ively, shall, within such limits, have, and be taken, and reputed to have had, from the time of the enactment thereof respectively, all such and the same force and elTect, as doth by law belong to any other law, statute, or ordinance, made or enacted by any such respective legislatures." All laws hereafter to be made by the local legislatures are to have the like effect, but to be subject to allowance or disallowance by Her Majesty. In France, there has always been a distinction, since naturalization was made a subject of legislation, between the character of a Frenchman, enjoying merely civil rights, and those of a citizen, the attributes of whose character were the possession of political rights. The Code Civil says, liv. i. tit. i, ^ 7 ; " The exer- cise of civil rights is independent of the quality of citizen, which is only acquired and preserved in conformity with the constitutional law." § 8. Every Frenchman shall enjoy civil rights. The code regards as a Frenchman every person born in France, who, within a year after his majority declares his intention to claim the quality of a Frenchman, by complying with the provisions as to residence, and also every child of a Frenchman born in a foreign country, A foreign woman, who marries a Frenchman, follows the condition of her husband. And Pailliet says, writing under the charter of Louis XVIII., " Les droits de citoyen, ou autre- APPENDIX. 631 ment les droits politiques ou de cite consistent dans Taction que la charte accorde aux Francois qui ont la qualite de citoyen, pour concourir, par leurs votes, a la formation de la chanibre des deputes et y etre ^ligibles. . . Tout Francois ne jouit pas des droits politiques ou de cite ; pour en jouir, il ne suffit pas d'etre Francois, il faut encore etre citoyen." Manuel de Droit Fran(;ois, p. 9. From 1789 to 1800 various laws were passed in reference to naturalization, the general purport of which was to accord the civil rights of a Frenchman to every resident, and the political rights to those of them who would take the civic oath, though by some of the constitutions the right of citizenship was accorded without the oath, and in others it was required that persons born foreigners should have manned a Frenchwoman, acquired real estate, or performed meritorious ser- vices; and in the latter constitutions, a residence in France, more or less extended, was superadded. Among the provisions as to naturalization, adopted during this period, was the law of 9-15 December, 1790, which is still in force, and by which the descendants of persons expatriated on account of their religion, however remote the emigration of their ancestors, are declared Frenchmen, and placed as to political rights, in all respects. In the same category as native-born citizens. Such was the decision of the Chamber of Deputies in 1824 and 1828, on occa- sion of Benjamin Constant, Roman, and Odier. The constitutional law, referred to in the 7tli section of the Code Civil, is the third article of the Constitution of 22 Frimaire an 8, (13 December, 1799,) by which a foreigner, of the age of twenty-one, who has declared his Intention to reside in France, may become, after a residence of ten years, a French citizen. This right is also granted by special decree, without requiring the above delay, for meritorious services or the Introduction of valuable improvements, &c. Another mode of naturalization, in France, was, by the annexation of territory, the retrocession of which, in 1814, has given rise to very grave questions. Several of the decrees of annexation declared the inhabitants of the countries to be French native citizens (citoyens Francois nes.) Foslix's opinion Is, that the result would have been the same. If there had been no such declaration, and his remarks equally apply to the additions which have been, from time to time, made to the ter- ritory of the United States, to which we have referred, as cases of collective natu- ralization. " The naturalization of the Inhabitants," says he, " is, as it seems to us, the immediate consequence of every annexation of territories, according to the existing European law of nations; and since it Is no longer the custom, even after the conquest of a country, to reduce its Inhabitants to a condition inferior to that of the country of the conqueror." Pothler thus lays down the principle : "When a province is united to the crown, its inhabitants must be regarded as native Frenchmen, whether they are born before or after the union." This author adds : " There is even reason to think that the foreigners, who are established in these provinces and who have there obtained, according to the laws in force, the rights of citizenship, must, after the annexation, be considered citizens, equally with the native inhabitants of those provinces, or, at least, with foreigners natu- ralized in France." Mr. Heffter's language is to the same effect. lie regards as citizens or subjects, according to the law of nations, all those who are domi- ciled in a territory, that is to say, all who have a fixed residence there, whe- ther they are natives or have emigrated ; secondly, their wives ; tliirdly, the children, or other legitimate descendants of a father who is a native of the coun- try, or the natural children of a woman who is a native, even if they are born 632 APPENDIX. abroad, provided those children have not elsewhere established a legal domicile ■with the consent of their parents. In other words, the dominion of a territory car- ries with it the subjection of the native inhabitants of that territory, or of those ■who have their residence there, either in fiict or in law, as well as of all their descendants." There is no example of a law which declares a class of persons to be deprived of their quality of citizens or Frenchmen. But such has been the result of treaties. As their consequence, or, at least, from the exchange of ratifications, the inhabit- ants of the ceded or separated provinces have ceased to be Frenchmen, and have become citizens of the country with which the territory where they resided has been incorporated. This change of nationality has been effected by the sole force of the treaties, at the moment of their conclusion or ratification. The treaties of 1814 and 1815 allowed a term of years in which the inhabitants of the ceded territory might decide whether to remain in the country or to quit it with their property. Many different questions have grown out of this provision as to the nationality of these inhabitants during the intervening period. Fcelix, Naturalisation Collection ; Perte Collective de la Qualite de Fran9ois ; Rev. Etr. et Fr. N. S. torn. ii. p. 340. In the States of the Germanic Confederacy, no German can be treated as an alien. Enclop. Amer. Alien, 175. In Naples, naturalization is conferred for ser- vices after one year, and in other cases, after a residence varying, according to circumstances, from five to ten years. Martens, Kecueil des Traites Sup. tom. ix. p. 174. In the Austrian dominions the stranger acquires rights of citizenship by being employed as a public functionary. The superior administrative authorities have the power of conferring these rights upon an individual, who has been previously authorized, after ten years residence within the empire, to exercise a profession. Mere admission into the military service does not bring with it naturalization. The wife of an Austrian citizen acquires citizenship by her marriage. In Prussia, the stranger acquires the right of citizenship by his nomination to a public office ; and by a recent law (1842) the superior administrative authorities are empowered to naturalize, with certain exceptions, any stranger who satisfies them as to his good conduct and means of existence. The wife of a Prussian citizen, also, acquires citizenship by her marriage. In Bavaria, by the law of 1818, the jura indigenalus are acquired in three ways : 1. By the marriage of a foreign woman with a native. 2. By a domicile taken up by a stranger in the kingdom, who at the same time gives proof of his freedom from personal subjection to any foreign State. 3. By royal decree. In the kingdom of the Netherlands, the power of conferring naturalization rests with the cro-R'n, by the 9th and 10th articles of the Fundamental Law of 1815. In Russia, naturalization is acquired by taking an oath of allegiance to the Em- peror ; but naturalized strangers may, at any time, renounce their naturalization and return to their country. Phillimore on International Law, vol. i. p. 352. Though England admits foreignei-s to the rights of British subjects, she does not allow of the expatriation of her native subjects ; nor does she require, on natural- ization, a renunciation by aliens of their allegiance to their former government. But whatever the embarrassment of a double allegiance to the individual, that does not affect, as has been elsewhere explained, the validity of the naturalization, with reference to the adopted country. APPENDIX. 633 The naturalization law of the United States proceeds on the principle, that every individual has a right to change his allegiance, and such has been the lan- guage of our diplomatic communications, in accordance with the doctrine of the publicists, that whenever a child attains his majority, according to the law of his domicile of origin, he becomes free to choose his nationality ; but the Supreme Court, while recognizing, in common with the Admiralty tribunals of England, a change of domicile for commercial purposes, have not admitted the distinct right of expatriation, independently of an act of Congress to authorize it. On this point. Chancellor Kent remarks : " From an historical review of the principal dis- cussions in the Federal Courts, the better opinion would seem to be, that a citizen cannot renounce his allegiance to the United States, without the permission of government, to be declared by law; and that as there is no existing legis- lative regulation on the case, the rule of the English common law remains unaltered." He adds : " The naturalization laws of the United States are, how- ever, inconsistent with this general doctrine ; for they require the alien who is to be naturalized to abjure his former allegiance, without requiring any evidence that his native sovereign has released it." Kent's Comm. vol. ii. p. 49. The French code prescribes, liv, i. t. i. c. 2, § 1 7, that the quality of French- men is lost : 1st. By naturalization in a foreign country. 2d. By the acceptance of office from a foreign government, without the permission of the State. And 3d. By fixing his residence abroad without the intention of returning. By the 18th sec- tion, however, it is provided that it may be at any time recovered, on due appli- cation to the government, on a Frenchman's returning to France,, and renouncing the foreign functions, and his child may also obtain the right, by complying with the terms prescribed in other cases. In Austria, emigration is not permitted without the consent of the proper authorities; but the emigrant who has obtained permission, and who quits the empire, sine animo revertendi forfeits the privileges of an Austrian citizen. A case of emigration by consent was that of the Lombards, who, in consequence of political events, obtained permission to leave the Austrian territories, in order to become naturalized in Sardinia, and the subsequent confiscation of whose pro- perty in Lombardy, in 1853, was made a subject of interposition by the government of Great Britain with that of Austria. The decree of the Emperor of Austria, of 1832, as to unlawful emigrants, who lose all their civil and political rights at home, and which was the case of the Hungarians, who escaped after the events of 1848-9, is noticed in Mr. Marcy's note to Mr. Hulsemann, respecting Koszta, heretofore cited. The same rule applies in Prussia as in Austria with regard to emigration. In Bavaria, citizenship is lost: — 1st. By the acquisition, without the special permission of the king, of the jus indicjenatus, in another country. 2d. By emigration. 3d. By the marriage of a Bavarian woman with a foreigner. In . Wurtemburg, citizenship is lost by emigration, authorized by the govern- ment, or by the acceptance of a public office in another State. Phillimore on International Law, ut supra. In Russia, the quality of a subject is lost by a residence abroad ; by voluntary expatriation, without the intention of return ; by disappearance. Every individual subject to the capitation ta.x is considered to have disappeared who, during ten years, has not been heard of in the place of his domicile. Rev. Etr. et Fr. torn. iii. p. 267.] . ! APPENDIX, IN^O. II AN ACT TO REMODEL THE DIPLOMATIC AND CONSULAR SYSTEMS OF THE UNITED STATES.! Be it enacted ly the Senate and House of Representatives of the United States of America, in Congress assembled, That from and after' the thirtieth day of June next,2 the President of the United States shall, by and with the advice and con- sent of the Senate, appoint representatives of the grade of Envoys Extraordi- nary and Ministers Plenipotentiary to the following countries, who shall receive an annual compensation for their services not exceeding the amount specified herein for each : Great Britain, seventeen thousand five hundred dollars ; France, fifteen thou- sand dollars ; Spain, twelve thousand dollars ; Russia, twelve thousand dollars ; Austria, twelve thousand dollars ; Prussia, twelve thousand dollars ; Switzerland, seven thousand five hundred dollars ; Rome, seven thousand five hundred dol- lars ; Naples, seven thousand five hundred dollars ; Sardinia, seven thousand five hundred dollars ; Belgium, seven thousand five hundred dollars ; Holland, seven thousand five hundred dollars ; Portugal, seven thousand five hundred dollars ; Denmark, seven thousand five hundred dollars ; Sweden, seven thousand five hundred dollars; Turkey, nine thousand dollars ; China, fifteen thousand dollars; Brazil, twelve thousand dollars ; Peru, ten thousand dollars ; Chili, nine thousand dollars ; Argentine Republic, seven thousand five hundred dollars ; New Gra- nada, seven thousand five hundred dollars ; Bolivia, seven thousand five hundred dollars ; Ecuador, seven thousand five hundred dollars ; Venezuela, seven thou- sand five hundred dollars ; Guatemala, seven thousand five hundred dollars ; Nicaragua, seven thousand five hundred dollars ; Mexico, twelve thousand dollars. 1 See Part III. ch. 1, § 6, p. 277. Introductory Remarks, p. clviii. 2 By the third section of the Civil and Diplomatic Appropriation Act, passed March 3, 1855, it was enacted, that the salaries to which Envoys Extraordinary and Jlinisters Pleni- potentiary shall be entitled, on the 1st July, 1855, may be allowed to such as may be in office on that day, without reappointment, nor shall such Envoys Extraordinary and Minis- ters Plenipotentiary be required to take with them Secretaries of Legation, unless they should be allowed by the President of the United States. APPENDIX. 635 Sec. 2. A7id he itfurthei- enacted, That from and after the thirtieth day of June next, the President of the United States shall, by and with the advice and con- sent of the Senate, appoint Secretaries of Legation to the following countries, who shall receive an annual compensation for their services not exceedin"- the amount specified herein for each : Great Britain, twenty-five hundred dollars ; France, twenty-two hundred and fifty dollars ; Spain, twenty-two hundred and fifty dollars ; Russia, two thousand dollars ; Austria, two thousand dollars ; Prussia, two thousand dollars ; Switzer- land, fifteen hundred dollars ; Rome, fifteen hundred dollars ; Naples, fifteen hundred dollars ; Sardinia, fifteen hundred dollars ; Belgium, fifteen hundred dollars ; Holland, fifteen hundred dollars ; Portugal, fifteen hundred dollars '; Denmark, fifteen hundred dollars ; Sweden, fifteen hundred dollars ; Brazil, two thousand dollars ; Peru, two thousand dollars ; Chili, fifteen hundred dollars ; Argentine Republic, fifteen hundred dollars : New Granada, fifteen hundred dollars ; Bolivia, fifteen hundred dollars ; Ecuador, fifteen hundred dollars ; Vene- zuela, fifteen hundred dollars ; Guatemala, fifteen hundred dollars ; Nicaragua, fifteen hundred dollars ; Mexico, two thousand dollars. Sec. 3. And be it further enacted, That from and after the thirtieth day of June next, the President of the United States shall, by and with the advice and con- sent of the Senate, appoint a Commissioner to the Sandwich Islands, who shall receive an annual compensation for his services of six thousand dollars ; an Inter- preter to the mission to China, who shall receive for his services two thousand five hundred dollars per annum : and a Dragoman to the mission to Turkey, who shall receive for his services twenty-five hundred dollars per annum. Sec. 4. And he it further enacted, That from and after the thirtieth day of June next, the President of the United States shall, by and with the advice and con- sent of the Senate, appoint Consuls for the United States, to reside at the follow- ing places, who shall receive, during their continuance in office, an annual com- pensation for their services, not exceeding the amount specified herein for each, and who shall not be permitted to transact, under the penalty of being recalled and fined in a sum not less than two thousand dollars, business either in their own name or through the agency of others : Great Britain. — London, seven thousand five hundred dollars ; Liverpool, seven thousand five hundred dollars ; Glasgow, four thousand dollars ; Dundee, two thousand dollars; Newcastle, fifteen hundred dollars; Leeds, fifteen hundred dollars ; Belfast, two thousand dollars ; Hong-Kong, three thousand dollars ; Calcutta, three thousand five hundred dollars ; Halifax, two thousand dollars ; Melbourne, four thousand dollars ; Nassau, two thousand dollars ; Kingston, (Jamaica,) two thousand dollars. Holland. — Rotterdam, two thousand dollars ; Amsterdam, one thousand dol- lars. Prussia. — Aix-la-Chapelle, twenty-five hundred dollars. France. — Paris, five thousand dollars ; Havre, five thousand dollars ; Mar- seilles, two thousand five hundred dollars ; Bordeaux, two thousand dollars ; Lyons, one thousand dollars ; La Rochelle, one thousand dollars ; Nantes, one thousand dollars. Spain. — Cadiz, fifteen hundred dollars ; Malaga, fifteen hundred dollars ; St. Jago de Cuba, two thousand dollars ; Matanzas, three thousand dollars ; St. Johns, 636 APPENDIX. (P. R.) two thousand dollars; Trinidad de Cuba, tliree thousand dollars ; Ponce, (P. R.) fifteen hundred dollars ; Havana, six thousand dollars. Porlucjal. — Lisbon, fifteen hundred dollars; Funchal, fifteen hundred dol- lars. Belfjhnn. — Antwerp, two thousand five hundred dollars. Russia. — St. Petersburg, two thousand five hundred dollars. Denmark. — St. Thomas, four thousand dollars ; Elsineur, fifteen hundred dollars. Austria. — Trieste, two thousand dollars ; Vienna, one thousand dollars. Saxony. — Leipsic, fifteen hundred dollars. Bavaria. — Munich, one thousand dollars. ^ Hanseatic and Free Cities. — Bremen, two thousand dollars; Hamburgh, two thousand dollars. Franlforl-on-the-Maine — Including the Grand Duchy of Hesse-Darmstadt, the Electorate of Hesse-Cassel, the Duchy of Nassau, and the Landgraviate of Hesse- Hombourg, two thousand dollars. Wurtemhurcj. — Stuttgardt, one thousand dollars. Baden. — Carlsrue, one thousand dollars. Switzerland. — Basle, fifteen hundred dollars ; Zurich, fifteen hundred dollars ; Geneva, fifteen hundred dollars. Sardinia. — Genoa, one thousand five hundred dollars. Tuscany. — Leghorn, fifteen hundred dollars. Kingdom of the Ttvo Sicilies. — Naples, fifteen hundred dollars ; Palermo, fifteen hundred dollars; Messina, one thousand dollars. Turkish Dominions. — Constantinople, two thousand five hundred dollars ; Smyrna, two thousand dollars ; Beirut, two thousand dollars ; Jerusalem, one thousand dollars ; Alexandria, three thousand five hundred dollars. Barhary States. — Tangiers, two thousand five hundred dollars; Tripoli, two thousand five hundred dollars ; Tunis, two thousand five hundred dollars. China. — Canton, three thousand dollars ; Shanghai, three thousand dollars ; Amoy, twenty-five hundred dollars ; Fouchow, two thousand five hundred dol- lars ; Ningpo, two thousand five hundred dollars. Japan. — Simoda,i dollars ; Hakodadi, dollars. Borneo. — Bruni, dollars. Sandwich Island^. — Honolulu, four thousand dollars. Hayti — Port-au-Prince, two thousand dollars; City of St. Domingo, fifteen hundred dollars. Mexico. — Vera Cruz, three thousand five hundred dollars ; Acapulco, two thousand dollars. Central America. — San Juan del Norte, two thousand dollars ; San Juan del Sur, two thousand dollars. New Granada. — Panama, three thousand five hundred dollars ; Aspinwall, two thousand five hundred dollars. Venezuela. — Laguayra, fifteen hundred dollars. 1 An appropriation has been made for the salary, at the rate of five thousand dollars per annum, of a Cousul-General to Japan, to reside at Simoda. APPENDIX. 637 Brazil. — Rio de Janeiro, six thousand dollars ; Pernambuco, two thousand dollars. Argentine Republic. — Buenos Ayres, two thousand dollars. Peru. — Callao, three thousand five hundred dollars. Chili. — Valparaiso, three thousand dollars. Sec. 5. And be it further enacted, That from and after the thirtieth day of June next, the President of the United States shall, by and with the advice and con- sent of the Senate, appoint Consuls and Commercial Agents for the United States to reside at the following places, who shall receive, during their continuance in office, an annual compensation for their services not exceeding the amount speci- fied herein for each, and who shall be at liberty to transact business : Great Britain. — Southampton, one thousand dollars; Bristol, one thousand dollars ; Leith, one thousand dollars ; Dublin, one thousand dollars ; Cork, one thousand dollars ; Galway, one thousand dollars ; Bombay, one thousand dollars ; Singapore, one thousand dollars- ; Gibraltar, seven hundred and fifty dollars ; Island of Malta, one thousand dollars ; Cape Town, one thousand dollars ; Port Louis, one thousand dollars ; St. John's, (N. B.) one thousand dollars ; Pictou, one thousand dollars ; Demarara, one thousand «[ollars ; Sidney, one thousand dollars ; Falkland Islands, one thousand dollars ; Hobart Town, one thousand dollars ; Bermuda, one thousand dollars ; Turk's Island, one thousand dollars ; Barbadoes, one thousand dollars ; Island of Trinidad, one thousand dollars ; St. Helena, one thousand dollars ; St. Christopher, one thousand dollars ; Antigua, one thousand dollars ; Ceylon, one thousand dollars. Russia. — Odessa, fifteen hundred dollars ; Galatza, one thousand dollars. France. — Martinique, seven hundred and fifty dollars; Miquelon, seven hun- dred and fifty dollars. Spain. — Barcelona, seven hundred and fifty dollars; Manilla, seven hundred and fifty dollars. Portugal. — Macao, one thousand dollars; Mozambique, seven hundred and fifty dollars ; Fayal, seven hundred and fifty dollars ; St. Jago Cape Yerd, seven hundred and fifty dollars. Hanover and Brunsiviclc. — Hanover, five hundred dollars. Mecklenburg-Schwerin and Mecldenburg-Slrclilz. — Schwerin, five hundred dol- lars. Oldenburg. — Oldenburg, five hundred dollars. Danish Dominions. — Santa Cruz, seven hundred and fifty dollars. Sweden and Norway. — Gothenburg, seven hundred and fifty dollars. Austria. — Venice, seven hundred and fifty dollars. Sardinia. — Spezzia, seven hundred and fifty dollars. Greece. — Athens, one thousand dollars. Turkey. — Candia, one thousand dollars ; Cyprus, one thousand dollars. Ionian Islands. — Zante, one thousand dollars. Africa. — Monrovia, one thousand dollars ; Zanzibar, one thousand dollars. New Zealand. — Bay Islands, one thousand dollars. Hayli. — Cape Haytien, one thousand dollars ; Aux Caves, five hundred dol- lars. Mexico. — Mexico, one thousand dollars; Paso del Norte, five hundred dollars; Tampico, one thousand dollars ; Matamoras, one thousand dollars ; Tabasco, five 54 638 APPENDIX. hundred dollars ;. Mazatlan, five hundred dollars ; Tehuantepec, one thousand dollars ; Manatitlan, one thousand dollars. Central America. — Omoa and Truxillo, one thousand dollars; San Jose, five hundred dollars. New Granada. — Cartagena, five hundred dollars ; Sabanillo, five hundred dollars. Venezuela. — Ciudad Bolivar, seven hundred and' fifty dollars ; Puerto Cabello, seven hundred and fifty dollars ; Maracalbo, seven hundred and fifty dollars. Ecuador. — Guayaquil, seven hundred and fifty dollars. Brazil. — Maranham Island, seven hundred and fifty dollars ; Rio Grande, one thousand dollars ; Bahia, one thousand dollars ; Para, one thousand dollars. Uruguay. — Montevideo, one thousand dollars. Chili. — Talcahuano, one thousand dollars. Peru. — Palta, five hundred dollars ; Tumbez, five hundred dollars. Sandwich Islands. — Lahaina, one thousand dollars ; Hilo, one thousand dol- lars. Navigators Isla7ids. — Apia, one thousand dollars. Societij Islajids. — Tahiti, on# thousand dollars. Feejee Islands. — Lanthala, one thousand dollars. Holland. — Batavia, one thousand dollars, (Commercial Agent); Paramaribo, five hundred dollars, (Commercial Agent) ; Padang, five hundred dollars, (Com- mercial Agent) ; St. Martin, five hundred dollars, (Commercial Agent) ; Curacoa, five hundred dollars, (Commercial Agent.) Sec. 6. And he it further enacted, That no Envoy Extraordinary and Minister Plenipotentiary, Commissioner, Secretary of Legation, Dragoman, Interpreter, Consul, or Commercial Agent, "who shall, after the thirtieth day of June next, be appointed to any of the countries or places herein named, be entitled to com- pensation until he shall have reached his post and entered upon his official duties. Sec. 7. And he it further enacted., That the compensation of every Envoy Extraordinary and Minister Plenipotentiary, Commissioner, Secretary of Lega- tion, Dragoman, Interpreter, Consul, and Commercial Agent, who shall, after the thirtieth day of June next, be appointed to any of the countries or places herein named, shall cease on the daj' that his successor shall enter upon the duties of his office. Sec. 8. And he it further enacted, That no Envoy Extraordinary and Minister Plenipotentiary, Commissioner, Secretary of Legation, Dragoman, Interpreter, Consul, or Commercial Agent, shall absent himself from the country to which he is accredited, or from his consular district, for a longer period than ten days, with- out havino- previously obtained leave from the President of the United States, and that during his absence for any period longer than that time, either with or with- out leave, his salary shall not be allowed him. Sec. 9. And he it further enacted, That the President shall appoint no other than citizens of the United States, who are residents thereof, or who shall be abroad in the employment of the government at the time of their appointment, as Envoys Extraordinary and Ministers Plenipotentiary, Commissioners, Secreta- ries of Legation, Dragomans, Interpreters, Consuls, or Commercial Agents, nor shall other than citizens of the United States be employed either as Vice-Consul, APPENDIX. 639 Consular Agents, or as clerks in the offices of cither, and have access to the archives therein deposited. Sec. 10. And be it furiJier enacted, That Envoys Extraordinary and Ministers Plenipotentiarj-, and Consuls, shall be required to locate their legations and con- sulates, in the places in Avhich they are established, in as central a position as can be conveniently procured, and keep them open daily from ten o'clock in the morn- ing until four o'clock in the afternoon ; Sundays, other holidays, and anniversa- ries excepted. Sec. 11. And he it furtlier enacted, That as soon as a Consul or Commercial Agent shall be officially notified of his appointment, he shall execute a bond with two sureties, in a sum of not less than one thousand nor more than ten thousand dollars, for the faithful discharge of every duty relating to his office ; which bond shall be satisfactory to the United States District Attorney for the district in which the appointed Consul resides, and be transmitted to the Secretary of State for his approval. If the Consul is not in the United States at the time he is commis- sioned, as soon as he is apprised of the fact he shall sign, and transmit by the most expeditious conveyance, a bond like the aforesaid, which shall afterwards be undersigned by two sureties who are permanent residents of the United States, and approved by the State Department. Where there is a United States lega- tion in a country to which a Consul shall be appointed, application shall be made through it to the government for an exequatur ; but, where there is none, the application shall be made direct to the proper dejiartment. Sec. 12. And be it further enacted, That it shall be the duty of Consuls and Commercial Agents to charge the following fees for performing the services spe- cified, for which, under the penalty of being removed from office, they shall account to the government at the expiration of every three months, and hold the proceeds subject to its drafts : For receiving and delivering ship's papers, half cent on every ton, registered measurement, of the vessel for which the service Is performed. For every seaman, who may be discharged or shipped at the consulate or com- mercial agency, or in the port in which they are located, one dollar ; which shall be paid by the master of the vessel. For every other certificate, except passjDorts — the signing and verification of which shall be free — two dollars. Sec. 13. And be it further enacted, That in capitals where a legation of the United States is established. Consuls and Commercial Agents shall only be per- mitted to grant and verify passports In the absence of the United States diploma- tic representative. Sec. 14. And be it further enacted. That no commission shall in future be charged by Consuls or Commercial Agents, for receiving or disbursing the wages or extra wages to which seamen may be entitled, who are discharged by the mas- ters of vessels in foreign countries, or for moneys advanced to such as may be in distress, seeking relief from the consulate or commercial agency ; nor shall any Consul or Commercial Agent be directly or indirectly interested in any profits derived from clothing, boarding, or sending home such seamen. Sec. 15. And be it further enacted. That no Consul or Commercial Agent of the United States shall discharge any mariner, being a citizen of the United States, in a foreign port, without requiring the payment of the two mouths' wages to 640 APPENDIX. which said mariner is entitled under the provisions of the Act of February twenty- eight, eighteen hundred and three, unless, upon due investigation into the cir- cumstances under which the master and mariner have jointly applied for such discharge, and on a private examination of such mariner by the Consul or Com- mercial Agent, separate and apart from all officers of the vessel, the Consul or Commercial Agent shall be satisfied that it is for the interest and welfare of such mariner to be so discharged ; nor shall any Consul or Commercial Agent discharge any mariner as aforesaid, without requiring the full amount of three months' wages, as provided by the above-named act, unless under such circumstances as will, in his judgment, secure the United States from all liability to expense, on account of such mariner : Provided, That in the cases of stranded vessels, or ves- sels condemned as unfit for service, no payment of extra wages shall be required; and where any mariner, after his discharge, shall have incurred expense at the port of discharge, before shipping again, such expense shall be paid out of the two months' wages aforesaid, and the balance only delivered to him. Sec. 16. And he it further enacted, That every Consul and Commercial Agent of the United States shall keep a detailed list of all mariners discharged by them respectively, specifying their names and the names of the vessels from which they were' discharged, and the payments, if any, afterwards made on account of each, and shall make official returns of said lists half-yearly to the Treasury Depart- ment. Sec. 17. And he it further enacted, That every Consul and Commercial Agent of the United States shall make an official entry of every discharge which they may grant, respectively, on the list of the crew and shipping articles of the vessel from which such discharge shall be made, specifying the payment, if any, which has been required in each case ; and if they shall have remitted the payment of the two months' wages to which the mariner Is entitled, they shall also certify on said shipping list and articles that they have allowed the remission, upon the joint application of the master and mariner therefor, after a separate examination of the mariner, after a due investigation of all the circumstances, and after being satisfied that the discharge so allowed, without said payment, is for the interest and welfare of the mariner ; and If they shall have remitted the payment of the one mouth's wages, to which the United States is entitled, they shall certify that they have allowed the remission after a due investigation of all the circumstances, and after being satisfied that they are such as wiU, in their judgment, secure the United States from all liability to expense on account of such mariner ; and a copy of all such entries and certificates shall be annually transmitted to the Treasury Department, by the proper officers of the customs in the several ports of the United States. Sec. 18. And he it further enacted, That if any Consul or Commercial Agent of the United States, upon discharging a mariner without requiring the payment of the one month's wages to which the United States Is entitled, shall neglect to certify, In the manner required in such case by the preceding section of this act, he shall be accountable to the Treasury Department for the sum so remitted. And In any action brought by a mariner to recover the extra wages to which he is entitled under the Act of February twenty-eight, eighteen hundred and three, the defence, that the payment of such wages was duly remitted, shall not be sus- tained Avithout the production of the certificate In such case required by this act, II APPENDIX. 641 or, -when its non-production is accounted for, by the production of a certified copy thereof, and the truth of the facts certified to, and the propriety of the remission shall be still open to investigation. Sec. 19. And be it further enacted, That if, upon the application of any mari- ner, it shall appear to the Consul or Commercial Agent that he is entitled to his discharge under any act of Congress, or according to the general principles of the maritime law, as recognized in the United States, he shall discharge such mariner, and shall require of the master the payment of three months' wages, as provided in the Act of February twenty-eight, eighteen hundred and three, and shall not remit the same, or any part thereof, except in the cases mentioned in the proviso of the ninth clause of the first section of the Act of July twentieth, eighteen hmidred and forty, to the following effect : — "If the Consul or other Commercial Agent shall be satisfied the contract has expired, or the voyage been protracted by circumstances beyond the control of the master, and without any design on his part to violate the articles of shipment, then he may, if he deems it just, discharge the mariner without exacting the three months' additional pay. See. 20. And be it further enacted, That every Consul and Commercial Agent, for any neglect to perform the duties enjoined upon him by this act, shall be liable to any injured person for all damages occasioned thereby ; and, for any violation of the provisions of the fifteenth and nineteenth sections of this act, shall also be liable to indictment, and to a penalty, in the manner provided by the eighteenth clause of the first section of the Act of July twentieth, eighteen hun- dred and forty. Sec. 21. And be it further enacted. That the Act of April fourteenth, seventeen hundred and ninety-two, concerning Consuls, &c., is hereby so amended, that if any American citizen dying abroad shall, by will or any other writing, leave spe- cial directions for the management and settlement, by the Consul, of the personal or other property which he may die possessed of in the country where he may die, it shall be the duty of the Consul, where the laws of the country permit, strictly to observe the directions so given by the deceased. Or, if such citizen so dying shall, by will or any other writing, have appointed any other person than the Consul to take charge of and settle his affairs, in that case it shall be the duty of the Consul, when and so often as required by the so-appointed agent or trustee of the deceased, to give his oflicial aid in whatever way may be necessary to faci- litate the operations of such trustee or agent, and, where the laws of the country permit, to protect the property of the deceased from any interference of the local authorities of the country in which he may have died ; and, to this end, it shall also be the duty of the Consul to place his official seal on all or any portions of the property of the deceased, as may be required by the said agent or trustee, and to break and remove the same seal when required by the agent or trustee, and not otherwise ; he, the said Consul or Commercial Agent, receiving therefor two dollars for each seal, which, like all other fees for consular service, including all charges for extension of protest, as also such commissions as are allowed by existing laws on settlement of estates of American citizens by Consuls and Com- mercial Agents, shall be reported to the Treasury Department, and held subject to its order. Sec. 22. And be it further enacted, That the following record-books shall be provided for and kept in each consulate and commercial agency : A letter-book, 54* 642 APPENDIX. into which shall be copied, in the English language, all official letters and notes in the order of their dates, which are written hj the Consul or Commercial Agent ; a book for the entry of protests, and in which all other official consular acts like- wise shall be recorded ; and, at seaports, a book wherein shall be recorded the list of the crew, and the age, tonnage, owner or owners, name and place to which she belongs, of every American vessel which arrives. Consuls and Commercial Agents shall make quarterly returns to their government, specifying the amount of fees received, the number of vessels, and the amount of their tonnage, which have arrived and departed ; the number of seamen, and what portion of them are protected ; and, as nearly as possible, the nature and value of their cargoes, and where jiroduced. Sec. 23. And he it further enacted, That as soon as a Consul or Commercial Agent shall have received his exequatur, or been provisionally recognized, he shall apply to his pi-edecessor for the archives of the consulate or commercial agency, and make an inventory of the papers, and such other articles as they may contain, for which he shall pass a receipt and transmit a copy thereof to the State Department. Sec. 24. And he it further enacted, That the Secretary of State be, and he is hereby, authorized to prescribe such additional regulations for the keeping of the consular books and records, and insuring proper returns, as the public interest may require. Sec. 25. And he it further enacted, That the President of the United States be, and he is hereby, authorized to bestow the title of Consul-General upon any United States Consul in Asia or Africa, when in his opinion such title will pro- mote the public interest. Sec. 26. And he it further enacted. That all acts and parts of acts authorizing attaches to any of our legations, or the payment to Ministers and Consuls of the United States of outfits or infits, or salaries for clerk hire and office rent, be, and the same are hereby, repealed. Sec. 27. And he it further enacted. The provisions of this act to take effect from and after the thirtieth of June next ; any law or laws of the United States to the contrary notwithstanding. Approved, March 1, 1855. APPENDIX, NO. III. DEBATE ON NEUTRAL RIGHTS.i House of Commons, July 4, 1854. Mr. J. Phillimore rose to move, pursuant to notice, the following resolution : " That it is the opinion of this house, that, however, from the peculiar circum- stances of this war, a relaxation of the principle, that the goods of an enemy in the ship of a friend are lawful prize, may be justifiable, to»renounce or surrender a right so cleai'ly incorporated with the law of nations, so firmly maintained by us in times of the greatest peril and distress, and so interwoven with our maritime renown, would be inconsistent with the security and honor of the country." He thought that Parliament ought not to be silent, when so great a change was made in the law and practice on this subject. The general opinion was, that the policy, now for the first time adopted by her Majesty's government, would, if it were generally followed, diminish the miseries of war ; but he held a different opinion. Two great principles had always been laid down on this subject : first, that the goods of an enemy on board the ship of a friend were lawful prize ; and, secondly, that the goods of a friend on board the ships of an enemy ought to be restored. Those principles ran through the law of England ; they had been laid down by the Consolato del Mare, confirmed by Grotius, and ratified by his appro- bation. Yattel, Bynkershoek, and other writers on international law, had fol- lowed in the same track ; the same principle had been established by the old law of France, which was extremely severe on this subject. There had been several private treaties by which this rule had been regulated, and in such a way as to expose the intei'ests of this country to no danger whatever. We had made stipu- lations with France, with which country we had generallj* made war by sea ; and with Holland, with which we had generally been at peace ; so that with neither of those countries were we likely to be compromised by acting upon this jjrin- ciple. It was at the time when this country was laboring under the pressure of the American war, and also engaged with the three great maritime powers of Europe — France, Spain, and Holland — that the Empress of Russia put forth her pretensions on the subject of neutral ships making free goods ; but although this country was then in great difliculties, we refused to give way to those preten- sions ; and subsequently to that period, treaties had been frequently made which 1 See Part IV. cb. 3, § 23, p. 541, note. Also Introductory Remarks, p. clii. 644 APPENDIX. most fully recognized tlie provisions on this subject •which then Russia disputed. In 1793 Russia herself entered into a convention "with Great Britain, in which she engaged to controvert the principle that free ships made free goods ; so did Spain, so did Portugal, and afterwards Sweden and Denmark. In 1794 America, by a treaty, recognized the same principle ; therefore, he thought, that he had pretty well established his proposition, that, so far as the great maritime powers were concerned and the greatest authorities went, there could be no dispute upon the subject ; and he defied any person conversant with the works of the chief writers on the law of nations upon that subject to controvert that principle, or to say that it had not formed the basis of international law. But there was another authority still more important, and that was the authority of the American government. Jefferson wrote upon this subject : — "I believe it cannot be doubted that, by the general law of nations, the goods of a friend found in the vessel of an enemy are free, and the goods of an enemy found in the vessel of a friend are lawful prize." That was the opinion of a man not particularly noted for his partiality to this country, and in answer to a remonstrance, in 1793, "It is true," said he, " that sundry nations have introduced by treaty another principle, but that is the effect of a particular or special treaty, and not the general prin- ciple of the law of nations." In the proceedings of Congress, in 1795, he ob- served that a source o^ complaint had been, that the English took goods in neu- tral vessels, which, it was said, was against the law of nations, and ought to be prevented by them, (the Americans) ; but, on the contrary, they considered it to be an old established principle in the law of nations, that the goods of a friend, if found in the enemy's vessels, were free, and an enemy's goods in the vessels of a friend, were lawful prize. That was also the opinion of the secretary, Mr. Pickei'- ing, and also of Chancellor Kent, who had said that neutral ships did not afford pro- tection to the enemy's property, which might be seized if found on board such a vessel beyond the limits of neutral jurisdiction. Indeed it was formerly a ques- tion whether a neutral vessel itself, conveying an enemy's property, was not liable to confiscation; but that principle had been abandoned in 1793, by the naval powers of Europe, and was not sanctioned by the existing law of nations. During the whole of the series of wars which grew out of the French Revolution, the government of the United States admitted the English rule to be a valid one, and that It was the true doctrine of the international law, that an enemy's pro- perty was liable to be seized If found on board neutral ships. The same principle was also distinctly laid down by Professor Wheaton, who said they ought not to restore an enemy's property seized in neutral vessels. The answers made by secretaries Pickering and Jefferson were to the effect, that there could not be any doubt with regard to the authority, or much question as to the right of America to insist on this principle. Chancellor Kent had said, there was a marked differ- ence In the principles upon which war was carried on by land and by sea. The object of maritime war was the destruction of the enemy's commerce and of his naval power, and the capture and destruction of private property was essential to that end, and was allowed by the law of nations. But the reason why a differ- ent principle was to be observed in continental wars, carried on by land, was not so clear. Was it true that the same principle did not prevail in continental wars ? Was It true that they were carried on with a strictness and regularity, as respected private property, which formed a marked contrast to war carried on by naval means ? He (Mr. Phllllmore) must say that a careful perusal of history had APPENDIX. 645 not led him to form any such conclusion. AVas not the earliest thing they read of, in reference to this subject, the axiom that wars should always be made to sup- _ port themselves ? Gustavus Adolphus was reputed a humane and enlightened warrior, but he acted upon that principle ; so did Marshal Turenne, Frederick the Great himself, and the most renowned French general, within the last cen- tury, whose instructions were to occupy portions of territory Avithout respect to pri- vate right; and they found such expressions in those instructions as "The Prince of Waldeck is indisposed, you must seize all you can in his territory." That was the principle of the great iSTapoleon ; and did not our own history show that we had acted upon much the same principle ? Let them look at the storming of towns and the sacking of cities, described in the history of the Peninsular war. It was, therefore, not true that there was so much more regularity and superiority in carrying on continental, as compared with maritime wars, but the case was exactly the other way. The only difference was, that in carrying on continental wars Injury to private property v/as often necessary ; whereas In maritime wars it was absolutely essential, as a means of weakening the enemy's power. He thought, therefore, the reason of such a proceeding was plain, and that there could not be any kind of doubt whatever of the authority. But dismissing the question of authority altogether, he would argue it on reason alone, for it was upon that the whole argument turned. He took it for granted that every one desired a principle should prevail which would render war less probable ; but the contrary would be the case. If the principle that free ships made free goods pre- vailed, for it tended to Increase the probability of war, by making It the harvest of neutral nations, and every neutral nation would desire to Involve Its neighbors in hostilities, that it might gain advantages from which, at other times, It was necessarily excluded. It gave every neutral nation a direct Interest in the hosti- lities of foreign States. On what principle, he asked, did they prohibit neutrals from carrying contraband of war? On what principle did they confiscate a ship that carried despatches to the enemy ? On what princliale did they prohibit a ship from sailing into a blockaded port ? Why upon this — that they would not allow a belligerent to do, by means of a neutral, that which it could not do by itself; whereas, by the adoption of the principle that free ships made free goods, they would. Instead of locking up their enemy's produce, and, in consequence of the failure of his resources. Increasing his desire for peace, allow It to be carried all over the globe, and thus destroy the effect of their own efforts. Surely, if it was desirable that the blood and treasure expended In war should j^i-oduce any effect, it was desirable that the blood they shed and the treasure they expended should produce the greatest possible return ; and the consequence of not allowing it to do so must be, that they would have to shed more blood and treasure to accomplish the objects for which war was oi-Iginally commenced. The object of war, while it lasted, was to do as much injury as they could to their enemy, and to deprive him of the advantages of peace. If they allqwed him to enjoy those advantages, of what use Avas It to expend the blood of their soldiers and the taxes wrung from the hard labor of the people ? (Hear.) His motives for desiring peace would vanish, just in proportion as he enjoyed the advantages of peace in the time of war. It was absurd that, during a time when they were tax- ing the revenue of the country and the resources of the people, and inducing them to enlarge those resources as much as possible, with a view to inflicting 646 APPENDIX. chastisement upon the enemy, they should enable that enemy, by means of neu- tral ships, to preserve his commerce, and enjoy those advantages which it -would otherwise be impossible for him to obtain. He could perfectly understand the arguments of those who, like his honorable friends the members for Manchester and the West Riding, upheld upon benevolent, though he thought very mistaken principles, that war ought to be abandoned, or, rather ought never to be under- taken ; but if the principle was to be adopted, that, being at war, they ought not to do the enemy all the mischief they could, and, while carrying on war, to allow him, in a great measure, to enjoy the advantages of peace, that the blood they shed and the money they spent was not to inflict injury on the subjects of the power with which they were at war, they had better recall their ships, disband their armies, and lower their flag ; but if they thought otherwise, they should certainly not do that which would have a tendency to neutralize the exertions they were disposed to make. For those reasons he trusted that the house would adopt the resolution of which he had given notice. He had stated his proofs, and given the authorities who appeared to him to be necessary ; and he believed, with the exception of some modern writers, and a few who wrote with a parti- cular purpose, they were unanimous in their opinions, and gave the strongest reasons showing that it was a mistaken humanity to suppose that a nation could carry on a maritime war, and at the same time allow their enemy the advantages of peace. He thought he should be justified in that opinion by the authority of every statesman that this country had produced up to the present time ; and he hoped Ave should not surrender that bulwark which we had hitherto preserved impregnable, or descend from that strong ground which our ancestors had thought their blood and treasure had been well employed in obtaining for us ; and he would admit no principle, the eflect of which would be to diminish our strength, or make us less able to resist either the open or disguised attacks of any earthly despot. (Loud cheers.) Mr. Mitchell seconded the resolution ; but, in doing so, observed that he did not altogether concur in the first part, which was to the effect, that, from the peculiar circumstances of the present war, any relaxation of the principle was justifiable. He had a very strong opinion upon the course which had been pur- sued during the progess of the present war, but had hitherto had no opportunity of expressing it, or of hearing a discussion upon the important principles involved in it. There was no member of the house who had followed the course of trade consequent on the changes in the system of management during the war, more closely and carefully than himself, having been deeply interested all his life in trade. He believed that no relaxation of the principle relating to the trade of Russia, while we were engaged in war with that country, would be at all condu- cive to the advantage of the trade of this country ; and there was, probably, not a man Avell acquainted with Russia but would admit, that no surer means could be employed to humbJiP her tlian the destruction of her trade. That country exported produce annually to the amount of from £12,000,000 to £15,000,000, a large portion of which went directly, in the shape of revenue, to the great Rus- sian landholders. If, therefoi'e, they destroyed that outlet for their produce, there could be no question that it would be tantamount to depriving the only class which had any influence upon the government of the country, except the empe- ror himself, of their revenue : and tlie only Avay of proceeding effectually was to APPENDIX. 647 stop the trade of the country, which they could not well do if they allowed the relaxations which had been the subject of discussion. He believed that some- where about December, when it was pretty certain that war would take place between this country and Russia, two of the most eminent merchants in the Rus- sian trade Avent to the noble lord the Secretary of State for Foreign Affairs, and stated to him that they were authorized by the trade to ask whether it would be safe to make the usual advances to Russia, and to enter into the usual trade engage- ments with subjects of that power. On which Lord Clarendon, with an almost entire absence of official reserve, told them it would be highly unsafe. The con- sequence was, that the value of Russian goods declined twenty per cent, and a great discouragement was given to the ti-ade of Russia. A few houses, however, finding the most eminent of the merchants acting on the oj^inion of Lord Claren- don, had abstained from making purchases in Russia, bought considerable quanti- ties of goods at the reduced price, and the moment war was proclaimed they went to the government, and said, " We bought these goods before war was declared, having no idea that it would take place ; " and they therefore asked to be allowed to have those goods from Russia which they had bought at twenty per cent, below what they would otherwise have been worth, and numbers of the Russian vessels were allowed to leave their ports after the declaration of war. In like manner, it had been intimated that Archangel would be blockaded ; but they were not told when it would take place, or when goods would be allowed to be removed from it. They had also had an intimation that the Black Sea would be blockaded ; and the consequence was, that, owing to the relaxation in ques- tion, neutral vessels went there in shoals, obtaining the most enormous freights, and, owing to the unfair operations that were allowed, those who had no scruple about dealing with the enemies of the nation made profits, in many cases, of fifty per cent., to the manifest Injury of the fair and loyal trader. (Hear, hcai*.) He thought it would be greatly for the advantage of British trade that they should know when it was to take place. There could be no doubt that, to a certain extent, they could not prevent a transit trade between Russia and Prussia ; but the relaxations introduced had enormously extended that trade, by preventing the inspection of goods on board neutral vessels. Now, what had been the course adopted by the government? By a letter Issued, he believed, by the Board of Trade, in reply to an inquiry from a merchant In the Russian trade, they learned that, according to the law of the country, any British merchant buying goods of a Russian, that country being at war with England, such goods would be consi- dered the property of an enemy, and seized ; but on the 15th of April an order was Issued from the Treasury, which entirely abrogated that letter of the 11th, stating, that so long as such goods were not shipped from a Russian port, or in a Russian vessel. It was perfectly free for any one to obtain them, provided the port from which they were to be sent was not blockaded. In consequence of the intimation given on the 11th of April, the English merchants had determined to have nothing to do with the trade, and made their arrangements accordingly; yet on the 15th of April they were told they might engage in it. He had no hesita- tion In saying, that the manner In which British merchants had been treated by the government, in this matter, had been in the highest degree unjust to our tra- ders and injurious to our trade. (Hear, hear.) Sir W. MOLESWORTH said — The motion of the learned gentleman raises two 648 APPENDIX. questions ; one a theoretical question of international law, the other a practical question of political expediency. The theoretical question is, whether the sub- jects of a neutral State ought to abstain from carrying in their ships the goods of belligerents ; and, therefore, whether a belligerent State ought to have the right of confiscating the goods of an enemy in the ship of a neutral. The practical question is, (assuming that the subjects of a neutral State ought to abstain from carrying in their ships the goods of belligerents,) whether it would be politic and expedient for this country, in existing circumstances, to insist upon the bellige- rent right of confiscating Russian goods on board neutral ships, or whether it would be more politic and more expedient for this country to waive for the present that belligerent right? "With regard to the practical question, the learned gentle- man admits — to use the words of his motion — " that, from the peculiar circum- stances of this war, a relaxation of the principle, that the goods of an enemy in the ship of a friend are lawful prize, may be justifiable." I will presently endea- vor to prove that such a relaxation was both right and expedient. "With regard to the theoretical question, the learned gentleman asks the house to declare, in the terms of his resolution, that to seize the goods of an enemy in the ship of a friend is a right so " clearly incorporated with the law of nations," that, to renounce or surrender it would be inconsistent with the security and honor of the countiy. Therefore, if the house were to agree to the resolution of the learned gentleman, the house would thereby pledge the honor of the country to uphold forever the position, that a belligerent State ought to have the right of confiscating enemy's goods on boai'd a neutral ship. Kow assuming for the pre- sent that there may be cases in which it may be wise for this house to limit its own freedom of action and that of its successors, by laying down abstract rules of international law, yet every one will admit that the house ought not to pledge the honor of the country to uphold for ever any position, about the truth of which there can be any reasonable doubt. (Hear, hear.) Consequently, to induce the house even to entertain his motion, the learned gentleman ought to have demon- strated that the position contained in his resolution is indisputably true. Has he done so ? The learned gentleman has adduced many learned arguments, and quoted many learned authorities, in support of the rule of confiscating enemy's goods on board neutral ships. He has traced the origin of that rule to the dark , ages that followed the downfall of the Roman empire ; he has shown that, in more barbarous times, it was a rule of war on the Mediterranean, and that the first authority for it was the celebrated Consolato del Mare, which was probably written in the eleventh century. In support of the rule of the Consolato del Mare, the learned gentleman has referred to the great work of Grotius. "With regard to the authority of Grotius on this subject, I must observe that Grotius deduced the rights of war chiefly from the custom and usage of ancient nations, from the sayings of ancient orators, and from the writings of the poets, historians, and philosophers of antiquity ; but that since his days many of those rights of war have become obsolete, in consequence of the progress of humanity and civili- zation. (Hear, hear.) I must also observe that nothing can be more meagre than the chapter of the work of Grotius on the subject of the rights of neutrals — namely, the seventeenth of the third book — in which he treated, " De his qui in hello medii sunt." The reason is obvious. Grotius wrote at a period when the rights of neutrals were little understood or cared for. because in those davs war I APPENDIX. 649 was contagious ; -when two belligerents began to fight, tlie adjacent nations were eager to join in the fray, and few were willing, and still fewer were able, to stand aloof from the conflict. The work of Grotius contains only one distinct reference to the rule of confiscating enemy's goods on board neutral ships — namely, in a note to the fourth section of the first chapter of the third book, in which Grotius quotes the rule in question from the Consolato del Mare, without expressing either approval or disapproval of it. I doubt, therefore, whether the learned gentleman is entitled to claim Grotius as an authority for the principle, that the goods of an enemy in the ship of a friend are lawful prize. (Hear.) The learned gentleman has also quoted, in support of the rule of the Consolato del Mare, the authority of Yattel. Vattel was, without doubt, an elegant and popular writer, but, according to Chancellor Kent, very deficient in philosophical precision, and nothing can be more laconic than Vattel on the rule in question. He merely asserts it to be a rule of war, without assigning any reason in support of it. The learned gentleman has also mentioned the names of several legists learned in the law, who have declared the rule of the Consolato del Mare to be a rule of inter- national law. But I must observe that learned legists are apt to assume that ■what is law ought always to be law ; and, generally speaking, the more learned the legist, the less inclined is he to diminish the value of his learning by reform- ing the law. (Hear, hear, and laughter.) The honorable gentleman has scarcely alluded to the fact, that almost all the modern publicists of continental Europe — namely, Hiibner, Kliiber, De Martens, De Rayneval, Ortolan, Hautefeuille — have condemned the rule of the Consolato del Mare as a relic of barbarism, which ought to be removed from the code of the public law of clvihzed nations, and replaced by the rule, " free ships free goods." (Hear, hear.) It must, how- ever, be admitted, that it has been the practice among European nations for a belligerent State to make prize of enemy's property on board neutral ships ; and I will also admit, for the sake of argument, that this practice has been held by many high authorities on international law to be in accordance with those rules of conduct between sovereign States, which constitute the present public law of Europe. But these admissions do not necessarily warrant the conclusion, that the practice in question is right, and conformable to what ought to be the public law of nations, though it Is in accordance with the present public law of Europe ; for the present public law of Europe may, like the municipal law of many of its individual States, be imperfect in some respects and require amendment, because the present public law of Europe has derived its origin from two distinct sources ; partly from those abstract notions of what is right and just, which form what is termed the law of nature ; partly fi-om the custom and usage of nations in their intercourse with each other. It is evident that those rules of the present public law of Europe, which are based upon correct notions of what Is right and just, cannot require amendment. Not so those rules of the present public law of Europe which have been founded on custom and usage ; for the custom and usage of nations, especially with regard to war, have frequently been at variance ■with correct notions of what Is right and just ; and the Jus belli, which has been chiefly founded upon custom and usage, has differed in different nations and in different sets and families of nations. It has varied In the same nation at various periods of Its history. It has changed with the change of the religion, manners, and institutions of a nation. Grotius says, " That is often jus gentium in one 55 650 APPENDIX. part of tlie world which Is not so in another." According to Montesquieu, " Every nation has its own law of nations — even the Iroqouis, who eat their prisoners, have one ; they send and receive ambassadors, they know the laws of war and peace ; but the evil is, that their law of nations is not founded upon true principles." The question is, is the rule of the English law of nations, with reorard to the capture of enemy's property on board neutral ships, founded on true principles or not? Though this rule has been generally acted upon by European States, in their wars with each other, yet the majority of them have maintained, and still maintain, that the rule in question is an improper one, and have constantly endeavored, by means of treaties, to expunge it from the public law of Europe, and to substitute for it the rule, that enemy's goods should not be liable to confiscation on board neutral ships. I will refer briefly to the arguments which have been urged against the rule of confiscating enemy's property on board neutral ships, by the persons whom I will call the advocates of the exten- sion of neutral rights. They say that, in the earlier periods of history, and among the loss civilized nations, the rules of war were far sterner than at pre- sent ; that the maxim, that it is lawful for a belligerent to injure his enemy by every possible means, was acted upon to the fullest extent ; that neutrals scarcely existed, their rights were unknown, and the law of war was the will of the most potent belligerent. But, say they, the tendency of civilization has been, and still is, to mitigate the severity of the code of war, to establish and enlarge the rights of neutrals, and to protect weak neutrals against the tyranny of powerful bellige- rents, (hear, hear) ; that this tendency has as yet, however, produced less change in the rules of war by sea than in the rules of war by land ; that, at present, the rules of maritime warfare are the same as those which were practised in war by land in rude and barbarous ages ; that, for instance, private war by land has been abolished, but private war by sea is still sanctioned by the code of maritime war ; that to seize the private property of the peaceful subject of an enemy, for the sake of gain, is repugnant to the usages of modern war by land, and is an act which would meet with the condemnation of all civilized nations ; but to do simi- lar acts on the sea, and even to hire foreign buccaneers, with a license to pillage peaceful merchants, is conformable to the present rules of maritime war. (Hear, hear.) Now, say the advocates for the extension of neutral rights, though valid reasons may have been assigned why the laws of war should be sterner by sea than, by land, why the rights of neutrals should be more limited on the ocean than on the continent, yet no valid reason has ever been assigned for treating neutrals on the sea in a manner in which neutrals on land have never been treated since the existence of neutrals was recognized. (Hear, hear.) They affirm that the rule of capturing enemy's property on board neutral ships, was introduced into the public law of Europe at a period when the rights of neutrals were little understood, and less cared for ; that it was a misapplication to neutrals of the Roman law, with regard to the subjects of belligerents ; for when the European States that sprang from the dismemberment of the Roman Empire began to emerge from the barbarism consequent upon the downfall of that empire, the want of some rules to determine the conduct of sovereign States towards each other began to be felt, and attempts were made to frame an inter- national law. The early legists who made those attempts were conversant only with the Roman law ; and they adopted, as rules of their public law, many I APPENDIX. 651 maxims taken -without alteration from the Roman law. In this manner, say the friends of the extension of neutral rights, a grave error was introduced into the public law of Europe, which has been very injurious to the interests of neutrals; for the Roman law was not a public law of nations, but only the municipal law of the Roman Empire. (Hear, hear.) Therefore, the Roman law only determin%d what ought to be the conduct of the subjects of Rome towards the enemies of Rome ; it had no concern with the question of what ought to be the conduct of free and independent neutrals. The Imperators of Rome prohibited, and, as sovereigns, were entitled to prohibit, their subjects from trading with an enemy, or carrying on board their ships the goods of the enemies of Rome. They punished, and, as sovereigns, were entitled to punish, their disobedient subjects with the confiscation of the goods, and even of the ships Avhich contained the goods, of the enemies of Rome. The sovereigns of Europe adopted the provi- sions of the Roman law, with regard to trade with enemies ; but they applied those provisions not only to their subjects, whom they, as sovereigns, were enti- tled to command, but they frequently extended those provisions to neutrals, over whom they had no sovereignty whatever. (Hear, hear.) It is self-evident, how- ever, that because a sovereign is entitled to issue certain commands to his sub- jects, and to punish disobedient subjects, it does not follow that the same sove- reign is entitled to give the same commands to free and independent nations, and to punish the disobedient as if they were his subjects. Kow, under the Roman law, the ship upon which the goods of the enemies of Rome were seized, the ship which was confiscated for containing those goods, and the trade which was prohibited with the enemies of Rome, were the ship and the trade of the subjects of Rome, and not of neutrals. (Hear, hear.) By adopting, as rules of the public law of Europe, the rules of the Roman law with regard to commerce with ene- mies, the sovereigns of Europe have, at various periods and repeatedly, laid claim to and exercised three rights very injurious to neutrals : namely, the right of capturing enemy's goods, not only on board the ships of their subjects, but also on board the ships of neutrals ; secondly, the right of confiscating, not only the ships of their subjects, but also the ships of neutrals, for containing enemy's goods ; thirdly, the right of prohibiting, not only the trade of their subjects, but also of neutrals, with the enemy. The lasfr two of these claims have long since been abandoned in theory, though not in practice ; the first alone now exists, and the friends of the extension of neutral rights affirm, that it is destined to share the fate of its companions, and ought immediately to be expunged from the public law of civilized nations. (Hear, hear.) They afiirm that a neutral State is entitled, in reason and justice, to say to a belligerent: — "As a neutral, I have nothing to do with your quarrel ; you may injure your enemy as much as you like, provided that, in doing so, you do not injure me ; you may hit your antago- nist as hard as you can, but you must not strike me in order to hit him ; and if he hurt you, you must not retaliate upon him by hurting me. All that you, as a belligerent, are entitled to demand of me, as a neutral, is, that I will not take any part against you ; that I will not directly succor and aid your enemy ; that when you are fighting, I will not furnish him with munitions of "war; that, when you are blockading his ports or besieging his towns, I will not interfere, nor supply him with the means of prolonged defence ; but, provided that I abstain from doing these things, as a neutral, I am entitled to carry on with your 652 APPENDIX. enemy a trade as free and unrestricted as he and I may think proper to permit;" for (say the friends of the extension of neutral rights) the sea is free — Grotius has proved it, and Selden was unable to refute him — therefore, no portion of the ocean is the exclusive property of any State, except that portion of it which is "temporarily occupied by the ship of a State ; over that portion the State whose ship occupies it has for the time sole and exclusive jurisdiction. A neu- tral ship is a floating portion of the territory of a neutral sovereign ; its inhabit- ants are his subjects ; they are bound to obey his municipal law, and no other law. If they commit crimes on board the ship, they are tried and punished by his penal law ; and the ownership of every article of property on board the ship is determined by his civil law. Therefore, (say the friends of the extension of neutral rights, addressing a belligerent sovereign,) your quarrel, with which the neutral sovereign has nothing to do, and to which, as a neutral, he ought to be perfectly indifferent, cannot destroy his rights on the free ocean — cannot entitle you, as a belligerent, to interfere with his floating territory, more than with his fixed territory. (Hear, hear.) But it must be admitted that the subjects of a neutral sovereign, the inhabitants both of his floating territory and of his fixed territory, ought not to directly aid and succor your enemy ; for if he were to sanction such conduct on the part of his subjects, he would cease to be a neutral, and would become your enemy. Therefore, he ought to prohibit the inhabitants both of his fixed and of his floating territory from directly aiding and succoring your antagonist ; and he ought to authorize you, as a belligerent, and you ought to be authorized by the law of nations, to enforce that prohibition, by visiting his ships and confiscating contraband of war, and by seizing his vessels in the event of their attempting to break through your blockade. But though it must be admitted that the subjects of a neutral sovereign ought to abstain from doing those things, the evident aim and intention of which are to directly succor and aid your antagonist — ought to abstain from all acts which, if done by his com- mands, or by his ships of war, would justify you in treating him as an ally of your enemy — yet it does not follow that the subjects of a neutral sovereign are bound to abstain from doing those things, which, without directly succoring and aiding your antagonist, may tend to benefit and enrich him, and by enriching him, may tend to strengthen him, and, by strengthening him, may tend to render it more difiicult to overcome your enemy. (Hear, hear.) For you must admit, that the established and universally recognized laws of European warfare permit the subject of a neutral sovereign to do many things of this description ; that, according to the present public law of Europe, he is entitled to trade with your enemy in every description of goods, except contraband of war ; he is entitled to enter any one of your enemy's ports which is not strictly blockaded ; he is entitled to load his ships with goods and merchandise, of the produce or manu- facture of your enemy ; he is entitled to carry ofi" these goods and merchandise, and to sell them in other ports. You cannot deny that the subject of a neutral sovereign is entitled, by the law of nations, to do all these things ; but you aflirm that he must do them subject to this strange and extraordinary condition, that, during the period that he is carrying the goods in question from one port to ano- ther, they should legally cease to belong to your enemy. (Hear, hear.) And (say the friends of the extension of neutral rights) in order to ascertain whether this extraordinary condition is fulfilled, you claim, as a belligerent, the right of stop- APPEiTDix. 653 ping neutral ships on the highway of the free ocean, not only for the purpose of ascertaining their nationality, and whether they are carrying contraband of war to your enemy, but for the purpose of searching and minutely inquiring and examining into the legal ownership of every single article of property on board a neutral ship ; and if you find any thing on board the ship which you fancy belongs to your enemy — any property, the purchase of which from your enemy you suspect has not been completed according to the strict and technical rules of your law — you claim, as a belligerent, the right of detaining the neutral ship, and of compelling it to change its route, and enter one of your ports, in order that your judges may inquire into and determine the ownership of the property in question ; and if your judges decide that, according to the technical rules of that portion of your municipal law, which you call your law of nations, the pur- chase of the property in question has not been completed, and that its legal own- ership is still vested in your enemy, you claim the right of confiscating that pro- perty. (Hear, hear.) And (say the friends of the extension of neutral rights) you claim the right of causing these powers to be exercised, not only by the com- manders of your regular ships of war, over whom you have direct control, and who are gentlemen, and have the honor and interest of their country at heart, but you claim the right of delegating these powers — at all times odious and vex- atious, and which may be used to the great detriment and injury, and even destruction, of the trade and commerce of neutral States — to the freebooters, buccaneers, and foreign cut-throats who man your privateers, over whom you have little or no control — scourges of the ocean, whose object is plunder, and who can only be distinguished from pirates by the mark of your license to pillage. (Hear, hear.) Now (say the friends of the extension of neutral rights) your status, as a belligerent, gives you no more right to enter a neutral ship to search for your enemy's property, than to enter a neutral port to search for your enemy's ships. As long as you and the neutral sovereign are at peace, you have no right to meddle with any property on board his ship, except contraband of war. For he is sole and independent sovereign on board his ship, and, in virtue of his sovereignty, all property on board his ship belongs, in fact to him ; for he can dispose of it, and does dispose of it, according to his will and pleasure, as declared in the rules of his municipal law. Therefore, as long as you and he are at peace, you have no right to ask any questions about any property on board his ship — either how he became possessed of it, or upon what conditions he acquired it; whether he paid for it in hard cash, or obtained it on credit ; whether he holds it for his own use, or in trust for any body else. (Hear, hear.) To insist upon ask- ing these questions, to insist upon determining them in your courts of law, to exer- cise any power over a neutral ship, which the neutral sovereign neither concedes to you nor admits that you are entitled to exercise, according to what he con- siders ought to be the rules of international law, are acts of violence, to which neutrals have submitted only when neutrals have been weak and belligerents strong, and Avhich neutrals have resisted, and will again resist, whenever strong enough to defend their rights. (Hear.) Such is the language which the friends of the extension of neutral rights consider that they are entitled to hold towards a belligerent power that claims the right of confiscating enemy's goods, not con- traband of war. They would tell the learned gentleman that the position, to the eternal maintenance of which he would pledge the honor of this house and coun- 55* 654 APPENDIX. try, so far from being indisputably true, is demonstratively false. And very many nations would agree with them ; for at various times the great majority of European States have been induced, partly by argument, partly by self-interest, to condemn the rule of capturing enemy's goods on board neutral ships ; and they have repeatedly endeavored, by treaties and conventions with each other, to expunge that rule from the public law of Europe, and to substitute the rule, that free ships should give freedom to the goods which they contain. For in- stance, I find that during the century and a quarter that preceded the French Revolution, the all but invariable rule of amicable relations, as established by treaty between the great maritime powers of Western Europe — namely, be- tween England, France, Spain, the United Provinces of Holland, and Portugal — was " free ships free goods ; " that is, that the goods of the enemies of one con- tracting power, being a belligerent, should not be liable to confiscation on board the ships of the other contracting power, being a neutral. This rule is contained in almost every one of the treaties of peace and commerce, which England con- cluded in the latter part of the seventeenth century, and in the eighteenth cen- tury, with the powers I have just mentioned. This is an important fact. I think it affords so strong a precedent for the policy which her Majesty's government have adopted, that I will briefly enumerate the treaties to which 1 refer. The first English treaty on record, which contains the principle " free ships free goods," was that of Westminster, in the year 1654, between John IV., King of Portugal, and that warrior and statesman, than whom none greater ever ruled the destinies of this nation, who made the name and flag of England respected on every sea, and whose alliance was courted by all the monarchs of Europe. In the 23d article of that treaty it was declared, " that all the goods and mer- chandise of the enemies of the said republic or king, found on board the ships of either, or their people, or subjects, shall remain untouched." This treaty was confirmed in 1661 and 1703, and continued unaltered till 1810, when the rule, " free ships free goods," was renounced. Therefore, for 156 y'ears the invariable rule of our amicable intercourse with Portugal was, " free sjiips free goods." I will next pass in review our treaties with France. In the year 1655, the Lord Protector concluded a treaty of, peace with Louis XIV., in the 15th article of which it is declared, that " omnes naves ad subditos et populares alterutriusque pertinentes, et in IMari Mediterraneo, Orientali seu Oceano negotiantes, liberas sint ; atque etiam onus suum liberum reddant ; licet in illas invehantur merci- monia imo grana, leguminave quae alterutrius hortium sint." How long the Treaty of 1655 continued in force I am unable to say ; but, in 1677, the rule, " free ships free goods," was inserted in the treaty of commerce of St. Germain-en-Laye, and was the rule of our amicable relations with France for the next 116 years. During that period we concluded five treaties of peace and three of commerce with France: namely, in 1677, 1697, 1713, 1748, 1763, 1783, 1786; of these only one, namely, in 1697, and which lasted only for five years, contained no provision with regard to the trade of neutrals during war ; in all the others, I have found an article which either expressly contained the provision that the flags of France and England should protect the goods of the enemies of the other, or which renewed the commercial treaty of Utrecht, of 1713, which contained that provision in the fullest manner. I should observe that the commercial trea- ties of Utrecht, in 1713, were the basis of the commercial relations between i APPENDIX. 656 France and England and Spain, before the -svars of the French Revolution, and they still are the basis of the commercial relations between this country and Spain, and between Spain and France. I will read an extract from the 17th arti- cle of the commercial treaty of Utrecht, between England and France : — "It shall be lawful for all the subjects of the Queen of Great Britain and of the Most Christian King to sail with their ships, with all manner of hberty and secu- rity, (no distinction being made who are the proprietors of the merchandise laden therein,) from the places, ports, and havens of those who are enemies of both, or of either party, without any opposition or disturbance whatsoever, not only directly from the places of the enemy aforementioned to neutral places, but also from one place belonging to an enemy to another place belonging to an enemy, whether they be under the jurisdiction of the same prince or under several. And it is now stipulated, concerning ships and goods, that free ships shall also give freedom to goods, and that every thing shall be deemed to be free and exempt, which shall be found on board the ships belonging to the subjects of either of the confederates, although the whole lading, or any part thereof, should appertain to the enemies of either of their Majesties, contraband of war being always excepted." (Hear, hear.) The 17th article of the treaty of commerce of Utrecht was repeated verbatim in the 20th article of the treaty of commerce of Versailles, of 1786 ; this treaty terminated with the war of 1793. I have shown, therefore, that from 1677 to 1793 the all but invariable rule of our friendly inter- course with France, the rule, for at least 75 years out of 80 years of peace, was, that " free ships should give freedom to goods." (Hear, hear.) It is worthy of remark, that by the commercial treaty of Utrecht, of 1713, which continued in force, except during periods of war, for the subsequent 80 years, the subjects of one party were entitled, by treaty, to carry on the coasting and colonial trade of the enemies of the other party. I will now refer to our treaties with Spain. The first which contained the princijile, " free ships free goods," was the Treaty of Madrid, concluded in 1G6.5. From that period to 1796, a space of 131 years, we concluded with Spain no less than thirteen treaties of peace or commerce : namely, in 1655, 1667, 1670,1707, 1713,1715,1721,1729,1748, 1750, 1763, 1783. In every one of these treaties there is an article which either expressly declares, that " free ships shall give freedom to goods," or renews a treaty which contains that provision. Therefore, for the 131 years ending with the year 1796, the invariable rule of our amicable intercourse with Spain, as established by treaty, was, " free ships free goods." It is worthy of remark, that the first additional article of the Treaty of Madrid, of 1814, ratified and confirmed all treaties of commerce which subsisted between England and Spain in 1796; and, conse- quently, confirmed many treaties, and among others the Treaty of Madrid, of 1667, which contained the provision, that "free ships shall give freedom to goods." The Treaty of 1814 is still in force ; consequently, the subjects of Spain are now entitled, by that treaty, to carry in their ships the goods of the subjects of Russia, and if we were to seize Russian merchandise on board Spanish ships, we should be guilty of a breach of treaty. With reference to our treaties with the United Provinces, the first which contained the rule, that " free ships shall give freedom to goods," was signed at Breda, in 1667. It is contained in every one of the treaties which were concluded with the United Provinces during the following 113 years: namely, in 1667, 1668, 1674, 1675, 1685, 1689, 1703, 1711, 656 APPENDIX. and 171G ; and it continued in force till the war of 1780, but was not renewed by the Treaty of Paris, of 1784. Therefore, from 1667 to 1780 the invariable rule of our friendly intercourse with the United Provinces, as established by treaty — that is, the rule for 111 years of peace — was, that the ships of the United Pro- vinces should make free the goods of the enemies of England, and be entitled to carry on the coasting and colonial trade of the enemies of England, and recipro- cally. The treaties between England and the great maritime powers of Western Europe, to which I have referred, showed that, in the interval between 1654 and 1793, we were six times at war with France, seven times at war with Spain, and three times at war with the United Provinces. We terminated those wars by six treaties of peace with France, seven treaties of peace with Spain, and three treaties of peace with the United Provinces ; and, during the same period, we concluded with the same powers and with Portugal eighteen treaties of com- merce, or other conventions — in all thirty-four. Of these, only three, namely, two with France, in 166 7 and 1697, and one with the United Provinces, in 1784, did not contain any provision with regard to enemy's goods on board neutral ships ; but all the other treaties of peace contained a provision to the effect, that the ships of one contracting! party, being a neutral, should make free the goods of the enemies of the other contracting party, being a belligerent. I have now made good my position, that, during the century and a quarter which preceded the wars of the French Revolution, the all but invariable rule of our friendly rela- tions, as established by ti-eaty with the great maritime powers of Western Europe, was, " free ships free goods." I think, therefore, that it would be difficult for this house, in the teeth of these facts, to agree to the resolution of the learned gentle- man, and to declare that it would be inconsistent with the maritime renown, the security, and honor of this country, to do the very thing which, for a century and a quarter, we generally did when we concluded a treaty of peace or commerce with France, Spain, the United Provinces, or Portugal. (Cheers.) The rule " free ships free goods," is invariably to be found in the treaties of peace and commerce which were concluded between the other great maritime powers dur- ing the century and a quarter which preceded the French Revolution. For instance, it is contained in the treaties between France and Spain, of 1659, 1668, 1678, 1721, 1761, 1768, which declared that the subjects of France and Spain should enjoy all the privileges and favors accorded, or to be accorded, to other nations by treaties, and especially by the Treaty of Utrecht, of 1713. These treaties continued in force till the wars of the French Revolution. And in 1814, by the second additional article of the Treaty of Paris, the commercial relations between France and Spain were reestablished on the footing on which they were in;i792. Therefore the Treaty of Utrecht, of 1713, forms at present the basis of the commercial relations between France and Spain ; and, consequently, Span- ish subjects are now entitled, by treaty with France as well as with England, to carry In their ships Russian merchandise without danger of confiscation. (Hear, hear.) In the treaties between France and the United Provinces, the rule, " free ships free goods," is contained in the treaties of 1662, 1678, 1697, 1713, 1739, and 1 785. In the treaties between Spain and the United Provinces, the rule, " free ships free goods," Is contained in the treaties of 1648, 1650, 1673, 1676, 1714, and continued In force till the wars of the French Revolution; In the treaties between Spain and Portugal, the rule, "free ships fi'ee goods," is contained In the II APPENDIX. 657 treaties of 1667, 1715, 1763, and 1778. The rule, "free ships free goods," was also contained in the Treaty of the Hague, of 1G61, between the United Pro- vinces and Portugal, and continued in force till the wars of the French Pvevolu- tion. I believe that I have now referred to every, or almost every, treaty of peace or commerce, which was concluded between the great maritime powers of Western Europe, from 1654 to 1793. These treaties contain fifty-seven bilateral engagements ; of these I can onl}- find three, namely, the treaty of peace of Breda, between France and England, in 1667; that of Riswick, between the same powers, in 1697 ; and the treaty of peace of Paris, in 1784, between Eng- land and the United Provinces, that did not contain the rule, " free ships free goods." Every one of the remaining bilateral engagements contained that rule, either expressly, or by expressly renewing and confirming treaties that contained it ; and many of these engagements declared, that the subjects of one contract- ing party, being a neutral, might carry on the coasting and colonial trade of the enemies of the other contracting party, being a belligerent. I have, therefore, shown, that for the century and a quarter before the wars of the French Revolu- tion, the all but invariable rule of amicable relations, as established by treaty between the great maritime powers of Western Europe, was, that " free ships should give freedom to goods." But it must be admitted that the theory of the great maritime powers, respecting the rights of neutrals on the ocean, as ex- pressed in their treaties of peace and commerce, was altogether at variance with their custom and usage, their practice and edicts, during war. The reason is obvious. During peace men's minds are frequently calm and collected, reason and justice have some influence over them, and the tendency of treaties of peace and commerce is to conform to what ought to be the rules of international law. (Hear.) But in war passion and hatred, and seeming necessity, and the fancied interest of the moment, are apt to determine the actions of combatants ; and powerful belligerents, relying on their might, oftentimes set at defiance the best established rules of war. (Hear.) If the maritime rights of neutrals during war were to be inferred from the custom and usages of the great maritime belli- gerents of Europe during the last two centuries, the inference must be, that neu- trals on the ocean have few or no special rights by which they can be distin- guished from the subjects of belligerents ; for during that period every one of the great maritime powers of the West has repeatedly treated neutrals as subjects, applied to them (as I have already said) all the provisions of the Roman law with regard to trading with enemies, has confiscated not only enemy's goods on board neutral ships, but confiscated neutral ships for containing enemy's goods, and pro- hibited all neutral commerce with enemies. To show hoAv impossible it would be to deduce the maritime rights of neutrals from the custom and usage of maritime belligerents, I will mention a few instances of the flagrant violation of neutral rights by the great maritime powers within the last two centuries. In 1652, the United Provinces threatened to treat as an enemy any foreigner who should carry any merchandise to England, and to punish him with the confiscation both of his ship and merchandise. In 1689, the United Provinces and England concluded a convention, by which they declared a blockade of all the ports of France, and prohibited neutrals from trading with France, under the penalty of the confiscation both of their ships and goods. In 1543, 1548, 1681, and 1692, France issued edicts, by which the ships of neutrals were to be confiscated for 658 APPENDIX. containing enemy's goods. The French edict of 1 704 contained not only the well-known rule, " que la robe ennemie confisque celle d'un ami," but also declared that merchandise of the growth or manufacture of the enemies of France, to whomsoever belonging, should be confiscated, whenever found on board the ships of neutrals. The latter rule, but without the former one, was repeated in the edict of 1744, and continued in force till 1778, when a French edict established, that " free ships should make free goods," and that rule, I believe, at present forms part of the maritime law of France. The conduct of Spain towards neutrals, during war, has been the same as that of France. The Spanish regulations of 1702 and 1718, are said to have been founded upon the French edicts of 1681 and 1704, by which, as I have already said, neutral ships ■were confiscated for containing enemy's goods, and merchandise of the growth or manufacture of an enemy, to whomsoever belonging, was confiscated on board neutral ships. These regulations were repealed by the Spanish edict of 1779, which adopted the rule, " that free ships should make free goods." Nor has this country, in periods of war, shown greater respect than our neighbors for the rights of neutrals. By means of fictitious blockades we have repeatedly claimed the right of stopping the trade of neutrals with our enemies. For instance, in 1689, as I have already said, in company with Holland, we declared a blockade of all the coasts of France, without sending a single ship to enforce the blockade ; and we prohibited neutrals from trading with France, under the penalty of the confiscation both of their ships and their goods. This was the famous "cannon" law, as our third AVilliam called it; for it had no other sanction, human or divine, save the force of a bullet. In 1756, we prohibited the Dutch from trading with the colonies of France ; and laid clown the famous rule of war in that year, in virtue of which we claimed a right of prohibiting all neutral trade with the colo- nies, and on the coasts of our enemy. This rule was much contested by the United States of America, and other powei's ; and was a fruitful source of con- tention between them and us. Again, in 1793, we concluded treaties with Spain, Prussia, Russia, and the Emperor of Germany, for the purpose of forbidding neu- trals to trade with France. Lastly, in the war that followed the peace of Amiens, the combatants retaliated the blows which they aimed at each other, by striking neutrals, and vied in disre^ardins neutral rights. Accordin terminate the contest with his late colo- nies, is the preservation of his insular possessions in the West Indies, which still constitute a part of the Spanish monarchy. Cuba and Porto Rico, occupying, as they do, a most Important geographical position, have been viewed by the neigh- boring States of Mexico and Colombia as military and naval arsenals, which would at all times furnish Spain with the means of threatening their commerce, and even of endangering their political existence. Looking with a jealous eye upon these last remnants of Spanish power in America, these two States had once united their forces ; and their arm, raised to strike a blow which, if success- ful, would forever have extinguished Spanish influence in that quarter of the globe, was arrested chiefly by the timely interposition of this government, which, in a friendly spli'lt towards Spain, and for the Interests of general commerce, thus assisted In preserving to his Catholic Majesty these Invaluable portions of his colonial possessions. " It had been intimated, at one time, that the armed interference of France in the affairs of that country would extend over her insular possessions, and that a military occupation of Cuba was to take place, for the alleged purpose of pro- tecting it against foreign invasion or Internal revolutionary movements. A suni- lar design was Imputed to the government of Great Britain ; and it was stated that, in both cases, a continuance of the occupation of the island was to constitute, 57* 678 APPENDIX. in the hands of either of those powers, a guarantee for the payment of heavy indemnities claimed by France, on the one hand, to cover the expenses of her armies of occupation ; and by Great Britain, on the other, to compensate her subjects for spoliations alleged to have been committed upon their commerce. The arrangements entered into by Spain with those two powers, by means of treaties of a recent date, and providing for the payment of those indemnities, although removing the pretext upon which the occupation of Cuba would have been justified, are not believed entirely to obviate the possibility of its eventually being efl^ected. The government of the United States considers as a much stronger pledge of its continuance under the dominion of Spain the considerable military and naval armaments which have recently been added to the ordinary means of defence in that island, and which are supposed fully adequate for its protection against any attempt on the part of foreign powers, and for the suppres- sion of any insurrectionary movement on that of its inhabitants. Notwith- standing these apparent securities for the maintenance of the Spanish authority in the island of Cuba, as it is not impossible that Spain, in her present embar- rassed and dependent situation, might be induced to yield her assent to a tempo- rary occupation of it, as a pledge for the fulfilment of her engagements, or to part with her right of property in it for other considerations, affording immediate relief in the hour of her distress, it is the wish of the President that the same watchful- ness which had engaged the attention of your predecessors in relation to this sub- ject, should be continued during your administration of the affairs of the legation of the United States at Madrid, and that you should take special care to keep this department informed of every occurrence whose tendency, direct or indirect, might, in your judgment, bring about any change in the present condition of the island of Cuba. " Your predecessors, who had been repeatedly instructed to that effect, have availed themselves of every fit opportunity to make the wishes and policy of the United States, with regard to the Spanish islands, fully known to the government of his Catholic IVIajesty, whom you will find already possessed of every informa- tion Avhich you will have it in your power to communicate upon this head ; but it is not improbable that the same inquisitiveness which has hitherto been mani- fested on the part of that government, in relation to it, may again be evinced by the Spanish ministers, who, aff'ecting to construe the avowed anxiousness of the United States into a determination not to suffer the possession of Cuba to pass into the hands of other powers, have inquired how far this government would go in sustaining that determination. Should similar inquiries be made of you by the Ministers of his Catholic Majesty, you are authorized to say that the long-esta- blished and well-known pohcy of the United States, which forbids their entan- gling themselves in the concerns of other nations, and which permits their physical force to be used only for the defence of their political rights and the protection of the persons and property of their citizens, equally forbids their public agents to enter into positive engagements, the performance of which would require the employment of means which the people have retained in their own hands : but that this government has every reason to believe that the same influence which once averted the blow ready to fall upon the Spanish islands would again be found effectual on the recurrence of similar events ; and that the high prepon- derance in American affairs of the United States as a great naval power, the I II APPENDIX. 679 influence which they must at all times command as a great commercial nation, in all questions involving the interests of the general commerce of this hemisphere, would render their consent an essential preliminary to the execution of any pro- ject calculated so vitally to afiect the general concerns of all the nations in any degree engaged in the commerce of America." In consequence of a report that a proposition for a loan had been made by Spain, connected with a guarantee of Cuba and Porto Rico by England and France, Mr. Stevenson, Minister at London, writes, June 16, 1837, that he had asked an interview of Lord Palmerston. In his statement of the conference he says : — " Under such circumstances, I felt justified In saying frankly to his lordship, that it was impossible that the United States could acquiesce in the transfer of Cuba from the dominion of Spain to any of the (jreat maritime powers of Europe ; that of the right of the United States to interfere, in relation to these islands, I presumed there could be little doubt ; that whilst the general rule of interna- tional law, which forbids the interference of one State in the affairs of another, was freely admitted, there were yet exceptions to the rule, in relation to the laws of defence and self-preservtion, which all nations acknowledged, and that the pre- sent was precisely such a case ; that in this view, and with a sincere desire to guard against possible difficulties, I deemed it proper to say what I had, and hoped his lordship would receive it in the spirit in which it was offered." Mr. Forsyth, Secretary of State under President Van Buren, gave, July 15, 1840, the following instructions to Mr. Vail, Charge d' Affaires at Madrid : — " Should you have reason to suspect any design on the part of Spain to trans- fer voluntarily her title to the island, whether of ownership or possession, and whether permanent or temporary, to Great Britain or any other power, you will distinctly state that the United States will prevent It all hazards, as they will any foreign military occupation, for any pretext whatsoever. And you are author- ized to assure the Spanish government, that in case of any attempt, from what- ever quarter, to wrest from her this portion of her territory, she may securely depend upon the military and naval resources of the United States to aid her in preserving or recovering it. It is believed that the means of preventing such an attempt, or of disconcerting all designs that may lead to it, He within the reach of the Spanish government ; the readiest which occurs to us is, to deprive Eng- land of all real motive, and even of the remotest pretence, for interference on her part in the affairs of Cuba, by a scrupulous performance of all the obligations Spain may have contracted towards her, either of a pecuniary character, or as connected with the existing agreements between the two nations in relation to the slave-trade. No proper opportunity of which you can avail yourself, without incurring the risk of being thought officious, should be allowed to escape you, to let the Spanish government be fully informed of the views we entertain with regard to the island, as set forth in these instructions, and in the others on file in the legation. And you will hold yourself in readiness, should the occasion arise, formally to protest, in the name of your government, against any act, whether of Spain herself or of any other power, likely to lead to a transfer of her territorial right to the island of Cuba, or to the military occupation of it by the ibrces of any other nation." Mr. Webster, Secretary of State under President Tyler, in a despatch to the 680 APPENDIX. Consul at Havana, dated January 14, 1843, and a copy of whicli was transmitted to Mr. Irving, Minister at Madrid, says : — " The Spanish government has long been in possession of the policy and wishes of this government in regard to Cuba, which have never changed, and has been repeatedly told that the United States never would permit the occupation of that island by British agents or forces, upon any pretext whatsoever ; and that, in the event of any attempt to wrest it from her, she might securely rely upon the whole naval and military resources of this country, to aid her in preserving or recover- ing it." Mr. Upshur, his successor, thus instructs Mr. Irving, on the 9th of January, 1844: — " The delicate nature of our relations with Spain in regard to the island of Cuba, taken in connection with the supposed designs of another power upon that territory, renders it necessary that this government should exercise a sleepless vigilance, in watching over the rights of Spain in that quarter, in a matter that so nearly concerns her own interests and security. You will, therefore, lose no time in endeavoring to ascertain the present views and feelings of the Spanish govern- ment upon this important point, and communicate to your own all the informa- tion you can obtain in regard to it. It is necessary that Spain should be duly impressed with the importance of such a crisis as late events have led this govern- ment to apprehend as altogether probable and near at hand, and it is still more necessary that this government should be prepared to act, with a perfect under- standing of the whole subject, with reference to its own safety and interests. In the event that Spain shall so far yield to the pressure upon her, as to concede to Great Britain any control over Cuba, the fact will necessarily have an important influence over the policy of this government. It is difficult to give you any posi- tive instructions upon this subject; and you are, therefore, left to your own discre- tion, as to what you shall say and to whom. It may be advisable to confer confi- dentially with some of the friends of the Chevalier D'Argaiz, who are represented to have influence, and to whom, therefore, it may be politic to impart the feelings and wishes of this government on the occasion. My only object is to obtain full and accurate information in regard to every movement which England may make with reference to Cuba, whether designed to obtain a transfer of that island to herself, or to obtain a control over the policy of Spain in regard to it, or to affect the institution of African slavery now existing there. The modes in which you may acquire this information are submitted to your discretion." In the administration of President Polk, the following instructions were given by the Secretary of State, Mr. Buchanan, dated June 17, 1848, to Mr. Saunders, Minister at Madrid : — " By direction of the President, I now call your attention to the present condi- tion and future prospects of Cuba. The fate of this island must ever be deeply interesting to the people of the United States. We are content that it shall con- tinue to be a colony of Spain. Whilst in her possession, we have nothing to apprehend. Besides, we are bound to her by the ties of ancient friendship, and we sincerely desire to render these perpetual. " But we can never consent that this island shall become a colony of any other European power. In the possession of Great Britain, or any strong naval power, it might prove ruinous both to our domestic and foreign commerce, and even APPENDIX. 681 endanger the union of the States. The highest and first daty of every independ- ent nation is to provide for its own safety ; and, acting upon this principle, we should be compelled to resist the acquisition of Cuba by any powerful maritime State, with all the means which Providence has placed at our command. " Cuba is almost within sight of the coast of Florida, situated between that State and the peninsula of Yucatan, and possessing the deep, capacious, and impreg- nably fortified harbor of the Havana. If this island were under the dominion of Great Britain, she could command both the inlets to the Gulf of ^lexico. She would thus be enabled, in time of war, effectively to blockade the mouth of the Mississippi, and to deprive all the western States of this Union, as well as those within the Gulf, teeming as they are with an industrious and enterprising popu- lation, of a foreign market for their immense productions. But this is not the worst. She could also destroy the commerce by sea between our ports on the Gulf and our Atlantic ports, a commerce of nearly as great a value as the whole of our foreign trade. Is there any reason to believe that Great Britain desires to acquire the island of Cuba ? We know that it has been her uniform policy, throughout her past history, to seize upon every valuable commercial point throughout the world, whenever circumstances have placed this in her power. And what point so valuable as the island of Cuba ? " The United States are the chief commercial rival of Great Britain ; our ton- nage, at the present moment, is nearly equal to hers ; and it will be greater within a brief period, if nothing should occur to arrest our progress. Of what vast importance would it, then, be to her to obtain the possession of an island, from which she could at any time destroy a very large portion both of our foreign and coasting trade ? Besides she well knows that if Cuba were in our possession, her West India Islands would be rendered comparatively valueless. From the extent and fertility of this island, and from the energy and industry of our people, we should soon be able to supply the markets of the world with trop- ical productions, at a cheaper rate than these could be raised in any of her possessions. " But let me present another view of the subject. If Cuba were annexed to the United States, we should not only be relieved from the apprehensions which we can never cease to feel for our own safety and the security of our commerce, whilst it shall remain in its present condition, but human foresight cannot antici- pate the beneficial consequences which would result to every portion of our Union. " This can never become a local question. With suitable fortifications at the Tortugas, and in possession of the strongly fortified harbor of Havana as a naval station on the opposite coast of Cuba, we could command the outlet of the Gulf of Mexico, between the peninsula of Florida and that island. This would afford ample security both to the foreign and coasting trade of the western and southern States, which seek a market for their surplus productions through the ports on the Gulf " Under the government of the United States, Cuba would become the richest and most fertile island, of the same extent, throughout the world. . . « " Mr. McGregor states the aggregate population of Cuba, in the year 1841, to have been only 1,007,624 ; but, from the data which have just been presented, it may fairly be inferred that the island is capable of sustaining in comfort a popu- 682 APPENDIX. lation of ten millions of inhabitants. Were Cuba a portion of the United States, it would be difficult to estimate the amount of bread-stuffs, rice, cotton, and other agricultural as well as manufacturing and mechanical productions ; of lumber, of the produce of our fisheries, and of other articles which would find a market in that island, in exchange for their coffee, sugar, tobacco, and other productions. This would go on increasing with the increase of its population and the develop- ment of its resources, and all portions of the Union would be benefited by the trade. " Desirable, however, as the possession of this island may be to the United States, we would not acquire it except by the free will of Spain. Any acquisi- tion, not sanctioned by justice and honor, would be too dearly purchased. While such is the determination of the President, it is supposed that the present rela- tions between Cuba and Spain might incline the Spanish government to cede the island to the United States, upon the payment of a fair and full consideration. We have received information from various sources, both official and unofficial, that among the Creoles of Cuba there has long existed a deep-rooted hostility to Spanish dominion. The revolutions which are rapidly succeeding each other throughout the world have inspired the Cubans with an ardent and irrepressible desire to achieve their independence. Indeed we are informed, by the Consul of the United States at the Havana, that ' there appears every probability that the island will soon be in a state of civil war.' He also states, that ' efforts are now being made to raise money for that purpose in the United States, and there will be attempts to induce a few of the volunteer regiments now in Mexico to obtain their discharge and join in the revolution.' " I need scarcely inform you that the government of the United States has had no agency whatever in exciting the spirit of disaffection among the Cubans. Very far from it. A short time after we received this information from our Consul, I addressed a despatch to him, of which I transmit you a copy, dated on the 9th instant, from which you will perceive that I have warned him to keep a watchful guard both upon his words and actions, so as to avoid even the least suspicion that he had encouraged the Cubans to rise in insurrection against the Spanish government. I stated also that the relations between Spain and the United States had long been of the most friendly character, and both honor and duty required that we should take no part in the struggle which he seemed to think was impending. I informed him that it would certainly become the duty of this government to use all proper means to prevent any of our volunteer regi- ments now in Mexico from violating the neutrality of the country, by joining in the proposed civil war of the Cubans against Spain. Since the date of my despatch to him, this duty has been performed. The Secretary of War, by com- mand of the President, on the day following, (June 10,) addressed an order to our commanding-general in Mexico, and also to the officer having charge of the embarkation of our troops at Vera Cruz, (of which I transmit you a copy,) directing each of them to use all proper measures to counteract any such plan, if one should be on foot, and instructing them ' to give orders that the transports ■on which the troops may embark proceed directly to the United States, and in no event to touch at any place in Cuba.' The Consul, in his despatch to me, also stated that, if the revolution is attempted and succeeds, immediatiatc application would be made to the United States for annexation ; but he did not seem to APPENDIX. 683 think that it would be successful, and, probably, would not be undertaken with- out the aid of American troops. To this portion of the despatch I replied knowing the ardent desire of the Cubans to be annexed to our Union that I thought it would not be ' difficult to predict that an unsuccessful rising would delay, if it should not defeat, the annexation of the island to the United States,' and I assured him that the aid of our volunteer troops could not be obtained. " Thus you will perceive with what scrupulous fidelity we have perforaied the duties of neutrality and friendship towards Spain. It is our anxious hope that a rising may not be attempted in Cuba ; but if this should unfortunately occur, the government of the United States will have performed their whole duty towards a friendly power. " Should the government of Spain feel disposed to part with the island of Cuba, the question, What should we offer for it ? would then arise. " Upon the whole, the President would not hesitate to stipulate for the payment of , in convenient instalments, for a cession of the island of Cuba, if it could not be procured for a less sum. " The apprehensions which existed for many years after the origin of this government, that the extension of our federal system would endanger the Union, seem to have passed away. Experience has proved that this system of confe- derated republics, under which the federal government has charge of interests common to the whole, whilst local governments watch over the concerns of the respective States, is capable of almost indefinite extension, with increasing strength. This, however, is always subject to the qualification, that the mass of the population must be of our own race, or must have been educated in the school of civil and religious liberty. With this qualification, the more we increase the number of confederated States, the greater will be the strength and security of the Union ; because the more dependent for their mutual inter- ests will the several parts be upon the whole, and the whole upon the several parts. It is true that, of the 418,291 white inhabitants which Cuba contained in 1841, a very large proportion is of the Spanish race ; still, many of our citizens have settled on the island, and some of them are large holders of property. Under our government it would speedily be Americanized, as Louisiana has been. Within the boundaries of such a federal system alone can a trade exempt from duties and absolutely free be enjoyed. With the possession of Cuba, we should have throughout the Union a free trade on a more extended scale than any which the world has ever witnessed, arousing an energy and activity of competition, which would result in a most rapid improvement in all that contri- butes to the welfare and happiness of the human race. What State would forego the advantages of this vast free trade with all her sisters, and place herself in lonely isolation ? But the acquisition of Cuba would greatly strengthen our bond of union. Its possession would secure to all the States within the valley of the Mississippi and Gulf of Mexico free access to the ocean ; but this security could only be preserved whilst the ship-building and navigating States of the Atlantic shall furnish a navy sufficient to keep open the outlets from the Gulf to the ocean. Cuba, justly appreciating the advantages of annexation, is now ready to rush into our arms. Once admitted, she would be entirely dependent for her prosperity, and even existence, upon her connection with the Union, whilst the 684 APPENDIX. rapidly increasing trade between her and the other States would shed its blessings and its benefits over the whole. Such a state of mutual dependence, resulting from the very nature of things, the world has never witnessed. This is what will insure the perpetuity of our Union. " With all these considerations in view, the President believes that the crisis has arrived when an effort should be made to purchase the island of Cuba from Spain, and he has determined to intrust you with the performance of this most delicate and important duty. The attempt should be made, in the first instance, in a confidential conversation with the Spanish Minister for Foreign Affairs ; a written offer might produce an absolute refusal in writing, which would embar- rass us hereafter in the acquisition of the island. Besides, from the incessant changes in the Spanish cabinet and policy, our desire to make the purchase might thus be made known in an official form to foreign governments, and arouse their jealousy and active opposition. Indeed, even if the present cabinet should think favorably of the proposition, they might be greatly embarrassed by having it placed on record ; for, in that event, it would almost certainly, through some channel, reach the opposition, and become the subject of discussion in the Cortes. Such delicate negotiations, at least in their incipient stages, ought always to be conducted in confidential conversation, and with the utmost secresy and despatch. " At your interview with the Minister for Foi'eign Affairs, you might introduce the subject by referring to the present distracted condition of Cuba, and the danger which exists that the population will make an attempt to accomplish a revolution. This must be well known to the Spanish government. In order to convince him of the good faith and friendship towards Spain with which this government has acted, you might read to him the first part of my despatch to General Campbell, and the oi-der issued b}^ the Secretary of "War to the com- manding genei'al in Mexico, and to the officer having charge of the embarkation of our troops at Vera Cruz. You may then touch delicately upon the danger that Spain may lose Cuba by a revolution in the island, or that it may be wrested from her by Great Britain, should a rupture take place between the two coun- tries, arising out of the dismissal of Sir Henry Bulwer, and be retained to pay the Spanish debt due to the British bond-holders. You might assure him that, whilst this government is entirely satisfied that Cuba shall remain under the dominion of Spain, we should in any event resist its acquisition by any other nation. And, finally, you might inform him that, under all these circumstances, the President had arrived at the conclusion that Spain might be willing to transfer the island to the United States for a fair and full consideration. You might cite as a precedent the cession of Louisiana to this country by Napoleon, under some- what similar circumstances, when he was at the zenith of his power and glory. I have merely presented these topics in their natural order, and you can fill up the outline from the information communicated in this despatch, as well as from your own knowledge of the subject. Should the Minister for Foreign Affairs lend a favorable ear to your proposition, then the question of the consideration to be paid would arise, and you have been furnished with information in this despatch which will enable you to discuss that question. In justice to Mr. Calde- ron I ought here to observe, that whilst giving me the information before stated, in regard to the net amount of revenue from Cuba which reached Old Spain, he APPENDIX. 685 had not then, and has not now, the most remote idea of our intention to make an attempt to purchase the island. " The President would be willing to stipulate for the payment of one hundred millions of dollars. This, however, is the maximum price ; and if Spain should be willing to sell, you will use your best efforts to purchase it at a rate as much below that sum as practicable. In case you should be able to conclude a treaty, you may adopt, as your model, so far as the same may be applicable, the two con- ventions of April 30, 1803, between France and the United States, for the sale and purchase of Louisiana. The seventh and eighth articles of the first of these conventions ought, if possible, to be omitted ; still, if this should be indis- pensable to the accomplishment of the object, articles similar to them may be retained. " I transmit you a full power to conclude such a treaty." Cong. Doc. ut supra. The notes which passed between the American Secretary of State and the British and French Ministers, in relation to a tripartite treaty with regard to Cuba, the original proposition for which was made in 1851, as well as Secretary Marcy's despatch to Mr. Buchanan, at London, on the subject, have been in- serted elsewhere. In the summer of 1854 a conference was held, by the !Minis- ters of the United States accredited at Madrid, London and Paris, with a view to consult on the negotiations which it might be advisable to carry on, simulta- neously, at those several courts, for the satisfactory adjustment with Spain of the affairs connected with that island. The result of the deliberations of these Ministers is given in the following joint despatch, dated October 18, 1854, and addressed to the Secretary of State : — " Aix-La-Chapelle, October 18, 1854. " Sir — The undersigned. In compliance with the wish expressed by the Pre- sident, in the several confidential despatches you have addressed to us, respect- ively, to that effect, have met in conference, first at Ostend, in Belgium, on the 9th, 10th, and 11th instant, and then at Aix-la-Chapelle, in Prussia, on the days next following, up to the date hereof. " There has been a full and unreserved interchange of views and sentiments between us, which we are most happy to inform you has resulted in a cordial coin- cidence of opinion on the grave and important subjects submitted to our consider- ation. " We have arrived at the conclusion, and are thoroughly convinced, that an immediate and earnest effort ought to be made by the government of the United States, to purchase Cuba from Spain, at any price for which it can be obtained, not exceeding the sum of $ . " The proposal should, in our opinion, be made in such a manner as to be pre- sented throuf^h the necessary diplomatic forms, to the Supreme Constituent Cortes about to assemble. On this momentous question, in which the people both of Spain and the United States are so deeply interested, all our proceedings ought to be open, frank, and public. They should be of such a character as to challenge the approbation of the world. " We firmly believe that, in the progress of human events, the time has arrived •when the vital interests of Spain are as seriously involved in the sale, as those of 58 686 APPENDIX. the United States in the purchase of the island, and that the transaction ■will prove equally honorable to both nations. " Under these circumstances we cannot anticipate a failure, unless, possibly, through the malign influence of foreign powers, who possess no right whatever to interfere in the matter. " We proceed to state some of the reasons which have brought us to this con- clusion, and, for the sake of cleai'ness, we shall speciiy them under two distinct heads : " 1. The United States ought, if practicable, to purchase Cuba with as little delay as possible. " 2. The probability is great that the government and Cortes of Spain will prove willing to sell it, because this would essentially promote the highest and best interests of the Spanish people. " Then, 1. It must be clear to every reflecting mind that, from the peculiarity of its geographical position and the considerations attendant on it, Cuba is as necessary to the North American Republic as any of its present members, and that it belongs naturally to that great family of States of which the Union is the providential nursery. ^ " From its locality it commands the mouth of the Mississippi, and the immense and annually Increasing trade which must seek this avenue to the ocean. " On the numerous navigable streams, measuring an aggregate course of some thirty thousand miles, which disembogue themselves through this magnificent river into the Gulf of Mexico, the increase of the population, within the last ten years, amounts to more than that of the entire Union at the time Louisiana was annexed to it. " The natural and main outlet to the j^roducts of this entire population, the highway of their direct intercourse with the Atlantic and the Pacific States, can never be secure, but must ever be endangered, whilst Cuba is a dependency of a distant power, in whose possession it has proved to be a source of constant annoy- ance and embarrassment to their interests. " Indeed the Union can never enjoy repose, nor possess reliable security, as lonf" as Cuba is not embraced within its boundaries. " Its Immediate acquisition by our government is of paramount importance, and we cannot doubt but that it is a consummation devoutly wished for by its inhab- itants. " The intercourse, which its proximity to our coasts begets and encourages between them and the citizens of the United States, has, in the progress of time, so united their interests and blended their fortunes, that they now look upon each other as if they were one people and had but one destiny. " Considerations exist, which render delay in the acquisition of this island exceedingly dangerous to the United States. " The system of immigration and labor lately organized within its limits, and the tyranny and oppression which characterize its immediate rulers, threaten an insurrection at every moment, which may result in direful consequences to the American people. " Cuba has thus become to us an unceasing danger, and a permanent cause of anxiety and alarm. APPENDIX. 687 " But we need not enlarge on these topics. It can scarcely be apprehended that foreign powers, in \'iolation of international law, would interpose their influ- ence with Spain, to prevent our acquisition of the island. Its inhabitants are now suffering under the worst of all possible governments, that of absolute despotism, delegated by a distant power to irresponsible agents, who are changed at short intervals, and who are tempted to improve the brief opportunity thus afforded to accumulate fortunes by the basest means. " As long as this system shall endure, humanity may in vain demand the sup- pression of the African slave-trade in the island. This is rendered impossible, whilst that infamous traffic remains an irresistible temptation and a source of immense profit to needy and avaricious officials, who, to attain their ends, scruple not to trample the most sacred principles under foot. " The Spanish government at home may be well disposed, but experience has proved that it cannot control these remote depositaries of its power. " Besides, the commercial nations of the world cannot fail to perceive and appreciate the great advantages which would result to their people from a disso- lution of the forced and unnatural connection between Spain and Cuba, and the annexation of the latter to the United States. The trade of England and France with Cuba would, in that event, assume at once an important and profitable character, and rapidly extend with the increasing population and prosperity of the island. " 2. But if the United States and every commercial nation would be benefited by this transfer, the interests of Spain would also be greatly and essentially pro- moted. " She cannot but see what such a sum of money as we are willing to pay for the island would effect, in the development of her vast natural resources. " Two thirds of this sum, if employed in the construction of a system of rail- roads, would ultimately prove a source of greater wealth to the Spanish people, than that opened to their vision by Cortez. Their prosperity would date from the ratification of the treaty of cession. " France has already constructed continuous lines of railways from Havre, Marseilles, Valenciennes, and Strasbourg, via Paris, to the Spanish frontier, and anxiously awaits the day when Spain shall find herself in a condition to extend these roads through her northern provinces, to Madrid, Seville, Cadiz, Malaga, and the frontiers of Portugal. " This object once accomplished, Spain would become a centre of attraction for the travelling world, and secure a permanent and profitable market for her various productions. Her fields, under the stimulus given to industry by remu- nerating prices, would teem with cereal grain, and her vineyards would bring forth a vastly increased quantity of choice wines. Spain would speedily become what a bountiful Providence intended she should be, one of the first nations of continental Europe — rich, powerful, and contented. " Whilst two thirds of the price of the island would be ample for the comple- tion of her most important public improvements, she might, with the remaining forty millions, satisfy the demands now pressing so heavily upon her credit, and create a sinking fund which would gradually relieve her from the overwhelming debt now paralyzing her energies. " Such is her present wretched financial condition, that her best bonds are sold 688 APPENDIX. upon her own Bourse, at about one third of their par value ; whilst another class, on which she pays no interest, have but a nominal value, and are quoted at about one sixth of the amount for which they were issued. Besides, these latter are held principally by British creditors, who may, from day to day, obtain the effect- ive interposition of their own government for the purpose of coercing payment. Intimations to that effect have been already thrown out from high quarters ; and unless some new source of revenue shall enable Spain to provide for such exigen- cies, it is not improbable that they may be realized. " Should Spain reject the present golden opportunity for developing her resources, and removing her financial embarrassments, it may never again return. " Cuba, in its palmiest days, never yielded her exchequer, after deducting the expenses of its government, a clear annual income of more than a million and a half of dollars. These expenses have increased to such a degree as to leave a deficit, chargeable on the treasury of Spain, to the amount of six hundred thou- sand dollars. " In a pecuniary point of view, therefore, the island is an incumbrance, instead of a source of profit, to the mother country. " Under no probable circumstances can Cuba ever yield to Spain one per cent, on the large amount which the United States are willing to pay for its acquisition. But Spain is in imminent danger of losing Cuba without remune- ration. " Extreme oppression, it is now universally admitted, justifies any people in endeavoring to relieve themselves from the yoke of their oppressors. The suffer- ings which the corrupt, arbitrary, and unrelenting local administration neces- sarily entails upon the inhabitants of Cuba, cannot fail to stimulate and keep alive that spirit of resistance and revolution against Spain which has of late years been so often manifested. In this condition of affairs, it is vain to expect that the sympathies of the people of the United States will not be warmly enlisted in favor of their oppressed neighbors. " We know that the President is justly inflexible in his determination to exe- cute the neutrality laws ; but should the Cubans themselves rise in revolt against the oppression Avhich they suffer, no human power could prevent citizens of the United States, and liberal-minded men of other countries, from rushing to their assistance. Besides, the present is an age of adventure, in which restless and daring spirits abound in every portion of the world. " It is not improbable, therefore, that Cuba may be wrested from Spain by a successful revolution ; and, in that event, she will lose both the island and the price which we are now willing to pay for it — a price far beyond what was ever paid by one people to another for any province. " It may also be remarked, that the settlement of this vexed question, by the cession of Cuba to the United States, would forever prevent the dangerous com- plications between nations to which it may otherwise give birth. " It is certain that, should the Cubans themselves organize an insurrection against the Spanish government, and should other independent nations come to the aid of Spain in the contest, no human power could, in our opinion, prevent the people and government of the United States from taking part in such a civil war, in support of their neighbors and friends. " But if Spain, dead to the voice of her own interest, and actuated by stubborn APPENDIX. 689 pride and a ftilse sense of honor, should refuse to sell Cuba to the United States, then the question will arise, What ought to be the course of the American govern- ment under such circumstances ? " Self-preservation is the first law of nature, with States as well as with indivi- duals. All nations have, at different periods, acted upon this maxim. Although it has been made the pretext for committing flagrant injustice, as in the partition of Poland and other similar cases which history records, yet the principle itself, though often abused, has always been recognized. " The United States have never acquired a foot of territory except by fair purchase, or, as in the case of Texas, upon the free and voluntary application of the people of that independent State, who desired to blend their destinies with our own. " Even our acquisitions from Mexico are no exception to this rule ; because, , although we might have claimed them by the right of conquest in a just war, yet we purchased them for what was then considered by both parties a full and ample equivalent. " Our past history forbids that we should acquire the island of Cuba with- out the consent of Spain, unless justified by the great law of self-preservation. We must, in any event, preserve our own conscious rectitude and our own self- respect. " Whilst pursuing this course, we can afford to disregard the censures of the world, to which we have been so often and so unjustly exposed. " After we shall have offered Spain a price for Cuba far beyond its present value, and this shall have been refused, it will then be time to consider the ques- tion, does Cuba, in the possession of Spain, seriously endanger our internal peace, and the existence of our cherished Union ? " Should this question be answered in the affirmative, then, by every law, human and divine, we shall be justified in wresting it from Spain, if we possess the power ; and this upon the very same principle that would justify an individual in tearing down the burning house of his neighbor, if there were no other means of preventing the flames from destroying his own home. " Under such circumstances, we ought neither to count the cost nor regard the odds which Spain might enlist against us. We forbear to enter into the question, whether the present condition of the island Avould justify such a mea- sure ? We should, however, be recreant to our duty, be unworthy of our gallant forefathers, and commit base treason against our posterity, should we permit Cuba to be Africanized, and become a second St. Domingo, with all its attendant horrors to the white race, and suffer the flames to extend to our own neighbor- in"- shores, seriously to endanger or actually to consume the ftiir fabric ol our Union. " We fear that the course and current of events are rapidly tending towards such a catastrophe. We, however, hope for the best, though we ought certainly to be prepared for the worst. " We also forbear to investigate the present condition of the questions at issue between the United States and Spain. A long series of injuries to our people have been committed in Cuba, by Spanish oflicials, and are unredressed. But recently a most flagrant outrage on the rights of American citizens and on the flag of the United States, was perpetrated in the harbor of Havana, under circumstances 58* 690 APPENDIX. which, without immediate redress, would have justified a resort to measures of war, in vindication of national honor. That outrage is not only unatoned, but the Spanish government has deliberately sanctioned the acts of its subordinates, and assumed the responsibility attaching to them. " Nothing could more impressively teach us the danger to which those peaceful relations it has ever been the policy of the United States to cherish with foreign nations, are constantly exposed, than the circumstances of that case. Situated as Spain and the United States are, the latter have forborne to resort to extreme measures. " But this course cannot, with due regard to their own dignity as an inde- pendent nation, continue ; and our recommendations, now submitted, are dic- tated by the firm belief that the cession of Cuba to the United States, with stipulations as beneficial to Spain as those suggested, is the only effective mode of settling all past differences, and of securing the two countries against future collisions. " We have already witnessed the happy results for both countries, which fol- lowed a similar arrangement in regard to Florida. " Yours, very respectfully, " James Buchanan. " J. Y. Mason. *' Pierre Soule. " Hon. William L. Marcy, Secretary of State." Mr. Marcy thus refers to the above paper, in a despatch to Mr. Soult^, dated November 13, 1854 : — "The communication of the 18th ultimo, embodying the views of yourself, Mr. Buchanan, and Mr. Mason, upon our embarrassing relations with Spain, has been received and submitted to the President. He has given to that document the deliberate consideration, due alike to the importance of the subject therein discussed, and to the experience, wisdom, and ability of those Avhose opinions and su^nrestions it contains. When he first entered upon the duties of his pre- sent station, he found our intercourse with Spain much disturbed by the conduct of the Spanish authorities at Cuba. It has been his anxious desire, and the object of his strenuous efforts, to preserve peace and restore cordial good-will between that country and the United States. The source of our past difficulties with Spain, and of our apprehensions of future danger, is clearly disclosed in the report of yourself and associates. The measure therein presented — the purchase of Cuba — is probably the only one which would, with certainty, place the rela- tions of the two countries on the sure basis of enduring friendship. " While the island of Cuba remains a dependency of Spain, and the character of her rule over it is not changed, (and a change for the better can hardly be anticipated,) annoyances to our trade, and difficulties between our citizens and the local authorities, will be of frequent occurrence ; and it is scarcely reasona- ble to expect that a peace thus rendered precarious will remain long unbroken. Conceiving that the transfer of Cuba to the United States, on the honorable conditions you have been instructed to offer, would be as important to her as to them, it was hoped that you would find her Catholic Majesty's govern- ment disposed to receive and discuss a proposition for that purpose. The President desires you to keep this important object of your mission in view, APPENDIX. 691 and to enter upon negotiations in relation to it, whenever a favorable opportunity occurs. " It is no longer, I believe, a secret in Spain, that the United States wish to obtain the cession, and that you have authority to treat on the subject. The knowledge of these facts will be likely to elicit opinions in regard to that meas- ure, not only from the Ministers of her Catholic Majesty's government, but from other influential individuals of the nation. The Cortes will soon assemble, and that subject will undoubtedly be discussed by the members of that body in their social circles, if it does not become a subject of public deliberation. By a free and friendly intercourse among official and influential men, you will be enabled to determine the proper course to be pursued, in regard to opening a negotiation for the acquisition of Cuba. " Should you find persons of position or influence disposed to converse on the subject, the considerations in favor of a cession are so many and so strong, that those who can be brought to listen would very likely become converts to the measure. But should you have reason to believe that the men in power are averse to entertaining such a proposition — that the offer of it Avould be offensive to the national pride of Spain, and that it would find no favor in any considerable class of the people — then it will be but too evident that the time for opening, or attempting to open, such a negotiation, has not arrived. It appears to the Presi- dent that nothing could be gained, and something might be lost, by an attempt to push on a negotiation against such a general resistance. This view of the case is taken on the supposition, that you shall become convinced that a proposition for the cession of Cuba would certainly be rejected. " The language of some part of the report might, perhaps, be so construed as to sustain the inference that you and your associates in the conference were of opinion that the proposition should be made, though there should be no chance of its being entertained, and that it should be accompanied with the open declara- tion or a significant suggestion that the United States were determined to have the island, and would obtain it by other means, if their present advances, so advantageous to Spain, be refused by her; but other parts of the report repel this inference. The remark in that document, that if Spain should refuse these proposals of the United States, then ' the question will arise. What ought to be the course of the American government under such circumstances ? ' clearly shows that it was not intended by yourself and colleagues to recommend to the President to offer to Spain the alternative of cession or seizure. The conclusion that the members of the conference were against such an alternative proposition, is also drawn from the following passage : — ' After we shall have offered Spain a price for Cuba far beyond its present value, and this shall have been refused, it will then be time to consider the question, Does Cuba, in the possession of Spain, seriously endanger our internal peace, and the existence of our cherished Union ? ' The President concurs in this view of the subject. But to conclude that, on the rejection of a proposition to cede, seizure should ensue, would l^e to assume that self-preservation necessitates the acquisition of Cuba by the United States ; that Spain has refused, and will persist in refusing, our reclamations for injuries and wrongs inflicted, and that she will make no arrangement for our future security against the recurrence of similar injuries and wrongs. " As to the first consideration, I will only remark, that the acquisition of Cuba 692 APPENDIX. by the United States -would be preeminently ad%'antageous in itself, and of the highest importance as a precautionary measure of security. However much we miifht rearet the want of success in our efforts to obtain the cession of it, that • ° . . . . . failure would not, without a material change in the condition of the island, m- volve imminent peril to the existence of our government. But should the contin- gency sugfrested in your report ever arise, there is no reason to doubt that the case will be promptly met by the deliberate judgment and decisive action of the American people. " In relation to outrages and injuries, this government have good grounds to complain of the course hitherto pursued by Spain ; and, should that course be persisted in, it would be justified in resorting to coercive means to obtain redress; but the aspect of this branch of the subject has, however, lately some- what changed. The present cabinet of Spain has indicated a more favorable disposition, in regard to demands for satisfaction and indemnity, than that which preceded it. ....••••••• • " Should the government of Spain recede from the grounds taken in Mr. Cal- deron's note to you of the 7th of May last, disapprove of the conduct of her authorities at Havana in the case of the Black Warrior, disavow their acts, show in an ajjpropriate manner its displeasure towards them on that account, and offer full indemnity for the losses and injuries which our citizens sustained in that affair, you will entertain these propositions, and signify the willingness of your government to adjust the case on such terms. In that event, you will be furnished with proper instructions to bring it to a close " It is not expected that Spain will stop at the adjustment of the case of the Black Warrior. Our citizens have many other claims, originating from the con- duct of her officials at Cuba, which, in justice and honor, she is also bound to adjust. These must be pressed upon the attention of her government, and they will also be prepared for presentation as soon as they can be, after it is known that Spain is willing to adjust them. " If the cession of the island of Cuba has to be hopelessly abandoned for the present, another very important matter will come up for consideration. The United States have asked, and will most pertinaciously insist upon, some security against the future misconduct of the Spanish authorities at Cuba. Looking to the past, the reasonableness of this demand must be acknowledged by Spain. A compliance with it is but an act of justice to the United States, and of prudent precaution to herself. " Giving Spain credit for the sincerity of her repeated and solemn assurances of an intention in all times past to respect the rights of this government and the. interests of our citizens, the failure of all her efforts to effect this object must convince her that there is some inherent defect in her present system of govern- in(^ Cuba, and that its continuance will unavoidably lead to new difficulties. " If Spain persists in maintaining her despotic administration over this dcpen- dencv, situated so far beyond her immediate supervision, by vesting in her Cap- tain-General powers which have been so often abused, it is incumbent upon her to provide for a direct appeal, by the injured citizens of friendly powers, to him, for redress. " There is no local public opinion to exercise a restraining influence over him, in cases where foreigners are concerned, and no freedom of the press to expose APPENDIX. 693 and animadvert upon his misconduct. In regard to such foreigners, the present arrangement imposes no adequate responsibility upon this officer; and just causes of complaint will continually arise, as they have heretofore arisen, until some change is made in the present system. If the feelings of Spain towards this country are such as she professes, if she desires to perpetuate the relations of peace with the United States, she will yield to our just demands on this subject. " Direct diplomatic Intercourse, by an agent of the United States with the Cap- tain-General of Cuba, for the mere purpose of presenting grievances, will not meet the exigency of the case. The Captain-General must be under an efficient responsibility to redress the wrongs to our citizens committed by his subordinates, when brought to his notice. •' I have indicated what ought to be accomplished by such arrangement. Should there be no hope of opening a negotiation for the acquisition of Cuba, you will then present to the government of Spain the importance of some arrange- ment for future security, in regard to our trade and intercourse with Cuba, and state to her the objects to be secured by it. If she professes a willingness to make such an arrangement, a plan in detail will be forwarded to you, for the purpose of being laid before her government. " In resuming negotiations with Spain, you will, in a firm but respectful man- ner, impress upon her Ministry that it is the determination of the President to have all the matters in controversy between her and the United States speedily adjusted. He is desirous to have it done by negotiation, and would exceedingly regret that a failure to reach the end he has in view, in this peaceful way, should devolve upon him the duty of recommending a resort to coercive measures, to vindicate our national rights and redress the wrongs of our citizens." Coiig. Doc. 33 Cong. 2d Sess. H. R. No. 93, p. 127-132, 134, 135, 138, 139. Page 122, Note a, (Continued.) [In Cuba a distinction is made, by the order of the King of Spain, of October 21, 1817, professedly issued for the purpose of increasing the white population of the island, between domiciliation and naturalization. In the case of tlie former, wreat privileges are accorded ; but the domiciled foreigner is not considered as expatriated, unless he takes out letters of naturalization ; and during the first five years he is at liberty to return to his own country, and to take away from the island all the moneys or property he took there, without paying export duties, but on the increase of his property he must pay the per centum. The third section of the ordinance is as follows : — " After the foreign settlers have been residino- five years on the island, and after binding themselves to remain there perpetually, they shall be granted all the rights and privileges of naturalization, and the same to the children that they may have taken there with them, or that may be born on the island ; that they be admitted to all public and military employments, according to the talent or capacity of each." Cong. Doc. H. R. 33 Cong. 1st Sess. No. 86, p. 117.] Page 301 a. [A question arose between the United States and France, as to the immunities 694 APPENDIX. of a Minister passing through the territories of a third power, in the case of Mr. Soule, Minister of the United States at Madrid, -who vras stopped at Calais, in October, 1854, on his return to his post, from which he had been temporarily absent. The views of the French government are given, in a note from the Minister of Foreign Affairs to the American Minister in Paris, with regard to the privilege of transit, which was not denied, as well as respecting the position, in relation to that country, which the Envoy to Spain held, he being a native-born subject of France, and a naturalized citizen of the United States. While Mr. Soule's quality of foreigner, deduced from his expatriation, is recognized as to all other matters, and no exception is taken to his title to the Spanish mission, Mr. Drouyn de Lhuys refers to the rule of the law of nations, which, he assumes, would have required a special agreement to have enabled him to represent, in his native land, the country of his adoption. " Yous voyez, Monsieur, que le gouvernement de I'Empereur n'a pas voulu, comme vous semblez le croire, empecher un envoy6 des Etats-Unis de travei'ser le territoire Fran, 116 ; controls in the case of real property, 116. Lex domicillii, 119 ; Christians In Mohammedan countries governed as to contracts by the law of the domicile, and not by the lex loci, 313, a; how far applica- ble to successions ah intestato of personal property, 19G. I INDEX. 715 Lex loci contractus, how far operative, 140. Lex fori, 140; statute of limitations of, to govern, 202, a. Lhiiys, Drouyn de, note respecting rights of a minister in passing through a country, to which he is not accredited, 694, a. Licenses, to trade with an enemy, 475 ; authority to grant, 4 70 ; durin"- the wars of the French Revolution, xx., xxi. Liverpool's, Lord, Discourse on the conduct of Great Britain, in respect to neutral nations, 349, 351, 510. Livingston, Mr., negotiator of Louisiana Treaty, clxii. ; discussions with the French government, respecting the claims provided for by the convention of 1803, 613, a. Livy, 473, 474. Loccenius, de Jure Maritimo, 438, 443, 504. London Gazette, 90, a, 561, a. London Times, clxiv., clxxviii., 390, a. Louisiana Annual Reports, 314. Ludewig. Notice of Wheaton's Works, cxlix. M. Mably, I'Abbe, Principes des Negotiations, 356. Mackintosh, Sir James, xxxvii., Ixxix., 356. Madison, Mr. Letters to Mr. Wheaton, Ivi., Iviii. ; examination of the British doc- trine, which subjects to capture a neutral trade not open in time of peace 22, 23, 25, 575. MaJion, Lord. History of England from the Peace of Utrecht, 330. Manning's Commentaries on the Law of Nations, Ixxiv., cl., 371, o, 418, a, 592 a 605, «, xxi. Mann, Mr., agent to Hungary, 37, a ; negotiator of treaty with Hanover, 244 a. Mansfield, Lord, judgments of, 24, 479, Marhois's History of Louisiana, 617, o, clxii. Marcy, Secretary, to Chevalier Hulsemann respecting Koszta, 122, n\ instruc- tions respecting the Sound duties, 244, a; reciprocity trade Avith British Ame- rican provinces and the St. Lawrence, 266, a ; fisheries, 240, a; correspond- ence with Mr. Buchanan respecting privateering, 436, a ; with Mr. Crampton and Count Sartiges, 435, a ; with the same on neutral rights, 539, a ; in- struction to Mr. Seymour, Minister at St. Petersburg, respecting the same, 542, a; treaty with Russia, 543, a; with the Two Sicilies and Mexico, clxxxl. ; instructions to Mr. Buchanan as to Cuba, cl.xxiil. ; to Mr. Soul6, clxxv., 690, a. Marriages celebrated in foreign countries, 141, a; French law regarding, 142; English law, 141 ; by consuls In foreign countries, 305, a ; in the countries of Christendom, 308, a; in countries not Christian, 312, a; of Christians in Mohammedan and Pagan countries governed by the law of domicile, and not by the lex loci, 313, a. Marshall, Chief Justice, judgments of, 369, 379, 409; letter to Mr. Wheaton, llv, Marshall, Pinckney, and Gerry, to Talleyrand, 517, Marshall, on Insurance, 24. Martens, G. F. de. Recueil de Traites, 49, a, 87, 551, 632, a, xxi; Nouveau 716 INDEX. Recueil, 46, 47, 50, 80, 241, 257, 380, 418, a, 428, 469, 484, 485, 486, 603 ; Precis du Droit des Gens moderne de I'Europe, 32, 47, 47, a, 50, 170, 183, 210, 211, 248, 250, 274, 278, 279, 280, »81, 284, 286, 287, 300, 304, 305, 306, o, 315, 316, 324, 325, 332, 344, 362, 420, 421, 470, 588, 615 ; Essaioon- cernant les Armateurs, les Prises, &c., 326, 362, 439, 592, a. Martens, Ch. de. Manuel Diplomatique, 276, 278, 280, 282, 283, 285, 300, 307, a, 315, 316; Causes Celebres du Droit des Gens, 302; Nouvelles Causes Cclebres du Droit des Gens, 34. Mason, Mr., Minister to France. Joint despatch respecting Cuba, 685, a. Massachusetts Reports, 177. Masse. Droit Commercial, 307, a, 371, a. Maule and Sehvyn's Reports, 307, a, 381. Mayer. Corpus Juris Confedjerationis Germanicae, 107, 118, 255. Mediation, of foreign State for the settlement of internal dissentlons in other States, 106 ; ditference between treaties of, and of guaranty, 106 ; between a mediator and an arbitrator, 106, o. ; treaty concluded under, 355. Mensch. Manuel Pratique du Consul, 174, a. Merlin. Repertoire de Jurisprudence, 81, 120, 207, 274, 275, 276, 285, 287, 300, 303,311,0,620. Moreuil. Manuel des Agents Consulaires, 17,4, a. Merry, Mr. Letter to Secretary Madison, 581. Mexico. Treaty Avith United States respecting neutral rights, clxxxi. Military persons, transportation of, in the enemy's service, 562. Miltitz. Manuel des Consuls, 166. Minister, public. Double character as to his own State, and as respects his diplo- matic mission, 280, a. See further. Legation. Mississippi, navigation of, 257. Mitchell, Mr. Speech in House of Commons, on neutral rights, 646, a. Mittcrmeycr. Das Deutsche Strafverfahren, 176. Molesicorlh, Sir W., speech of, on neutral rights, 647, a. Moldavia. Semi-sovereign State, 45 ; relations to the Porte, 48; to Russia, 48, a; character of the Charge d' Affaires of, at Constantinople, 274, a. Monaco. Semi-sovereign State, 45. 3/o/iroe, President. Message, 1823, 98; Secretary, correspondence with Admi- ral Cochrane, 424 ; and Pinckney, treaty negotiated by, with Lords Auckland and Holland, xxii., 165, a ; one of the negotiators of the Louisiana treaty^ clxii. Molloy, De Jure Maritimo, 51. Montesquieu. AVhether there is a universal law of nations, 17 ; Esprit des Lois, 17,367. Moreuil. Agents Consulaires, 307, a, 312, a. Mosquito Indians, their relation to Nicaragua, 55, o; proposed agreement between United States and Great Britain respecting, 55, a. Murhard. Nouvcau Recueil General, 327. N. National Advocate, xxv. National Intelligencer, xxiv. INDEX. 717 Nationality. Whether every person authorized to change his, when he attains to majority according to the law of his domicile of origin, 122, a, 632, a- accompanied by domicile, independent of citizenship, 122, o, 136, a; case of Thrasher, 123, a; case of Koszta, 126, a; for commercial purposes, 122; original allegiance continues till change of, 112; produce of enemy's territory hostile, so long as it belongs to the owner of the soil, whatever his nationality or domicile, 409 ; effect of, of ship on the cargo, 508, a ; of Franks, how regarded in the countries of the East, 21, a, 312, a. Naturalization, 122 ; law of England, 122, a, 629, a ; In the colonies, 630, a ; of the United States, 625, a ; of France, 630, a ; of Austria, 632, a ; of Bavaria, 632, a; of Wurtemburg, 632, a; of Prussia, 632, a; of the Netherlands, 632, a; of Russia, 632, a; In Cuba, 693, a; collective, by annexation of ter- riory, 627, a, 630, a ; opinions of Fcellx, Pothler, and Heffter, as to collective, 631, a; loss of, by recession of territory, 632, «; effect of a voluntary return of naturalized citizen to the country of his original allegiance, 136, o, 138, a. Navigation, laws of, 175 ; of the Black Sea, Bosphorus, and Dardanelles, 239 ; of the Rhine, 255 ; of the Mississippi, 257 ; of the St. Lawrence, 261 ; of the rivers of South America, 267, a. Negotiation, right of, 280 ; faculty of contracting by treaty, how far limited or modified, 317. Netherlands, kingdom of. In 1815, example of incorporation of two States into one, 33; revolution of, in 1830, case of division of a State Into two sepa- rate ones, 33. Neutrality, definition of, 480; perfect, 481 ; imperfect, 482 ; of the Swiss Confed- eracy, 482 ; of Belgium, 486 ; of Cracow, 487 ; modified by a limited alliance with one of the belligerent parties, 489; qualified, arising from antecedent treaty stipulations, 490 ; Impartial, In what It consists In case of a war be- tween mother country and colony, cxxxlv. ; American and English acts respecting, 500. Neutral territory, hostilities within, 491 ; passage through, 491 ; captures within, 492, 493, a ; claim for violation of, to be sanctioned by neutral State, 494 ; restitution of captures, within, 494 ; extent of, along coasts, &c., 496 ; arm- ing and equipping vessels and enlisting men in, unlawful, 499 ; how far immunity of, extends to vessels on the high seas, 503. Neutral vessels under enemy's convoy, 594 ; Mr. Wheaton's argument, 594 ; Danish reply, 603, a. ; views of publicists, 605, a ; usage of nations sub- ject to capture enemy's property In, 504 ; conventional law on that subject, 508 ; neutral character reverts on leaving enemy's country, at the com- mencement of a war, 407, a. Neutral rights, whether enemy's property In neutral vessels Is liable to capture, 504 ; ordinances of States subjecting neutral vessels laden with enemy goods to confiscation, 505 ; confiscating goods of a friend on board enemy ships, 505 ; free ships free goods, and enemy ships enemy goods, not neces- sarily connected, 507 ; conventional law as to free ships free goods, 508 ; armed neutrality of 1780 for the protection of, 511; armed neutrality of 1800, 513 ; discussions between the United States and Prussia respecting, 517 ; rules adopted by England as to, in the absence of treaties, 534, a ; her treaty 718 INDEX. stipulations, 535, n. ; Frencli ordinances respecting, 536, a. ; disregard of, by England and France, during -wars of French Revolution, 536, a ; provisions respecting, in treaties by the United States, 537, a; neutral carrying his goods in an armed enemy's vessel, 593 ; debate on, in House of Commons, 543, a, 643, a ; how modified in the present war by the belligerents, 534, « ; French and English declarations on, 537, a; correspondence between Secre- tary Marcy and British and French Ministers, with regard to, 539, a ; treaties of the United States -with various powei-s respecting, 537, o; with Russia, 539, a ; with Mexico and the Two Sicilies, clxxxi. Niles's Register, 419, a. Kolt and M'Cord's Reports, 307, a. O. Ordinances, of particular States, how far sources of international law, 23. Ortolan. Diplomatic de la Mer, Ixxiv., cli., 156, 179, 187, a, 216, 234, 248, 326, a, 537, a, 563, a, 586, a, 587, a, 592, a, 593, a, 606, a. P. Pailliet. Manuel de Droit Fran(jois, xvi., 630, a. Park, on Insurance, 141. Paolo Sarpi. Del Dominio del Mare Adriatico, 246. Pardessus. Droit Commercial, 122, 140, 166, 201, 203. Parker, Chief Justice, 177. Parliamentari/ Papers, 50, a, 226, a, 180, a, 226, a. Passage, right of, on rivers passing through different States, 253 ; through neutral territory, 491. Passports in. war, 475 ; to a minister, 282. Peace, treaty of, 607 ; power of making, dependent on municipal constitution, 607 ; power limited in its extent, 608; eflects of a treaty of, 610; uti possidetis, the basis of, unless the contrary be expressed, 612 ; from what time treaty of, commences its operation, 618; in what condition things taken are to be restored, 620; disputes respecting, how adjusted, 621 ; treaties revived and confirmed on renewal of, 343. Personal status. Whether laws relating to state and capacity of a person may operate extra-territorially, 121. Peru, negotiations with, as to the Amazon, 268, a; treaty with Brazil, 2G8, a. Peters' s Reports, 53, 78, a, 111, 307, a, Ixviii., 330, a, 615, a. Phillimore, J. Speech on neutral rights, 643, a. Phillimore, R., on international law, 632, a, 633, a, 313, a ; speech, 666, «. Pickering, Secretary, to Mr. J. Q. Adams, 518, 519. Pickering's Reports, 307, a. Pierce, President, message, on the Sound dues, 245, n ; as to the navigation of the South American rivers, 268, «; on the abolition of privateering, 437, a ; on neutral rights, 543, a ; veto on the French Spoliation Bill, 618, a. Pinheiro-Ferre'ira,. Notes to Martens's Precis du Droit, &c., 279 ; Droit Public, 306, a ; compte rendu by, of Wheaton's Histoire des Progres du Droit des Gens, &c., cxlvii. Pinkney, W., Life of, by Wheaton, 25, a, 331, a; opinions of, 395, 561. INDEX. 719 Piracy, \inder the law of nations, 184; distinction between, under the law of nations and by municipal statute, xli., 185 ; whether the slave-trade is to be regarded as, 186. Pirates, recaptures from, 432. Poglizza. Semi-sovereign State, 50. Poland and Russia, nature of the union between, 57; charter of Alexander, of 1815, 57 ; Manifesto of Nicholas, 1832, 58. Poison's Law of Nations, cli., 19, a, 313, a. Port, exemption from local jurisdiction of foreign ships of war, in, 149 ; articles of promiscuous use becoming contraband, when destined to, of naval equip- ment, 553 ; asylum in neutral, dependent on consent of neutral State, 498 ; property carried into neutral, 458. Portalis. Conclusions relatives a la Prise du Navire Americain, le Statira, 441. Porte, Ottoman, relations with the Barbary States, 52 ; with Moldavia, Wallachia, and Servia, 48, a. ; with the nations of Christendom, clxxix., 20, 1 9, n ; inter- vention of the great powers of Europe in the affairs of, clxxv., 21, a, 109 ; treaty of, with the United States as to American vessels entering the Black Sea, 241, a ; as to the jurisdiction of the minister and consuls, 172, a. Portugal, British intervention in the affairs of, 98 ; alliance between Great Bri- tain and, 351 ; law of, relative to reciprocity as to property of friendly nations recaptured from enemy, 448. Pothier. Procedure Civile, 201 ; Traite de la Propriety, 439, 449, 450, 451, 479. Poioer, judicial, of a State, its extent over criminal affairs, 174; over projierty within the territory, 196 ; over foreigners residing in the territory, 200. Powers, full, 318. Precedence among powers enjoying royal honors, 210. Prescription, title to property founded on, 218 ; claims to a portion of the sea on account of, 238 ; rule aiiplicable to a question of boundary between the States of the American Union, 218, a. Prisoners of war, exchange of, 417 ; selling and ransoming, 418, a. Privateers, 431 ; instructions of Secretary Adams to Mr. Rush respecting, 432, a ; Mr. Rush to Mr. Adams, communicating British refusal to treat on the subject of, 433, a ; treaties of the United States with various countries against their citizens serving in foreign, 432, a ; prohibition by neutral powers to engage in, 434, a; course of England and France, in the present war, as to, 435, a ; correspondence between Secretary Marcy and Mr. Buchanan respecting, 435, a ; President Pierce's message respecting, 436, a. Prize. Vessels of war under the Prize Act, 453 ; whether courts of, in captor's country are alone competent to condemn, 400 ; condemnation by Court of, in California during the war with INIexico, 456, a ; distinction between Courts of, and Municipal tribunals, 461 ; of one belligerent party admitted into neutral ports, whilst those of the other excluded, 490. Procedure, in rem. Distinction between the rules of decision and of procedure, as affecting cases in rem, 196. Properly, rights of private, how affected by a revolution, 42; sovereign right of every independent State over the, within its territory, 131 ; extent of judicial power over all, within the territory, 196 ; succession of personal, ah intestate, 196; treaty stipulations respecting, 119, 169, cxi. ; foreign will, how 720 INDEX. carried into effect in another country, 197; conclusiveness of foreign sen- tences, in rem, 197 ; transfer of, under foreign bankrupt law, 198; rights of, 217; national proprietary rights, 217; public and private, 217; eminent domain, 217; prescription, 218; by conquest and discovery, 218; enemy's, found in the territory at the commencement of the war, how far liable to confiscation, 366 ; how far enemy's, subject to capture and confiscation, 419 ; restitution, in 1815, of the works of art in the Louvre, 426 ; distinction between private, taken at sea and on land, 429 ; title to, captured in war, 432 ; title to real, how transferred in war, 469 ; jus postliminii, 469 ; captured, ransom of, 478. Proitdhon, Dcs Personnes, 306, a. Province or colony, asserting its independence, how considered, by other States, 34 ; recognition of its independence by other foreign States, 35. Provisions and naval stores when contraband, 551 ; British order respecting, 555. Prussia, interference of, in the Belgian revolution, 105 ; in the internal affairs of the Ottoman Empire, in 1840, 103; the position of, in the present war, clxxvi. ; discussions with the United States, cxiii., 287, 517. See Zollverein. Puffendorf, De Jure Nature et Gentium, 6, 31, 218, 253, 254, 260, 319 ; Ele- menta, 176. R. Ransom of captured property, 478. Ratification of treaties, 318 ; how far obligatory to give, when concluded under full power, 323 ; cases of Netherlands and France in withholding, 326, a ; distinction where the department of the government that gives the instruc- tions is not identical with the one that ratifies, 327, a. Rayneval. Institutions du Droit de la Nature et des Gens, 17 ; De la Libert6 de la Mer, 592, a. Recaptures and salvage, 437; from pirates, 438 ; of neutral property, 439; from an enemy, 443 ; rule of amicable retaliation or reciprocity, applied to the recapture of the property of allies, 444 ; laws of dilTerent countries as to, 447, 448, 449, 451, 452; treaty between England and Spain respecting, 452, a ; recapture by a non-commissioned vessel, 453. Reciprocal abolition of discriminating duties on navigation proposed by the United States, xcviii. Reddie. Researches Historical and Critical in Maritime International Law, 562, a; opinion of Wheaton on Captures, xxxii. ; of his other Works, cl. Reformation, wars of, 93. J?e%«ous worship, freedom of, to public minister, 304. Reprisals. Their effect, 362 ; persons resident in the enemy's country subject to 392 ; the unjust sentence of a foreign tribunal a ground for, 460. Republics, the great, entitled to royal honors, 210. Residence, species of, constituting domicile, 394. Resistance to search, by enemy master, 592. ' Retraite, Droit de, 118. Revue Etrangere et Fran^oise, Ixvi., Ixvii., Ixxxi., cxxv., cxxix., cxxxi., cxlviii., 55, a, 145, a, 156, a, 299, 494, a, 627, a. Rhine, navigation of, 255. INDEX. 721 Rhode Island. Boundary with M-assachusetts, 218, a; restrictions on the suffrage of naturalized citizens in, 628, a. Rights of States, absolute international, 85 ; conditional international, 85 ; of self- preservation, 85 ; of self-defence, modified by rights of other States of inter- vention or interference, 85, 87. Rivers forming part of the territory of the State, 252 ; right of innocent pas- sage on, flowing through different States, 253 ; incidental right to the use of the banks of, 253 ; rights to, imperfect in their nature, 254 ; modified by com- pact, 254 ; treaties of Vienna respecting, 254 ; navigation of the Rhine, 255 ; of the Mississippi, 257; of the St. Lawrence, 261, 266, a ; of South America 267, a. Rives, Mr. Webster's, Secretary, instructions to, as to recognition of the change in the French Constitution, 276, a. Robinson. Admiralty Reports, 7, 52, 135, a, 235, 300, 364, 385, 392, 396, 397, 399, 400, 408, 409, 411, 414, 417, 418,431,442,447,453,454,455,458, 460, 479, 492, 493,»495, 531, 533, 548, 552, 553, 564, 565, 566, 567, 568, 574, 577, 578, 579, 580, 582, 583, 584, 586, 590, 592, 618, 619. Romilly, Sir Samuel, Life of, 429. Rose's Cases in Bankruptcy, 139, 198. Rule of the war of 1756, xix., 572 ; obsolete, 575, a. Rush, Mr. Despatches on Impressment, 164, a, 237, a ; on the fisheries, 238, a; on private war on the ocean, 433, a ; on the navigation of the St. Lawrence, 266, a. Rush's Memoranda of a Residence at the Court of London, 238, a. Russell and Milne's Reports, 334. Russia and Poland. See Poland and Russia. Russia, interference of, in the internal affairs of the Ottoman Empire, 21, a, 48, a, 103, 241, cxlii., cxlv., clxxv. ; discussion as to the North-west coast of America with the United States, 221 ; with Great Britain, convention of 1825, 224 ; proposed as arbitrator under the North-eastern Boundary Con- vention between the United States and Great Britain, Ixxvii. ; treaty by, with the United States respecting neutral rights, clxxxi., 543, a. Rutherforth. Institutes of national law, 30, 159, 176, 217, 218, 274, 284, 286, 287, 319, 355, 364, 417, 419, 465, 504, 558. S. Saaljield. Handbuch des positiven Volkerrechts, 176. Si. Lawrence, free navigation of, 261; American and British papers on, 263; Rush's negotiations respecting, 266, a ; Gallatin's correspondence with Secretary Clay respecting, 266 ; Marcy's treaty for the navigation of, 266, (7. Sarpi, Paolo, del Dominio del Mare Adriatico, 234. Safe conduct, 475. Sala. Derecho real de Espana, 312, a. Sartiges, Comte de. Correspondence with the Secretary of State respecting Cuba, 88, a ; with Secretary Marcy respecting privateering, 435, a ; respecting neutral rights, 540. Savigny's opinion of international law, 20 ; system des heutigen Romischen Rechts, 20. 61 722 INDEX. Scherer. Der Sundzoll, seine Geschichte, sein jetziger Bestand und seine Staatsrechtlich-politische Lbsung, 244. Sdiimmelmann, Count. Correspondence with Mr. Wheaton, 469, a, 603, Ixxiii. ScMegel, H. W. Staats Recht des Konigreichs Diinemark, 216, 243 ; Examen de la Sentence prononcee par le tribunal d'Amiraute Anglaise, dans I'affaire du convoi Su6dois, 548; translation of, 591. Schlesioif/- Hoist ein, nature of the connection of the duchies of, with the crown of Denmark, 73, a. Schmaltz. Europaisches Volkerrecht, 176. Schmelzing. Systemat. Grundriss des praktischen Europaischen Yolkerrechts, 1 76. Schoell. Histoire des Traites de Paix, 484, 535, a. Scott, Sir W., (Lord Stowell.) Judgments, 24. Seas, controversy respecting the dominion of the, 245 ; how far the maritime territory of a State extends over the, 248. Search, right of, 587. See Visitation. Segur. Politique de tous les Cabinets de I'Europe, 356, Senior. Edinburgh Review, cxlviii., 5, 88, 332. Sentence, extra-territorial operation of a criminal, 181 ; conclusiveness of foreign, in rem, 197 ; unjust, of a foreign tribunal, ground for reprisals, 460. Sergeant and Rawle's Reports, 177, 307. Servia. Semi-sovereign State, 45, a ; relations to the Porte, 48, a ; to Russia, 50, a. Ships. The two maxims, free ships free goods, enemy ships enemy goods, not necessarily connected, 507. See further. Vessels and Goods. Sicilies, King of the Two. Treaty with the United States respecting neutral rights, clxxxi. Simons's Reports, 309, a, 314, a. Sirey. Recueil general de Jurisprudence, 158. Slave-trade. AVhether prohibited by law of nations, 186, xli. ; decision of English and American courts respecting, 188; treaties respecting, 186-7 ; claim of visitation and search founded thereon, 188 ; writings of General Cass and Mr. Wheaton respecting, 188, a. Slaves, taken into foreign port in an American vessel, against the consent of the master and owner not thereby liberated, cxxxi. Soule, Mr. Minister to Spain, joint note to Secretary Marcy, 685, a. ; prevented from stopping in France by the government, 694, a. Sovereignty defined, 29 ; internal, 29; external, 29 ; how acquired, 30; limited, 45. Sovereign princes, the subjects of international law, 28 ; international effect of a change in the person of, or in the internal constitution of a State, 36 ; foreign, his ambassador, army or fleet within the territory of another State, 143 ; exemption of the person of, from local jurisdiction, 146 ; no proceeding in France admissible against the property of, 152, a. Sound duties, cxvi., 244 ; Wheaton's despatches respecting, 245, a ; Buchanan's instructions, 244, a ; Marcy's, 244, a ; President Pierce's message respect- ing, 245, a. Sound, sovereignty of Denmark over, 242. Spain. War between, and her American colonies, 97; quadruple alliance of, INDEX. 723 of 1834, with England, France, and Portugal, 100 ; law of, in case of recap- ture of property of friendly nations, 448 ; treaty with the United States as to immunity of neutrals in time of war, 508, 538, r^; respecting subjects or citizens serving in enemy's privateers, 434, a. See Caha. Sparks. Diplomatic Correspondence, 431 ; letter to, from Mr. Wheaton on right of search, cxxv. Sponsions, 318. Stade duties, cxvii ; Wheaton's despatches respecting, 245, a ; Mann's treaty, 244, a. State, definition of, 27; terms "Sovereign" and " State" employed as synony- mous, 29 ; how far recognition of other States necessary, 30 ; identity of, how affected by internal revolution or external force, 31 ; parties to civil war, entitled to rights of war against each other, 32 ; conduct of other States towards the parties in civil war, 32 ; effect of incorporation of two States into one, or of the division of a State, 33 ; a colony or province separating from mother country, how considered by other foreign States, 34 ; its recognition by other States, 35 ; international effect of a change in person of a sovcrei'^n, 36 ; or treaties, 38 ; effect upon the public debts, 41 ; upon the public domain and the rights of private pi-operty, 42 ; of the responsibility of a new government for the torts or acts of the former government, 44 ; sovereign, defined, 45; equality of sovereign States, 45; semi-sovereign States, 45; tributary and vassal States, 51 ; Barbary States, their relations to the Otto- man Porte, 52 ; relation of the Indian tribes to the United States, 53, 54, a ; single or united States, 55 ; personal union of, under the same sovereign, 55 ; real union of, under the same sovereign, 56 ; Incorporate union, 56 ; uniqn between Russia and Poland, 57; federal union, 58; confederated, each retaining Its own sovereignty, 59 ; supreme federal government or compo- sitive State, 59 ; Germanic Confederation, 59 ; United States of America, 72 ; Swiss Confederation, 79 ; rights of sovereigns, with respect to one another, 85 ; power to recognize, belongs to the political department of the govern- ment, 35, a ; same rule applies to conflicting claims to the government of a State of the Union, in its recognition by the federal government, xl. ; Ame- rican rule as to the recognition of foreign, 35, a, 276, a ; independence of, as to its Internal government, 106 ; mediation of other foreign States for settle- ment of the internal dissensions of a, 106; independence of, in respect to the choice of rulers, 108 ; exceptions, 108 ; sovereign power over all the property In the territory of, 131; Independence of the judicial power of, 168 ; extent of, over criminal offences, 174^ over the property In Its territory, 196 ; over foreigners residing in the territory, 200 ; natural equality of", modi- fied by conventions, 45, 210. See Equality, Rights of. Steam-engines, whether contraband of war, 563, a. Steck, De. Essal sur les Consuls, 166. Steuerverein. See Zullcerein. Stewart's Vice- Admiralty Reports, 478. Stor7j. Conflict of Laws, 142, a ; 206, 306, a, 308, a ; on the Constitution, 78, a ; opinion of, of Wheaton on Captures, xxxil. ; of Wheaton's Reports, xllii. Slowell, Lord. See Scott, Sir William. Suarez, De Legibus et Deo Leglslatoi'e, 16. Subsidy. Distinction between general alliance and treaties of succor and, 34G. 724 INDEX. Siviss Confederation, 79 ; constitution compared with those of the United States and Germanic Confederation, 81 ; neutrality of, 482 ; new constitution of, 81, (I ; powers of the Confederation, 82, a ; two houses of the legislature and federal council, 82, a; federal tribunal of justice of the, 82, a. T. Talhot. Cases Temp. 307, a. Taunton's Reports, 307, a. Taylor, President. Message respecting Hungary, 36, a. Territory, title of, ceded, when it passes, 326, a ; right of every sovereign State to the property within its, 131 ; to the possession of its, 217 ; rivers form part of, 252 ; hostilities within the, of a neutral State, 491 ; passage through neu- tral, 491 ; captures within neutral, 492 ; award of, in the case of The General Armstrong, destroyed in neutral, 494 a ; arming and equipping vessels, and enhsting men within neutral, 503 ; inviolability of, 217, a. Texas, annexation and admission as a State, 33, a, 36, a, 78, a ; President Jack- son's views as to the admission, 36, a ; Mr. Webster's views as to, 36, a ; Mr. Everett's, 36, a ; President Tyler's message respecting, 41, a, 78, a ; how far the United States liable foi- its debt, 41, a ; effect of annexation on the citizenship of its inhabitants, 627, a.; sovereignty of, merged in that of the United States, 33, a. Text-icriters, how far sources of international law, 82. Thiers. Ilistoire du Consulat et de I'Empire, 483. Tltompson's Laws of War, 381, o. ^ Thorheck. Droits du Citoyen, 627, a. Titles of sovereign princes and States, 214. Toullier. Droit Civil Francois, 207, 311, a. Trade, Laws of, how far binding on citizens and foreigners, 175 ; with the enemy, unlawful on the part of subjects of the belligerent State, 381 ; how affected by orders in council and decrees in present war, 389, a ; decision of the American courts as to trading with the enemy, 385 ; with the common enemy, unlawful on tbe part of allied subjects, 390. Trihunah, International, how far sources of international law, 24. Troppau, Congress of, 95. Treaty, real, 36; personal, 36; form of, 317; faculty of contracting by, how limited and modified, 317; full power and ratification of, 319; power of making, dependent on the municipal constitution, 328 ; difference between English and American systems, 330; case of French indemnity, 331, a; auxiliary measures, how far necessary to the validity of, 329, 331, a; freedom of consent, how far necessary to the validity of, 331 ; perpetual in its nature, 332; in what case the operation of, ceases, 342; revival of, by peace, 343 ; of guaranty, 344 ; of alliance, 345 ; of general alliance and of limited succor, distinction between, 354 ; of peace, power of making limited, 608 ; effect on, of declaration at the time of exchange of ratifications, 328, a, 613, a; non-ratification of, signed by plenipotentiaries, 327, a ; hostages for the execution of, 354 ; interpretation of, 354 ; mediation in the case of, 355. Treaties, how far sources of international law, 22 ; distinction between, and car- tels, truces, capitulations, and sponsions, 318. INDEX. ' 725 Truces, 318, 470 ; rules for interpreting, 472. Trumbull's Reminiscences of his Own Times, exxvii., note. Turkey. See Porte, Ottoman. Tyler, President, messages respecting Texas, 41, a. 78, a ; respecting the Zoll- verein treaty, cii., civ. U. f/h?o;i, federal, 58. United States of America. See America. Statutes of, at Large, 42, a, 75, «, 1 64, a, 165, a, 171, a, 173, a, 233, a, 234, a, 241, a, 312, o, 313, a, 419, a, 537, a, 563, a, 567, a, 587, a, 613, a, xviii., xxxiv., xcvii. Upshur, Secretary, to Mr. Wheaton, cii. ; to Mr. Irving, concerning Cuba, 680, a. Uti possidetis, the basis of every treaty of peace, unless the contrary be expressed, 612. Utrecht, treaties of, respecting maritime rights, 511, 534 a. Valin. Commentaire sur I'Ordonnance de la Marine, 234, 383, 438, 439, 448, 459, 479, 498, 546, 547 ; Traite des Prises, 479, 493, 505, 506, 620. Van Buren, Secretary, instructions to Mr. Van Ness, Minister to Spain, respecting Cuba, 677, «. Vattel, system of, 11 ; Droit des Gens, 12, 13, 14, 27, 32, 40, 43, 45, 108, 150, 159, 176, 204, 218, 240, 247, 250, 253, 274, 278, 281, 282, 284, 286, 293, 300, 302, 304, 315, 318, 319, 321, 329, 332, 343, 344, 345, 346, 353, 354, 362, 363, 364, 366, 367, 369, 416, 419,420,421,430,431,470,471,472, 475, 492, 504, 544, 556, 608, 611, 615, 618, 621. Vera, Don Antonio de, Le Parfait Ambassadeur, 356. Verona, Congress of, 96. Vcsey, Reports, 35, 198, 379. Vessel, exemption of foreign, of war, entering the ports of any other nation under an express or implied permission, 149; whether distinction between tleet entering a foreign port, and troops passing through a foreign territory, as to implied permission, 149 ; what constitutes a " setting forth as a vessel of war" under the prize act, 453; distinction between public and private, 151, 503 ; law of France, as to the exemption of public or private, from the local jurisdiction, 154 ; exemption of, from local jurisdiction, does not justify acts of aggression, 156 ; nor extend to prize goods taken in violation of the neu- trality of the country into which they are brought, 158; jurisdiction of the State over its public and private, on the high seas, 158 ; claim of Great Britain to search, for deserters and persons whom she considered liable to mihtary service to her, 160; national character of, 413; sailing under enemy's license, 414; right of local authorities abroad to interfere as to the condition of persons and things on board a merchantman, 156. o; case of, entering a foreign port against the will of the master and in consequence of a crime on the high seas, cxxxi. ; right of neutral to carry his goods in an armed enemy vessel, 593. See Capture, Neidrality. Vienne, Acte final du Congres de, 60, 62, 67, 107, 213, 357 ; Reccz du Congres de, 277, 280, treaty of, respecting the great European rivers, 254. 726 INDEX. Visitation and search, right of, 587 ; of neutrals under convoy, 591 ; treaty stipu- lations respecting, 591, a ; forcible resistance by an enemy master, 592 ; right of a neutral to carry his goods in an armed enemy vessel, 593 ; whether neu- tral vessels under enemy's convoy liable to capture, 594 ; discussions with Denmark_respecting, Ixxi., 594, 603, a ; in time of peace, right of, cxx., 187, a ; opinion of Ortolan and Hautefeuille, 187, o; General Cass's letter to M. Guizot respecting, 187, a; Mr. Legar6 to Mr. Wheaton, cxxiii. ; pretext for impressment, 572, a. Voet, Be Statu, 1 76, 308, a. W. Waite's State Papers. See Amencan State Papers. Wallaclua. Semi-sovereign State, 45, a ; relations to the Porte, 48, a\ as to the character of her Charges d'Affaires at the Porte, 274, a. War, of 1756, the rule of the, 572 ; superseded by late orders in council, 575, a ; become inapplicable, 575, a. War, commencement of, and its immediate effects, 361 ; redress by forcible means between nations, short of actual, 361 ; reprisals, 362; embargo previous to declaration of, 363 ; right of making, in whom vested, 364, public or solemn, perfect or imperfect, 365; character of hostilities in 1798, by the United States against France, 365, 612, a; declaration of, how far necessary, 635; enemy's property found in the territory at the declaration of, how far liable to confiscation, 366 ; modern rule, 369; rule of reciprocity, 369 ; droits of admiralty, 370 ; ditference between the English and French text writers as to seizure of enemy's vessels in port, 370, a ; rule of the belligerents, in the present war, 371, a; as to enemy's property in neutral vessels, and neutral property in enemy's vessels, 373, a; distinction in the Russian ordinances between Turkey and England and France, 373, a ; Russian rule as to penalty for carrying contraband, 373, «, 573, a; effect of, in extinguishing prior claims for indemnity, 607, « ; debts due to enemy, 379 ; confiscation of Eng- lish debts by Denmark in retaliation, for droits of admiralty, 381, a; trading with enemy in, unlawful, 381; rule, how modified in present war, 381, a; contracts with enemy in, prohibited, 392 ; persons domiciled in enemy's country in, liable to reprisals, 392 ; see Domicile, Rights of, against enemy, 416 ; exchange of prisoners of, 417 ; persons exempt from hostility in, 419 ; enemy's property, how far subject to capture and confiscation in^419; dis- tinction between private property taken at sea and on land, 429; ravaging enemy's territory, when lawful, 420; contraband of, 535; what persons authorized to engage in hostilities against an enemy, 430; non-commis- sioned captors, 430 ; privateers, 431 ; proposition to abolish privateering in, 432, a i title to property captured in, 432 ; recaptures and salvages in, 437. Wars of the Reformation, 93; of the French Revolution, 94. Ward. History of the Law of Nations in Europe, 52, 214, 286. Washington Union, 240, a, cxv. Webster. Review of Whcaton's Reports, xliv. ; views as to the annexation of Texas, 36, a; correspondence with Hiilsemann, respecting Hungary, 37^0 ; as to the relations of a Charge d'Affaires to the government to which he is INDEX. 727 accredited, 280, o; instructions to Mr. Rives respecting the recognition of the French Empire, 276, a; with the English and French ministers respect- ing Cuba, 89, a ; on the claim of a native American doniioiicd in a foreign country to the protection of the United States, 123, a; to Lord Ashburton, on impressment, 164, a; to Mr. Thompson, ]\Iinister to Mexico, on the carrying of contraband by neutrals, 572, a Wendell's Reports, 307, a. Werther, Baron de, to Mr. Wheaton, on diplomatic privileges, 293. Wheaton. Notice of his life and diplomatic career, xiii.-clxviii.; Digest of the law of maritime captures, or prizes, xxxi., 389 ; Reports, 32, 117, 119, 139, 158, 159, 186, 196, 197, 207, 220, 307, a, 332, 389, 398, 415,431, 443, 459, 494,497, 498, 571, 574, 581, 584, 594,xxviii., xxxix., xli., xlii. ; Commercial and naval interests of the United States, xxxiii., clii. ; The Science of Public and International Law, liii. ; Address at the opening of the , New York Athenaeum, Ivi. ; Life of William Pinkney, 331, «, 395, Iviii., Ixviii. ; articles in the North American Review, xliv., Ivii., Ixiv. ; in the American Quarterly, Lxviii. ; in the Foreign Quarterly, Ixviii., cliv. ; in the Revue Etrangere et Frangoise, Ixvi., cxxix., cxxxi., cliii. ; History of the Northmen, Ixv. ; Scan- dinavia, Ancient and Modern, Ixvii. ; Legislation et Institutions Judlciaires de rislande, Ixvii. ; Address before the New York Law Institute, Lxxxi ; De la Question de Juridiction qui s'est presente6 devant les cours des Etats L'^nig dans I'affaire de Macleod, cxxix. ; Examen des Questions de Juridiction qui se sont elevees entre les Gouvernements Anglois et Americain, cxxxi. ; in- quiry into the validity of the British claim to a right of visitation and search of American vessels, suspected to be engaged in the African slave-trade, cxxi., 188 «; Elements of InternationalLaw, cxlv ; Histoire des Progrcs du Droit des Gens, cxlvi., 244, a; History of the Law of Nations, cxlvii., 8, 21, 32, 33, 51, 58, 65, 69, 71, 81, 94, 105, 111, 240, 242, 243, 252, 2o3, 254, 255, 284, 286, 302, 418, 431, 443, 458, 467, 484, 487, 504, 505, 511, 512, 514, 520, 577, 586, a, 591, 622 ; Memoire sur I'Histoire du Droit de la Succession a la Couronne de Danemark, 1%, a, clxiv. ; Essay on the Progress and Pros- pects of Germany, clxvi. ; despatches, 50, a, 138, o, 244, a, 326, a, 381, a, cxxv. ; letter to President J. Q. Adams, Ixxxiv. ; to Attorney-General But- ler, 331, a; correspondence with Count Schimmelmann, Ixxiii. 603 ; corres- pondence with Baron de Werther, 293 ; with Baron Bulow, 299, ci. ; Secre- tary Upshur, cii, ; letters to, from Secretary Calhoun, 75, a, cvii.; from Mr. Legar^, 297, cxxiii. ; from General Cass, cxxi.; letters to the National Insti- tute, cliv. Wicquefort, de I'Ambassadeur, 281, 282, 287, 301, 305. Wildman, on International Law, 593, a, 605, a. Will, foreign, how carried into effect in another country, 197. Wilson and Shaw's Reports, 121. Wiseman's Institutes, 313, «. TIW/, system of, 9 ; difference between Grotins and, 11; Jus Gentium, 10, 14, 260,416. Wurm, Die Ratification von Staatsvertragen, 323. Wynn. Life of Sir William Leoline Jenkins, 25. 728 INDEX. Zollverein. Commercial league between Prussia and other German States, Ixxxvi. ; its objects, 74, a ; treaty with the United States not ratified, cv. ; Calhoun's despatch respecting the convention with, 75, a, cvi.j union with the Steuerverein, cix., 74, a. Zouch. Juris et Judicii fecialis.sive juris inter gentes, 19. (^ 2 86 . 12 University of California SOUTHERN REGIONAL LIBRARY FACILITY 305 De Neve Drive - Parking Lot 17 • Box 951388 LOS ANGELES, CALIFORNIA 90095-1388 Return this material to the library from which it was borrowed. WW012W7 UNIVEK'-"'''^' "^' ''Al'lt*'^*^^ LOS i\NGiOLJfi3 LIBRARY L 007 115 801 8 UC SOUTHERN REGIONAL LIBRARY FACILITY " " III AA 001333148